Fair Use vs. Fared Use

"Information wants to be free," claim those who decry the overpowering grasp of copyright law. But they cannot mean what they say. Information wants nothing at all. The epigram speaks not to what information wants, but rather to what people want: people want information for free.

So restated, the catch-phrase still rings true. Who would not prefer to get information--that increasingly vital good--at no cost? But, alas, information never comes for free. We can only account for its costs as fully as possible, try our best to minimize them, and allocate them fairly.

. . .

. . . Fair use is not free use. Users have to pay somehow, whether in lost opportunities or cash. Thanks to technological advances—digitalization, computers, and the internet—buying permission to use an expressive work often costs less than using it without permission. Thus has Apple's iTunes service flourished. As such fared use expands, fair use does and should give way.

Still, fair use will and should remain potent when a copyright holder entirely refuses to license access. Markets then do not simply fail; they fail to even exist. In such a case, fair use might well excuse the unpaid and unauthorized use of a copyrighted work. This holds especially true with regard to critical reviews, parodies, and investigative reporting.

What if copyright holders employ common law tools, such as licenses or automated rights management, to bar even the fair use of a work? In that case, we might well judge that copyright policy fails, on net, to promote the general welfare, the progress of science, or the useful arts. To remedy that wrong, however, we should not attack common law rights. If copyright and common law combine to give copyright holders too much power, we should trim back the former. As a special exception to common law, the Copyright Act remains, at best, no better than a necessary evil.

This chapter argues, in sum:

• The scope of fair use will shrink as fared use grows, though objectionable uses will remain fair uses;
  
• Copyright holders may use common law to limit fair uses; and
  
• If in combination copyright and common law restrict too much expression, we should not throw out the latter with the former.
  

[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 I, Chapter 4: Fair Use vs. Fared use. You can find a complete draft of the full chapter, together with footnotes, here [PDF]. I welcome your comments.]

[Crossposted to Agoraphilia and The Technology Liberation Front.]

Copyright Term v. Copyright Inception

The term of copyright has steadily expanded under U.S. law. The first federal copyright legislation, the 1790 Copyright Act, set the maximum term at fourteen years plus a renewal term (subject to certain conditions) of fourteen years. The 1831 Copyright Act doubled the initial term and retained the conditional renewal term, allowing a total of up to forty-two years of protection. Lawmakers doubled the renewal term in 1909, letting copyrights run for up to fifty-six years. The 1976 Copyright Act changed the measure of the default copyright term to life of the author plus fifty years. Recent amendments to the Copyright Act expanded the term yet again, letting it run for the life of the author plus seventy years.

The table above illustrates the growth of the general U.S. copyright term over time, including the retroactive effects of various statutory extensions. Note the overhanging ledges. The 1962-74 Acts, the 1976 Act, and the Sonny Bono Act reached backwards in time, extending the copyright term even for works that had already been created. The Supreme Court has held that legislative trick constitutional, notwithstanding copyright policy's implied aim of stimulating new authorship—not simply rewarding extant authors.

[NB: The above text comes from part of my draft book, Intellectual Privilege: Copyright, Common Law, and the Common Good. Specifically, it comes from Part I, Chapter 3.A.1: Copyright Imbalance: Duration of Copyright. You can find a complete draft of the full chapter, together with footnotes, here [PDF]. I welcome your comments.]

[Crossposted to Agoraphilia and The Technology Liberation Front.]

HD Crash

Ack! After a wonderfully productive week of writing, and before I'd backed up everything, my computer's harddrive crashed. I'm now logging on from an old laptop. Fortunately, I'd been uploading PDFs to this site as I go. At worst, then, I'll have to resort to OCR or brute typing to recreate the Word docs I've lost. And if things work out very well, the pros on the Geek Squad will be able to recover my lost data. I've been slowed, but hardly stopped.

Copyright on the Third Hand

Larry Lessig recently emailed several helpful tips for my book-in-progress, Intellectual Privilege: Copyright, Common Law, and the Common Good. He suggested, for instance, that I post on the book's home page a brief summary of its theme. I came up with this:

Two views monopolize the ongoing debate over copyright policy. One view denigrates all restraints on copyrighted information, whether they arise from statutory law, common law, or technological tools. The other view equates copyrights to tangible property, concluding that they merit a broad panoply of legal protections. Left-wingers tend to favor the former position; right-wingers the latter.

I here offer a third view of copyright. I largely agree with my friends on the left that copyright represents not so much a form of property as it does a policy device designed to "promote the Progress of Science and useful Arts" (as the Constitution puts it). I thus call copyright a form of intellectual privilege.

Like my friends on the right, however, I hold our common law rights in very high regard. Hence my complaint against copyright: it violates the rights we would otherwise enjoy at common law to peaceably enjoy the free use our throats, pens, and presses. That is not to say that copyright is per se unjustified. We can excuse facial violations of our common law rights, such as the takings effectuated by taxation or the restraints imposed by antitrust law, as the costs of obtaining a greater good. But it does mean that copyright qualifies, at best, as a necessary evil.

You might say, in other words, that this book invokes a physiological improbability: a third hand. Traditional discussions of copyright policy don't require more than the usual allotment of appendages. On the one hand, we can disparage copyright together with all other means of protecting expressive works. On the other hand, we can exalt copyright as a form of property more powerful than any common law right to the contrary. If we limit ourselves to those two hands, however, we will have to embrace a false dichotomy. In thought, if not in body, we can best grasp copyright policy "on the third hand," recognizing that it cries out for justification because it violates our common law rights, and justifying it—if we can—only as a necessary and proper mechanism for promoting the general welfare.

This third view suggests a great deal about both how present copyright policies malfunction and how to fix them. Most significantly, it opens our eyes to the benefits of an open copyright system, one that encourages authors to rely solely on their common rights and to fully respect our own. Thus might we someday outgrow copyright, discovering that the common law does a better job of promoting the common good.

I plan to use that text, together with some other more workaday stuff, as the book's introduction. As always, I welcome your comments.

[Crossposted to Agoraphilia and The Technology Liberation Front.]

The Indelicate Imbalancing of Copyright Policy

Courts and commentators often claim that copyright policy strikes a delicate balance between public and private interests. I see copyright policy in a different pose, however. I see it wobbling precariously, tipping over, and falling into statutory failure. What has put copyright on such unsure footing? The brutish prodding of special interests. Rather than "delicately balanced," then, I describe copyright policy as "indelicately imbalanced."

Perfect policy equipoise will always elude us. We don't have the numbers necessary to put copyright's many various factors into exact balance. How can we quantify the importance of Picasso's Guernica, for instance, or of Dr. Suess's, Yertle the Turtle? In most cases, the numbers simple do not exist. What numbers we can pin down, moreover, appear to us only in a haze of uncertainty.

We can, however, keep an eye open for evident policy disasters, taking care to steer clear of obvious hazards. We should moreover guard against letting copyright maximalists seize the tiller, lest they overemphasize private interests to the detriment of public ones. We should instead take the Constitution as our lodestar, following its call to "promote the general Welfare" and "the Progress of Science and useful Arts" by checking the excesses of copyright policy.

[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 I, Chapter 3: The Indelicate Imbalancing of Copyright Policy. You can find a complete draft of the full chapter, together with footnotes, here [PDF]. I welcome your comments.]

[Crossposted to Agoraphilia and The Technology Liberation Front.]

Uncopyright Notice: (¢)

For better or (more likely) worse, copyright now automatically encumbers every new fixed work of authorship. Copyright kicks in as soon as anyone writes an essay, doodles a sketch, or bangs out an email. A copyright's holder need not register the work or put notices on copies of it to qualify for copyright protection.

If you want to play it safe, you should thus probably assume that some sort of copyright claim binds every fixed work. Even very old works often come with modern copyright strings attached. Consider, for instance, John Stuart Mill's classic work, On Liberty. Though the book originally issued in 1859, and has long since fallen into the public domain, my library's copy includes a notice reading, "Copyright 1978 by Hackett Publishing Company, Inc." Presumably, that copyright covers only the editor's introduction and selected bibliography. Yet Hackett's overbroad notice doubtless discourages some people—especially those who know little about copyright law—from reproducing even the free parts of On Liberty.

In that and other ways, copyright policy currently fails to admit to its limitations. Cautiously presuming that copyright covers every fixed work, and duped by inflated copyright notices, we fail to fully enjoy our rights to the public domain. We should aspire to a more open copyright system, one that encourages both the creation of new works and the liberation of extant ones. For that, we need a way to signal, clearly and reliably, when a work has escaped the bounds of copyright. We need, in other works, an uncopyright notice.

The Copyright Act provides that copyright holders can brand their works with "Copyright," or "Copr.," in lieu of the copyright symbol, "©." An uncopyright notice would naturally read "Uncopyright" or "Uncopr." The uncopyright symbol? A "©" overlaid with a backslash, per the international iconography of things forbidden. In cases where such graphics prove too troublesome, the cents character in parentheses—"(¢)"—would do nicely.

Where will uncopyrighted works come from? Some will come from clearly unprotected parts of the public domain. The worthy Project Gutenberg, for instance, offers favorite old texts on the web, unencumbered with copyright protection, in an easily-accessed format. New works, too, might carry "(¢)" marks, put there by authors eager to help build the public domain.

[NB: The above text comes from part of my draft book, Intellectual Privilege: Copyright, Common Law, and the Common Good. Specifically, it comes from a portion of the draft of Part III, Chapter 7: Uncopyright and Open Copyright. You can find a complete draft of the full chapter, together with footnotes, here [PDF]. I welcome your comments.]

[Crossposted to Agoraphilia and The Technology Liberation Front.]

Intellectual Privilege Imagery

To accompany the text of my book-in-progress, Intellectual Privilege: Copyright, Common Law, and the Common Good, I've been trying to come up with some appropriate imagery. I'm looking for descriptive and striking graphics that at least hint at the book's theme. Let me see what you think about three images, one for each of the three phrases in the book's subtitle.

• For "Copyright": A red c-clamp, tight shut, within a circle of chains. I doubt that I need to explain that image, much. The red clamp would make for a nice favicon, too.
  
  
• For "Common Law": A chain strung along a series of posts, such as you might see marking lines in a bank or in front of a painting in a gallery. That represents the gentle but firm guidelines established by contract, property, and tort law.
  
  
• For "the Common Good": A computer screen showing a long string of alternating zeros and ones. These numbers—". . . 0 1 0 1 0 1 0 1 . . ."—would represent both binary code and the links of a chain, each of them free of the others and rotated to stand proudly upright.

Why worry about mere pictures so early in the process? I'd say "pleasantly muse" rather than "worry"; I like illustration puzzles. I find, too, that good visual symbols can help me work up good verbal symbols.

[Crossposted to Agoraphilia..]

User-Generated Content, Copyright Policy, and Blockheaded Authors

Tomorrow, at Vanderbilt Law School, I'll join a panel discussion on The Future of Copyright, part of the Journal of Entertainment and Technology Law's symposium, User-Generated Confusion: The Legal and Business Implications of Web 2.0. My presentation: User-Generated Content, Copyright Policy, and Blockheaded Authors. Rest assured that, though I deploy such phrases as "seizing the means of reproduction" and "the specter of copyism," that says more about my love of wordplay than it does anything about Marxism. You can download the PowerPoint file here.

[Crossposted to Agoraphilia and The Technology Liberation Front.]