Copyrights as Positive Natural Rights

[I earlier explained why copyrights do not qualify as natural rights under Locke's theory of property. Here, I explain why the same holds true under Barnett's positivist account of natural rights. Both passages come from my draft book, Intellectual Privilege: Copyright, Common Law, and the Common Good.]

Randy E. Barnett justifies natural rights conditionally, basing them on our appreciation of certain social goods. He emphasizes that "if we want a society in which persons can survive and pursue happiness, peace and prosperity, then we should respect the liberal conception of justice—as defined by natural rights—and the rule of law." Not everyone values freedom, harmony, and wealth, of course. Most of us do, though, and together we easily number enough to enjoy the comforts and pleasures of human society.

We live together amicably because we recognize and respect certain natural rights. Which ones? Barnett names private property—including our property rights in our bodies—and freedom of contract. Since property protects both the right to it and the right against trespass, it corresponds to common law's property and tort rules. Freedom of contract, which includes the right to contract and to not contract, corresponds to common law's contract rules. Barnett's description of natural rights thus matches the protections of persons, property, and promises at the heart of common law.

Barnett expressly includes "physical resources" in his description of property rights. "Such property rights are 'natural' insofar as, given the nature of human begins and the world in which they live, they are essential for persons living in society with others to pursue happiness, peace, and prosperity." Do copyright rights qualify as natural on that description? Probably not.

Barnett offers a positivist account of natural rights, an approach earlier developed by F.A. Hayek. Social values evolve and develop to enable human flourishing, Hayek explained. "[G]roups which happen to have adopted rules conducive to a more effective order of actions will tend to prevail over other groups with a less effective order," he said. That hardly means that groups with especially efficient rules conquer and crush their less developed neighbors. "It is more likely that the success of the group will attract members of others which then become incorporated in the first."

That competition between social orders spontaneously generated natural rights long before states arose. "Long before man had developed language to the point where it enabled him to issue general commands, and individual would be accepted as a member of a group only so long as he conformed to its rules," Hayek explained. David Hume expressed the same point with characteristic grace:

But tho' it be possible for men to maintain a small uncultivated society without government, `tis impossible they shou'd maintain a society of any kind without justice, and the observance of those three fundamental laws concerning the stability of possession, its translation by consent, and the performance of promises. These are, therefore, antecedent to government, and are suppos'd to impose an obligation before the duty of allegiance to civil magistrates has once been thought of.

Our rights to persons, property, and promises qualify as "natural" because they have evolved to enable human social life. They long predate the State. Copyright, in contrast, arose only relatively recently, in complete reliance on a non-customary, exceptional, statutory privilege.


[NB: The above text comes from chapter 2, § C.2 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.]

How Surfing Saved My Sabbatical

What motivates tenured law professors to write? I suppose that some do so as second nature, as automatically as lesser scholars breath. Perhaps other law profs write out of a heroic sense of duty, confident that what they publish will change the world for the better. It takes more than that to get me to write, alas. It seems that my inner 14-year-old, still going strong despite decades of scolding, won't settle down and let me write unless I resort to embarrassingly juvenile carrots and sticks.

Sometimes I bribe myself with a new toy for getting my writing done. Last spring, for instance, I gave myself a a new Breedlove guitar for meeting the deadline on an article I'd promised to the Utah Law Review. That deal worked out nicely (or, as my inner punk would say, "Saaaaaweet!").

My auto-goading strategy faced a more difficult challenge this fall, however, when I prepared to knuckle down and write a book during my one-semester sabbatical. I realized early on that I could not afford (read, "am too cheap to buy") all the cool stuff that it would take to stimulate the requisite labor. And, anyhow, a guy can use only so many surfboards, skateboards, and snowboards (though a great many more than you might at first think). How, then, would I motivate myself?

As so often happens in life, surfing held the answer.

On most work days during my sabbatical, I would head first thing in the morning to my "beach office": a rugged picnic table, hidden in a grove of laurel sumac, on a bluff above one of my favorite breaks. After briefly salivating over the waves, I'd crack open my laptop and get to work on a pre-assigned task. Some days I'd aim to write a new chapter section, for instance, while on others I might have to create new set of illustrations. It helped that my beach office lacks internet access; email and blogs could thus offer no distractions. The real motivation came in this, though: I could not go surfing unless and until I finished the day's assignment.

As my family can attest, I stuck to my bargain. Several days I dragged in late, long-faced and bone-dry because I had not met my daily goal. Things got especially rough after my computer's hard-drive crashed, forcing me to recreate data and write some passages in long-hand. Happily, though, I got to cap off many days at my beach office with some well-earned waves.

It may sound like a ridiculous arrangement to you, but the results satisfied me. I got my book, Intellectual Privilege: Copyright, Common Law, and the Common Good, into late draft. (It remains only for me to re-read the whole thing, polish it as necessary, and write the conclusion). That effort has already spun off one paper; a couple more will follow. Perhaps surfing did not help to motivate the other stuff I did during my sabbatical—presenting papers and attending conferences—but it didn't seem to hurt. As a nice side-effect, my surfing improved a lot, too; towards the end of my sabbatical I managed a few fin-forward take-offs and spins on my 9'0" longboard (sort of like Sensei Nuuhiwa's example, but without the iffy neighbor and with a lot more falling down), and I've started feeling pretty comfortable on my newer board, a 6'10" French "Soul Fish."

In other ways, granted, my sabbatical fell short of my goals. I had hoped to drywall the garage and record a few songs, but did next to nothing on either project. The oil painting that I planned—something like this earlier one—remains for now only roughed-in. I console myself that I at least managed to install a new irrigation line and several area drains. And, anyhow, who really cares if that work—productive play, really—remains undone? The good folks at Chapman who funded my sabbatical didn't ask me to rebuild my house, after all. With luck, though, they will like what I did get done, and continue to support my scholarship. The Channel Islands 7' M13 I put on special order should come sometime late this coming spring, you see, and I expect it will take a lot of study to master it.

[Crossposted to Agoraphilia and MoneyLaw.]

The Common Law from Satellite

[My forthcoming book spends a lot of time contrasting copyright with the common law. I thus thought that I should say at least a little about what I mean by the latter.]

[C]ommon law originates in custom, wins recognition in courts, and develops in commentary. Custom naturally comes first. It long ago gave rise to a set of social practices, such as avoiding bloodshed, honoring borders, and upholding oaths, that permit us to live in peace and prosperity. Referring to those and other customs helps common law courts to resolve our disputes justly. A judge might for instance determine reasonable conduct in a tort case by looking to community standards, award legal rights to someone who has long and openly used property entitled to another, or interpret a contract's language by light of trade usage. In these and other ways custom inspires—if not mandates—the common law. Commentators, looking back over many court decisions and across many years, help us to follow the common law's meandering path, explaining and rationalizing its wanderings. The common law thus develops from custom, through courts, and to commentary. [The below figure] illustrates.



[The above figure] traces the common law's origins from unarticulated customary practices, found in actions but not words, through the powerful speech of courts administering justice, to purely verbal commentaries on the law. Up to a point, then, the common law grows upward towards increasing abstraction over time; hence the initial upward cast of the arrows of influence laid out in [the above figure]. The forces driving the common law's development flow downward, too, though, toward more concrete results. Legal commentary sometimes persuades a judge, balanced on the cusp between two plausible claims, to choose one over another. Legal decisions sometimes affect customary practices, as when courts clarify that no person can own another. The threads of custom, court, and commentary thus intertwine, weaving over time the tapestry of common law. That offers a somewhat idealized picture, granted, and one far removed from the nitty gritty of real world litigation. What [the above figure's] satellite view of the common law lacks in detail, however, it makes up for in comprehension.

At its most basic and elegant, the common law comprises just a few, simple rules. "Aggress only in self-defense, do not trespass, and keep your word," it directs. Even more succinct: "Respect persons, property, and promises." We find it convenient and useful to follow those rules. They seem natural to us. They should; they evolved alongside us in the long journey from tribes, through kingdoms, and to states. They will doubtless continue to follow, and indeed promote, our social progress.

Rather than simply inventing it out of whole cloth, courts have helped to develop the common law by deciding how customary rules apply to particular disputes. In their collective wisdom, over hundreds of years, judges and commentators in Britain, the United States, and other common law countries have refined the principles of tort, property, and contract law. They have bequeathed to us a detailed set of time-tested and mutually compatible rules, well chosen to safeguard our peace and prosperity.

Nobody planned that happy outcome. The common law instead evolved spontaneously, developed over the ages and tested in countless conflicts, to protect our persons, property, and promises. Tort law, property law, and contract law do the heavy lifting. Beyond that, the core of common law, lies a variety of supporting sub-orders. We can fairly describe the rules of wills, trusts, and estates as a specialized part of the common law, for instance. Ditto the common law rules of agency and restitution. We find these, the rules of common law, initially in customary practices and then later in courts' decisions. Commentators, in treatises and restatements of the law, summarize, clarify, and systematize the common law's rules. By diligently studying those various sources we might discover the tort, property, contract, and other rules that together make up the common law. Notably, that effort will not lead us to copyright.

[NB: The above text comes from chapter 1, § II 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.]

Copyright, Mapped

All copyrighted works originate as ideas, born when authors choose how to express themselves. The slightest exercise of discretion will suffice; just about anything more original than an alphabetical listing of names can qualify for copyright protection. Once having crossed that low hurdle, it remains only for an author to fix her expression in a tangible medium for more than a transitory duration. She must, in other words, record her authorship. After thereby fixing her work—in words, music, pictures, computer code, architecture, or almost any expressive medium—she enjoys the rights afforded by the federal Copyright Act. Copyright thus inheres both in doodles and multi-million dollar movies, in works ranging in creativity from formulaic news blurbs to unprecedented paintings.

Those, copyright's fundamental features, mark it as a distinct legal entity. Though laypeople often confuse copyrights with patents, trademarks, and other intangible goods, each of those related types of IP corresponds to a unique combination of subject matter and supporting law. [The figure below] illustrates how copyright relates to, and differs from, its nearest legal next-of-kin.



Rather than the points of a compass, [this figure] charts several legal dimensions. The left vertical scale divides IP into two fundamentally different categories. IP above the horizontal divide, such a trademark, has value only insofar as it helps to identify other things of value. Below the divide, in contrast, falls intrinsically valuable subject matter. Ask yourself which type of IP you would want on a desert island; those you would choose fall into “valuable per se” territory. The right vertical scale shows the source of a legal protection. Towards the middle lies state common law, farther out lies state statutory law, and at the extremes lie federal statutory law. Unfair competition straddles all three categories, for instance, whereas copyright depends entirely on federal statutory law. The bottom horizontal scale indicates to what degree a particular kind of IP protects expressive or functional subject matter. Copyright stretches from poems to computer programs, for instance, whereas trade secret covers only commercially useful ideas.

The arrows on the map indicate how rights develop over time. Each sort of IP begins as an idea. From there, different types of IP move in different directions, depending on their subject matter. As a general matter, as the arrows move away from the center of the map, rights grow: more developmentally mature; more powerful; harder to obtain (because the requirements for protection become more stringent and formal); and more public and federal. Copyrights, however, moves relatively quickly and easily from mere ideas to full federal protection.

Figure [[cite]] shows two possible precursors to copyright: common law's protection of literary property or state 's statutory protection of unfixed expressive works. The former legal right expired as of January 1, 1978, when the Copyright Act preempted it, and appears here solely as a historical marker. The latter legal right has won general recognition in California, which offers copyright-like protection to unfixed works of authorship, and narrower protection in New York, which has enacted criminal sanctions on fixing a public performance without permission and with the intention of profiting therefrom. In most cases, therefore, ideas now speed directly to copyright protection without making any intermediary legal stops.

Notably, [the figure above] does not include what some courts and commentators have called "common law copyright." As the Supreme Court established long ago, no such thing exists. The common law's protection of expressive works traditionally applied only to unpublished works; it did not give authors anything like copyright's exclusive publication rights. [The above figure] thus eschews "common law copyright" as a misleading label.

The protean nature of the common law admits other interpretations of its scope, granted. New York courts have in recent years created—"recognized" would overstate the case, given that the courts did not claim to uphold any customary practice—a common law right against the unauthorized duplication of publicly-distributed sound recordings made prior to February 15, 1972, the date on which federal copyright protection first extended to such works. The decisions of only one state's courts hardly suffice to define the common law, however, especially when all other states to consider the question have reached a contrary conclusion. It remains a bit cloudy whether the common law's protection of literary property extends to unfixed works, too; several courts have denied that it does while some courts have hinted at a broader right. Here as generally, it seems wisest to attribute to the common law only those rules that have won express and wide approval.

[NB: The above text comes from chapter 1, § B 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.]