The Volokh Conspiracy

In this, my last post – thanks so much Eugene and to those who took the time to comment – I will address remarks by Brian, the devil’s advocate. He very politely stated: 

“While Orin let you off the hook, I think you, and maybe he given his acquiescence, miss the full import of his second question. If the maintenance of property is dependent upon the positive law, it becomes a utilitarian or consequentialist chit to be done with as government wishes.”

…
“At root you’re saying you are not sure you believe in real property. Given the fact that government has exceedingly the same view, and I think this contrary to, constitutional guarantees, natural and positive law, the normative understanding of the founders, as well as to utilitarian or consequentialist outcome oriented philosophy, I must respectfully dissent… .”

I would like to hear Brian’s views on is what he thinks copyright is if it is not positive law and what foundational authority there is for copyright not being a creature of positive law. It would really interesting to see how Brian thinks that would work out in practice, meaning someone goes into court and claims that their natural copyright rights have been infringed. What should a judge say to such a claim?

On the utilitarian or consequentialist point, I readily confess to holding that view. Copyright can be granted or not, or taken away as the government wishes, based on its utilitarian or consequentialist judgment. After all, the Constitutional grant in Article I, section 8, clause 8 is discretionary: Congress may grant copyright rights but it need not; hence my point about natural rights: Assume Congress decides to repeal the copyright act for all future works (and preempts state law too). A writer creates a work after the abolition of protection: under what authority would courts think they could hear a claim of infringement? None, in my opinion.

I don’t understand what Brian is getting at when he questions whether I believe in real property, because I don’t know what it means to “believe” in this context. I own a house and the land around it. I am very happy I do. I pay taxes on it, and when I pay my mortgage off in 12 years, I will really “own” it. I believe it is mine now subject to the mortgage and taxes. I love the house and am secure that I have the usual legal rights. If this is what it means to believe in real property, I happily do.

I am also happy to regard copyright as a government program. Because
copyright law is positive law, created solely by the government, the government must shape its contours as it sees fit to achieve copyright’s objectives; doing so is not adventitious, but is instead an obligation of governments. I don’t think this makes the government socialist or demeans copyright. It does mean that efforts by Congress to craft laws that fit into its utilitarian or consequentialist views shouldn’t be regarded as government intervention in a free market. There is a humorous example of this argument in the reaction of record companies to proposals by members of Congress to amend the DMCA in ways the copyright owners didn’t like. This effort met with the following response in a letter sent by the lables, made without a hint of irony: 

“[H]ow companies satisfy consumer expectations is a business decision that should be driven by the dynamics of the marketplace, and
should not be regulated. . . . The role of government, if needed at all,
should be limited to enforcing compliance with voluntarily developed
functional specifications reflecting consensus among affected interests.
If the government pursues the imposition of technical mandates, . . .
record companies may act to ensure such rules neither prejudice not
ignore their interests.”

Not only is all copyright government intervention, but the DMCA was invention by the government in the marketplace on a fairly massive scale, at the request among others of the record labels that made the above statement. The Congressional recommendation to amend the DMCA was thus a proposed amendment to earlier government intervention. 

Thanks again for having me as a guest.

Orin and others rightly questioned my use of the word “always” in connection with my statement that the use of the description “property” in the Copyright Wars is ”always” a political move. I overstated my assertion, and should have used a less absolute word. Thanks for the correction.

SK very much wants me to make ethical or moral arguments in support of my views, and questions why I haven’t. I don’t see why I should make such an argument. My approach is to view these issues as business issues, and that shouldn’t be surprising coming from someone like me who is in house at a corporation. I also think it appropriate in connection with copyright, which is an economic right. Moreover, the book is devoted to debunking efforts to disguise economic issues as moral issues. So, I respectfully decline the invitation.

Orin also asked, “isn’t property a form of government regulation, too? The government announces to market actors that it has picked one person or group that is allowed to control something, and that it will enforce efforts by that one person or group to exercise exclusive control against all other market actors.” I agree with this completely, and it is a great question how (in the sense of criteria) the government goes about picking the winners who will henceforth enjoy their new rights. 

Since the Supreme Court’s 1834 opinion in Wheaton v. Peters, it has been established at the federal level that there are no common law copyright rights; all copyright is positive law. So how do you convince Congress to change the law in your favor? There are usually two elements to pulling off the trick: (1) you argue your claim is virtuous, and (2) you simultaneously argue that competing claims – those that want to keep the status quo — are not virtuous. Describing your opponent as a thief, trespasser, pirate, or a parasite evokes powerful negative reactions. But before the law says you own something, and much less as property, it cannot be said that those who act contrary to your wishes are thieves, trespassers, or scofflaws. If they were thieves or trespassers, you would sue them for thievery or trespass under existing law (I don’t think it is a crime to be a scofflaw though). 

What sort of claims might be particularly virtuous? Those associated with property, given the veneration with which property is regarded, and that’s why I said use of the term property is (sometimes!) a political act. Here’s an example, again from Jack Valenti, the master of metaphors and copyright discourse. In 1982, during hearings on home taping by consumers using VCRs, Mr. Valenti testified: 

“No matter the lengthy arguments made, no matter the charges and
the counter-charges, no matter the tumult and the shouting, reason–
the central theme which animates this entire debate: Creative property
owners must be accorded the same rights and protection resident in
all other property owners in the nation. That is the issue. That is the
question. And that is the rostrum on which this entire hearing and the
debates to follow must rest. “

Mr. Valenti’s purpose in seeking to equate “creative property” with “real property” was to shift the debate away from the actual legal principles governing the dispute (fair use and secondary liability) and away from the economics of the problem (did home taping harm legitimate markets that copyright owners should control) and toward a rhetorical ground from which he thought his clients could prevail. The idea that Congress could meaningfully decide whether to permit consumers to tape over-the-air broadcasts for time shifting purposes by reference to principles governing real estate was of course absurd.

Professor (later Judge) Benjamin Kaplan identified the same rhetorical fallacy in his 1967 Columbia Law School lectures, later published as “An Unhurried View of Copyright” :

“To say that copyright is ‘property,’ although a fundamentally unhistorical statement, would not be badly misdecriptive if one were prepared to acknowledge that there is property and property, with few if any legal consequences extending uniformly to all species and that in practice the lively questions ought to be whether certain consequences ought to attach to a given piece of property in given circumstances . . . but characterizations in grand terms . . . seems of little value: [W]e
may as well go directly to the policies actuating or justifying the particular determinations. “(Page 74).

In other words, skip the labels and figure out instead what conduct and
policies we seek to encourage or discourage. In the matter at hand for Mr. Valenti, it was home taping of free over-the-air broadcasts for time-shifting purposes, and Congress was greatly relieved when the Supreme Court two years later, by a 5–4 vote, decided that fair use and the staple article of commerce doctrine barred secondary liability for Sony’s manufacture and sale of the Betamax. In a blow to the “it’s our property and we can decide who can do what with it,” the Court held: “Even unauthorized uses of a copyrighted work are not necessarily infringing. An unlicensed use of the copyright is not an infringement unless it conflicts with one of the specific exclusive rights conferred by the copyright statute.” 464 U.S. 417, 448 (1984).

A few comments on my first two posts referred to the characterization of copyright as “intellectual property” or a “property.” While there have been a number of efforts to track down the fairly recent usage “intellectual property,” efforts to describe copyright rights as property are of an older vintage in both the United States and Britain. What interests me is not tracking down the first time the term “property” was used in conjunction with copyright, but why the association is sought to be made, both in the past and quite a bit recently.

To me, the debates about copyright as property are always political, not historical; they are always efforts to influence the present and the future, an effort to get the legislature or the courts to reset the boundaries. The use of the term property is not meant to simply describe what you own; after all if we took the current copyright act and added alternatively at the beginning “copyright is a privilege and not a property right,” or “copyright is a property right, not a privilege,” but changed nothing else, why would this matter?

Rather, use of term property is an effort to influence the debate about how far your property rights should go; this is what that great Victorian man of letters Augustine Birrell realized 111 years ago in a series of lectures on copyright he gave at the University College, London, later published as “Seven Lectures on the Law and History of Copyright in Books.” Mr. Birrell was ruminating, as we still do today, on the various origin stories for copyright. On the question of why copyright owners insist on describing their government created and granted right as a property right, Mr. Birrell wrote:

“The reason[] th[is] question[] was asked . . . was this—Certain rights over things amounting in the aggregate to a more or less complete exclusion of others than the owner from participating, save by consent, in their enjoyment had in the Western World become recognised as property. . . . The origin of property, of exclusive ownership, is one of the subjects about which our predecessors in title loved to discourse at large after a fashion more ingenious than historical.”

“Occupancy and Labour are the mythical parents of Property, but we shall be less wrong in assuming that the pedigree was invented to account for the fact of possession than in attributing the fact of possession to the virtues of the pedigree.”

“But whatever its origin, the Western World has throughout its long history shown an ever increasing disposition to recognise the right of individuals to the exclusive possession of certain things, and these rights it has clustered together, recognised, venerated, worshipped, under the word property.”

“To be allowed to enter this sacrosanct circle is a great thing. None but the oldest families need apply. . . . Once inside this circle your rights were supposed in some romantic way to be outside the chill region of positive law—they were based upon natural rights, existing previously to the social contract, and without which Society was deemed impossible.”

“Neither were these romantic conceptions mere jeux d’esprit. Consequences flowed from them. If your right to turn your neighbor off your premises, to keep your things to yourself—was property, and therefore ex hypothesi founded on natural justice, he who sought to interfere with your complete dominion was a thief or a trespasser.”

Birrell nicely points out the fallacy of the “virtue of the pedigree,” in which we are to assume that copyright owners have the rights they have due to being, simply, copyright owners. One need not inquire further: to be a copyright owner is to have been vested with an ancient pedigree; one is a property owner and by itself that is all the justification that is needed. The alleged classification of copyright as a property right is made to take copyright protection outside of the need for any empirical, social justification. As a property right we do not ask about incentives, and we do not ask whether the property interest benefits the public. Property simply is and need not be justified (that’s the theory, at least, propounded by its advocates). Those who own property rights are entitled to hunt down unauthorized users as free-riders, as criminals, as a threat to polite society just as surely as those who break into our homes or steal our cars, a trope that some copyright owners have used, more than once. 

What are the real world consequences of this? Are there any, or is this just a semantic waste of time? The principal use of property-talk in copyright is to frame debates over the scope of copyright in a way in which we start from a default of absolute rights, even though, as with all property, we concede there are “always” exceptions. (The copyright act has a bunch of them in 17 USC 107–122). The exceptions are, though, precisely that, exceptions and those who seek (either through legislation or court decisions) to use copyrighted works without permission are stated to need a good reason to depart from the presumption of Blackstonian absolute dominion. The burden is on others to show why they should be allowed to use copyright owners’ works without permission. 

Fair use, for example, is said by some to be an exception; it is, after all an affirmative defense. Judge Pierre Leval has, however, taken a different approach, writing: “Fair use should not be considered a bizarre, occasionally tolerated departure from the grand conception of the copyright monopoly. To the contrary, it is a necessary
part of the overall design.” Toward a Fair Use Standard, 103 Harv. L. Rev. 1105, 1110 (1990). Consistent with Judge Leval’s overall design approach to copyright, I argue in the book that copyright is a set of social relations, created for a specific social purpose: the promotion of the progress of science. The advantage in regarding copyright as a system of social relationships is that it focuses attention where it belongs: in mediating conflicts within that system, and not, as the property as ownership model does, by positing ownership as the natural state of affairs, and by regarding every effort to regulate for the public interest to be a hostile act that must be ferociously fought against as if it is an existential threat, or conversely, that copyright rights are inherently against the public interest, which I reject as well.

When I was a law student, a professor asked us whether we believed law and morals were co-extensive: if the law did not prohibit certain conduct, did that mean it was moral to engage in it? One of the comments on my first post similarly asked how I distinguished effective laws from moral considerations, whether I thought we could distinguish illegitimate from legitimate copyright conduct without a moral scheme.

The reference to effective laws was to my argument that we do not need strong copyright laws or weak copyright laws, but only effective copyright laws, with effective being judged by whether the copyright laws serve their purpose. This remark drew a comment that I was a typical academic, trying to “logic out” things. There was also a question about what I meant by means testing and a request for more information about Jack Valenti’s Boston Strangler testimony.

If only I was able to give a typical academic response to these questions. Of my 27 years as a copyright lawyer, only 5 were in academia, and even during those 5 years many of my colleagues did not regard me as an academic: I had spent my career up until then in private practice and government service. Since leaving academia, I spent 6 more (out of 12) years in private practice, and now three years in-house at Google. To me, then, effectiveness is not a logic problem, but an empirical one. Here’s an example, an easy one, term extension. If we say with Judge Posner and Professor Landes that we want to provide copyright in order to provide to convince creators to bring their works to market where they otherwise wouldn’t (say because they could more money doing something else), we have to figure out the proper level of incentives, in the form of the type of rights we grant and how long protection should last.

What type of empirical evidence might we look at to determine the length of protection? George Akleroff, Kenneth Arrow and others took a stab at this in their Eldred brief. They concluded:

“Term extension in existing works provides no additional incentive to create new works and imposes several kinds of additional costs. Term extension for new works induces new costs and benefits that are too small in present-value terms to have much economic effect. As a policy to promote consumer welfare, the CTEA fares even worse, given the large transfer of resources from consumers to copyright holders.”

Another way is to look at the renewal records under the 1909 Copyright Act, when the original term was 28 years but another 28 years was possible if the copyright owners merely paid $10 and filled out a simple form. Who wouldn’t pay $10 and fill out a simple government form to get 28 years of protection? As it turned out almost everyone except for motion picture studios. Here is a sample of the renewal rates from a study the Copyright Office did:

Type of Work Renewal Percentage
Books 7%
Periodicals 11%
Lectures, Sermons and other oral works 0.4%
Dramatic Works 11%
Music 35%
Maps 48%
Works of Art 4%
Technical Drawings 0.4%
Art Prints 4%
Movies 74%

These are some ways to determine what effective laws are: I assert life plus 70 is inefficient because it wildly exceeds necessary incentives and has negative impacts on the creation of other works.

In terms of morality and the Valenti quote. To me, copyright is an economic right, not a moral right and does not raise moral issues. The Second Circuit made this point too, agreeing with Judge Lynch:

“Copyright and trademark are not matters of strong moral principle.
Intellectual property regimes are economic legislation based on policy
decisions that assign rights based on assessments of what legal rules will produce the greatest economic good for society as a whole.” Sarl Louis Feraud Int’l v. Viewfinder, Inc., 406 F. Supp. 2d 274, 281 (S.D.N.Y. 2005), affirmed on this point, vacated and remanded on other grounds, 489 F.3d 474, 480 n.3 (2d Cir. 2007).

Morality is used in the Copyright Wars as a way to cover up the inability to justify expansion of rights on economic grounds. Valenti’s Boston Strangler quote is a good example of this. On April 12, 1982, Mr. Valenti testified before Congress about the alleged dangers posed to the motion picture industry by videocassette recorders:

“We are facing a very new and a very troubling assault . . . and we are
facing it from a thing called the video cassette recorder and its necessary companion called the blank tape. “

“We are going to bleed and bleed and hemorrhage, unless this
Congress at least protects one industry . . . whose total future depends
on its protection from the savagery and the ravages of this machine.
[Some say] that the VCR is the greatest friend that the American
film producer ever had. I say to you that the VCR is to the American
film producer and the American public as the Boston Strangler is to
the woman home alone.”

Note that Mr. Valenti spoke of the VCR as a threat not only to the
movie industry, but also and much more broadly to the American public. It is the essence of moral panics that folk devils (here VCRs) be demonized as a threat to society itself. Mr. Valenti knew keenly that it was not enough to appear before Congress as a special pleader for his clients; instead, he had to appear as the savior of society itself, which could only be saved, of course, by Congress giving powerful rights to his clients. Had Congress done so, Mr. Valenti’s clients would have inflicted severely injuries upon the public and themselves. Where would the morality have been in that?

Thanks Eugene for allowing me to be a guest blogger. I wrote Moral Panics and the Copyright Wars for two reasons. The first is the reason I have written everything, to learn. For me, writing is a way to discipline my thought, to the extent I am capable of doing so. The second reason was to offer a different take on why it is we have such a high level of copyright protection and why the copyright industries have such a long history of opposing new technologies. 

Jane Ginsburg wrote an article in 2003 entitled “How Copyright Got a Bad Name For itself.” In it she cites some legislative efforts by copyright owners to obtain broad control over new technologies and says that these efforts suggest that “some copyright owners, if not paranoid, are Pavlovian in their response to new means of making copies or communicating new works.” But she ultimately dismisses this conduct as one of “appearances.” At the other end of the political spectrum, some on the copyleft side regard copyright owners as Luddites, or dinosaurs who just don’t get it, and who are intent on shoving corporate culture down our throats. 

How is it that we have ended up with high levels of protection that to me are divorced from any sort of means testing, term extension being the archetypal example? One explanation is that Congress is corrupt, or less extremely, that there is a terrible asymmetry in lobbying power. Having worked for the House Judiciary Committee I don’t buy the first explanation (a bad choice of words!), while the second can be overcome, as the recent experiences in Canada on Bill C-61 and with the just-concluded consultative process show.

The book contains two basic conclusions. First, attempts to obtain economic rights that cannot be justified under means testing (i.e., are necessary incentives for creation) are cast in moral terms in order to create a political atmosphere in which those rights are seen as essential. This is the moral panics component, and it explains Jack Valenti’s “Boston Strangler” testimony and many other such metaphoric usages, such as pirate, parasite, trespasser, and the like. These are efforts to cast opponents as the archetypal Other, whose threat to society can only be removed by giving copyright owners vast rights. Use of the term “property” as in intellectual property or “copyright is property just like real property” is part of this, both because those who use copyrighted works are by definition trespassers, and because it sets up a discourse in which uses that copyright owners do not approve of are seen as “limitations and exceptions,” departures from a natural state of affairs in which no unauthorized uses are permitted, and engaged in if at all only in the most narrow circumstances, circumstances that cannot conceivably cause economic diminution to copyright owners.

My second conclusion is the economic conflict at the heart of copyright owners’ repeated reactions against new technologies lies in Schumpeterian “creative destruction”: the introduction of innovative products and business models that displace old ones. Innovation, in the form of new technologies and/or business models —is the root cause of creative destruction—but it is also the way capitalism survives its own inherent tendency toward monopolization and stagnation, even as innovation is regarded as an existential threat to those who benefit from the status quo. In words that are quite applicable to the copyright industries, Schumpeter wrote that “a new firm’s intrusion into an existing industry always entails ‘warring’ with an ‘old sphere,’ which tries to prohibit, discredit, or otherwise restrict every advantage afforded to the new form by its innovation.”

So for me, copyright owners’ reactions are normal; this isn’t to say we should countenance them, we shouldn’t. But if we shift the debate from the moral panics discourse to an evidence-based discourse in which we require our laws to be effective for their purpose (and who wants laws to be ineffective?), hopefully the results will be better. Certainly, innovation we can believe in depends on it.