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Article Excerpt
Copyright's Paradox
BY NEIL WEINSTOCK NETANEL
NEW YORK, NY: OXFORD UNIVERSITY PRESS, 2008, PP.ix, 274. $34.95.
REVIEW CONTENTS INTRODUCTION I. BLACKSTONE, PROPERTY, AND COPYRIGHT A. The Sole and Despotic Dominion in Perspective: Property Essentialism B. Blackstonian Copyright and Copyright's Ungainly Expansion II. THE CONTINUING RELEVANCE OF THE DEMOCRATIC PARADIGM A. Beyond Incentives: The Production Function B. Not Just Allocative Efficiency: The Structural Function C. Symbolic Reinforcement: The Expressive Function III. MINIMIZING THE BURDENS OF BLACKSTONIAN COPYRIGHT A. Blackstonian Copyright Versus Free Speech B. Trimming Away Copyright's Blackstonian Influence IV. COPYRIGHT AS A COMMON LAW ENTITLEMENT A. Common Law Adjudication 1. The Role of Courts 2. Bipolarity/Correlativity 3. Incrementalism B. Making Sense of Copyright's Structure 1. The Copyright Act as a Common Law Statute 2. Copyright as a Bipolar Entitlement C. What Should Courts Do? 1. The Instrumentalism of Copyright's Correlativity 2. Copyright as a Conditional Entitlement: The Model of Governance D. Circling Back to Netanel's Blueprint CONCLUSION
INTRODUCTION
More than two decades ago, in attempting to make sense of the structural dissonance between copyright and free expression, the U.S. Supreme Court famously declared that copyright was intended to be "the engine of free expression." (1) Ironically, this characterization was at the time intended as little more than a rhetorical device. In that very case, the Court proceeded immediately thereafter to analyze copyright as a "marketable" property right and conclude that absent a showing of market failure, neither fair use nor the First Amendment would preclude a finding of infringement. (2) Instead of injecting a new set of values into copyright analysis, the "engine of free expression" metaphor served to effectively downplay the extent to which the value frameworks underlying the two systems could ever come into conflict with each other. Indeed, later opinions too have used it precisely to this end. (3)
Despite its origins, Neil Netanel has long believed that there may yet be some merit in the Court's characterization. (4) In his view, copyright is a state mechanism directed at enhancing the "democratic character of civil society." (5) By providing creators with an incentive to produce creative expression, supporting expressive activity via the market, and setting limits to private control of creative expression, copyright contributes directly to the development of a vibrant civil society. (6) Netanel's "democratic paradigm" stands in contrast to both the market-based and minimalist accounts of copyright and attempts to take seriously copyright's ability to be an engine of free expression. (7)
For the last several decades, however, the analysis of copyright law has come to be dominated by the traditional law and economics account of the institution. (8) In this account, copyright exists to provide creators with an incentive to produce creative expression and to ensure that the expression so produced is efficiently allocated through the market. (9) Copyright thus provides creators with a property right in their creative expression, and given the centrality of strong property rights to the efficient functioning of the market, stronger copyright is thought to be efficiency enhancing. Netanel's prior work directly targeted this economic account of copyright, which he termed the "neoclassicist approach," by emphasizing that copyright as an institution was "in, but not of, the market." (10)
In his new book, Copyright's Paradox, Netanel further develops his democracy-enhancing approach to copyright law, attempting to remake copyright in the "First Amendment's image." (11) This time though, his target is not the nuanced economic account, but rather the systematic use of property rhetoric and propertarian ideas to understand and justify copyright's major expansions--the trend toward what he characterizes pejoratively as "proprietary copyright" or "Blackstonian copyright." (12)
Across different areas of the law, the idea of property has time and again proven to be immensely powerful in furthering a particular conception of an issue and thereby influencing change along a desired dimension. (13) William Blackstone's legendary characterization of the fight to property as a "sole and despotic dominion" (14) has proven to be particularly useful in this process, by helping to conjure up images of an owner's absolute and unconditional right to exclude others from a resource. (15) Scholars have long debated the extent to which Blackstone himself believed in this version of property, with most concluding that he intended it as little more than a functional metaphor. (16) Yet, it has had significant influence over time, with the absolutism inherent in it having lent itself perfectly to a noninstrumental view of ownership and, in the process, to a vision of property rights and ownership as universally necessary ends in themselves, commonly characterized as "property essentialism." (17)
Copyright law is no exception. Since its entitlement bundle consists of a set of exclusive use privileges protected by a coextensive right to exclude (much like tangible property), copyright is commonly characterized as a form of property. (18) But unlike tangible property, where an owner's exclusive use privileges are presumptively infinite, copyright limits a creator's exclusive privileges to those connected to the work, in turn representative of its underlying purpose. The perfunctory invocation of property rhetoric often glosses over this nuance. Yet, once copyright is characterized as a form of property, the noninstrumentalism of ownership is considered an end in itself, allowing for the scope of its exclusive privileges and exclusionary right to be extended with little regard for its underlying purpose. In Copyright's Paradox, Netanel rightly identifies this essentialism as central to copyright's recent expansionist trend. (19)
Copyright's Paradox does an exemplary job of setting up the copyright/free expression tension in the context of the democratic paradigm. Netanel systematically lays out recent instances of copyright expansion where the conflict has been most apparent and traces them to uses and modalities of property thinking that are often well concealed within doctrine. Building on the idea of copyright as a democracy-enhancing mechanism, the book makes a convincing argument that copyright can continue to serve as an engine of free expression notwithstanding the emergence of the Internet and with it new technologies of distribution that allow for expressive content to be shared, transformed, and copied with ease. (20)
Having (1) elaborated on his vision for copyright (the democratic paradigm), (2) described the main impediment to its realization (copyright's expansion and its conflict with free speech), and (3) identified the principal source of the problem (the proprietary vision of copyright), Netanel then proceeds to lay out a remedial "blueprint" to allow for copyright to be recast in the "First Amendment's image." (21) It is here that his proposals seem surprisingly unambitious and perhaps more importantly, do not offer an alternative to the source of the problem: the propertarian vision.
Copyright expansionism has certainly gone too far, and property rhetoric has no doubt played a major role in this. Yet, Netanel's proposals seem to do little to minimize the influence of property essentialism within copyright. They focus principally on moving copyright away from its reliance on exclusionary remedies to systems for remunerating creators without altering its underlying entitlement structure in any way. With property ideas being as well entrenched in all of copyright thinking as Netanel tells us they are, what copyright needs, if indeed it is to serve its purpose as an engine of free expression, is a viable structural alternative to propertarian thinking. A large part of the reason why the essentialist rhetoric has continued to dominate is precisely because its critics are hard-pressed to offer such an alternative.
An alternative to property essentialism in copyright law need not require accepting a "minimalist" approach, or indeed seeking to "overly truncate[]" copyright. (22) But it would entail a structural recognition that the copyright grant differs significantly from that of other tangible and intangible property rights. Copyright differs from other forms of exclusive rights (including patents and trademarks) in that the existence of a creator's entitlement and its scope are only ever determined judicially and correlatively--that is, in reference to a defendant's actions. The absence of an administrative agency overseeing a formal grant process means that it falls entirely to courts to both delineate and enforce a creator's entitlement during an infringement action. Copyright law thus closely resembles the common law process of adjudication, where the existence and violation of an entitlement are determined purposively, by reference to an underlying policy or objective; circumstantially, in the context of the parties before the court; and additionally, ex post. Taking these attributes seriously and understanding copyright to be a strongly conditional common law entitlement wherein courts balance a host of competing interests before making a finding, I argue in Part IV, is likely to move copyright away from its reliance on property as a structural ideal, allowing it to realize its role as an engine of free expression unimpeded by property essentialism.
Part I begins by examining Netanel's real target in Copyright's Paradox: Blackstonian copyright. Section I.A starts by setting out the application of Blackstonian rhetoric to property and copyright. Section I.B analyzes Netanel's claims that the use of Blackstonian rhetoric in copyright is responsible for copyright's recent expansions by looking to the modalities by which property thinking operates. Part II then lays out Netanel's democratic paradigm for copyright law and analyzes his argument that copyright can and does function as an engine of free expression, even in the wake of the Internet and digital distribution. The strength of Netanel's theory, this Part argues, lies in its repostulation of values traditionally considered ends in themselves as mechanisms contributing toward an exogenous end--free expression. The next Part analyzes the ways in which Netanel sees copyright as burdening free speech, looking specifically in Section III.A to the ways in which Blackstonian property essentialism has contributed to that process. Section III.B then evaluates his proposals to alleviate those burdens to conclude that they fail to adequately address the very cause of the problem that he ably identifies. Part IV outlines an alternative vision for copyright: a common law based structural understanding of the institution; one that would effectively minimize reliance on property essentialist rhetoric and ideas to explain its entitlement structure.
I. BLACKSTONE, PROPERTY, AND COPYRIGHT
What motivates much of Netanel's analysis and argument in Copyright's Paradox is the recognition that over the last decade or so, copyright has expanded significantly, to the extent that it today imposes an "unacceptable burden" on the values of free speech. (23) Netanel's project in the book is therefore to set out the problems that this expansion poses for free speech and to prescribe a solution connected to the democracy-enhancing features that he identifies for copyright. All the same, he also makes unambiguously clear what he believes is the "primary" and "immediate" cause for the expansion. (24) He makes the cause a theme that runs through his entire analysis and in opposition to which he sets up his solutions.
What, then, is this cause? The target he identifies is the increasing reliance on property essentialist rhetoric in copyright analysis. Copyright, he notes, is increasingly viewed as a form of conventional property, worthy of protection independent of any underlying reasons for which it was brought into existence. He associates this version of property talk with Blackstone's now infamous observation that the right of property consisted in the "sole and despotic dominion which one man claims and exercises ... in total exclusion of the right of any other individual in the universe." (25) As Netanel observes early in the book,
Property rhetoric, whether invoked reflexively or strategically, has tended to support a vision of copyright as a foundational entitlement, a broad "sole and despotic dominion" over each and every possible use of a work rather than a limited government grant narrowly tailored to serve a public purpose.... And courts brand as "theft" any unauthorized use of a copyright holder's work.... (26)
What exactly is this rhetoric, and why has it proven to be particularly impactful in different areas including copyright law, giving rise to what Netanel describes as "Blackstonian copyright"? How has it contributed to copyright's recent expansion? In this Part, I attempt to answer these questions.
A. The Sole and Despotic Dominion in Perspective: Property Essentialism
By most accounts, when Blackstone defined property as the sole and despotic dominion of its owners, he was far from advocating a form of property absolutism. As legal historians have pointed out, Blackstone's own description of property doctrine of the time did not reflect this definition. (27) Yet ironically, the Blackstonian idea of property is commonly associated with his definition, rather than his actual description of the subject.
Blackstone's definition though has proven over the years to be particularly powerful as a metaphor or trope. (28) Quite apart from its imagery of property as an absolute entitlement-allowing for a limitless exercise of the right to exclude--it has also permeated contemporary legal analysis by lending itself to a version of property rhetoric that values property's right to exclude independent of its underlying rationale. The idea of property as despotic dominion that is often associated with Blackstone's definition then denotes two somewhat interconnected elements. The first is the idea that property has no limits: absolutism. The second is the idea that once an entitlement is designated as a form of property, its owner is allowed to exercise the exclusionary privilege/right that is central to it, regardless of any underlying reason: essentialism. It is indeed the latter that has proven to be particularly impactful in the copyright context.
Noted property theorist Jim Harris refers to this idea as the "irreducibility of ownership." (29) Ownership over a resource--that is, having a property right in it--is often thought to give its owner an open-ended set of ownership privileges, all or any of which may be exercised with little regard for an underlying principle or purpose. An owner may thus decide to use his resource in a way that is clearly inefficient, wasteful, or indeed completely inexplicable. (30) Yet in each of these situations, the fact that the resource and the reasons for action are characterized as "the owner's" is all that matters. Once the law designates something as property, the law's reasons for the designation cease to matter. Property thereafter exists for its own sake. No further inquiry into the reasons for the owner's privileges or ownership is merited. (31) The despotism that Blackstone alludes to connects perfectly with this idea.
Central to the essentialist claim is therefore a belief that the reasons underlying a property right are irrelevant. And to be sure, in the context of tangible property, they usually are irrelevant. Thus, an owner's decision to paint his house purple, or to scribble on the hood of his car, is not commonly analyzed beyond ascertaining that the decision was indeed the owner's. (32) To the extent that the question whether someone is actually an owner is made an issue, it usually revolves around issues of procedure--whether he acquired title appropriately--rather than purpose--why this person should be the owner.
In her seminal work analyzing the various rhetorical strategies that employ Blackstone's metaphor, Carol Rose characterizes the idea of the sole and despotic dominion as the "Exclusivity Axiom" and notes that it is "powerfully suggestive" because it delegates the decision of whether to exclude someone from a resource to a property owner. (33) As she notes, "This decisionmaking authority is what makes property a central libertarian value: The property owner has a small domain of complete mastery, complete self-direction, and complete protection from the whims of others." (34) Very importantly though, she also notes that one of the characteristic features of the Exclusivity Axiom involves its masking the underlying distribution of entitlements and the reasons (or indeed the complete absence of reasons) for the distribution. (35) The metaphor of despotism thus aptly emphasizes the "indifference" of exclusion toward the underlying distribution, its legitimacy, and its reasons. (36)
While Blackstone never used the sole and despotic dominion idea directly in his discussion of copyright, he clearly seems to have believed that authors were entitled to property rights in their creations--rights that were indifferent to any underlying purpose. (37) In addition, he does seem to have believed in some variant of the essentialist logic applying to copyright. He thus observes, in his description of copyright,
When a man by the exertion of his rational powers has produced an original work, he has clearly a right to dispose of that identical work as he pleases, and any attempt to take it from him, or vary the disposition he has made of it, is an invasion of his right of property. (38)
Regardless of whether Blackstone actually believed in an absolutist conception of property, his understanding of copyright has clear essentialist overtones. His somewhat abbreviated discussion of the subject seems to hint at copyright being a form of common law property, consisting of an open-ended set of exclusionary privileges to be treated largely analogously to ordinary tangible property. (39) Once copyright is classified in this conception as a form of property, it is thought to give its holder, the owner, a set of privileges exercisable completely independent of both the nature of the underlying subject matter of the right and the purpose that motivated its conferral to begin with.
The term "Blackstonian copyright" is thus a reference not just to Blackstone's own views on copyright--no doubt limited by the system and conceptions of it that existed at the time--but to the idea of property essentialism that is at the core of copyright. While often confused with the idea of property absolutism that is commonly associated with Blackstone's definition, copyright remains somewhat distinct. Now to be sure, very often property absolutism and essentialism are mutually reinforcing; that is, the ownership interest is deemed absolute because it is agnostic to any underlying purpose. Yet the ideas remain analytically distinct. And it is precisely this characteristic that is at the heart of copyright's recent expansions. (40)
B. Blackstonian Copyright and Copyright's Ungainly Expansion
How, exactly, then does the idea of property essentialism that is at the heart of Blackstonian copyright relate to copyright's expansion in recent times? In describing the link between propertarian thinking and copyright expansion, Netanel makes an interesting observation. He notes that copyright's recent expansion in duration and scope is at once both a consequence of and a cause for the view that copyright is just like any other property right. (41) He characterizes this a "vicious cycle." (42)
This causal reflexivity that Netanel identifies, is particularly intriguing because it reveals how property is in some ways a self-reinforcing idea. On the one hand, property ideas contribute to doctrinal expansion through their essentialism. Yet on the other hand, when copyright law expands independently and comes to closely resemble traditional property, it tends to be equated with other forms of property. When this happens, the expansion symbolically contributes to a propertarian vision of copyright.
Even accepting this causal reflexivity, why indeed is it that propertarian thinking is the "primary" and indeed "immediate" cause for copyright's recent expansions? The answer, one suspects, derives from the way in which property ideas and metaphors effectively mask the tradeoff between conflicting institutional objectives by presenting themselves as nonideological and therefore noncontestable realities. (43) As a consequence, even when other causal factors are at play in copyright's expansion, property rhetoric, of the essentialist variety, enters the picture to give the argument an air of legitimacy. This is certainly true of the other causes that Netanel identifies in the book and elsewhere. (44) Thus, entertainment industry rent seeking is routinely couched as a demand for "protection against theft." And courts, no less, have fallen prey to this approach, not just in their rhetoric but also as part of their doctrinal analysis. (45) Just as an owner of a tangible resource is thought to have an open-ended set of use privileges associated with the resource, a copyright holder is deemed entitled to control any market for uses of the work through the grant or denial of a license. The causal primacy and immediacy of the propertarian vision therefore derive from its ubiquity in all areas of the copyright system.
Additionally, on a theoretical level, property essentialist rhetoric forces copyright law and policy to elide the centrality of the incentives-access tradeoff, a defining feature of intellectual property analysis since the seminal work of Nobel Prize-winning economist Kenneth Arrow in the 1960s. (46) Since the subject matter of protection in copyright (and all of intellectual property) is a nonrival, nonexcludable public good, resource exclusivity--the incentive for creativity--is imposed artificially through legal rules that attempt to mimic the functioning of tangible property systems. All the same, this exclusivity comes at a cost, represented by the static and dynamic inefficiencies associated with monopoly control over an otherwise nonexcludable resource. Consequently, all of intellectual property, including copyright, revolves around identifying the point at which this balance is optimized--that is, the monopoly costs associated with the artificial exclusivity are outweighed by its incentivizing benefits. (47) While tangible property rights also come with their own set of inefficiencies, by all accounts the costs associated with intellectual property rights far outweigh those attributable to tangible property rights. (48) And as a direct result, calibrating the scope and extent of the grant of exclusivity to account for these significantly higher costs remains a core concern in the intellectual property context, in a way that it just is not in the tangible world. The power of essentialist rhetoric therefore lies in its giving short shrift to the importance of this tradeoff. When the law does not care if I deny you permission to walk across my front yard on your way to work, why should it now when I deny you permission to use parts of my song in a documentary? They are both mine and since my ownership...
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