Tag Archives | Patry

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 [...]

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 [...]

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 [...]