The Center for Individual Freedom has just published a paper by three RIAA lawyers that purports to develop a natural rights theory and history of copyright. The paper is short (6 pages long), which appears to be its only valuable quality. I’ll set out a brief critique below, but first I want to note that the paper’s mere appearance / existence is a fascinating signal. It’s an instantiation of copyright greenwashing: the content industry is trying to seed the academic and policy literature with pro-copyright arguments and justifications. (One would have thought they could afford more than 6 pages? But, with three law firm partners charging by the word, perhaps even the RIAA does not have bottomless pockets.) The reason this is interesting is that it suggests that the strong trend in copyright scholarship towards skepticism – towards the view that copyright law has become badly skewed towards overprotecting works, in a fashion that has adverse societal consequences – has become a concern for Hollywood. Otherwise, why bother with an academic paper?
I think there are two reasons for the shift. First, Mickey Mouse is due to fall out of copyright in 2018, and so the industry wants to get a head start on the debates over the next Copyright Term Extension Act. Second, and perhaps more importantly, the contretemps over SOPA and PROTECT IP was the first real instance of Hollywood not getting its way legislatively. There is a generation of digital natives who have been raised on suspicion of Big Content, and they are starting to attain political influence. So, one response to the fight over whether we’ve tuned copyright correctly (to get more movies, books, etc.) is to shift the battleground: treat copyright as an inherent right rather than an instrumental one. I think, then, that the appearance of this paper is a sign that Hollywood is not only nervous about its political strength, but that it realizes that legal scholarship makes some difference. (Law review editors: rejoice!) It matters not only because it frames debates effectively, but because a whole generation of students has been consuming copyright skepticism, and it’s having an effect.
Why greenwashing? Because this is a turgid advocacy piece masquerading as academic writing. It hasn’t been published by a reputable journal, nor reviewed by anyone other than the authors and their sockpuppet CIF. (Student-run journals are hardly a model of academic review, but they’re far superior to nothing.) It treats cursorily an extraordinarily rich and complex topic in intellectual property. It is intellectually lazy – the piece cites an article by Fred Yen, two by Justin Hughes, one by Frank Easterbrook, and one by Jane Ginsburg (along with a student note, and three books). Thus, it fails utterly to engage the thoughtful scholarship that takes up the natural rights argument, including by Adam Mossoff and Mark Schultz among others. (The paper is too slipshod even to cite its intellectual allies. Nice.) And, ironically, it is utilitarian in purpose – the paper’s existence is driven not by academic curiosity, but by the policy needs of its paymasters.
Lastly, while the paper purports only to be a descriptive, historical analysis, it fails to consider counterarguments. (Indeed, it doesn’t even bother to cite the best historical account of the drafting of the IP Clause, by Dotan Oliar.) Take for example the claim that intellectual property deserves greater protection under a Lockean analysis than physical property. That claim fails to consider the difficult demarcation problem inherent in intellectual property: when an author has drawn upon the intellectual commons to create a new work (say, West Side Story), how should rights be allocated? After all, part of the musical’s appeal is the creative output of Sondheim and Robbins, and part is from the classic narrative provided by Shakespeare (who himself drew upon earlier sources). This line-drawing problem is much harder – in determining the scope of the right to exclude – than it is for physical objects, which at least have thingness (you can put an apple in your pocket) to help us set boundaries. This suggests that IP should receive less protection than physical property, not more. It is quite difficult to determine the relative contributions of the commons and the creator.
Second, if copyright is based upon labor desert, and therefore is treated like property, why on earth does the Constitution provide that the right to exclude terminates? Title to physical property lasts forever. Copyright seems like it does, but the Constitution sets an outer bound: it can endure only for “limited Times.” That limitation in itself suggests, at least, a significant admixture of utilitarian thinking in the IP clause.
But I’m spending more time on this article than it deserves. It will happily land on the dustbin of history. And, ironically, it should lend some comfort to utilitarian critics of copyright: the shift in tone, and tactics, suggests they are starting to gain traction.
Update: I meant to include in the original post that this paper is really just another sales tactic in the political economy of intellectual property. For a thoughtful discussion of that topic, I recommend Dan Hunter’s book on IP.