Wednesday, December 26, 2007

Copyright's Path

Works of authorship originate in private, safely kept under common law protections. Once published, however, expressive works become data ferae naturae—wild and natural information. As such, expressive works roam and reproduce freely. They may get captured in fixed copies, caged in atoms or bits. But the public, once it has absorbed an expressive work, generally retains relatively cheap access to it—unless and until copyright intervenes.

Copyright law limits public access to expressive works, herding them off the commons and into private hands. The Copyright Act offers a sort of ranch to authors, giving them a place to birth, raise, and sell their expressive works safe from the deprivations of grasping strangers. Authors enjoy those special privileges against the public not as a natural right, but rather solely thanks to a policy authorized by the U.S. Constitution and implemented through the Copyright Act. [The figure below] illustrates the path that copyright, together with some of its legal next-of-kin, takes from its origins towards its goals.

The Paths of IP

Expressive works begin as toll goods, excludable but non-rivalrous in consumption. In other words, an author can at first keep others from consuming her expressions thanks merely to her common law tort, property, and contract rights. She can keep her works in private, under lock and key, releasing them only upon solemn promises of secrecy. Those with whom she shares her work can enjoy it without at all decreasing her enjoyment of the same work; she can sing her song or study her painting just as well if others listen to or gaze on their own copies. That marks her work, like other works of authorship, as non-rivalrous in consumption. It retains that characteristic if and when she publishes the work, but then loses its excludability. Unless she were to somehow form and enforce a contract with everyone who encounters her published work—an unlikely prospect—only through copyright law could she protect her work from unauthorized access. Copyright steers published works back into toll good territory, empowering authors to assess fees and impose other limits on those who would use their works.

The Copyright Act's privileges, because they restrict non-authors from freely copying a copyrighted work, defy natural and common law rights. That statutory negation of erstwhile public goods, however, arguably serves the public good. Though copyright restricts access to existing works of authorship, it encourages new ones.

[NB: The above text comes from chapter 1, § A of my draft book, Intellectual Privilege: Copyright, Common Law, and the Common Good. I will soon upload a PDF of the entire chapter, including footnotes. I welcome your comments.]

[Crossposted to Agoraphilia and The Technology Liberation Front.]

Tuesday, December 25, 2007

Discouraging Just Enough Infringement

While rightly shuddering at specter of copyism, we should also recognize that the unauthorized use of copyrighted works can, if it does not go so far as to undercut authors' incentives, increase social wealth. Consider, for instance, an impoverished entrepreneur relying on pirated software to start her business. Supposing that she could not afford to buy an authorized copy, and that her unauthorized use would not depress software production, her infringement would generate a welcome consumer surplus. The same would hold true of, say, someone who enjoys an infringing copy of a CD despite being unwilling to pay its retail price. As [the figure below] illustrates, those exceptions to the strict enforcement of copyright law could in theory benefit us all without discouraging the production and distribution of expressive works.

When Unauthorized Uses Increase Consumer Surplus

[The above figure] surely offers too sanguine a view of the effects of copyright infringement, however. Without the limitations imposed by copyright law, some consumers who would otherwise willingly pay for authorized uses might instead opt to save their money by joining the unpaying masses of unauthorized users. The resulting exodus, from respecting copyright to infringing it, would risk decreasing the revenues afforded by copyright, bringing about the policy tragedy portrayed [earlier].

How does copyright law dispel that, the specter of copyism? By imposing high marginal costs on infringing uses of protected works. Absent the Copyright Act, and especially in digital works, an infringer would generally face the same low marginal reproduction costs as a copyright holder. Thanks to the Copyright Act, an infringer might have to pay actual or statutory damages, lost profits, costs, and/or attorney's fees to a copyright holder for every unauthorized use.

How high should lawmakers set the marginal costs of infringement? We wouldn't want them to under-deter it, lest the specter of copyism become all too real. Nor would we want them to overdo it, given that a modest level of infringement can deliver social gains. Theory suggests that lawmakers should set the marginal costs of infringement, taking into account that only some infringing uses get caught and litigated, just high enough to ensure that authorized users will have no incentive to opt for paying less than enough to sustain authorship. [The figure below] illustrates.

Copyright Increases Marginal Costs of Unauthorized Uses

So, at least, goes copyright in theory. In practice, as discussed in chapter 4, lawmakers lack both the information and incentives to calibrate copyright policy so precisely. These economic models thus only explain how copyright law should work—not how it does work.

[NB: The above text comes from chapter 1, § C.3 of my draft book, Intellectual Privilege: Copyright, Common Law, and the Common Good. I will soon upload a PDF of the entire chapter, including footnotes. I welcome your comments.]

[Crossposted to Agoraphilia and The Technology Liberation Front.]

Monday, December 24, 2007

The Specter of Copyism

On the standard economic view of copyrights, as on the economic view of other monopolies, average revenue equals demand. Those two measures trace one and the same line. Why? Because for most products and services, consumption closely matches supply at the market-clearing price. Sales reveal consumer demand and, in the case of copyright and other supposed monopolies, only one seller reaps revenue from those sales. Thus, for instance, might a utility's sales show the aggregate consumer demand for electric power.

Even a so-called monopolist might face competition, however. The sole authorized seller of hard liquor might fail to capture the entire market of drinkers, for instance, losing some to the resale of stolen goods and others to moonshine. So, too, might an electrical utility suffer theft, competition from home-brewed power, and exit to gas appliances.

The caveats to "monopoly" prove especially strong in the case of copyright, which permits some unauthorized uses of protected works, such as fair uses, and fails to prevent many infringing uses. We might fairly say that the former category of uses, because copyright holders have no statutory power to bar them, do not really cut into the market share for a copyrighted work. Copyright holders cannot lose what never have, on that view. I here thus focus on infringing uses. Still, though, it bears noting that, whether due to permitted or forbidden uses, a copyright holder never commands all of the market for an expressive work.

That conflict between theory and facts shows why we should perhaps eschew speaking of "the copyright monopoly" and instead talk about copyright in terms of market power. Whether or not it hands out monopolies, after all, the Copyright Act does give a powerful subsidy to those it protects: the privilege of invoking State power to inhibit infringing uses of expressive works. The standard economic model of copyright usefully captures that effect, but somewhat exaggerates it. We can get a more accurate picture of copyright by splitting consumer demand from average revenue.

The consumption of an expressive work—and thus the revealed demand for it—may greatly exceed the supply legally permitted under copyright law. Effectively, some consumers treat copyrighted works like public goods, paying only very low marginal costs of reproduction. That payment typically comes not in cash but in the opportunity costs, in terms of time and effort, of copying. At all events, none of it goes to copyright holders, leaving them aggrieved and, sometimes, litigious. But copyright holders seldom find it worthwhile, or even possible, to fully defend their rights under the Act. Many infringing acts go undetected or for other reasons elude enforcement. [The figure below] illustrates that phenomenon, showing how in the case of a copyrighted work aggregate consumer demand might diverge from the copyright holder's average revenue.

Demand and Average Revenue for Copyrighted Expressions

Copyright holders understandably object when, due to infringement, they earn less revenue than the law entitles them to. But why should the rest of us care? Recall that copyright aims to cure a looming market failure: we will suffer an undersupply of expressive works if authors cannot recoup their production costs. Copyright aims to cure that failure by giving authors the privilege of controlling, and thus profiting from, certain uses of their works. Infringement threatens to upset that statutory mechanism, depriving authors and their transferees the revenues necessary to stimulate the production and distribution of expressive works.

We might call that threat, after Marx and Engels, "the specter of copyism." And, as the allusion to communism suggests, we should all worry that poverty will follow if production does not pay. In the case of copyright policy, in other words, we should worry that infringement will decrease copyright holders' revenues below the level necessary to sustain authorship. As [the figure below] illustrates, that threatens to deny the market new expressive works.

When Unauthorized Uses Discourage Authorship

[NB: The above text comes from chapter 1, § C.2 of my draft book, Intellectual Privilege: Copyright, Common Law, and the Common Good. I will soon upload a PDF of the entire chapter, including footnotes. I welcome your comments.]

[Crossposted to Agoraphilia and The Technology Liberation Front.]

Sunday, December 23, 2007

The Standard Economic Model of Copyright

Creating a work can cost authors a lot, whereas copying a work costs others very little. Absent copyright, then, authors might find it discouragingly difficult to recoup the costs of creating fixed expressive works. Authors might then underproduce expressive works, and the public consequently suffer.

To avoid that policy tragedy, the Copyright Act empowers authors to control the reuse of their fixed expressive works. By selling those special statutory privileges, authors can offset their production costs. Thus does copyright arguably do what the common law allegedly cannot: ensure that the public enjoys an adequate supply of expressive works.

The benefits of copyright policy come at a price, however. Although it may cost a great deal to make the first copy of a fixed expression, it usually costs very little to make and distribute subsequent copies. Absent copyright protection, those works would constitute public goods. Copyright bars the public from freely enjoying the very goods labeled "public." Instead, the Act vests copyright holders with the power to charge whatever the market will bear to escape liability for infringement. Though the monopoly rents that copyright holders thereby win allegedly provide a necessary stimulus to creativity, non-holders suffer the opportunity costs of losing cheap access to fixed expressive works. Most commentators thus understand copyright policy to aim at striking a balance between giving authors sufficient incentives to create expressive works and providing the public with adequate access to the works thereby created. [The figure below] illustrates that, the standard economic model of copyright policy.

Standard Economic Model of Copyright

As portrayed in [the above] figure [], an author incurs large costs upon creating a fixed work but very low marginal costs of production (MC) thereafter. The author's average costs of production (AC) thus drop with each additional copy she—or, more likely, the party to whom she sells her copyrighted work—produces. She faces the usual sort of downward-sloping aggregate demand curve (D), which also marks the average revenue (AR) she can make by selling any given number of copies. How many should copies should she sell? Were social efficiency the test, she would sell the quantity (Qe) corresponding to the point where her marginal cost curve crosses the demand curve, earning the corresponding price (Pe). But that would discourage her (and other would-be authors) from creating fixed expressive works, as it would not allow her to recover her average costs. For her to break even in the authorship business, she would need to sell at least the quantity (Qs) corresponding to the point where her average cost curve crosses the demand curve, thereby earning a sustaining price (Ps). Happily for her, though, the monopoly privilege afforded by copyright law allows her, at least in theory, to sell even fewer copies, and at a higher price (Pm). Specifically, she will want to sell a quantity (Qm) that corresponds to the point where her marginal revenue (MR) curve crosses her marginal cost curve. At higher quantities than that, her marginal costs would exceed her marginal revenues, giving her marginal losses. If our hypothetical author manages to sell at the monopoly quantity and price that maximizes her benefits, she will earn profits (OP) equal to the amount her revenue exceeds the amount necessary to recoup her average costs. In that event, consumers to whom she sells will enjoy a surplus (CS) representing the different between what they pay and how much they value her work. Non-holders unwilling to pay what she demands, however, will suffer opportunity costs (NO) equal to how much they would have paid for the uses barred by her assertion of copyright.

We could doubtless say more about that, the standard economic model of copyright, adding complications, quibbles, and criticisms. I will, below, in explaining why we stand a good chance of outgrowing copyright. For now, though, let us assume that [the above] figure [] offers a conventional and useful economic model of copyright.

[NB: The above text comes from chapter 1, § C.1 of my draft book, Intellectual Privilege: Copyright, Common Law, and the Common Good. I will soon upload a PDF of the entire chapter, including footnotes. I welcome your comments.]

[Crossposted to Agoraphilia and The Technology Liberation Front.]

Thursday, December 20, 2007

Locke on Copyright

Some commentators have defended copyrights as natural rights under Locke's labor-desert theory of property. On that view, copyright qualifies as a natural right for the same reason that tangible property does: Because an author mixes herself, through her creative effort, in her expressions. Ayn Rand, Herbert Spencer, and Lysander Spooner represent prominent proponents of that justification of copyright.

That facially plausible extension of Locke's theory does not, however, withstand close scrutiny. His labor-desert justification of property gives an author clear title only to the particular tangible copy in which she fixes her expression--not to some intangible plat in the noumenal realm of ideas. Locke himself did not try to justify intangible property. He appears, in fact, to have viewed copyright as merely a policy tool for promoting the public good. Modern commentators who would venture so far beyond the boundaries of Locke's thought and into the abstractions of intellectual property thus ought to leave his name behind.

More pointedly, copyright contradicts Locke's justification of property. He described legislation authorizing the Stationers' Company monopoly on printing—the nearest thing to a Copyright Act in his day—as a "manifest . . . invasion of the trade, liberty, and property of the subject." Even today, by invoking government power a copyright holder can impose prior restraint, fines, imprisonment, and confiscation on those engaged in peaceful expression and the quiet enjoyment of physical property. By thus gagging our voices, tying our hands, and demolishing our presses, copyright law violates the very rights that Locke defended.

Of all the theories of natural rights reviewed [in this chapter], Locke's probably has the greatest likelihood of influencing present-day law. For all that, though, it runs little risk of convincing contemporary lawmakers or courts to forsake the prevailing, instrumentalist view of copyright. The Lockean labor-desert theory has only one viable road to practical and present influence—via original meaning. Many judges find appeals to the original meaning of constitutional language, such as that embodied in the copyright clause, quite persuasive. As our careful review of the historical record showed [earlier in the chapter], however, the Founders almost certainly did not regard copyright as a natural right.

[NB: The above text comes from chapter 2, § C.1 of my draft book, Intellectual Privilege: Copyright, Common Law, and the Common Good. You can find a PDF of the entire chapter, including footnotes, here. I welcome your comments.]

[Crossposted to Agoraphilia and The Technology Liberation Front.]

Monday, December 17, 2007

Copyright Infringement More Tax Evasion than Speeding

I earlier analogized copyright infringement to exceeding the speed limit. On reflection, though, I think that understates the case against infringement, and that it more resembles tax evasion than it does speeding. That far from establishes copyright as a natural right. To the contrary, it establishes it as a welfare right, granted by the State, based on the redistribution of wealth, and enjoyed by authors at our expense. Here is how I put it now, in a revised version of what I posted earlier:

When you infringe a copyright, you can admit to breaking the law without also admitting to violating a natural right. Thus does a good driver on an empty road speed with a clear conscience.

So, too, might a citizen drive dangerously close to the Tax Code's limits. To misjudge, and blunder into tax evasion, could lead to loss of liberty and property. Citizens thus obey the Tax Code for good reason. Voluntary payment of excess taxes remains very rare, however; most people evidently pay their taxes under compulsion rather than out of joy. In that, the Tax Code resembles the Copyright Act. Both rely on positive legislation; both create regulatory regimes; both redistribute property (money in the one case, rights to throats, pens, and presses in the other). We grudgingly accept that the Tax Code and the Copyright Act create special beneficiaries of State power, the former by way of tax credits, the latter by way of exclusive rights. We might even celebrate it, reasoning that both the poor and authors merit our generosity. But we do not speak of a natural right to welfare. Nor should we speak of a natural right to copyright.

None of that goes to show that we should infringe copyrights. Speaking only for myself, I try to respect them. I probably misjudge, sometimes, I admit. Copyright contains many subtleties, even to an avowed geek, and its application often relies on contestable facts. We often don't know what constitutes infringement unless and until a judge tells us. It doesn't matter to copyright law if I do not bow deeply enough to its commands, of course. I—like you and everyone else subject to the Copyright Act—am held strictly liable for my infringing acts.

Still, I try to respect copyright law. It does not unduly burden me, I find, and I have a profound appreciation of good authorship. I do not think that copyright's beneficiaries have any natural right to my obedience, however; nor do I think that, say, Medicare's beneficiaries have any natural right to my tax payments. But I think that authors, like the poor, merit our concern and material aid. Government programs somewhat promote that aim. They operate with dismaying inefficiency, however, and often with outrageous unfairness. Thus did the U.S. federal government recently enact welfare reform. Thus, too, should we reform authors' welfare: copyright.

You probably try to heed copyright law, too. Most people do. Why? We recognize copying limits, like speed limits and tax codes, as legislation designed to maximize social utility, created by statute for presumptively good reasons and thus, unless manifestly inefficient or inequitable, enjoying some claim to our obedience. We follow such laws out of patriotism, unreflective habit, grudging acceptance, or fear—but not because they protect natural rights.

So, to judge from actions, go the moral intuitions of most folks. We regard violations of persons, property, and promises as serious matters, dire deviations from acceptable social behavior. We regard casual copyright infringement, in contrast, as little worse than driving 80 m.p.h. in a 65 m.p.h. zone, or exaggerating the value of a charitable donation.

[NB: The above text comes from chapter 1.5, § C.3 of my draft book, Intellectual Privilege: Copyright, Common Law, and the Common Good. Please note that I will soon renumber it "Chapter 2," and adjust all subsequent chapters accordingly. You can find a PDF of the entire chapter, including footnotes, here. As always, I welcome your comments.]

[Crossposted to Agoraphilia and The Technology Liberation Front.]

Saturday, December 15, 2007

The Morality of Unauthorized Copying

To say that copyright does not protect any natural right is not to say that it lacks any moral justification. We naturally frown on unauthorized and misattributed copying. A singer who claims authorship of a song written by another commits a sort of fraud on his listeners. Most of the time, that sort of fraud does not rise to the level of materiality, and thus does not justify litigation. We typically do not rely to any substantial detriment on the accuracy of an expressive work's description, after all. If we like a work, we like it, regardless of its source. Misdescriptions of authorship can trick us into buying the wrong expressions, however. You might, for instance, buy tickets to a Djelimady Tounkara concert only to find another, lesser guitarist on stage. That would naturally rouse your indignation.

We don't need copyrights to vindicate that sort of wrong, however; common law and various state and federal statutes already afford many remedies for it. Consumers of misleadingly labeled goods or services can plead fraud under tort law and breach or promissory estoppel under contract law. The licensee of a materially misdescribed work would enjoy a strong contract law defense, one voiding any agreement alleged by the licensor publisher. An author who sees her work sold under another's name would, as a wronged competitor, have standing to sue for unfair competition under state or federal law. The publisher of such an author might likewise enjoy legal and equitable remedies for passing off. The Federal Trade Commission and its many state counterparts can protect consumers and competitors of falsely labeled expressive works, while various federal and state executive officers can fight such wrongs with the criminal sanctions levied against the many guises of fraud.

Those legal tools give us ample ways to discourage materially harmful misdescriptions of expressive works. We don't need copyright to satisfy our moral intuitions on that front, and most people's condemnations against unauthorized copying don't go much beyond harmful lying. If you make an unauthorized copy of a CD and give it as a gift to your friend, for instance, do you feel guilty of committing a moral wrong? Probably not—even though you would probably thereby have committed copyright infringement. You can admit to breaking the law in such a case without admitting to violating a natural right. Thus does a good driver on an empty road speed with a clear conscience. We recognize copying limits, like speed limits, as legislation designed to maximize social utility, created by statute for presumptively good reasons and thus, unless manifestly inefficient or inequitable, enjoying some claim to our obedience. We follow such laws out of habit, conformism, or fear—not because they protect natural rights.

So go the moral intuitions of most folks. Authors, admittedly, sometimes express profound outrage that unauthorized copying, even when it gives credit where due, equates to theft. Their understandable pique does not, however, establish a natural copyright right. The non-rivalrousness of expressive works means that copying does not hinder the use or enjoyment of anyone's copy. A painter fully owns his canvas even if another photographs it without his permission, for instance. What authors care about in such instances is not the use and enjoyment of their works, but rather their lost copyright revenues.

Copyright can provide authors with revenue, a benefit that infringement threatens to reduce. Authors thus naturally feel disappointment and anger when their works suffer unauthorized use. But that hardly shows that copyright infringement violates a natural right. It only shows that authors, like almost everyone else, prefer more money to less. There can be no copyright infringement absent copyright protection. Only by circular reasoning, then, can the complaint that infringement reduces authors' revenues justify copyright.

[NB: The above text comes from chapter 1.5, § C.3 of my draft book, Intellectual Privilege: Copyright, Common Law, and the Common Good. Please note that I will soon renumber it "Chapter 2," and adjust all subsequent chapters accordingly. You can find a PDF of the entire chapter, including footnotes, here. As always, I welcome your comments.]

[Crossposted to Agoraphilia and The Technology Liberation Front.]

Friday, December 7, 2007

Copyright Abandonment for Fun and Profit

Why would copyright holders choose to abandon their statutory rights and rely solely on their common law ones? A few "blockheaded" authors might do so non-monetary reasons, of course. Thanks to the combined effect of copyright misuse and § 505 of the Copyright Act, however, even crassly profit-maximizing copyright holders might find abandonment financially attractive.

Under § 505, courts may in their discretion award attorney's fees to the prevailing party in copyright litigation. The Supreme Court has interpreted that provision to benefit copyright plaintiffs and defendants alike. The Court suggested that, among other factors, courts should base an award of attorney's fees under § 505 on "'frivolousness, motivation, objective unreasonableness (both in the factual and in the legal components of the case) and the need in particular circumstances to advance considerations of compensation and deterrence.'" Those factors could easily describe a typical case of copyright misuse. Not surprisingly, then, courts have found that defendants who suffered copyright misuse—or even something less than misuse—deserve an award of attorney's fees under § 505.

Common law, like U.S. law generally, takes a very different approach to attorney's fees. Under the so-called "American Rule," each party in civil litigation—even the winner—must pay for its own legal representation. Section 505 of the Copyright Act represents a rare and notable exception to that rule.

Here, then, the common law treats authors better than copyright law does. The Copyright Act offers many benefits to copyright holders, of course, such as strict liability and statutory damages. Overzealous copyright holders might find that the doctrine of misuse denies those benefits, however, and that § 505 imposes the costs of paying for an opposing party's attorney. For some copyright holders, those combined effects might suffice to render abandonment a financially attractive option. That would hold especially true if copyright holders could count on their common law rights to survive abandonment and if entrepreneurs continue to develop private alternatives to the statutory protection of expressive works.

[NB: The above text comes from chapter 6, § D of my draft book, Intellectual Privilege: Copyright, Common Law, and the Common Good. You can find a PDF of the entire chapter, including footnotes, here. I cooked up this argument about the financial benefits of abandonment only recently, and am excited to have found a way—however small—in which common law offers authors better incentives than copyright law does. As always, I welcome your comments.]

[Crossposted to Agoraphilia and The Technology Liberation Front.]

Wednesday, December 5, 2007

Copyright in 2027: A Letter from the Future

Dear Reader,

Hello from 2027! The future has been going great. I really enjoy it, and I think you'll like it here, too.

Things have improved a lot since 2007. We've generally grown more healthy, wealthy, free, and (I daresay) happy. There remain rough spots, of course: Climate regulation, zombie flu, the still-unfinished meteorite prevention belt . . . and the future didn't work out too well for everyone. Some wonderful people didn't make it, sad to say, while others remain in suspension. As they say in aircar ads, "your mileage may vary. " All in all, though, the future remains very bright.

I remember back when I lived in 2007. I looked forward to the future, and foresaw pretty good stuff. That prediction turned out ok, but I have to admit that I missed a lot of details! Who would have guessed the 2015 Constitutional Convention? That one really caught me by surprise.

Back in your day, I used to think and write a lot about copyright policy. I fondly recall long hours at my "beach office"—a rugged old picnic table nestled in a grove of laurel sumac, high on a bluff above one of my favorite surf breaks. Looking back, I guess I had some pretty nutty ideas. None of the legislation I proposed in my book, Intellectual Privilege: Copyright, Common Law, and the Common Good, made it into law, for instance. (I can't say that surprised me, though.)

Copyright of a sort still exists, but it doesn't seem to matter as much as it used to. I still read about lawsuits getting filed, once and a while, but they almost always settle. Thanks to a decision from your era—eBay v. MercExchange—courts hardly ever issue copyright injunctions, anymore. In that case, the U.S. Supreme Court held that the same equitable standards generally applicable in civil cases apply likewise to patent infringement claims. Courts thereafter stopped enjoining patent infringement as a matter of course. Thanks to a logical extension of eBay, that same rule has long also applied to copyright infringement claims.

Pirates still face injunctions and stiff fines for fraudulently selling unauthorized copies as the real thing. The rest of us, though, largely ignore copyright. We have lots of access to expressive works, and we use them pretty much as we like. Granted, we sometimes buy early access to fresh works. A new book or song doesn't cost much, though. It has to compete, after all, with the vast amount of authorship each of can tap just by jacking into the Hive.

These days, our good old common law rights, joined with new technologies, "promote the general welfare" and "the progress of science and useful arts" (to quote version 1.0 of the U.S. Constitution). Property and tort law protect authors' voices, pens, and presses during the creation and distribution of expressive works. "Smart contracts" (something that Nick Szabo predicted in the 1990s), allow authors and publishers to exercise some control over what happens to publicly-distributed works.

Common law does not protect works of authorship perfectly, but it protects them well enough. New releases get decoded pretty quickly, and eventually fall out of privity and into the public domain. Most authors and publishers (in many cases, thanks to plummeting costs, the same party) thus release their works in as many open formats as they can. Recompense comes in the form of gifts and friends.

That might not sound like a very lucrative scheme, to you, but we have plenty (some say too many) of super-stars who earn (and usually waste) huge sums of money entertaining the masses. They owe some of their success to their ridiculous hair, granted, but even I like Spectacle's latest hit song. Even though they made a fair penny selling encrypted copies of it, they will make much, much more touring. I hear that they sold over 78,000 front row tickets to their google-res show in 3rd Life. With over 10 billion very wired people on Earth, and over 6 billion more in near space, it doesn't take a very big market share for an author to make very big profits.

But listen to me running on and on, like a doddering old fool! I'm sorry if I've bored you. It's been a while since I thought about copyright policy, and I've enjoyed reminiscing. I really should get back to my current project, though: Double-checking the latest ranking of governing services that A.U. News & Worlds Report publishes annually. (It puzzles me that the New Victorians didn't score higher. Just between you and me, I think that MosCorp might have under-reported its cross-jurisdiction restitution settlements.)

All in all, I think you will really like 2027. Of course, we have hard-working folks like you to thank for creating the wonderful world we now live in. Thank you very much for safeguarding the common law. The collective wisdom of its time-tested rules continues to serve us well. By defending your rights to person, property, and promise, you protected ours, too. Keep up the good work!

Looking forward to seeing you in the future,

Tom W. Bell

[NB: The above text comes from chapter 10 of my draft book, Intellectual Privilege: Copyright, Common Law, and the Common Good. You can find a PDF here. I wrote it following commentor Steve R.'s call for examples of how common law rights might protect expressive works. I welcome your comments, too.]

[Crossposted to Agoraphilia and The Technology Liberation Front.]

Monday, December 3, 2007

Deregulating Expressive Works

Copyright law regulates expression. Through it, copyright holders win the privilege of invoking state power to control how and what we communicate. The Copyright Act limits our freedom to reproduce, rework, publicly distribute, publicly perform, or publicly display protected works of authorship. In many cases, even when the Act does not utterly prohibit an expression, the Copyright Office sets its price. Copyright flows top-down, out of Washington, D.C., in detailed and non-negotiable terms.

Common law operates on very different principles. It grows bottom up, out of the decisions of manifold state courts, without relying on federal lawmakers, statutes, or administrative agencies. It follows a few simple principles, leaving details to particular cases, customary practices, and mutual consent. Common law thus offers a deregulatory alternative to copyright.

Should we seize that opportunity? Simple logic suggests the appeal of winning the benefits of copyright policy (access to authors' works) without incurring its costs (lost opportunities to use those works). The Constitution goes further; it demands that we abandon copyright if we discover better policy options. If copyright is not necessary and proper to promote the general welfare and progress in the useful arts and sciences, after all, it loses its sole justification.

Common law alone evidently suffices to stimulate some original expressions, to some degree. Consider perfumes, recipes, clothes designs, furniture, car bodies, and uninhabited architectural structures—all of which exhibit great innovation despite falling outside the scope of copyright, patent, or any like statutory privilege. Perhaps common law could do still more if pressed into service more widely. Perhaps its fundamental principles of contract, property, and tort law could stimulate original expressive works even better than copyright can. Only by trying can we know.

We should thus promote policy experiments testing whether common law suffices to produce a socially optimal amount of expression. Copyright holders could help drive that discovery process by abandoning their statutory privileges. To encourage their participation, we should legislatively guarantee copyright holders that they will retain common law rights in works they dedicate to the public domain. That alone would probably not convince many copyright holders to abandon their statutory privileges, granted. Because it frees them from liability for opposing parties' attorneys' fees, however, abandonment already offers copyright holders a financial benefit. Clarifying that copyright abandonment leaves common law rights unaffected would strengthen that incentive.

Should we favor common law or a federal statute when it comes to controlling the creation, dissemination, and use of expressions? Commentators and courts largely agree on how to answer this question in First Amendment context. No such consensus exists in the context of copyright, however. Indeed, scarcely anyone even asks the question in those terms. We should not only ask it, but answer it: "favor common law over copyright."

[NB: The above text comes from part of my draft book, Intellectual Privilege: Copyright, Common Law, and the Common Good. Specifically, it comes from the introduction to Part II, Chapter 6. You can find a complete draft of the full chapter, together with footnotes, here [PDF]. Also, I recently uploaded a draft of Chapter 5, Codifying Misuse. I welcome your comments on either or both.]

[Crossposted to Agoraphilia and The Technology Liberation Front.]