Articles by Tom W. Bell

Tom W. Bell teaches as a professor at Chapman University School of Law, in Orange County, California. He specializes in intellectual property and high-tech law, topics on which he has written a variety of articles. After earning his J.D. from the University of Chicago School of Law, Prof. Bell practiced law in Silicon Valley and Washington, D.C., served as Director of Telecommunications and Technology Studies at the Cato Institute, and joined the Chapman faculty in 1998. For fun, he surfs, plays guitar, and goofs around with his kids.


As part of a revise-and-resubmit process, I’ve been spending much of my summer upgrading my draft book, Intellectual Privilege: A Libertarian View of Copyright. That effort has led me to revisit copyright’s constitutional foundations. I find them very shaky, indeed. This passage (with footnotes excerpted) explains why modern copyright law often fails “to promote the Progress of Science and the useful Arts”:


What would copyright look like if we took the Constitution at its word, requiring that copyright promote the progress of both science and the useful arts? We would then have to look askance at the current practice of affording copyright protection to such purely artistic creations as songs, plays, novels, paintings, and sculptures. Even supposing that “science” reaches broadly enough to cover all of the humane sciences—a reading that Malla Pollack documents as an original meaning of the term—copyright law today focuses far more on the expressive arts than on the “useful” ones.

Taking “Science and useful Arts” seriously would thus radically narrow the proper scope of copyright. The first Copyright Act, enacted in 1790 by some of the same people who wrote and ratified the Constitution, covered only maps, charts, and books. Permitting copyrights in first two types of works plainly promoted both science and the useful arts. Lawmakers in 1790 probably regarded books, too, primarily as tools rather than diversions. Novels had yet to rise to prominence, after all; the first American one, William Hill Brown’s THE POWER OF SYMPATHY, had appeared only the year before, and even it aimed at practical ends, promising “to Expose the fatal consequences of SEDUCTION.” Judging from the titles in libraries and on sale, fiction made up only a small portion of the books available in late eighteenth century America. The 1790 Copyright Acts moreover excluded such purely artistic expressions as songs, plays, paintings, and sculptures—even though its drafters undoubtedly knew of and appreciated those sorts of works.

It appears, then, that “[t]o promote the Progress of Science and useful Arts” originally meant that that copyrights had to serve practical ends, rather than merely expressive ones. But originalists should not alone embrace that constitutional limitation on copyright’s scope. Given that “Science” now connotes a more technical and specialized endeavor than it did in the eighteenth century, the plain, present, public meaning of the Constitution likewise counsels against extending copyright protection to purely artistic works. Whether we give the Constitution’s text its original meaning or its current one, therefore, copyright should cover little more than maps, charts, non-fiction books, illustrations, documentaries, computer programs, and architecture. Most songs, plays, fictional books, paintings, sculptures, dances, movies, and other artistic works, because they fail to promote the progress of science and the useful arts, would on that reasoning not qualify for copyright protection.

However rigorously logical, that argument against the constitutionality of almost all modern copyright law will, I grant, probably generate more grins than agreement. Courts and commentators have hitherto hardly bothered to distinguish between “Science and useful Arts”; still less have they taken those words to impose real limitations on federal power. Here as elsewhere, acquiescence to long-accepted practices has dulled us to the Constitution’s bracingly straightforward words. We should read them anew and reflect that the Founding generation did not evidently think that granting statutory privileges to such purely artistic creations as romantic operas or pretty pictures would promote the progress of both science and the useful arts. Furthermore, most citizens today would, if presented with the Constitution’s plain language rather than the convoluted arguments of professional jurisprudes, probably say the same thing about pop songs, blockbuster movies, and the like. That is certainly not to say that purely expressive works lack value. They may very well promote such important goals as beauty, truth, and simple amusement. The Constitution requires that copyright promote something else, however—”the Progress of Science and useful Arts”—and a great many works now covered by copyright cannot plausibly claim to do both.


This argument against the constitutionality of most modern copyright relies, by the way, on a prior argument about the structure of the copyright clause; to wit, that “Science and useful Arts” modifies both “authors” and “inventors.” Also, I intend to follow up the above with an analysis of how the Supreme Court in Eldred took a view almost exactly opposite to the text-based one I’ve embraced. (I’d call that an admission, were I not proud to disagree with the Court.)

[[Crossposted at Agoraphilia, TechLiberation Front.]

Theories constitute the technology of academia. They give us eggheads the tools we need to get our work done, just as computers serve programmers and DNA sequencing serves bioengineers. I trust that TLF’s readers won’t think me too far off-topic, then, if I cite a new approach to consent theory, something that should interest anyone who cares about the fundamental reasons for valuing of liberty. Here’s a snapshot of the theory:

Figure 3:  The Relationship Between Consent and Justification

To get the full story, please see that figure’s source: Graduated Consent Theory, Explained and Applied, Chapman University School of Law, Legal Studies Research Paper Series, Paper No. 09-13 (March 2009) [PDF]. The paper reviews the importance of consent in legal, moral, and economic reasoning, and develops a model of the relationship between consent and justification. It concludes by applying that model to a number of practical problems. Most notably, in contrast to both originalism and “living constitutionism,” the paper promotes interpreting the Constitution according to the plain, present, public meaning of its text and resolving ambiguities in favor of individual liberty.

Honolulu Hapa

by on December 19, 2008 · 12 comments

“Damn their lies and trust your eyes. Dig every kind of fox!” I here sing one for the freedom to mix it up as you and your honey alone see fit:

“Hapa” means “mixed race” in Hawaiian. Skin-tone mash ups have profoundly enriched my life, first with the Honolulu Hapa herself and then with our own little hapas. Honolulu Hapa celebrates coloring across the lines, knocks racism, and gives a shout-out to Loving v. Virginia, 88 U.S. 1 (1967)—the case where the U.S. Supreme Court struck down anti-miscegenation laws as unconstitutional restraints on personal liberty.

As with the prior four songs I’ve posted in this recent series (Take Up the Flame, Sensible Khakis, Nice to Be Wanted, and Hello, Jonah,), Honolulu Hapa comes with a Creative Commons license that allows pretty liberal use by all but commercial licensees, who have to pay a tithe to one of my favorite causes. Honolulu Hapa aims to help Creative Commons, an organization that helps all of us to mix—and remix—it up. Unlike those other songs, however, Honolulu Hapa adds a special ‘unrestricted use” term effective on June 12, Loving Day.

With Honolulu Hapa, I conclude my recent series of freedom-loving music videos. Like it or not, though, I’ve got more music-making plans. Next, I’ll record some good studio versions of those (and perhaps some other) songs. Eventually, I’d like to release a fundraising CD, one that might help out some good causes. Silly? Yeah, I guess so. But it does add another data point in support of my hypothesis: Freedom has more fun.

[Crossposted at Agoraphilia and Technology Liberation Front.]

Hello, Jonah

by on December 3, 2008 · 9 comments

Like it or not, we live in the belly of Leviathan. Friends of liberty tend not to like it. Rather than giving in to death-by-digestion, or the dreaded Lower Intestines of Statism, they struggle to escape. Hello, Jonah, describes that plight, prescribes a cure, and wryly notes the outcome:

As with Nice to Be Wanted, Sensible Khakis and Take Up the Flame, a Creative Commons license allows pretty free non-commercial use of Hello, Jonah. You can find the words and chords here.

As for (admittedly unlikely) commercial licensees, Hello, Jonah asks that they tithe 10% of revenues to the Cato Institute. I worked at Cato some years ago, and continue to support its good works. Like Jonah, Geppetto, and Pinnochio, Cato works from within the belly of the Beast, helping us all of us who “struggle to get out.”

[Crossposted at Agoraphilia and Technology Liberation Front.]

Nice to Be Wanted

by on November 23, 2008 · 7 comments

“The doggone law. The consarned law. The lousy, frickin’, nit-pickin’, noveau-Prussian, freedom-crushin’ . . . .” Nice to Be Wanted twangs the sad tale:

Like Sensible Khakis and Take Up the Flame, Nice to Be Wanted comes with a license allowing pretty free non-commercial use. Also like those songs, this one requires commercial licensees to tithe 10% to a good cause—here, the Institute for Justice.

We all owe IJ thanks for its Good Works. I owe IJ a special “thank you,” for inspiring the lines in Nice to Be Wanted about the plight of the “charmin’ lady down New Orleans’ way.” Alas, her tale rings all too true. May she—and may we all—win greater freedom to pursue our livelihoods. Go get ‘em IJ! (The bit about “pumped his own gas” also draws from a real-world inspiration: just scroll down to Oregon Revised Statute § 480.330.)

I plan at least a few more of these videos, by the way. Subscribe to my channel to catch them all. My efforts remain pretty raw for now, granted; Nice to Be Wanted comes from only the second take of my first visit to a recording studio. Please share your suggestions about how I might improve. (You can skip, “Suck less,” though. I’m already working on that, thanks.)

[Crossposted at Agoraphilia and Technology Liberation Front.]

Entrepreneurs rock! You wouldn’t guess it, though, to listen to rock music. (Marc Knopfler’s, Boom, Like That, says something about the founding and rise of McDonald’s, granted, but it hardly casts the enterprise in a very flattering light.) So in honor of entrepreneurs everywhere—but especially those in the board sports industries, whom I thank for making some very fun toys—I offer Sensible Khakis:

Like Take Up the Flame, which I coughed up on YouTube last week, Sensible Khakis’ license leaves you free to play it just for fun. You can find the chords and lyrics—including the law-geek verse, not included in the video above, about the choices entrepreneurs face between sole proprietorships, corporations, LLPs, and LLCs—here. Like the terms attached to Take Up the Flame, any commercial licensees of Sensible Khakis will have to pay a tithe to one of my favorite causes—this time, Surfrider Foundation. That is not a likely scenario, admittedly, but I figure that the thought counts for something.

[Crossposted at Agoraphilia and Technology Liberation Front.]

“Take Up the Flame”

by on November 8, 2008 · 8 comments

The fight for freedom has seen brighter days, I grant. I think it will see still brighter days yet, though, if we can encourage another generation to join the cause. Towards that end, I wrote a song, “Take Up the Flame.”

As the song’s credits indicate, I’ve dedicated the song to my old friend and mentor, Walter E. Grinder—one of the many people who inspired me to take up “the flame.” I originally planned to debut the song at a conference planned by the West Coast chapter of the Students for Liberty, to be held at Stanford University in mid-November. I figured that Walter, who lives nearby, could hear the tune in person. That meeting got cancelled, alas. Not to be deterred, though, I’m now distributing the song virtually.

The song’s credits also indicate that I’ve released it under a Creative Commons Attribution-Noncommercial 3.0 Unported License, and made the lyrics and chords freely available for downloading. It would delight me if somewhere, someday, “Take Up the Flame” helped to raise the spirits of young folks rallying for the Good Fight. (Although I don’t imagine anyone will find much reason to license the song commercially, I’ve also stipulated that any such licensee must agree to tithe a portion of the proceeds—10% of income, traditionally—to the Institute for Humane Studies, an organization that has long taught students about liberty.) Sing it loudly and proudly, friends of freedom!

[Crossposted at Agoraphilia and Technology Liberation Front.]

I regret to report the end of William F. Patry’s Copyright Blog. Patry, author of a superb multi-volume treatise on copyright law and Google’s Senior Copyright Counsel, not only offered a feast of news and commentary for copyright geeks; he offered it up in style. Consider this, among the many sound reasons he cites for ending his blog:

Copyright law has abandoned its reason for being: to encourage learning and the creation of new works. Instead, its principal functions now are to preserve existing failed business models, to suppress new business models and technologies, and to obtain, if possible, enormous windfall profits from activity that not only causes no harm, but which is beneficial to copyright owners. Like Humpty-Dumpty, the copyright law we used to know can never be put back together again: multilateral and trade agreements have ensured that, and quite deliberately.

In short, Patry found blogging about copyright simply too depressing to keep up. I certainly understand that feeling, though I find righteous indignation a fair remedy for weary sadness. At any rate, I thank Patry for his long and selfless blogging, wish him happier diversions, and look forward to the day when we can discuss copyright’s reformation with smiling pride.

[Crossposted at Agoraphilia and Technology Liberation Front.]

Nice to Be Wanted

by on July 28, 2008 · 6 comments

[I'll spare you TLF-ers all my ruminations about whiling away the summer playing at open mikes; check out Agoraphilia if that interests you. But I thought that you might get hoot out of my most recent anti-regulation song, Nice to Be Wanted. The link offers chords and other tips on how to play the song.  To nail the song's Country and Western style, you'll also need to get your twang on. Here are the lyrics:]

Nice to Be Wanted
Verse 1:
You prob’ly think I live a boring life.
I pay my bills. I love my kids and wife.
But you can bet I’ve got an outlaw side.
Listen up! I’ll tell ya’ how I ride. 

Verse 2:
For example, just the other day,
I turned right on a red—without stoppin’ all the way!
Then I hit 38, drivin’ back home,
Through a 35 miles-per-hour zone!

Refrain:
It’s real nice to be wanted, by a purty little lady.
It’s real nice to be wanted, by your lovin’ ma and pa.
It’s real nice to be wanted, by the folks who sign your paycheck.
But it’s not nice to be wanted, when you’re wanted by the law.

Verse 3:
But you know, I’m not the only one.
Some folks smoke and drink, before 21!
‘N I heard tell, some guy in Oregon,
Pumped his own gas, at the fillin’ station.

Verse 4:
A charmin’ lady down New Orleans’ way,
Dared to sell an unlicensed bouquet.
Her local florists don’t like competi-shun.
They play monopoly–but not for fun!

Refrain

Verse 5:
We can’t help it if we break some rules.
Politicians, and their fools,
Have rolled out red tape by the ton,
So they can keep us on the run!

Refrain

Coda:

The doggonned law.
The confounded law.
The nit-pickin’, lousy, frickin, ‘noveau-Prussian, freedom-crushin’, law.

Fin.

As always, I’ve taken care to nail down the legal citations. The reference to Oregon concerns a statute (O.R.S. section 480.330) that forbids retail gasoline customers from pumping their own fuel. (New Jersey imposes a similar restriction, but does not admit the same easy rhyme.) The Louisiana florist’s sad tale also proves all too true, as the Institute for Justice, champions for the would-be florist’s rights, can tell you.

[Crossposted at Agoraphilia and Technology Liberation Front.]

Cato Unbound today published my reaction to Rasmus Fleisher’s lead essay on the future of copyright. My essay, titled Towards a Copyriot Act—and Away from it, Again, describes “another future for copyright, one in which lawmakers impose crushing penalties to discourage rampant infringement.” It begins by asking readers to put themselves in the shoes of a Hollwood executive, one who says,

“The police need to fire a few shots over the infringers’ heads. And if the looting continues, they should shoot some of the looters. That may sound severe, but we face a breakdown of civil order. After all, wouldn’t police — or perhaps the National Guard — do the same if mobs threatened to take over Wall Street, Rodeo Drive, or Constitution Avenue? Hollywood deserves the same protection. The time has come to get tough on infringement. The Copyright Act’s mild remedies evidently do not suffice. We need a Copyriot Act!”,

Cato Unbound will next host a series of brief exchanges between Fleischer and we three who responded to his lead essay. Check The Future of Copyright issue for that debate, as well as all of the essays.

[Crossposted at Agoraphilia and Technology Liberation Front.]