Why Intellectual Property 1
Imagine yourself starting a society from scratch. Perhaps you fought a revolution, or perhaps you led a party of adventurers into some empty land, conveniently free of indigenous peoples. Now your task is to make the society work. You have a preference for democracy and liberty and you want a vibrant culture: a culture with a little chunk of everything, one that offers hundreds of ways to live and thousands of ideals of beauty. You don't want everything to be high culture; you want beer and skittles and trashy delights as well as brilliant news reporting, avant-garde theater, and shocking sculpture. You can see a role for highbrow, state-supported media or publicly financed artworks, but your initial working assumption is that the final arbiter of culture should be the people who watch, read, and listen to it, and who remake it every day. And even if you are dubious about the way popular choice gets formed, you prefer it to some government funding body or coterie of art mavens. 2
At the same time as you are developing your culture, you want a flourishing economy—and not just in literature or film. You want innovation and invention. You want drugs that cure terrible diseases, and designs for more fuel-efficient stoves, and useful little doodads, like mousetraps, or Post-it notes, or solar- powered backscratchers. To be exact, you want lots of innovation but you do not know exactly what innovation or even what types of innovation you want. 3
Given scarce time and resources, should we try to improve typewriters or render them obsolete with word processors, or develop functional voice recognition software, or just concentrate on making solar-powered backscratchers? Who knew that they needed Post-it notes or surgical stents or specialized rice planters until those things were actually developed? How do you make priorities when the priorities include things you cannot rationally value because you do not have them yet? How do you decide what to fund and when to fund it, what desires to trade off against each other? 4
The society you have founded normally relies on market signals to allocate resources. If a lot of people want petunias for their gardens, and are willing to pay handsomely for them, then some farmer who was formerly growing soybeans or gourds will devote a field to petunias instead. He will compete with the other petunia sellers to sell them to you. Voila! We do not need a state planner to consult the vegetable five-year plan and decree "Petunias for the People!" Instead, the decision about how to deploy society's productive resources is being made "automatically," cybernetically even, by rational individuals responding to price signals. And in a competitive market, you will get your petunias at very close to the cost of growing them and bringing them to market. Consumer desires are satisfied and productive resources are allocated efficiently. It's a tour de force. 5
Of course, there are problems. The market measures the value of a good by whether people have the ability and willingness to pay for it, so the whims of the rich may be more "valuable" than the needs of the destitute. We may spend more on pet psychiatry for the traumatized poodles on East 71st Street than on developing a cure for sleeping sickness, because the emotional wellbeing of the pets of the wealthy is "worth more" than the lives of the tropical world's poor. But for a lot of products, in a lot of areas, the market works—and that is a fact not to be taken for granted. 6
Why not use this mechanism to meet your cultural and innovation needs? If people need Madame Bovary or The New York Times or a new kind of antibiotic, surely the market will provide it? Apparently not. You have brought economists with you into your brave new world—perhaps out of nostalgia, or because a lot of packing got done at the last minute. The economists shake their heads.1 The petunia farmer is selling something that is "a rivalrous good." If I have the petunia, you can't have it. What's more, petunias are "excludable." The farmer only gives you petunias when you pay for them. It is these factors that make the petunia market work. What about Madame Bovary, or the antibiotic, or The New York Times? Well, it depends. If books have to be copied out by hand, then Madame Bovary is just like the petunia. But if thousands of copies of Madame Bovary can be printed on a printing press, or photocopied, or downloaded from www.flaubertsparrot.com, then the book becomes something that is nonrival; once Madame Bovary is written, it can satisfy many readers with little additional effort or cost. Indeed, depending on the technologies of reproduction, it may be very hard to exclude people from Madame Bovary. 7
Imagine a Napster for French literature; everyone could have Madame Bovary and only the first purchaser would have to pay for it. Because of these "nonrival" and "nonexcludable" characteristics, Flaubert's publisher would have a more difficult time coming up with a business plan than the petunia farmer. The same is true for the drug company that invests millions in screening and testing various drug candidates and ends up with a new antibiotic that is both safe and effective, but which can be copied for pennies. Who will invest the money, knowing that any product can be undercut by copies that don't have to pay the research costs? How are authors and publishers and drug manufacturers to make money? And if they can't make money, how are we to induce people to be authors or to be the investors who put money into the publishing or pharmaceutical business? 8
It is important to pause at this point and inquire how closely reality hews to the economic story of "nonexcludable" and "nonrival" public goods. It turns out that the reality is much more complex. First, there may be motivations for creation that do not depend on the market mechanism. People sometimes create because they seek fame, or out of altruism, or because an inherent creative force will not let them do otherwise. Where those motivations operate, we may not need a financial incentive to create. Thus the "problem" of cheap copying in fact becomes a virtue. Second, the same technologies that make copying cheaper may also lower the costs of advertising and distribution, cutting down on the need to finance expensive distribution chains. Third, even in situations that do require incentives for creativity and for distribution, it may be that being "first to market" with an innovation provides the innovator with enough of a head start on the competition to support the innovation.2 Fourth, while some aspects of the innovation may truly be nonrival, other aspects may not. Software is nonrival and hard to exclude people from, but it is easy to exclude your customers from the help line or technical support. The CD may be copied cheaply; the concert is easy to police. The innovator may even be advantaged by being able to trade on the likely effects of her innovation. If I know I have developed the digital camera, I may sell the conventional film company's shares short. Guarantees of authenticity, quality, and ease of use may attract purchasers even if unauthorized copying is theoretically cheaper. 9
In other words, the economic model of pure public goods will track our reality well in some areas and poorly in others—and the argument for state intervention to fix the problems of public goods will therefore wax and wane correspondingly. In the case of drug patents, for example, it is very strong. For lots of low-level business innovation, however, we believe that adequate incentives are provided by being first to market, and so we see no need to give monopoly power to the first business to come up with a new business plan—at least we did not until some disastrous patent law decisions discussed later in this book. Nor does a lowering of copying costs hurt every industry equally. Digital copies of music were a threat to the traditional music business, but digital copies of books? I am skeptical. This book will be freely and legally available online to all who wish to copy it. Both the publisher and I believe that this will increase rather than decrease sales. 10
Ignore these inconvenient complicating factors for a moment. Assume that wherever things are cheap to copy and hard to exclude others from, we have a potential collapse of the market. That book, that drug, that film will simply not be produced in the first place—unless the state steps in somehow to change the equation. This is the standard argument for intellectual property rights. And a very good argument it is. In order to solve the potentially "marketbreaking" problem of goods that are expensive to make and cheap to copy, we will use what my colleague Jerry Reichman calls the "market-making" device of intellectual property. The state will create a right to exclude others from the invention or the expression and confer it on the inventor or the author. The most familiar rights of this kind are copyrights and patents. (Trademarks present some special issues, which I will address a little later.) Having been given the ability to forbid people to copy your invention or your novel, you can make them pay for the privilege of getting access. You have been put back in the position of the petunia farmer. 11
Pause for a moment and think of what a brilliant social innovation this is—at least potentially. Focus not on the incentives alone, but on the decentralization of information processing and decision making that a market offers. Instead of having ministries of art that define the appropriate culture to be produced this year, or turning the entire path of national innovation policy over to the government, intellectual property decentralizes the choices about what creative and innovative paths to pursue while retaining the possibility that people will actually get paid for their innovation and creative expression.
1 12
The promise of copyright is this: if you are a radical environmentalist who wants to alert the world to the danger posed by climate change, or a passionate advocate of homeschooling, or a cartoonist with a uniquely twisted view of life, or a musician who can make a slack key guitar do very strange things, or a person who likes to take amazingly saccharine pictures of puppies and put them on greeting cards—maybe you can quit your day job and actually make a living from your expressive powers. If the market works, if the middlemen and distributors are smart enough, competitive enough, and willing to take a chance on expression that competes with their in-house talent, if you can make it somehow into the public consciousness, then you can be paid for allowing the world to copy, distribute, and perform your stuff. You risk your time and your effort and your passion and, if the market likes it, you will be rewarded. (At the very least, the giant producers of culture will be able to assemble vast teams of animators and musicians and software gurus and meld their labors into a videotape that will successfully anesthetize your children for two hours; no small accomplishment, let me tell you, and one for which people will certainly pay.) 13
More importantly, if the system works, the choices about the content of our culture—the mix of earnest essays and saccharine greeting cards and scantily clad singers and poetic renditions of Norse myths—will be decentralized to the people who actually read, or listen to, or watch the stuff. This is our cultural policy and it is driven, in part, by copyright. 14
The promise of patent is this: we have a multitude of human needs and a multitude of individuals and firms who might be able to satisfy those needs through innovation. Patent law offers us a decentralized system that, in principle, will allow individuals and firms to pick the problem that they wish to solve. Inventors and entrepreneurs can risk their time and their capital and, if they produce a solution that finds favor in the marketplace, will be able to reap the return provided by the legal right to exclude—by the legal monopoly over the resulting invention. The market hints at some unmet need—for drugs that might reduce obesity or cure multiple sclerosis, or for Post-it notes or windshield wipers that come on intermittently in light rain—and the innovator and her investors make a bet that they can meet that need. (Not all of these technologies will be patentable—only those that are novel and "nonobvious," something that goes beyond what any skilled person in the relevant field would have done.) 15
In return for the legal monopoly, patent holders must describe the technology well enough to allow anyone to replicate it once the patent term ends. Thus patent law allows us to avert two dangers: the danger that the innovation will languish because the inventor has no way to recover her investment of time and capital, and the danger that the inventor will turn to secrecy instead, hiding the details of her innovation behind black box technologies and restrictive contracts, so that society never gets the knowledge embedded in it. (This is a real danger. The medieval guilds often relied on secrecy to maintain the commercial advantage conveyed by their special skills, thus slowing progress down and sometimes simply stopping it. We still don't know how they made Stradivarius violins sound so good. Patents, by contrast, keep the knowledge public, at least in theory;3 you must describe it to own it.) And again, decisions about the direction of innovation have been largely, though not entirely, decentralized to the people who actually might use the products and services that result. This is our innovation policy and it is increasingly driven by patent. 16
What about the legal protection of trademarks, the little words or symbols or product shapes that identify products for us? Why do we have trademark law, this "homestead law for the English language"?4 Why not simply allow anyone to use any name or attractive symbol that they want on their products, even if someone else used it first? A trademark gives me a limited right to exclude other people from using my mark, or brand name, or product shape, just as copyright and patent law give me a limited right to exclude other people from my original expression or my novel invention. Why create such a right and back it with the force of law? 17
According to the economists, the answer is that trademark law does two things. It saves consumers time. We have good reason to believe that a soap that says "Ivory" or a tub of ice cream that says "Häagen-Dazs" will be made by the same manufacturer that made the last batch of Ivory soap or Häagen-Dazs ice cream. If we liked the good before and we see the symbol again, we know what we are getting. I can work out what kind of soap, ice cream, or car I like, and then just look for the appropriate sign rather than investigating the product all over again each time I buy. That would be wasteful and economists hate waste. At the same time, trademarks fulfill a second function: they are supposed to give manufacturers an incentive to make good products—or at least to make products of consistent quality or price—to build up a good brand name and invest in consistency of its key features, knowing that no other firm can take their name or symbol. (Why produce a high-quality product, or a reliable cheap product, and build a big market share if a free rider could wait until people liked the product and then just produce an imitation with the same name but of lower quality?) The promise of trademark is that quality and commercial information flow regulate themselves, with rational consumers judging among goods of consistent quality produced by manufacturers with an interest in building up long-term reputation. 18
So there we have the idealized vision of intellectual property. It is not merely supposed to produce incentives for innovation by rewarding creators, though that is vital. Intellectual property is also supposed to create a feedback mechanism that dictates the contours of information and innovation production. It is not an overstatement to say that intellectual property rights are designed to shape our information marketplace. Copyright law is supposed to give us a self-regulating cultural policy in which the right to exclude others from one's original expression fuels a vibrant public sphere indirectly driven by popular demand. At its best, it is supposed to allow a decentralized and iconoclastic cultural ferment in which independent artists, musicians, and writers can take their unique visions, histories, poems, or songs to the world—and make a living doing so if their work finds favor. Patent law is supposed to give us a self-regulating innovation policy in which the right to exclude others from novel and useful inventions creates a cybernetic and responsive innovation marketplace. The allocation of social resources to particular types of innovation is driven by guesses about what the market wants. Trademark law is supposed to give us a self-regulating commercial information policy in which the right to exclude others from one's trade name, symbol, or slogan produces a market for consumer information in which firms have incentives to establish quality brand names and consumers can rely on the meaning and the stability of the logos that surround them. Ivory soap will always mean Ivory soap and Coke will mean Coke, at least until the owners of those marks decide to change the nature of their products. 19
Some readers will find my use of the term "intellectual property" mistaken and offensive. They will argue, and I agree, that the use of the term "property" can cause people mistakenly to conflate these rights with those to physical property. (I outline that process and its negative consequences in the next chapter.) They will argue, and again I agree, that there are big differences between the three fields I have described. Should we not just list the specific rights about which we are speaking—copyright, patent, or trademark? Both of these concerns are real and well-founded, but I respectfully disagree with the conclusion that we should give up the term "intellectual property." 20
First, as I have tried to show above, while there are considerable differences between the three fields I discussed, there is also a core similarity—the attempt to use a legally created privilege to solve a potential "public goods problem." That similarity can enlighten as well as confuse. Yes, copyright looks very different from patent, just as a whale looks very different from a mouse. But we do not condemn the scientist who notes that they are both "mammals"—a socially constructed category—so long as he has a reason for focusing on that commonality. Second, the language of intellectual property exists. It has political reality in the world. Sometimes the language confuses and misleads. There are two possible reactions to such a reality. One can reject it and insist on a different and "purified" nomenclature, or one can attempt to point out the misperceptions and confusions using the very language in which they are embedded. I do not reject the first tactic. It can be useful. Here, though, I have embraced the second. 21
I have provided the idealized story of intellectual property. But is it true? Did the law really develop that way? Does it work that way now? Does this story still apply in the world of the Internet and the Human Genome Project? If you believed the idealized story, would you know what kind of intellectual property laws to write? The answer to all of these questions is "not exactly." 22
Like most social institutions, intellectual property has an altogether messier and more interesting history than this sanitized version of its functioning would suggest. The precursors of copyright law served to force the identification of the author, so that he could be punished if he proved to be a heretic or a revolutionary. The Statute of Anne—the first true copyright statute—was produced partly because of publishers' fights with booksellers; the authorial right grew as an afterthought.5 The history of patents includes a wealth of attempts to reward friends of the government and restrict or control dangerous technologies. Trademark law has shuttled uneasily between being a free-floating way to police competition so as to prohibit actions that courts thought were "unfair" and an absolute property right over an individual word or symbol. 23
But does intellectual property work this way now, promoting the ideal of progress, a transparent marketplace, easy and cheap access to information, decentralized and iconoclastic cultural production, self-correcting innovation policy? Often it does, but distressingly often it does the reverse. The rights that were supposed to be limited in time and scope to the minimum monopoly necessary to ensure production become instead a kind of perpetual corporate welfare—restraining the next generation of creators instead of encouraging them. The system that was supposed to harness the genius of both the market and democracy sometimes subverts both. Worse, it does so inefficiently, locking up vast swaths of culture in order to confer a benefit on a tiny minority of works. But this is too abstract. A single instance from copyright law will serve as a concrete example of what is at stake here. Later in the book I will give other examples. 24
YOU'LL GET MY LIBRARY OF CONGRESS WHEN . . . 25
Go to the Library of Congress catalogue. It is online at http://catalog.loc.gov/. This is an astounding repository of material—not just books and periodicals, but pictures, films, and music. The vast majority of this material, perhaps as much as 95 percent in the case of books, is commercially unavailable.6 The process happens comparatively quickly. Estimates suggest that a mere twenty-eight years after publication 85 percent of the works are no longer being commercially produced. (We know that when
Yet because the copyright term is now so long, in many cases extending well over a century, most of twentieth-century culture is still under copyright—copyrighted but unavailable. Much of this, in other words, is lost culture. No one is reprinting the books, screening the films, or playing the songs. No one is allowed to. In fact, we may not even know who holds the copyright. Companies have gone out of business. Records are incomplete or absent. In some cases, it is even more complicated. A film, for example, might have one copyright over the sound track, another over the movie footage, and another over the script. You get the idea. These works—which are commercially unavailable and also have no identifiable copyright holder—are called "orphan works." They make up a huge percentage of our great libraries' holdings. For example, scholars estimate that the majority of our film holdings are orphan works.8 For books, the estimates are similar. Not only are these works unavailable commercially, there is simply no way to find and contact the person who could agree to give permission to digitize the work or make it available in a new form. 27
Take a conservative set of numbers. Subtract from our totals the works that are clearly in the public domain. In the
I was searching the Library of Congress catalogue online one night, tracking down a seventy-year-old book about politics and markets, when my son came in to watch me. He was about eight years old at the time but already a child of the Internet age. He asked what I was doing and I explained that I was printing out the details of the book so that I could try to find it in my own university library. "Why don't you read it online?" he said, reaching over my shoulder and double-clicking on the title, frowning when that merely led to another information page: "How do you get to read the actual book?" I smiled at the assumption that all the works of literature were not merely in the Library of Congress, but actually on the Net: available to anyone with an Internet connection anywhere in the world—so that you could not merely search for, but also read or print, some large slice of the Library's holdings. Imagine what that would be like. Imagine the little underlined blue hyperlink from each title—to my son it made perfect sense. The book's title was in the catalogue. When you clicked the link, surely you would get to read it. That is what happened in his experience when one clicked a link. Why not here? It was an old book, after all, no longer in print. Imagine being able to read the books, hear the music, or watch the films—or at least the ones that the Library of Congress thought it worthwhile to digitize. Of course, that is ridiculous. 29
I tried to explain this to my son. I showed him that there were some works that could be seen online. I took him to the online photograph library, meaning to show him the wealth of amazing historical photographs. Instead, I found myself brooding over the lengthy listing of legal restrictions on the images and the explanation that reproduction of protected items may require the written permission of the copyright owners and that, in many cases, only indistinct and tiny thumbnail images are displayed to those searching from outside the Library of Congress "because of potential rights considerations." The same was true of the scratchy folk songs from the twenties or the early film holdings. The material was in the Library, of course—remarkable collections in some cases, carefully preserved, and sometimes even digitized at public expense. Yet only a tiny fraction of it is available online. (There is a fascinating set of
Most of the material available online comes from so long ago that the copyright could not possibly still be in force. But since copyright lasts for seventy years after the death of the author (or ninety-five years if it was a corporate "work for hire"), that could be a very, very long time indeed. Long enough, in fact, to keep off limits almost the whole history of moving pictures and the entire history of recorded music. Long enough to lock up almost all of twentieth-century culture. 31
But is that not what copyright is supposed to do? To grant the right to restrict access, so as to allow authors to charge for the privilege of obtaining it? Yes, indeed. And this is a very good idea. But as I argue in this book, the goal of the system ought to be to give the monopoly only for as long as necessary to provide an incentive. After that, we should let the work fall into the public domain where all of us can use it, transform it, adapt it, build on it, republish it as we wish. For most works, the owners expect to make all the money they are going to recoup from the work with five or ten years of exclusive rights. The rest of the copyright term is of little use to them except as a kind of lottery ticket in case the work proves to be a one-in-a- million perennial favorite. The one-in-a-million lottery winner will benefit, of course, if his ticket comes up. And if the ticket is "free," who would not take it? But the ticket is not free to the public. They pay higher prices for the works still being commercially exploited and, frequently, the price of complete unavailability for the works that are not. 32
Think of a one-in-a-million perennial favorite—Harry Potter, say. Long after J. K. Rowling is dust, we will all be forbidden from making derivative works, or publishing cheap editions or large-type versions, or simply reproducing it for pleasure. I am a great admirer of Ms. Rowling's work, but my guess is that little extra incentive was provided by the thought that her copyright will endure seventy rather than merely fifty years after her death. Some large costs are being imposed here, for a small benefit. And the costs fall even more heavily on all the other works, which are available nowhere but in some moldering library stacks. To put it another way, if copyright owners had to purchase each additional five years of term separately, the same way we buy warranties on our appliances, the economically rational ones would mainly settle for a fairly short period. 33
Of course, there are some works that are still being exploited commercially long after their publication date. Obviously the owners of these works would not want them freely available online. This seems reasonable enough, though even with those works the copyright should expire eventually. But remember, in the Library of Congress's vast, wonderful pudding of songs and pictures and films and books and magazines and newspapers, there is perhaps a handful of raisins' worth of works that anyone is making any money from, and the vast majority of those come from the last ten years. If one goes back twenty years, perhaps a raisin. Fifty years? A slight raisiny aroma. We restrict access to the whole pudding in order to give the owners of the raisin slivers their due. But this pudding is almost all of twentieth- century culture, and we are restricting access to it when almost of all of it could be available. 34
If you do not know much about copyright, you might think that I am exaggerating. After all, if no one has any financial interest in the works or we do not even know who owns the copyright, surely a library would be free to put those works online? Doesn't "no harm, no foul" apply in the world of copyright? In a word, no. Copyright is what lawyers call a "strict liability" system. This means that it is generally not a legal excuse to say that you did not believe you were violating copyright, or that you did so by accident, or in the belief that no one would care, and that your actions benefited the public. Innocence and mistake do not absolve you, though they might reduce the penalties imposed. Since it is so difficult to know exactly who owns the copyright (or copyrights) on a work, many libraries simply will not reproduce the material or make it available online until they can be sure the copyright has expired—which may mean waiting for over a century. They cannot afford to take the risk. 35
What is wrong with this picture? Copyright has done its job and encouraged the creation of the work. But now it acts as a fence, keeping us out and restricting access to the work to those who have the time and resources to trudge through the stacks of the nation's archives. In some cases, as with film, it may simply make the work completely unavailable. 36
So far I have been talking as though copyright were the only reason the material is not freely available online. But of course, this is not true. Digitizing costs money (though less every year) and there is a lot of rubbish out there, stuff no one would ever want to make available digitally (though it must be noted that one man's rubbish is another man's delight). But that still leaves vast amounts of material that we would want, and be willing to pay, to have digitized. Remember also that if the material were legally free, anyone could get in on the act of digitizing it and putting it up. Google's much-heralded effort to scan the books in major libraries is just the kind of thing I mean. But Google is being sued for violating copyright—even though it allows any author to "opt out" of its system, and even though under the Google system you cannot click to get the book if it is still under copyright, merely a snippet a few sentences long from the book. 37
If you are shaking your head as you read this, saying that no one would bother digitizing most of the material in the archives, look at the Internet and ask yourself where the information came from the last time you did a search. Was it an official and prestigious institution? A university or a museum or a government? Sometimes those are our sources of information, of course. But do you not find the majority of the information you need by wandering off into a strange click-trail of sites, amateur and professional, commercial and not, hobbyist and entrepreneur, all self-organized by internal referrals and search engine algorithms? Even if Google did not undertake the task of digitization, there would be hundreds, thousands, maybe millions of others who would—not with Google's resources, to be sure. In the process, they would create something quite remarkable. 38
The most satisfying proofs are existence proofs. A platypus is an existence proof that mammals can lay eggs. The Internet is an existence proof of the remarkable information processing power of a decentralized network of hobbyists, amateurs, universities, businesses, volunteer groups, professionals, and retired experts and who knows what else. It is a network that produces useful information and services. Frequently, it does so at no cost to the user and without anyone guiding it. Imagine that energy, that decentralized and idiosyncratically dispersed pattern of interests, turned loose on the cultural artifacts of the twentieth century. Then imagine it coupled to the efforts of the great state archives and private museums who themselves would be free to do the same thing. Think of the people who would work on Buster Keaton, or the literary classics of the 1930s, or the films of the Second World War, or footage on the daily lives of African-Americans during segregation, or the music of the Great Depression, or theremin recordings, or the best of vaudeville. Imagine your Google search in such a world. Imagine that Library of Congress. One science fiction writer has taken a stab. His character utters the immortal line, "Man, you'll get my Library of Congress when you pry my cold dead fingers off it!" 9 39
Familiar with the effect of this kind of train of thought on his father, my son had long since wandered off in search of a basketball game to watch. But I have to admit his question was something of an epiphany for me: Where do you click to get the actual book? 40
The response I get from a lot of people is that this vision of the Library of Congress is communism, pure and simple. Such people view Google's attempt to digitize books as simple theft. Surely it will destroy the incentives necessary to produce the next beach novel, the next academic monograph, the next teen band CD, the next hundred-million-dollar movie? But this mistakes my suggestion. Imagine a very conservative system. First, let us make people demonstrate that they want a copyright, by the arduous step of actually writing the word copyright or the little (C) on the work. (At the moment, everyone gets a copyright as soon as the work is written down or otherwise fixed, whether they want one or not.) But how long a copyright? We know that the majority of works are only valuable for five or ten years. Let us give copyright owners more than double that, say twenty-eight years of exclusive rights. If prior experience is any guide, 85 percent of works will be allowed to enter the public domain after that period. If that isn't generous enough, let us say that the small proportion of owners who still find value in their copyright at the end of twenty-eight years can extend their copyright for another twenty-eight years. Works that are not renewed fall immediately into the public domain. If you check the register after twenty- eight years and the work has not been renewed, it is in the public domain. Works that are renewed get the extra time. 41
Now this is a conservative suggestion, too conservative in my view, though still better than what we have now. Is it feasible? It would be hard to argue that it is not. This pretty much was the law in the
How have we changed the system? We have given copyrights to the creator of any original work as soon as it is fixed, so that you, reader, are the author of thousands of copyrighted works. Almost everything up on the Internet is copyrighted, even if its creators do not know that and would prefer it to be in the public domain. Imagine that you want to make a documentary and use a film clip that a student filmmaker has put up on his home page. Perhaps you want to adapt the nifty graphics that a high school teacher in
In each of these cases, you simply do not know whether what you are doing is legal or not. Of course, you can take the risk, though that becomes less advisable if you want to share your work with others. Each broadening of the circle of sharing increases the value to society but also the legal danger to you. What if you want to put the course materials on the Net, or publish the anthology, or display the movie? Perhaps you can try to persuade your publisher or employer or distributor to take the risk. Perhaps you can track down the authors of every piece you wish to use and puzzle through the way to get a legal release from them stating that they give you permission to use the work they did not even know they had copyright over. Or you can give up. Whatever happens, you waste time and effort in trying to figure out a way of getting around a system that is designed around neither your needs nor the needs of many of the people whose work you want to use. 44
Apart from doing away with the need to indicate that you want your works to be copyrighted, we have lengthened the copyright term. We did this without any credible evidence that it was necessary to encourage innovation. We have extended the terms of living and even of dead authors over works that have already been created. (It is hard to argue that this was a necessary incentive, what with the works already existing and the authors often being dead.) We have done away with the need to renew the right. Everyone gets the term of life plus seventy years, or ninety-five years for corporate "works for hire." All protected by a "strict liability" system with scary penalties. And, as I said before, we have made all those choices just when the Internet makes their costs particularly tragic. 45
In sum, we have forgone the Library of Congress I described without even apparently realizing we were doing so. We have locked up most of twentieth-century culture and done it in a particularly inefficient and senseless way, creating vast costs in order to convey proportionally tiny benefits. (And all without much complaint from those who normally object to inefficient government subsidy programs.) Worst of all, we have turned the system on its head. Copyright, intended to be the servant of creativity, a means of promoting access to information, is becoming an obstacle to both. 46
That, then, is one example of the stakes of the debate over intellectual property policy. Unfortunately, the problem of copyright terms is just one example, one instance of a larger pattern. As I will try to show, this pattern is repeated again and again in patents, in trademarks, and elsewhere in copyright law. This is not an isolated "glitch." It is a complicated but relentless tendency that has led to a hypertrophy of intellectual property rights and an assault on the public domain. In fact, in many cases, the reality is even worse: there appears to be a complete ignorance about the value of the public domain. Property's opposite, its outside, is getting short shrift. 47
To paraphrase a song from my youth, "how did we get here?" Where should we turn to understand the role of intellectual property in the era of the Internet and the decoding of the human genome? We could turn to the cutting edge of technology or to economics or information theory. But none of those would be as useful a starting place as a letter that was written about two hundred years ago, using a high-tech quill pen, about a subject far from the digital world.
Chapter 2: Thomas Jefferson Writes a Letter 1
On
I love libraries. I love the mushroom smell of gently rotting paper, the flaky crackle of manuscripts, and the surprise of matching style of handwriting with style of thought. Today, though, I am viewing his letter over the Internet on a computer screen. (You can too. The details are at the back of the book.) 4
I think
In the letter to Isaac McPherson, a letter that has become very famous in the world of the digerati,6 this joy becomes manifest. The initial subject of the correspondence seems far from the online world. McPherson wrote to
Patents then, as now, were only supposed to be given for inventions that were novel, nonobvious, and useful.
So far as we can tell, this was the only part of the letter that interested McPherson. Later correspondence indicates that he had a pamphlet printed questioning the patent.8 But while it is impressive to see Jefferson's easy command of historical evidence or his grasp of the importance of limiting the subject matter, scope, and duration of patents, these qualities alone would not have given the letter the fame it now has. It is when
He starts by dismissing the idea "that inventors have a natural and exclusive right to their inventions, and not merely for their own lives, but inheritable to their heirs." In lines that will sound strange to those who assume that the framers of the Constitution were property absolutists,
[W]hile it is a moot question whether the origin of any kind of property is derived from nature at all, it would be singular to admit a natural and even an hereditary right to inventors. It is agreed by those who have seriously considered the subject, that no individual has, of natural right, a separate property in an acre of land, for instance. By an universal law, indeed, whatever, whether fixed or movable, belongs to all men equally and in common, is the property for the moment of him who occupies it, but when he relinquishes the occupation, the property goes with it. Stable ownership is the gift of social law, and is given late in the progress of society. It would be curious then, if an idea, the fugitive fermentation of an individual brain, could, of natural right, be claimed in exclusive and stable property.9 10
With rivalrous property, one person's use precludes another's. If I drink the milk, you cannot. Excludable property is, logically enough, property from which others can easily be excluded or kept out. But ideas seem to have neither of these characteristics. 12
If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possess the less, because every other possess the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property.10 13
Those who quote the passage sometimes stop here, which is a shame, because it leaves the impression that
Society may give an exclusive right to the profits arising from [inventions], as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from any body. Accordingly, it is a fact, as far as I am informed, that
Considering the exclusive right to invention as given not of natural right, but for the benefit of society, I know well the difficulty of drawing a line between the things which are worth to the public the embarrassment of an exclusive patent, and those which are not.12
17
So
THE
Like the Miranda Warning, the Jefferson Warning has a number of important parts. 20
* First, the stuff we cover with intellectual property rights has certain vital differences from the stuff we cover with tangible property rights. Partly because of those differences,
Jefferson's message was famously echoed and amplified thirty years later in Britain by Thomas Babington Macaulay.14 Macaulay's speeches to the House of Commons in 1841 on the subject of copyright term extension still express better than anything else the position that intellectual property rights are necessary evils which must be carefully circumscribed by law. In order for the supply of valuable books to be maintained, authors "must be remunerated for their literary labour. And there are only two ways in which they can be remunerated. One of those ways is patronage; the other is copyright." Patronage is rejected out of hand. "I can conceive no system more fatal to the integrity and independence of literary men than one under which they should be taught to look for their daily bread to the favour of ministers and nobles."15 22
We have, then, only one resource left. We must betake ourselves to copyright, be the inconveniences of copyright what they may. Those inconveniences, in truth, are neither few nor small. Copyright is monopoly, and produces all the effects which the general voice of mankind attributes to monopoly. . . . I believe, Sir, that I may safely take it for granted that the effect of monopoly generally is to make articles scarce, to make them dear, and to make them bad. And I may with equal safety challenge my honorable friend to find out any distinction between copyright and other privileges of the same kind; any reason why a monopoly of books should produce an effect directly the reverse of that which was produced by the East India Company's monopoly of tea, or by Lord Essex's monopoly of sweet wines. Thus, then, stands the case. It is good that authors should be remunerated; and the least exceptionable way of remunerating them is by a monopoly. Yet monopoly is an evil. For the sake of the good we must submit to the evil; but the evil ought not to last a day longer than is necessary for the purpose of securing the good.16 23
Notice that it is the monopolistic quality of intellectual property that really disturbs Macaulay. His was a generation of thinkers for whom the negative effect of monopolies of any kind (and state-granted monopolies in particular) was axiomatic. He becomes almost contemptuous when one of the supporters of copyright extension declared that it was merely "a theory" that monopoly makes things expensive. Macaulay agrees, tongue in cheek. "It is a theory in the same sense in which it is a theory, that day and night follow each other, that lead is heavier than water, that bread nourishes, that arsenic poisons, that alcohol intoxicates."17 24
These words from Jefferson and Macaulay encapsulate an eighteenth- and nineteenth-century free-trade skepticism about intellectual property, a skepticism that is widely, but not universally, believed to have played an important role in shaping the history of intellectual property in both the United States and the United Kingdom. Certainly the U.S. Supreme Court has offered support for that position,18 and, with one significant recent exception,19 historians of intellectual property have agreed.20 Jefferson himself had believed that the Constitution should have definite limits on both the term and the scope of intellectual property rights.21 James Madison stressed the costs of any intellectual property right and the need to limit its term and to allow the government to end the monopoly by compulsory purchase if necessary.22 Adam Smith expressed similar views. Monopolies that carry on long after they were needed to encourage some socially beneficial activity, he said, tax every other citizen "very absurdly in two different ways: first, by the high price of goods, which, in the case of a free trade, they could buy much cheaper; and, secondly, by their total exclusion from a branch of business which it might be both convenient and profitable for many of them to carry on."23 25
It is important to note, though, that the eighteenth- and nineteenth-century writers I have quoted were not against intellectual property. All of them—Jefferson, Madison, Smith, and Macaulay—could see good reason why intellectual property rights should be granted. They simply insisted on weighing the costs and benefits of a new right, each expansion of scope, each lengthening of the copyright term. Here is Macaulay again, waxing eloquently sarcastic about the costs and benefits of extending the copyright term so that it would last many years after the author's death: 26
I will take an example. Dr. Johnson died fifty-six years ago. If the law were what my honourable and learned friend wishes to make it, somebody would now have the monopoly of Dr. Johnson's works. Who that somebody would be it is impossible to say; but we may venture to guess. I guess, then, that it would have been some bookseller, who was the assign of another bookseller, who was the grandson of a third bookseller, who had bought the copyright from Black Frank, the Doctor's servant and residuary legatee, in 1785 or 1786. Now, would the knowledge that this copyright would exist in 1841 have been a source of gratification to Johnson? Would it have stimulated his exertions? Would it have once drawn him out of his bed before
Again, I am struck by how seamlessly Macaulay coupled beautiful, evocative writing and careful, analytic argument. Admittedly, he was remarkable even in his own time, but it is hard to imagine a contemporary speechwriter, let alone a politician, coming up with Dr. Johnson "cheered . . . under a fit of the spleen" or buying a "plate of shin of beef at a cook's shop underground." Almost as hard as it is to imagine any of them engaging in
Macaulay is not against using a lengthened copyright term to give an extra reward to writers, even if this would dramatically raise the price of books. What he objects to is dramatically raising the price of books written by long-dead authors in a way that benefits the authors hardly at all. 29
Considered as a reward to him, the difference between a twenty years' and a sixty years' term of posthumous copyright would have been nothing or next to nothing. But is the difference nothing to us? I can buy Rasselas for sixpence; I might have had to give five shillings for it. I can buy the Dictionary, the entire genuine Dictionary, for two guineas, perhaps for less; I might have had to give five or six guineas for it. Do I grudge this to a man like Dr. Johnson? Not at all. Show me that the prospect of this boon roused him to any vigorous effort, or sustained his spirits under depressing circumstances, and I am quite willing to pay the price of such an object, heavy as that price is. But what I do complain of is that my circumstances are to be worse, and Johnson's none the better; that I am to give five pounds for what to him was not worth a farthing.25 30
Though Macaulay won the debate over copyright term extension, it is worth noting here that his opponents triumphed in the end. As I pointed out in the last chapter, the copyright term in most of
When the Supreme Court heard the case, it was presented with a remarkable friend-of-the-court brief from seventeen economists, several of them Nobel laureates.30 The economists made exactly Macaulay's argument, though in less graceful language. They pointed out that copyright extension imposed enormous costs on the public and yet conveyed tiny advantages, if any, to the creator. Such an extension, particularly over works that had already been written, hardly fit the limits of Congress's power under the Constitution "to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."31 Macaulay doubted that these enormously long terms would encourage the living. Surely they would do little to encourage the dead, while imposing considerable costs of access on the living? Thus they could hardly be said to "promote the progress" of knowledge as the Constitution requires. The Court was unmoved by this and other arguments. It upheld the law. I will return to its decision at the end of the book. 32
The intellectual property skeptics had other concerns. Macaulay was particularly worried about the power that went with a transferable and inheritable monopoly. It is not only that the effect of monopoly is "to make articles scarce, to make them dear, and to make them bad." Macaulay also pointed out that those who controlled the monopoly, particularly after the death of the original author, might be given too great a control over our collective culture. Censorious heirs or purchasers of the copyright might prevent the reprinting of a great work because they disagreed with its morals.32 We might lose the works of Fielding or Gibbon, because a legatee found them distasteful and used the power of the copyright to suppress them. This is no mere fantasy, Macaulay tells us. After praising the novels of Samuel Richardson in terms that, to modern eyes, seem a little fervid ("No writings, those of Shakespeare excepted, show more profound knowledge of the human heart"), Macaulay recounts the story of
One of the most instructive, interesting, and delightful books in our language is Boswell's Life of Johnson. Now it is well known that Boswell's eldest son considered this book, considered the whole relation of Boswell to Johnson, as a blot in the escutcheon of the family. He thought, not perhaps altogether without reason, that his father had exhibited himself in a ludicrous and degrading light. And thus he became so sore and irritable that at last he could not bear to hear the Life of Johnson mentioned. Suppose that the law had been what my honourable and learned friend wishes to make it. Suppose that the copyright of Boswell's Life of Johnson had belonged, as it well might, during sixty years, to Boswell's eldest son. What would have been the consequence? An unadulterated copy of the finest biographical work in the world would have been as scarce as the first edition of
From more recent examples we can see that outright suppression is not the only thing to fear. The authors' heirs, or the corporations which have purchased their rights, may keep policing the boundaries of the work long after the original author is dead. In 2001, Alice Randall published The Wind Done Gone. As its title might indicate, The Wind Done Gone was a 220- page "critique of and reaction to" the world of Gone With the Wind by Margaret Mitchell.35 Most crucially, perhaps, it was a version of Gone With the Wind told from the slaves' point of view. Suddenly the actions of Rhett ("R"), Scarlett ("Other"), and an obviously gay Ashley ("Dreamy Gentleman") come into new perspective through the eyes of Scarlett's "mulatto" half- sister. Mitchell's estate wanted to prevent publication of the book. At first they were successful.36 As Yochai Benkler puts it, 35
Alice Randall, an African American woman, was ordered by a government official not to publish her criticism of the romanticization of the Old South, at least not in the words she wanted to use. The official was not one of the many in Congress and the Administration who share the romantic view of the Confederacy. It was a federal judge in
"They killed Miss Scarlett!" the astonished trial judge said after reading Randall's book. My colleague Jennifer Jenkins, one of the lawyers in the case, recounts that the judge saw the case in relentlessly physical terms, seeing the parody as a "bulldozer" and Gone With the Wind as a walled country estate into which the bulldozer had violently trespassed. He was consequently unimpressed with the claim that this "bulldozer" was protected by the First Amendment. Eventually, the court of appeals overturned the district court's judgment.38 Fifty-two years after Margaret Mitchell's death, it was a hotly debated point how much leeway copyright gave to others to comment upon, critique, embellish upon, and parody the cultural icon she had conjured up. 37
A NATURAL RIGHT? 38
To some people, my argument so far—and
Broadly speaking, that answer is correct.39 It also holds, to a lesser extent, in
I think this answer is correct and important, but we have an obligation to go further. Partly that is because intuitions about ownership coming naturally with labor or discovery continue to influence the law. Partly it is because those moral intuitions are important and appealing. Partly it is because we might wish to modify or criticize our current system. Using the views of the framers, or current law, to preempt discussion is unsatisfactory—even though those views are of particular importance for the legal policy decisions we face in the short run, the issues on which much of my argument is concentrated. 41
There are varying stated grounds for natural or moral rights in intellectual creations. Some people may think the book is mine because I worked on it—a Lockean conception where I mix my sweat with these words and receive a property right in the process. 42
For all its attractions, there are considerable difficulties with such a view. Even within the world of tangible property, Locke's theory is more complicated than a simple equation of labor with property right.
Locke's own views on what we would think of as copyright are hard to determine. We do know that he had a strong antipathy to monopolies—particularly those affecting expression. He believed, for example, that giving publishers monopolies over great public domain books caused a disastrous fall in quality. Instead, he argued, such books should be open for all to compete to produce the best edition. Of course, he was writing in the context of monopolistic printing privileges—to which he was strongly opposed—rather than of individual authorial rights. Yet he went further and suggested that even for contemporary works, after a particular time in print—say fifty years—books could be printed by anyone. 44
I demand whether, if another act for printing should be made, it be not reasonable that nobody should have any peculiar right in any book which has been in print fifty years, but any one as well as another might have liberty to print it: for by such titles as these, which lie dormant, and hinder others, many good books come quite to be lost.40 45
This sounds like a strongly utilitarian argument, rather than one based on labor and natural right. Of course, we are not bound by what Locke or
The Lockean tradition is not the only one, of course. Others believe that the property right stems from the unique personality of each individual—the configurations of your individual genius made manifest in the lines of your sonnet. (Some limit the natural right to literary and expressive work; can a mousetrap or a drug molecule express the riddle and wonder of the human spirit?) Whatever their moral basis or their ambit, the common ground between these positions is the belief in a rationale for intellectual property rights beyond the utilitarian concerns of Jefferson or Macaulay. 47
The norms embodied in the moral rights or natural rights tradition are deeply attractive—at least to me. Many of us feel a special connection to our expressive creations—even the humble ones such as a term paper or a birthday poem. It is one of the reasons that the central moral rights in the French droits d'auteur, or author's rights, tradition resonate so strongly with us. The entitlement of an author to be correctly attributed, to have some control over the integrity of his work, seems important regardless of its utilitarian functions.1 48
Yet even as we find this claim attractive, we become aware of the need to find limiting principles to it. It gives us pause to think that Margaret Mitchell or her heirs could forbid someone parodying her work. Are there no free-speech limitations? When other forms of authorship, such as computer programs, are brought into copyright's domain, does the power of the moral right decrease, while the need to limit its scope intensifies? 49
Then there is the question of length. How long is a natural right in expression or invention supposed to last? It seems absurd to imagine that Shakespeare's or Mozart's heirs, or those who had bought their copyrights, would still be controlling the performance, reproduction, and interpretation of their works hundreds of years after their death. If the rights are truly formed for a nonutilitarian purpose, after all, why should they expire? The person who first acquires property rights in land by work or conquest passes those rights down to heirs and buyers with the chain of transmission reaching to the present day. Should copyright follow suit? Even in
We owe a large part of the literary moral rights tradition to the immediate aftermath of the French Revolution. In
[A]ccording to the Declaration of the Rights of Man, liberty means only the freedom to do what does not harm others; and that it harms others to appropriate the work of an author, because it is an infringement of the sacred right of property; and that such an enterprise, if it were to remain unpunished, would deprive citizens of the instruction they await from celebrated authors like M. Bernardin de St. Pierre, because no author would want to consecrate his labors to the instruction of his age if piracy were ever authorized.41 52
Note the interesting mixture of the language of the "sacred rights of property" and the strong utilitarian justification which cites effects on future literary production and the "instruction" of citizens. 53
More expansive conceptions of the rights of authors and, particularly, of publishers were also offered. Even before the Revolution, publishers had been making the arguments that their privileges were a form of property rights and had the very good sense to hire the young Diderot to make those arguments.
What form of wealth could belong to a man, if not a work of the mind, . . . if not his own thoughts, . . . the most precious part of himself, that will never perish, that will immortalize him? What comparison could there be between a man, the very substance of man, his soul, and a field, a tree, a vine, that nature has offered in the beginning equally to all, and that an individual has only appropriated through cultivating it?42 55
Diderot's theme is that authors' rights should actually be stronger than other property rights for two reasons. First, they relate to the very essence of the person, the most "precious part of himself." Second, they are the only property rights over something that has been added to the existing store of wealth rather than taken from it. Authorial property, unlike property in land, adds to the common store rather than detracting from it. Locke believed that a just assertion of property rights must leave "enough and as good" for others in the society. What could better satisfy this condition than a property right over a novel that did not exist before I wrote it? One hundred years later Victor Hugo echoed the same thoughts in a speech to the Conseil d'Etat and pointed out at the same time that literary property rights could potentially "reconcile" troublesome authors to society and state. 56
You feel the importance and necessity of defending property today. Well, begin by recognising the first and most sacred of all properties, the one which is neither a transmission nor an acquisition but a creation, namely literary property . . . reconcile the artists with society by means of property.43 57
Diderot wanted perpetual copyrights for authors and, agreeably to his employers, a correspondingly perpetual printing privilege. If the author's heirs could not be traced, the copyright would devolve to the current publisher. 58
But as
Any privilege therefore imposes a hindrance on freedom, placing a restriction on the rights of other citizens; As such it is not only harmful to the rights of others who want to copy, but the rights of all those who want copies, and that which increases the price is an injustice. Does the public interest require that men make this sacrifice? That is the question that must be considered; In other words, are [literary] privileges needed and useful or harmful to the progress of enlightenment?46 60
Condorcet's conclusion was that they were not necessary and that they could be harmful. "The books that most furthered the progress of enlightenment, the Encyclopédie, the works of Montesquieu, Voltaire, Rousseau, have not enjoyed the benefits of a privilege." Instead he seemed to favor a combination of "subscriptions" to authors with a trademark-like protection which allowed an author to identify a particular edition of his work as the genuine one, but which also allowed competing editions to circulate freely. In such a market, he believed that the price of the competing editions would fall to "natural" levels—today we would call it marginal cost—but the original author would still be able to charge a modest premium for the edition he authorized or certified because readers would prefer it as both more accurate and more authentic. One possible analogy is to the history of the fashion industry in the
Condorcet also insisted that whatever protection was accorded to literary works must not extend to the ideas within them. It is the truths within books that make them "useful"—a word that does not have the same luminance and importance for us today as it did for the philosophers of the Enlightenment or the French Revolution. He argued that any privilege given the author could not extend to "preventing another man from exhibiting the same truths, in perfectly the same order, from the same evidence" or from extending those arguments and developing their consequences. In a line that
In sum, Condorcet favors a limited privilege, circumscribed by an inquiry into its effects in promoting progress and enlightenment. The privilege only applies to expression and to "the author's name," rather than to facts and ideas. This is very much within the tradition of Jefferson and Macaulay. 63
Different as they are, these two sides share a common ground. They both focus, though for different reasons, on "expression"—the imprimatur of the author's unique human spirit on the ideas and facts that he or she transmits. It is this "original expression" that modern copyright and the modern droits d'auteur actually cover. In today's copyright law, the facts and ideas in an author's work proceed immediately into the public domain. In other work, I have argued that by confining the property right tightly to the "original expression" stemming from the unique personality of an individual author the law seems to accomplish a number of things simultaneously. It provides 65
a conceptual basis for partial, limited property rights, without completely collapsing the notion of property into the idea of a temporary, limited, utilitarian state grant, revocable at will. [At the same time it offers] a moral and philosophical justification for fencing in the commons, giving the author property in something built from the resources of the public domain—language, culture, genre, scientific community, or what have you. If one makes originality of spirit the assumed feature of authorship and the touchstone for property rights, one can see the author as creating something entirely new—not recombining the resources of the commons.47 66
That is an account of the romantic theory of authorship in the context of contemporary Anglo-American copyright law. But when one looks at the history of the French droits d'auteur tradition, it is striking how well those words describe that system as well. When the French legislature finally produced a law of authors' rights it turned out, in
Although it drew on a Diderotist rhetoric of the sanctity of individual creativity as an inviolable right, it did not rigorously respect the conclusions Diderot drew from this position. In contrast to the privilège d'auteur of 1777, the law did not recognize the author's claim beyond his lifetime but consecrated the notion, advanced first by Pierre Manuel to defend his edition of Mirabeau, that the only true heir to an author's work was the nation as a whole. This notion of a public domain, of democratic access to a common cultural inheritance on which no particular claim could be made, bore the traces not of Diderot, but of Condorcet's faith that truths were given in nature and, although mediated through individual minds, belonged ultimately to all. Progress in human understanding depended not on private knowledge claims, but on free and equal access to enlightenment. An author's property rights were conceived as recompense for his service as an agent of enlightenment through publication of his ideas. The law of 1793 accomplished this task of synthesis through political negotiation rather than philosophical reasoning—that is, by refashioning the political identity of the author in the first few years of the Revolution from a privileged creature of the absolutist police state into a servant of public enlightenment.48 68
This is the flip side of the arguments that Diderot and later Hugo put forward. Perhaps the romantic author does not create out of thin air. Perhaps he or she is deeply embedded in a literary, musical, cultural, or scientific tradition that would not flourish if treated as a set of permanently walled private plots. Even within the tradition, we see a recognition that the continuing progress of enlightenment and the ssacred genius of authors might both require a certain level of freedom in knowledge inputs and a certain level of control over knowledge outputs. We see also the recognition that these two requirements are in fundamental tension. When it comes to reconciling that tension we must turn in part to utilitarian effects. In short, we should pay attention to Jefferson and Macaulay and Condorcet, not just because their thoughts shaped the legal and philosophical traditions in which we now work—though that is particularly true in the case of the United States—but because they were right, or at least more right than the alternative. 70
Of course, we could build a culture around a notion of natural, absolute, and permanent rights to invention and expression. It is not a world many of us would want to live in. There are exceptions of course. In a recent New York Times op-ed, Mark Helprin—author of Winter's Tale—argued that intellectual property should become perpetual.50 After all, rights in real estate or personal property do not expire—though their owners might. Why is it that copyrights should "only" last for a lifetime plus seventy additional years, or patents for a mere twenty? Mr. Helprin expresses respect for the genius of the framers, but is unmoved by their firm command that rights be granted only for "limited times." He concludes that it was a misunderstanding.
Or perhaps not. Think of the way that
Of course, one could construct a more modest Lockean idea of intellectual property51 —building on the notion of "enough and as good" left over for others and drawing the limits tightly enough to avoid the worst of Mr. Helprin's excesses. But as one attempts to do this systematically, the power of the Jeffersonian vision becomes all the more apparent—at least as a starting place. 73
Notes:
1. As the suggested further reading indicates, this light- hearted account of the economic basis of intellectual property conceals considerable complexity. On the other hand, the core argument is presented here—and a compelling argument it is.
2. See Jack Hirshleifer, "The Private and Social Value of Information and the Reward to Inventive Activity," American Economic Review 61 (1971): 561-574.
3. Unfortunately, the reality turns out to be less rosy. James Bessen, "Patents and the Diffusion of Technical Information," Economics Letters 86 (2005): 122: "[S]urvey evidence suggests that firms do not place much value on the disclosed information. Moreover, those firms that do read patents do not use them primarily as a source of information on technology. Instead, they use them for other purposes, such as keeping track of competitors or checking for infringement. There are, in fact, sound theoretical reasons why the disclosed information may not be very valuable. [Fritz] Machlup and [Edith] Penrose report that the argument about diffusion is an old one, popular since the mid-19th century. They also point out that, at least through the 1950s, economists have been skeptical about this argument. The problem, also recognized in the mid-19th century, is that 'only unconcealable inventions are patented,' so patents reveal little that could not be otherwise learned. On the other hand, 'concealable inventions remain concealed.' " [Citations omitted.]
4. Felix S. Cohen, "Transcendental Nonsense and the Functional Approach," Columbia Law Review 35 (1935): 817.
5. For contrasting views of the sequence of events, see John
Feather, "Publishers and Politicians: The Remaking of the Law of
Copyright in Britain 1775-1842," pt. 2, "The Rights of Authors,"
Publishing History 25 (1989): 45-72; Mark Rose, Authors and
Owners: The Invention of Copyright (Cambridge, Mass.: Harvard
University Press, 1993).
6. Tim O'Reilly points out that there are 32 million titles in the Online Computer Library Center's "WorldCat" catalogue—this is a reasonable proxy for the number of books in U.S. libraries. Nielsen's Bookscan shows that 1.2 million books sold at least one copy in 2005. This yields a ratio of books commercially available to books ever published of about 4 percent. But of those 1.2 million books, many are in the public domain—think of Shakespeare, Dickens, Austen, Melville, Kipling. Thus the percentage of books that are under copyright and commercially available may actually be considerably lower than 4 percent. See http://radar.oreilly.com/archives/2005/11/oops_only_4_of_titles_ are_bein.html. For a lucid account of the statistics in the context of the Google Book Search Project, see http://lessig.org/blog/2006/01/google_book_search_the_argumen.ht ml.
7. See Barbara Ringer, "Study Number 31: Renewal of Copyright," reprinted in U.S. Senate Committee on the Judiciary, Subcommittee on Patents, Trademarks, and Copyrights, Copyright Law Revision, 86th Cong., 1st Sess., Committee Print (1960), 187. See also HR Rep. 94-1476 (1976), 136; William M. Landes and Richard A. Posner, The Economic Structure of Intellectual Property Law (Cambridge, Mass.: Belknap Press, 2003), 210-212.
8. Details of the orphan works problem can be found in the proposals presented to the copyright office by the Center for the Study of the Public Domain; Orphan Works: Analysis and Proposal: Submission to the Copyright Office—March 2005, available at http://www.law.duke.edu/cspd/pdf/cspdproposal.pdf, and Access to Orphan Films: Submission to the Copyright Office—March 2005, available at http://www.law.duke.edu/cspd/pdf/cspdorphanfilm.pdf. Two recent bills, in the Senate and House, respectively, attempt to address the orphan works problems. The Shawn Bentley Orphan Works Act of 2008, S 2913, 110th Cong. (2008), would add a new section to the Copyright Act limiting remedies for infringement of orphan works and requiring the establishment of a database of pictorial, graphic, and sculptural works. The House bill, The Orphan Works Act of 2008, HR 5889, 110th Cong. (2008), is similar but not identical. While these bills are a good start, the eventual remedy will need to be more sweeping.
9. Bruce Sterling, Heavy Weather (New York: Bantam, 1994): 73