Copyright on the Third Hand

by on November 17, 2007 · 16 comments

Larry Lessig recently emailed several helpful tips for my book-in-progress, Intellectual Privilege: Copyright, Common Law, and the Common Good. He suggested, for instance, that I post on the book’s home page a brief summary of its theme. I came up with this:


Two views monopolize the ongoing debate over copyright policy. One view denigrates all restraints on copyrighted information, whether they arise from statutory law, common law, or technological tools. The other view equates copyrights to tangible property, concluding that they merit a broad panoply of legal protections. Left-wingers tend to favor the former position; right-wingers the latter.

I here offer a third view of copyright. I largely agree with my friends on the left that copyright represents not so much a form of property as it does a policy device designed to “promote the Progress of Science and useful Arts” (as the Constitution puts it). I thus call copyright a form of intellectual privilege.

Like my friends on the right, however, I hold our common law rights in very high regard. Hence my complaint against copyright: it violates the rights we would otherwise enjoy at common law to peaceably enjoy the free use our throats, pens, and presses. That is not to say that copyright is per se unjustified. We can excuse facial violations of our common law rights, such as the takings effectuated by taxation or the restraints imposed by antitrust law, as the costs of obtaining a greater good. But it does mean that copyright qualifies, at best, as a necessary evil.


You might say, in other words, that this book invokes a physiological improbability: a third hand. Traditional discussions of copyright policy don’t require more than the usual allotment of appendages. On the one hand, we can disparage copyright together with all other means of protecting expressive works. On the other hand, we can exalt copyright as a form of property more powerful than any common law right to the contrary. If we limit ourselves to those two hands, however, we will have to embrace a false dichotomy. In thought, if not in body, we can best grasp copyright policy “on the third hand,” recognizing that it cries out for justification because it violates our common law rights, and justifying it—if we can—only as a necessary and proper mechanism for promoting the general welfare.

This third view suggests a great deal about both how present copyright policies malfunction and how to fix them. Most significantly, it opens our eyes to the benefits of an open copyright system, one that encourages authors to rely solely on their common rights and to fully respect our own. Thus might we someday outgrow copyright, discovering that the common law does a better job of promoting the common good.


I plan to use that text, together with some other more workaday stuff, as the book’s introduction. As always, I welcome your comments.

[Crossposted to Intellectual Privilege and Agoraphilia.]

  • Timon

    Tonight I am at a friend’s house in a de-facto copyright- free country (which is in all other ways politically corrupt and petty), and somehow she. had discovered one of my favorite artists, Joanna Newsom. FWIW, I got chills. translating a very original, “stolen” song called “Sadie”, which includes a definition of art and especially copywritten music in all its complexity:

    “This is an old song,
    These are old blues,
    And this is not my tune,
    But it’s mine to use.”

  • Timon

    Tonight I am at a friend’s house in a de-facto copyright- free country (which is in all other ways politically corrupt and petty), and somehow she. had discovered one of my favorite artists, Joanna Newsom. FWIW, I got chills. translating a very original, “stolen” song called “Sadie”, which includes a definition of art and especially copywritten music in all its complexity:

    “This is an old song,
    These are old blues,
    And this is not my tune,
    But it’s mine to use.”

  • http://www.techliberation.com/ Tim Lee

    Looks like a great book. I found the introduction a little bit confusing, though. I’m not sure I understand how your “third hand” is distinct from the “left-wing” anti-copyright position. Perhaps it would make sense to add a paragraph fleshing out which common law and technological tools you think make a good substitute for copyright?

    Also, you’ve got an alignment problem in your table of contents. Parts 2 and 3 don’t line up properly with part 1.

  • http://www.techliberation.com/ Tim Lee

    Looks like a great book. I found the introduction a little bit confusing, though. I’m not sure I understand how your “third hand” is distinct from the “left-wing” anti-copyright position. Perhaps it would make sense to add a paragraph fleshing out which common law and technological tools you think make a good substitute for copyright?

    Also, you’ve got an alignment problem in your table of contents. Parts 2 and 3 don’t line up properly with part 1.

  • twinkerzzz

    hhmmm
    rather flowery language – but you avoid a significant issue
    Those of use who soley live, work and generally survive by the
    “use our throats, pens, and presses” are coming from a, yes imperfect, but tangible ‘previous context’. We need to be paid.

    It seems odd to me that you completly side-step this fundamental pillar – about copyright – which is in itself it’s a system which exists to distribute income. Yes it’s reformable – and i support the Writers currently on strike in Hollywood – look how theyve missed out on income streams for decades, often living difficult lives on little money, while the big bucks goes to the greedy few.

    It just seems odd to me that you ignore this in your very polarised, black and white easy-formula view.

    Creating stuff is a way of life – it doesnt just appear. It takes years of unglamourous sweat, often in debt. That’s part of how it happens, the path to creative and FINANCIAL stability.

    This is the fundamental key issue that needs to be examined by bittorent copyright reformists. In a world of global , free, or virtually-free cultural consumption, how are you going to support the people who choose to dedicate their lives to creating culture ? How do you distribute and generate income ?

    This is what matters – This is what has always mattered, this is what get things made.

  • twinkerzzz

    hhmmm
    rather flowery language – but you avoid a significant issue
    Those of use who soley live, work and generally survive by the
    “use our throats, pens, and presses” are coming from a, yes imperfect, but tangible ‘previous context’. We need to be paid.

    It seems odd to me that you completly side-step this fundamental pillar – about copyright – which is in itself it’s a system which exists to distribute income. Yes it’s reformable – and i support the Writers currently on strike in Hollywood – look how theyve missed out on income streams for decades, often living difficult lives on little money, while the big bucks goes to the greedy few.

    It just seems odd to me that you ignore this in your very polarised, black and white easy-formula view.

    Creating stuff is a way of life – it doesnt just appear. It takes years of unglamourous sweat, often in debt. That’s part of how it happens, the path to creative and FINANCIAL stability.

    This is the fundamental key issue that needs to be examined by bittorent copyright reformists. In a world of global , free, or virtually-free cultural consumption, how are you going to support the people who choose to dedicate their lives to creating culture ? How do you distribute and generate income ?

    This is what matters – This is what has always mattered, this is what get things made.

  • http://www2.blogger.com/profile/14380731108416527657 Steve R.

    twinkerzzz: The fundamental pillar of copyright is the Article 1, Section 8, Clause 8 of the US constitution which grants a limited monopoly “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;” Over the years the concept of this “limited” entitlement has evolved into a welfare right.

    Furthermore, we have forgotten the concept of promoting the progress of science and useful arts. In theory we could make the case that if a work does not promote the progress of science and useful arts, it is not worthy of copyright protection. (I realize this would be considered unpopular and would also be a slippery slope concept as it would be difficult to define.)

    In a free market system you are not entitled to make money. Many small businesses don’t make it. If your product (writing) does not sell, too bad. Additionally, assets, in many situations, lose value over time through depreciation. The producers of content are entitled, for a short period of time, to attempt to make money off their work. But once that period expires, that’s it.

  • http://www2.blogger.com/profile/14380731108416527657 Steve R.

    twinkerzzz: The fundamental pillar of copyright is the Article 1, Section 8, Clause 8 of the US constitution which grants a limited monopoly “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;” Over the years the concept of this “limited” entitlement has evolved into a welfare right.

    Furthermore, we have forgotten the concept of promoting the progress of science and useful arts. In theory we could make the case that if a work does not promote the progress of science and useful arts, it is not worthy of copyright protection. (I realize this would be considered unpopular and would also be a slippery slope concept as it would be difficult to define.)

    In a free market system you are not entitled to make money. Many small businesses don’t make it. If your product (writing) does not sell, too bad. Additionally, assets, in many situations, lose value over time through depreciation. The producers of content are entitled, for a short period of time, to attempt to make money off their work. But once that period expires, that’s it.

  • eric

    twinkerzzz, you creators for profit are going to find yourself increasingly in competition with those who create and distribute their work for the love of their art, and that alone. I can find photos available for free, usable under a Creative Commons license, that outclass the photos I see as illustrations in most magazines. It’s a reality that many people have achieved a financial status that allows them to create solely for the desire and joy of it. Their output is occupying more and more of our time, reducing the market for mercenary artists. Fact of life, copyright reform or no.

    As for the writer’s strike, good luck with that. I view it as more of a relief than anything, given the movies and TV shows I’ve seen (or should I say “suffered through”) in the past couple of years. A break from that is not an unappealing prospect. Perhaps I will have more time to pick up an old classic book, from the public domain or at least the public library.

  • eric

    twinkerzzz, you creators for profit are going to find yourself increasingly in competition with those who create and distribute their work for the love of their art, and that alone. I can find photos available for free, usable under a Creative Commons license, that outclass the photos I see as illustrations in most magazines. It’s a reality that many people have achieved a financial status that allows them to create solely for the desire and joy of it. Their output is occupying more and more of our time, reducing the market for mercenary artists. Fact of life, copyright reform or no.

    As for the writer’s strike, good luck with that. I view it as more of a relief than anything, given the movies and TV shows I’ve seen (or should I say “suffered through”) in the past couple of years. A break from that is not an unappealing prospect. Perhaps I will have more time to pick up an old classic book, from the public domain or at least the public library.

  • http://www.digital-copyright.ca/petition Chris Brand

    twinkerzzz, what you’re missing is that paying creators is not the purpose of copyright. It is merely the means to the end – “promoting the progress of science and the useful arts”. It’s entirely possibly that that end could be satisfied by different means.

  • http://www.digital-copyright.ca/petition Chris Brand

    twinkerzzz, what you’re missing is that paying creators is not the purpose of copyright. It is merely the means to the end – “promoting the progress of science and the useful arts”. It’s entirely possibly that that end could be satisfied by different means.

  • http://www2.blogger.com/profile/14380731108416527657 Steve R.

    Tom, I ran across Infringement Nation on TechDirt.

    I really like your graphic “Copyright Term v. Copyright Inception12″. As a quickie comment, I would like to see more concrete examples.

  • http://www2.blogger.com/profile/14380731108416527657 Steve R.

    Tom, I ran across Infringement Nation on TechDirt.

    I really like your graphic “Copyright Term v. Copyright Inception12″. As a quickie comment, I would like to see more concrete examples.

  • Tom W. Bell

    Tim: I agree that I could do more to drive home the most unique aspect of my “third handed” approach: We should favor common law protections of expressive works over statutory ones. That’s been a major theme in my writings, and something that I plan to discuss in at least a couple of chapters in this book. Thanks for reminding me to put it in the introduction, too.

    Twinkerzzz: I don’t mean to give the impression that those who create expressive works ought to be left entirely without recourse to the law. In fact, I favor protecting expressive works; I simply favor using common law protections more than statutory ones. Even within the scope of copyright law, I am not a big fan of fair use. You’ll see that in chapter 4 of the book, “Fair Use v. Fared Use.”

    Steve R.: Thanks. I’ll try to post that graphic next. I suffered a HD crash recently, though, which has slowed me down a bit.

  • Tom W. Bell

    Tim: I agree that I could do more to drive home the most unique aspect of my “third handed” approach: We should favor common law protections of expressive works over statutory ones. That’s been a major theme in my writings, and something that I plan to discuss in at least a couple of chapters in this book. Thanks for reminding me to put it in the introduction, too.

    Twinkerzzz: I don’t mean to give the impression that those who create expressive works ought to be left entirely without recourse to the law. In fact, I favor protecting expressive works; I simply favor using common law protections more than statutory ones. Even within the scope of copyright law, I am not a big fan of fair use. You’ll see that in chapter 4 of the book, “Fair Use v. Fared Use.”

    Steve R.: Thanks. I’ll try to post that graphic next. I suffered a HD crash recently, though, which has slowed me down a bit.

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