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.