Copyright as a Government Program

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.


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