Copyright Unbalanced: From Incentive to Excess (15 page)

In neither philosophy nor law do copyrights deserve to be called
property
. We enjoy rights to our persons and
tangible
properties even in a state of nature. Because we enjoy them only imperfectly, however, suffering the injustices occasioned by a want of a common legal authority, we voluntarily cede some portion of those natural rights when we institute civil government. On that, a social contract account, property rights arise naturally; states come after the fact and only in the service of protecting our extant rights. But copyright cannot exist in a state of nature; it relies on state legislation. We did not bring copyright to the table when we entered into the social contract because we did not enjoy any such intangible right. Nor can we take it with us if we walk away. Copyright thus does not qualify as natural the way other property rights do. Nor is copyright a property right recognized by the common law.
⁵⁶

Copyright has property-like features, granted; copyrighted works can be registered, bought and sold, licensed, donated, mortgaged, or abandoned.
⁵⁷
These represent praiseworthy features, as they improve the efficiency of copyright policy in much the same way that tradable pollution permits, food stamps, and school vouchers have improved the policies they touch. All this does not suffice to make
property
an apt name for copyright, however, especially given that copyright lacks many of the features that characterize traditional forms of property.

Copyright, as purely a creature of statute, can change form at lawmakers’ whims. Unlike other forms of property, it must expire after a specified time.
⁵⁸
On one hand, the Copyright Act empowers authors to terminate rights that they have freely and willingly granted to others without paying compensation to the losing grantees—a notion alien to the law of property (and thankfully so).
⁵⁹
On the other hand, though the exact question remains as yet unlitigated,
Zoltek Corp. v. United States
strongly suggests that copyright does not qualify for just compensation under the Fifth Amendment’s takings clause.
⁶⁰
Whereas property owners enjoy very strong protections against trespass, copyright holders must suffer many and various uses that the act excuses as “fair.”
⁶¹

Property
is neither an accurate label for copyright nor one we have to embrace by default. We can more accurately label copyright a
privilege
—a statutory exception to common-law rights and obligations that vests its holder with special powers and immunities.
⁶²

In addition to wayward philosophy and legal mislabeling, we can blame the copyright lobby for invoking the language of property opportunistically. “We just want to protect private property from being pillaged,” claimed Jack Valenti, president of the Motion Picture Association of America, when he pled (unsuccessfully) for lawmakers to redesign televisions to prevent consumers from recording programs.
⁶³
Hilary Rosen, president of the Recording Industry Association of America, lobbied against the unauthorized distribution of sound recordings, saying, “No one wants their property taken from them and distributed without their permission.”
⁶⁴
Lars Ulrich, drummer for Metallica, testified before Congress that the advent of digital music downloads “sounds to me like old-fashioned trafficking in stolen goods.”
⁶⁵
Equating copyrights with property and infringements with theft may make for effective rhetoric, but it does not make much philosophical or legal sense.

The policy issues bound up with copyright are too complicated to resolve by simply invoking the label
property
. Copyright is not like the property rights protected by the common law for this fundamental reason: Expressive works are non-rivalrous in consumption. This is not a matter of law, but of physics. You may leave an artist hungry if you eat her bread, but you cannot silence her by singing her song. It does not obliterate that distinction to observe that at some scales, under special conditions, even tangible property can accommodate marginally greater uses at no greater marginal cost, as when someone sneaks into a near-empty theater to watch a movie. Copyright’s non-rivalrousness runs front to back and end to end, at all scales and under all conditions.

Friends of property rights, especially, should resist letting the copyright lobby run off with their word. Think of
property
as akin to a service mark, one that designates not a repair shop or beauty salon but a pillar of our legal culture. Where would we find ourselves if overuse of
property
were to bleed the word of all meaning? Nowhere good. We can protect the integrity of property, as both a word and a legal concept, by speaking of copyright with the language of privilege.

Instead of
intellectual property
, say
intellectual privilege
. Speak of copyright
holders
rather than
owners
, and talk about how the statute vests them not with
protections from
infringers but with
restrictions on
all the public. Adopting more accurate terminology can save us from unexamined misconceptions about copyright, and open our eyes to the possibilities of reform.

To say that copyright is not property is not to treat it with contempt. We owe great debts to great artists and should expect to pay generously if we want more of the same. We can pay due respect to copyright without calling it property, however, treating it much as we do speed limits, income taxes, and other statutes passed not to protect fundamental rights but to coordinate social life and promote the general welfare. We might follow such laws out of cool logic, ardent patriotism, unreflective habit, grudging acceptance, or even simple fear. Respect for property rights has little to do with that, though.

Despite copyright’s recent excesses, we owe it our thanks. It originated as a good-faith attempt to achieve noble goals and for many years quietly did its job. US copyright law deserves credit for encouraging an outpouring of original expressive works, bequeathing us with a rich cultural heritage. We thus have good reason to respect copyright. Recent trends, shocking anecdotes, and the inexorable logic of lobbying increasingly give us reason to fear copyright, though.

Who can claim that every word from their lips falls fresh, uncolored by any copying? Humans
must
copy each other; communication relies on echoed words, messages, and thoughts. We even express ourselves through our mutual unoriginality when, joining our voices in protest or celebration, we copy each other for a common cause. Copyright thus bestows authors and their assigns with potentially dangerous powers over the very foundations of human society.

Copyright’s yoke seldom chafes, granted. Enforcement costs and the fair use defense keep the sharp end of the Copyright Act pointed away from most of us, most of the time. Make no mistake, though; copyright law does not count on sweet persuasion to discourage infringement. Samantha Tumpach could tell you that. Copyright’s statutory privileges come only at hazard to our natural and common-law rights. To preserve our freedoms, therefore, we must reform copyright.

NOTES

1
.    Dan Rozek, “Woman Arrested for Trying to Record ‘Twilight’ on Digital Camera,”
Chicago Sun-Times
, December 2, 2009,
http://web.archive.org/web/20091205034644
/
http://www.suntimes.com/news
/metro/1916606,twilight-taping-arrest-movie-120209.article
.

2
.    Ibid.

3
.    Aliyah Shahid, “
Twilight
Taper, Samantha Tumpach, Sues Illinois Theater after Taping
Twilight Saga: New Moon
,”
New York Daily News
, June 29, 2010,
http://articles.nydailynews.com/2010-06-29/news/27068531_1_new-moon-twilight-saga-illinois-woman
.

4
.    See, for example, Pamela Samuelson, “Reforming Copyright Is Possible,”
Chronicle of Higher Education
, July 9, 2012,
http://chronicle.com/article/Reforming-Copyright-Is/132751
/ (advocating measures designed to make collective licensing of books easier); Lawrence Lessig, “In Defense of Piracy,”
Wall Street Journal
, October 11, 2008,
http://online.wsj.com/article/SB122367645363324303.html
(offering five reforms that would deregulate but not fundamentally change copyright).

5
.    See, for example, Cary Sherman, “Copyright Bills Won’t Kill the Internet,”
CNET
, November 8, 2011,
http://news.cnet.com/8301-1023_3-57320417-93/riaa-chief-copyright-bills-wont-kill-the-internet/?tag=cnetRiver
(defending proposed legislation targeting “rogue” infringing websites).

6
.    See, for example, Stephan Kinsella, “The SOPA Wake-Up Call to Abolish Copyright,”
InformationLiberation
(blog), February 1, 2012,
http://www.informationliberation.com/?id=38216
(describing the anti-copyright views of some activists).

7
.    In truth, of course, the US did abolish slavery in steps. The Emancipation Proclamation of 1862 affected only rebel states, leaving slavery legal in the District of Columbia, Missouri, Kentucky, Maryland, and other parts of the Union. Only with passage of the Thirteenth Amendment, three years later, did slaves in the North win freedom.

8
.    U.S. Constitution, art. 1, sec. 8, cl.#8. Although some authorities cite only “the Progress of Science” as copyright’s constitutional aim, reserving “useful Arts” as a concern for patent law, the better reading holds off on giving the clause a two-track interpretation until after “for limited Times to,” a single provision that applies to “Authors … Writings” and “Inventors … Discoveries” alike. Malla Pollack, “Unconstitutional Incontestability? The Intersection of the Intellectual Property and Commerce Clauses of the Constitution: Beyond a Critique of
Shakespeare Co. v. Silstar Corp.
,”
Seattle University Law Review
18 (1995): 259, 282–83.

9
.    
Copyright Act of 1790
, 1 Stat. 124 (1790), reprinted in
Copyright Office, Library of Congress, Bulletin No. 3 (Revised), Copyright Enactments: Laws Passed in the United States Since 1783 Relating to Copyright
, at 22, 22 (1973).

10
.  US Copyright Office,
Circular 92: Copyright Law of the United States and Related Laws Contained in Title 17 of the United States Code
, December 2011,
http://www.copyright.gov/title17/circ92.pdf
.

11
.  17 C.F.R. 37 §§ 201.1-270-.5 (2012),
http://www.copyright.gov/title37
/.

12
.  Terms come from
Copyright Act of 1790,
1 Stat. 124 § 1 (1790);
An Act to Amend the Several Acts Respecting Copyrights
, 4 Stat. 436 §§ 1–2 (February 3, 1831);
Copyright Act of 1909
, 17 U.S.C. § 23 (1909); 17 U.S.C. § 302(a) (1994) (see also 17 U.S.C. § 302[c]: works authored anonymously, pseudonymously, or for hire get the lesser of publication plus 75 years or creation plus 100 years);
Sonny Bono Copyright Term Extension Act
, Public Law 105–298, 112 Stat. 2827 (1998), codified at 17 U.S.C. §§ 302(a)–(b) (see also 17 U.S.C. § 302[c]: works made anonymously, pseudonymously, or for hire get the lesser of publication plus 95 years or creation plus 120 years). The figure conservatively assumes that authors create their works at age 35 and live for 70 years. The figure’s overhanging ledges reflect retroactive extensions of copyright terms.

13
.  Timothy B. Lee, “Copyright Enforcement and the Internet: We Just Haven’t Tried Hard Enough?,”
Ars Technica
(blog), February 14, 2012,
http://arstechnica.com/tech-policy/2012/02/copyright-enforcement-and-the-internet-we-just-havent-tried-hard-enough
/.

14
.  Owings v. Speed, 18 U.S. 192, 194 (1820) (holding that the Constitution did not replace the Articles of Confederation until March 4, 1789);
Copyright Act of 1790
, 1 Stat. 124 (1790).

15
.  U.S. Constitution, art 1, sec. 8, cl.#8. See also note 8.

16
.  Edward C. Walterscheid, “To Promote the Progress of Science and Useful Arts: The Background and Origin of the Intellectual Property Clause of the United States Constitution,”
Journal of Intellectual Property Law
2 (1994): 23–56 (describing the paucity of evidence from the Convention and state ratifying conventions); Karl Fenning, “The Origin of the Patent and Copyright Clause of the Constitution,”
Georgetown Law Journal
17 (1929): 109, 114 (reviewing the evidence and concluding that the clause “apparently aroused substantially no controversy either in the Convention or among the States adopting the Constitution”).

17
.  Tom W. Bell, “Escape from Copyright: Market Success vs. Statutory Failure in the Protection of Expressive Works,”
University of Cincinnati Law Review
69 (2001): 741, 771 (explaining that, intentionally or not, Madison relied on bad precedent).

18
.  1 Stat. 124 (1790), § 1.

19
.  17 U.S.C. § 302.

20
.  1 Stat. 124 (1790), § 2.