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.
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The term of copyright has steadily expanded under U.S. law. The first federal copyright legislation, the 1790 Copyright Act, set the maximum term at fourteen years plus a renewal term (subject to certain conditions) of fourteen years. The 1831 Copyright Act doubled the initial term and retained the conditional renewal term, allowing a total of up to forty-two years of protection. Lawmakers doubled the renewal term in 1909, letting copyrights run for up to fifty-six years. The 1976 Copyright Act changed the measure of the default copyright term to life of the author plus fifty years. Recent amendments to the Copyright Act expanded the term yet again, letting it run for the life of the author plus seventy years.
The table above illustrates the growth of the general U.S. copyright term over time, including the retroactive effects of various statutory extensions. Note the overhanging ledges. The 1962-74 Acts, the 1976 Act, and the Sonny Bono Act reached backwards in time, extending the copyright term even for works that had already been created. The Supreme Court has held that legislative trick constitutional, notwithstanding copyright policy’s implied aim of stimulating new authorship—not simply rewarding extant authors.
[NB: The above text comes from part of my draft book, Intellectual Privilege: Copyright, Common Law, and the Common Good. Specifically, it comes from Part I, Chapter 3.A.1: Copyright Imbalance: Duration of Copyright. You can find a complete draft of the full chapter, together with footnotes, here [PDF]. I welcome your comments.]
[Crossposted to Intellectual Privilege and Agoraphilia]
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.
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Courts and commentators often claim that copyright policy strikes a delicate balance between public and private interests. I see copyright policy in a different pose, however. I see it wobbling precariously, tipping over, and falling into statutory failure. What has put copyright on such unsure footing? The brutish prodding of special interests. Rather than “delicately balanced,” then, I describe copyright policy as “indelicately imbalanced.”
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For better or (more likely) worse, copyright now automatically encumbers every new fixed work of authorship. Copyright kicks in as soon as anyone writes an essay, doodles a sketch, or bangs out an email. A copyright’s holder need not register the work or put notices on copies of it to qualify for copyright protection.
If you want to play it safe, you should thus probably assume that some sort of copyright claim binds every fixed work. Even very old works often come with modern copyright strings attached. Consider, for instance, John Stuart Mill’s classic work, On Liberty. Though the book originally issued in 1859, and has long since fallen into the public domain, my library’s copy includes a notice reading, “Copyright 1978 by Hackett Publishing Company, Inc.” Presumably, that copyright covers only the editor’s introduction and selected bibliography. Yet Hackett’s overbroad notice doubtless discourages some people—especially those who know little about copyright law—from reproducing even the free parts of On Liberty.
In that and other ways, copyright policy currently fails to admit to its limitations. Cautiously presuming that copyright covers every fixed work, and duped by inflated copyright notices, we fail to fully enjoy our rights to the public domain. We should aspire to a more open copyright system, one that encourages both the creation of new works and the liberation of extant ones. For that, we need a way to signal, clearly and reliably, when a work has escaped the bounds of copyright. We need, in other works, an uncopyright notice.
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Tomorrow, at Vanderbilt Law School, I’ll join a panel discussion on The Future of Copyright, part of the Journal of Entertainment and Technology Law’s symposium, User-Generated Confusion: The Legal and Business Implications of Web 2.0. My presentation: User-Generated Content, Copyright Policy, and Blockheaded Authors. Rest assured that, though I deploy such phrases as “seizing the means of reproduction” and “the specter of copyism,” that says more about my love of wordplay than it does anything about Marxism. You can download the PowerPoint file here.
[Crossposted to Intellectual Privilege and Agoraphilia..]
Some months ago, I noted that Betzip.com (since rechristened “PurePlay.com”) employs an intriguing legal hack to avoid anti-gambling regulations. It charges its customers a flat monthly fee, which qualifies them to win large prizes for winning online poker games. Non-paying customers can play the same games for free, too—though without qualifying for the largest prizes.
Why adopt that business model? Presumably, because it allows PurePlay to argue that it does not offer a gambling service. Specifically, PurePlay could claim that, because the amount players win has no relation to how much they stake, it dodges the “consideration” element of the legal definition of gambling. Query whether that claim would survive the devoted attentions of a prosecutor and court. I set that question aside, though, and here focus on PurePlay’s claim that they have patented their business model.
Curious about the scope of PurePlay’s patent, I searched its website for details. It offered none. I wrote to PurePlay asking for the patent’s number. PurePlay refused to say. So I put my able research assistant, Mr. Sherwood Tung, on the case. He found PurePlay’s patent, and more.
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Tomorrow I’m slated to present my draft paper, Copyright as Intellectual Property Privilege, at Creators vs. Consumers: The Rhetoric, Reality, and Reformation of Intellectual Property Law and Policy, a symposium hosted by the Syracuse Law Review and The Institute for the Study of the Judiciary, Politics, and the Media at Syracuse University. The folks running the show say that they’ll make a webcast available here. I’m up at 1:45 p.m. Eastern, if that sort of thing interests you. Prefer something a little less multimedia? Here, you can check out the PowerPoint I’ll present.
[Crossposted to Agoraphilia and Intellectual Privilege.]
I recently completed a draft of Copyright as Intellectual Property Privilege, 58 Syracuse L. Rev. __ (2007) (forthcoming) (invited). Here’s an abstract:
We often call copyright a species of intellectual property, abbreviating it, “IP.” This brief paper suggests that we consider copyright as another sort of IP: an intellectual privilege. Though copyright doubtless has some property-like attributes, it more closely resembles a special statutory benefit than it does a right, general in nature and grounded in common law, deserving the title of “property.” To call copyright a “privilege” accurately reflects legal and popular usage, past and present. It moreover offers salutary policy results, protecting property’s good name and rebalancing the public choice pressures that drive copyright policy. We face a choice between two ways of thinking about, and talking about, copyright: As an intellectual property that authors and their assigns own, or as an intellectual privilege that they merely hold. Perhaps no label can fully capture the unique and protean nature of copyright. Recognizing it as form of intellectual privilege would, however, help to keep copyright within its proper legal limits.
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Does my draft paper, Outgrowing Copyright: The Effect of Market Size on Copyright Policy [PDF] commit economic heresy? At several points, at least, it appears to stray from what you might hear in Econ 101. Consider the following excerpt (footnotes omitted), in which I argue that demand for copyrighted goods follows a binary function: Consumers typically demand one copy, or no copy, but not fractions of copies.
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In an attempt to explain the effect of market growth on copyright policy, I earlier told a parable, promising graphs to follow. In the meantime, I’ve drafted an entire paper on the topic, Outgrowing Copyright: The Effect of Market Size on Copyright Policy [PDF].
You can find the graphs describing the parable—actually, modified version of the story I told earlier—in that paper. Rather than replicate those graphs, here, I’ll offer you the paper’s abstract:
Does copyright protection offer the best means of stimulating the production of expressive works? Perhaps, at the moment, it does. If so, however, it will probably become inefficiently over-protective as the market for expressive works grows. With such growth, copyright owners will find it increasingly easy to engage in price discrimination against customers willing to pay a premium for particular expressive works. In so narrowly divided a market, the power to bar substantially similar copies will empower copyright owners to extract monopoly rents. And, yet, we have no reason to expect that copyright’s production or distribution costs will likewise increase. Holding all else equal, therefore, growth in the market for expressive works will at some point cause copyright’s social costs to outweigh its benefits. This paper explains that effect and discusses how policymakers should respond.
The paper includes not just graphs describing the parable of the village authors, but graphs of more general import. I might share some of those in upcoming posts.
[Crossposted to Agoraphilia.]
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