I recently finished reading Intellectual Privilege: Copyright, Common Law, and the Common Good by Tom W. Bell, and I’m glad I did. In the introduction, Tom Bell promises to offer a “libertarian view” of copyright, and this libertarian thinks that Tom delivers the goods.
I was actually surprised by how libertarian the book is. You see, in the publicity for the book (like this video), Tom informs us that the book is covered under what calls a “Founder’s Copyright”, in which he and the Mercatus Center reserve only some rights (the rights specified in the original 1790 Copyright Act), and only for a limited time (28 years, the maximum time offered under the original Copyright Act). This is highly preferable to modern copyright law, but not nearly as good as no copyright at all. With that as introduction, I was expecting a wishy-washy “middle of the road” take on copyright. I was unprepared to read Tom saying things like this:
Copyright thus creates both a legal power to censor and an economic incentive to speak, an uneasy but unavoidable conflict that Neil Netanel, a professor at University of California, Los Angeles, School of Law, has aptly described as “copyright’s paradox.”
Copyright’s paradox reaches beyond mere speech, however. Although often described as a form of property, copyright relies for its very existence on violating property rights – the traditional common-law rights that each of us presumably enjoys in such tangible things as our printing presses, guitars, and throats. – from Chapter 1
Barely two pages into the first chapter, and Tom has already described copyright as a censorship instrument and as a violation of property rights. Tom W. Bell is not kidding around, folks. And it only gets better from there.
In case you don’t believe his assertions, Tom carefully spells out why copyright cannot be a natural right (here’s an excerpt where he explains why copyright fails to fit John Locke’s definition of natural rights, and here’s another excerpt where he explains why copyright fails to fit Randy E. Barnett’s definition of natural rights). He gives us a thorough history lesson that shows that, while America’s Founders often tried to “sell” copyright to the masses as a natural right, they never actually treated it as such. He closes Chapter 3 with this doozy of a sentence:
In sum, we should consider copyright an unnatural statutory privilege that violates our natural rights and can claim only as much justification as can the state itself.
Now that’s what I like to read in a book discussing copyright. And if I were writing the book, that’s about where I’d end it, staying only long enough to write a conclusion urging my readers to “smash the state”.
That’s not where Tom ends things, perhaps because Tom is not an anarchist. But whatever Tom isn’t, I can say what he is: he is very thorough, rather humble, and quite dedicated to finding a solution to our problems with copyright. And he spends much of the book talking about solutions: both ways to make copyright less odious, and ways to make it unnecessary or irrelevant. Since the governments of the world don’t seem likely to crumble any time soon, it’s likely that copyright will be with us for some time to come, so Tom Bell’s pragmatic solutions might be just what we need to deal with it.
To make copyright less bothersome, Tom describes a legal theory called “copyright misuse”. The idea here is that, since copyright is necessarily a violation of common-law rights, anyone who invokes copyright rights does so at the expense of their own common-law rights. In other words, you can either have common-law protection (which covers your person, property, and promises) or copyright protection (which grants you exclusive rights in distributing your expressions), but not both. He discusses several legal cases where this doctrine has developed, and describes how a more general application of this principle would make copyright less noisome. Take DRM and EULAs, for instance. Both of these are limitations on what a user can do with copyrighted information, justified on grounds of property right or contract. Under the theory of copyright misuse, both of these would be illegal; a copyright holder could limit users’ rights either by copyright or by contract, but not both at the same time, so an EULA that ordered anything besides “Don’t violate copyright law” would be null and void unless it didn’t apply copyright at all, and DRM could not be used to prevent a user from doing anything not forbidden under copyright law. As Tom notes, when copyright and common-law rights combine to oppress, “we should respond by limiting the former and respecting the latter” (from Chapter 7). Tom then goes on to propose an addition to the Copyright Act, which he calls section 107(b), and which reads as follows:
It constitutes copyright misuse to contractually limit any use of a copyrighted work if that use would qualify as noninfringing under § 107(a). No party misusing a work has rights to it under § 106 or § 106A during that misuse. A court may, however, remedy breach of any contract the limitations of which constitute copyright misuse under this section.
This would formally recognize the doctrine of copyright misuse in the relevant legislation, and give abused users a firm defense against copyfraud. And I really must tip my hat to Tom Bell, for how thorough he was in drafting this proposed bit of legislation. You’ll have to read Chapter 8 to see just how much thought he put into this. And in Chapter 9: Deregulating Expressive Works, he proposes another expansion to the Copyright Act, section 301(g):
(g) Nothing in this title annuls or limits any common-law restriction on the use of a fixed work of authorship if that work has been dedicated to the public domain.
Tom believes in the strength of common-law protections (and so do I), so Tom wants to encourage artists and innovators to use common-law methods instead of copyright. Section 301(g) would explicitly allow them to do so even after abandoning copyright. Not such a bad way to encourage folks to contribute to the public domain, if you ask me.
But Tom doesn’t stop there. See, Tom takes seriously the idea that there might exist a “market failure” in the production of expressive, creative works. It’s this market failure that copyright supposedly exists to cure. But instead of legislation, Tom Bell proposes that we look for other ways to cure the market, including improved technology and novel common-law solutions. Chapter 11 is titled “Outgrowing Copyright”, and right there, I must give Tom credit for a hopeful vision. While so many copyright reformers talk about finding the right balance in copyright, Tom talks about finding ways to do without it. Rather than ask “How much do we need?”, Tom asks “How can we get to a point where we don’t need any?” I’d love to here more of this kind of talk from Larry Lessig and Cory Doctorow. Step up your game, guys.
In fact, if you’re the sort who thinks that we can and should find the right balance in copyright legislation, I recommend you read Tom Bell’s analysis of the difficulties involved in doing so, found in Chapter 6: Copyright Politics: Indelicately Imbalanced. I think I can sum up the whole chapter nicely in one sentence from it:
Copyright policy combines all the elements of a public choice tragedy: concentrated benefits, diffuse costs, and state power.
In other words, if you’re waiting for the lawmakers to properly adjust the settings on copyright, you’ve got a lot of waiting ahead of you. There’s a reason they’ve screwed it up thus far, and the reason is that they don’t see any reason to bother getting it right. Hoping for a fix of copyright is probably a pipe dream, even with Tom’s proposed additions, so we’d be better off looking for an escape from copyright, instead.
The book’s conclusion is titled “The Packet-Switched Society”, and it includes a brief discussion of what makes the Internet special and how this offers us a way to render copyright superfluous, changing it from a “necessary evil” to just plain evil. It’s a good conclusion to a good book, and I hope you all will read it. Buy a copy, borrow a copy, whatever you must do. There used to be a draft freely available online, but Tom has since taken that down… but thanks to the Internet Archive, you can still read it! So check it out and give it some thought. You’ll be glad you did.
And to any copyright maximalists who are reading this, let me just say: Check Your Privilege!
Lodo the Bear 