Copyright Unbalanced: From Incentive to Excess (14 page)

The Founders’ unwillingness to give the government any but absolutely necessary and proper powers reveals profound wisdom. If we want to reform copyright’s excesses, we could hardly do better than abolishing the present statute, together with Title I of the DMCA and various other para-copyright laws of dubious constitutionality, and reinstating the 1790 act in its place. We still honor the text of the Founders’ Constitution, after all; why not extend a similar honor to the Founders’ copyright? This we should do not out of simple admiration for those great men. Though paeans to them often veer into hagiography,
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the Founders indisputably knew a great deal about the fundamental principles of governance. Their version of copyright offers the virtues of restraint, practicality, and fidelity to the Constitution.

Although technological advances have introduced new forms of expression since the 1790 act’s passage, they have not rendered its parsimonious approach to copyright any less relevant. As noted above, the Founders did not extend copyright to music, painting, sculpture, and other arts well known and widely appreciated in 1790. Had photographs, movies, and sound recordings existed at the time, they would doubtless have met the same stony refusal.
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Nor can we impugn the wisdom of the 1790 Copyright Act by citing the wealth of expressive works that have poured forth under later, decidedly more expansive statutes. To the contrary, that the Founders declined to coddle merely aesthetic works even in an age of comparative cultural poverty shows all the more how seriously they took the Constitution’s admonition that copyright serve “Science and useful Arts” (an admonition that the Supreme Court now effectively refuses to enforce).
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Furthermore, that we now enjoy unprecedented access to songs, pictures, movies, and other such entertaining diversions should make it all the easier for us to reclaim the Founders’ decidedly flinty approach to copyright. Perhaps we can credit copyright’s latter-day growth for generating a flood of original expressions; perhaps not. Regardless, we no longer face a drought of artistic works. We can now refocus copyright on practical concerns and still have our fun.

Reviving the 1790 act would have a bold effect on US copyright law, admittedly, and ruffle more than a few feathers. That merely demonstrates how far the present regime has strayed from its constitutional roots, however. As the Founders well understood, responsible lawmakers must cabin federal power within strict boundaries, ensure that it serves the general welfare, and safeguard it against capture by a privileged few. On all those counts, successors to the 1790 act have failed. To save copyright’s future, we must return to its past.

To revive the 1790 Copyright Act would put the United States in violation of the Berne Convention for the Protection of Literary and Artistic Works, an international agreement that imposes certain minimum standards for copyright and requires each signatory country to extend to foreign copyright holders the same privileges it gives its own nationals. The 1790 act requires that copyright holders fulfill certain formalities to win and retain its privileges—requirements inconsistent with the Berne Convention.
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The 1790 act also offends the Berne Convention by allowing only citizens and residents of the United States to win domestically enforceable copyrights.
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More fundamentally, the Founders’ characteristically American approach to copyright—requiring that it serve practical ends and sharply limiting its power—contrasts with the Continental philosophy underlying the Berne Convention, which instead aims to protect original expressive works as if they were extensions of their creators’ personalities. After the US joined the convention in 1988, federal lawmakers amended the copyright statute to conform to the new international standards.
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Reviving the 1790 act would change all that. The Berne Convention would have to adapt to the US reforms or, more likely, the US would have to withdraw from the Berne Convention.

That reviving the 1790 Copyright Act would break the Berne Convention’s grip on US law represents a feature, not a bug. The US resisted joining the Berne Convention for more than 100 years before the copyright lobby, attracted by the prospect of winning greater access to foreign markets, and the legal intelligentsia, enchanted by European theorizing, prevailed. US copyright policy should not heed foreign copyright markets, however; it should aim only to ensure that US copyright holders find domestic markets profitable enough to stimulate the supply of original expressive works. Washington should focus on how well Hollywood does at home, in other words. Because US laws cannot have extraterritorial reach, foreign infringements cannot cause any losses cognizable under the Copyright Act. Guaranteeing domestic copyright holders additional profits from markets abroad simply adds another layer of icing to an already overloaded cake. If public policy concerns meant more than public choice pressures, in fact, US lawmakers would have balanced the Berne Convention’s market-opening effects by trimming copyright’s privileges (they did nothing of the sort, of course).

The prior two reforms, reviving the 1790 Copyright Act and leaving the Berne Convention, charge copyright headfirst. Copyright reform via the misuse doctrine, in contrast, employs a subtle bit of legal jiujitsu. The key to this strategy comes from recognizing something only implicit in the case law: courts applying the misuse doctrine tend to bar only offending copyright claims, leaving contract and other common-law rights unaffected. That insight opens an escape route from our present world, where copyright’s statutory privileges comprehensively regulate expressive works, to a world where common-law rules alone control.

What is copyright’s misuse doctrine? It operates as a defense for copyright infringement, applicable when a “copyright is being used in a manner violative of the public policy embodied in the grant of a copyright.”
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As that formulation suggests, the exact parameters of the copyright misuse doctrine remain a bit uncertain. The US Supreme Court has only hinted at the doctrine
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and federal lawmakers have not codified it.
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It arose as and remains a doctrine recognized only in many various lower court opinions.
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Alcatel USA, Inc. v. DGI Techs., Inc.
, for instance, found misuse in a copyright holder’s practice of licensing its software for use only on its own hardware.
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Similarly, the court in
Practice Mgmt. Info. Corp. v. Am. Med. Ass’n
held that a license preventing the use of alternative works gave the copyright holder an unfair advantage over its competitors, giving rise to misuse.
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Judging from those and other cases, copyright misuse occurs when a copyright holder wields a licensing agreement to stifle otherwise permissible competition,
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inhibits what the fair use defense plainly allows,
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or otherwise combines copyright’s privileges with common-law rights in an unseemly manner.
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How can misuse doctrine open an escape from copyright? The doctrine bars claims of copyright infringement that arise under conditions of misuse.
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It does not, however, bar claims premised on violations of common-law rights, such as trade secrets or the contractual terms of a license.
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In effect, misuse doctrine corrects the overweening power that results from combining copyright privileges with common-law rights, by negating only the former. Suppose for instance that a copyright holder wrongly tried to squelch rights protected by the First Amendment and the fair use doctrine by including in its license a clause forbidding public criticism of the work. A court might remedy that misuse by denying the considerable enforcement powers afforded by the Copyright Act even while leaving the underlying contract in force. In practical terms, the dispute would become a matter of state contract law rather than federal legislation. Repeated applications of the same doctrine in other cases would eventually encourage the development of business models premised solely on contract law, tort law, trade secret law, and other common-law devices. Misuse thus opens an escape from a world where copyright comprehensively regulates access to expressive works to one where only common-law rules apply.

Courts invoking copyright misuse have not evidently intended to open an exit to the common law, granted; it takes a discerning eye to even spot the phenomenon. It nonetheless presents an inviting prospect for copyright reform. Suppose for instance that the misuse defense prevents a copyright holder from enforcing his statutory privileges. Depending on his business model, he may find it more worthwhile to continue forgoing his copyright claims and instead rely on his common-law contract, tort, or property rights. If that experiment proves successful, others might emulate it. Copyright’s misuse doctrine could thereby gently encourage would-be copyright holders to learn how to live—perhaps even to thrive—without the privileges offered by federal lawmakers. The Copyright Act would become less and less relevant as creators find more flexible and efficient ways to market their expressive works. Best of all, copyright reform could proceed through the courts, on a case-by-case basis, without any need to sway federal lawmakers.

Copyright reform should include not just changes to statutes, treaties, and legal theories, but also changes to the way that we approach copyright policy. Here, we should put consumers before producers. In other words, copyright policy should focus on whether consumers have ready access to original expressive works, and not on whether producers earn sufficient profits. Copyright policy has done its job if average Americans can access a cornucopia of stories, music, videos, and other expressive works (for instance, by typing a few keys on an Internet-enabled device). Lobbyists thus entirely miss the point when they cite the copyright industry’s size and power as proof that lawmakers should make copyright stronger still.
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They should instead argue—if they honestly can—that consumers do not enjoy adequate access to creative works.

This is not to say that the profits of creators and publishers mean nothing to copyright policy, of course. We count on their greed to have a stimulating effect, driving them to produce more expressive works than they otherwise would. Ultimately, though, copyright’s private incentives serve merely as a means to a public end. Copyright policy should focus not on special interests but on promoting “Science and useful Arts” and ultimately “the general Welfare,” its sole constitutional goals.
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Perhaps those who lobby for more and greater copyright powers honestly believe that their efforts will redound to the greater good; perhaps they care only about how much benefit they can deliver to their clients. We need not settle that question. We need only make sure that consumers—not producers—remain the ultimate focus of copyright policy.

Before lawmakers decide how powerful to make copyright’s privileges, therefore, they should first decide whether the public wants for new books, songs, movies, computer programs, and so forth. Absent compelling proof of a market failure in the supply of original expressive works, there can be no justification for increasing the length or breadth of copyright. It is not simply a program for making the copyright industry rich. Whether consumers have genuinely suffered from having too few options in the market for copyrightable works must in all fairness remain a question of fact. It is a case the copyright lobby will find difficult to make, however.

To reform the way that copyright works, we have to change the way that people think about it. And to change the way that people think about copyright, we have to change the way they talk about it. To improve copyright, therefore, we should reconceive it not as a form of intellectual
property
but as a form of intellectual
privilege
. The latter term better describes copyright’s legal basis and protects traditional property rights from suffering rhetorical erosion. Plus, we can keep calling copyright IP.

Why would anyone refer to copyrights as
property
in the first place? Bad philosophy deserves some of the blame. Locke’s “Second Treatise of Government” famously justified property rights in these three steps: you own yourself; you thus own your labor; you thus own the things with which you mix your labor.
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So far, so good, but some of Locke’s followers have applied his natural rights theory to defend copyright.
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For that gambit to work, we would have to accept the noumenal realm of ideas as a “thing” that creators can mix with their labor—writers homestead territory in the land of the muses, one might say. Locke, at least, was not willing to go that far.

In neither the “Second Treatise” nor elsewhere did Locke give copyright shelter under his theory of property. His illustrations cite real things from the real world—acorns, fields, and the like. Locke evidently viewed copyright as no more than a device for promoting the public good, and a dangerous one at that.
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He described the copyright of his own day—the Stationer’s Company—as a “manifest … invasion of the trade, liberty, and property of the subject.”
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It thus proves perfectly apt that Locke did not claim any copyright in the “Second Treatise.”
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