Oct 142002

Eldred v. Ashcroft, as everyone knows, is a challenge to the 1998 Sonny Bono Copyright Term Extension Act, which retroactively extended the term of copyright, in the individual case, from the life of the author and 50 years to the life of the author and 70 years, and in the corporate case, from 75 to 95 years. In 1841, in England, a copyright question very like it was being debated in Parliament. At the time the law granted copyright to an author for the period of his lifetime or 28 years, whichever was longer. Serjeant Talfourd proposed to extend this to life and 60 years, which is almost exactly what the Sonny Bono Copyright Protection Law does. Thomas Macaulay, who favored protection for life or 42 years, whichever was longer, spoke against Talfourd’s proposal in the House of Commons. (Macaulay may be familiar from his other gig, as the greatest historian who ever lived.) Obviously his remarks do not go to the question of the legal grounds on which Eldred v. Ashcroft will be decided; Eugene Volokh and Larry Lessig, among others, have covered this aspect nicely. But on the question of what constitutes a reasonable period for copyright protection, Macaulay makes the following still-relevant points.

1. Copyright is a question of expediency, not of right.

Many of those who have written and petitioned against the existing state of things treat the question as one of right. The law of nature, according to them, gives to every man a sacred and indefeasible property in his own ideas, in the fruits of his own reason and imagination….

Now, Sir, if this be so, let justice be done, cost what it may. I am not prepared like my honorable and learned friend, to agree to a compromise between right and expediency, and to commit an injustice for the public convenience. But I must say, that this theory soars far beyond the reach of my faculties…

Mine too. The “principled” positions in this dispute, as Macaulay points out, are copyright protection in perpetuity or none at all. The Ayn Rand Institute, for example, by way of supporting the government, inadvertently makes the case for perpetuity. Amy Peikoff, writing on their behalf, asks rhetorically, “How is the Court…to ‘balance the interests’ of original thinkers against those for whom ‘creativity’ consists of cannibalizing — and even vandalizing — the products of others’ thought?” This argument, of course, applies with equal force to any limitation of the term of copyright, like the one in the Bono Act, which she asserts, in the same article, is reasonable.

The alternative position, no protection at all, is not respectable enough to be defended very seriously by anyone in theory, although it is enthusiastically practiced by many foreign governments, like the Chinese. The rest of us, as the old joke goes, are just quibbling about the price.

2. Copyright is a monopoly, and monopolies are bad, generally speaking.

Copyright is monopoly, and produces all the effects which the general voice of mankind attributes to monopoly. My honourable and learned friend talks very contemptuously of those who are led away by the theory that monopoly makes things dear…It is a theory in the same sense in which it is a theory, that day and night follow each other, that lead is heavier than water, that bread nourishes, that arsenic poisons, that alcohol intoxicates… It is good that authors be remunerated; and the least exceptionable way of remunerating them is by a monopoly. Yet monopoly is an evil. For the sake of the good we must submit to the evil; but the evil ought not to last a day longer than is necessary for the purpose of securing the good.

Note that copyright is a true monopoly, an exclusive franchise protected by law, like Con Edison or the U.S. Postal Service — not just a company with a lot of market share, like Microsoft or Standard Oil. And here we see the real, and legitimate, interests being balanced, not “original thinkers” and “vandals,” but producers and consumers of copyrighted material.

3. Lengthy copyright protection creates a diminishing return for the producer but a constant tax for the consumer.

[T]he evil effects of monopoly are proportioned to the length of its duration. But the good effects for the sake of which we bear with the evil effects are by no means proportioned to the length of its duration. A monopoly of sixty years produces twice as much evil as a monopoly of thirty years, and thrice as much evil as a monopoly of twenty years. But it is by no means the fact that a posthumous monopoly of sixty years gives to the author thrice as much pleasure and thrice as strong a motive as a posthumous monopoly of twenty years. On the contrary, the difference is so small as to be hardly perceptible… [A]n advantage that is to be enjoyed more than half a century after we are dead, by somebody, we know not by whom, perhaps by somebody unborn, by somebody utterly unconnected with us, is really no motive at all to action… this is the sort of boon which my honorable and learned friend holds out to authors. Considered as a boon to them, it is a mere nullity; but, considered as an impost on the public, it is no nullity, but a very serious and pernicious reality.

He convinces me. Eldred will be decided on other grounds than these. But Congress might have accounted for some of these arguments before passing the Bono Act in the first place.

(Update: The highly economically literate Robert Musil disagrees with me. His remarks on how the difficulty of present valuing future goods pertains to the Bono Act are here, here and here, in that order. Colby Cosh also comments.)

(Another One: The oral argument transcript.)

(And Another: Julian Sanchez discusses the Founders’ view of IP.)

  8 Responses to “Eldred v. Ashcroft, the Prequel”

  1. But some natural right doesn’t soar beyond your faculties, does it, Aaron? The right isn’t merely a matter of expediency, is it? Would you say that both the natural right and expediency have weight and the law should strike the right balance? I mean, copyright isn’t merely an expedient means to get people to invent things, is it?

    We should balance:
    1.) One has a natural right to one’s inventions./Plus, copyright stimulates research.

    2.) Society has a right not to be burdened by monopolies.

  2. Intellectual property is a peculiar entity. One fundamental characteristic of tangible property is that each use leaves less for the rest of us. We can’t all use the same swimming pool or drink out of the same glass, yet we can all read the same book or listen to the same song. Also the ability to collect royalties, unlike the ability to collect rent, is highly dependent on technology. The phonograph giveth, and the MP3 taketh away. I think it’s possible that "intellectual property" is itself a category error, and what we are discussing isn’t really property at all. If otherwise, then I think, to be consistent, that we’re stuck with the in perpetuity position.

  3. Interesting. So, you’re suggesting that since it’s a category mistake, the justification is rightly entirely expediency-based?

    I suppose one could see songs, medicinal chemical formulae, manufacturing techniques, etc., as already existing in conceptual space before the "inventor" discovers them. He has neither produced nor mixed his labor with anything, so he deserves no claim, as a matter of natural right. He’s learned how to play a song no one’s ever played before, and we have equal right to play it, too, even for paying audiences.

  4. I don’t find that satisfactory. Books, songs and the like are pretty clearly inventions. Maybe this distinction is better: Tangible property may be held in perpetuity because it requires effort to maintain. Intellectual property may not because it does not.

  5. My favorite law school professor used to tell me to suspect all "balancing tests". How do we balance intangibles and how do we know these are the right weights in the pans?

    I agree with Aaron Hospel that intellectual property is the most suspiciously unproperty-like kind of property. However, one of the rationales for protecting any property is that a man will fight for his property, so the state must protect it to avoid violence. This applies to some degree to intellectual property, as anyone who has observed an author picking over unauthorized Chinese editions of his works in a remainder bin in Taiwan will testify. But the lack of physical reality to intellectual property makes its protection less important and less practical.

    I have always suspected the constitutional argument that authors would not write without copyright. Graphomania is a well-documented illness. Perhaps it’s the other way around. Without copyright, authors wouldn’t be stimulated to grind out the reams of nonsense we see in so many bookshops these days and we’d only get works written for the love of it. That might be just as well.

  6. I don’t like balancing tests any better than your professor. However, if we grant that copyright cannot be in perpetuity, what else do we have to rely on? And it is clear, at least, that the benefit of the copyright monopoly to the producer declines rapidly over time, regardless of the discount factor we assign, while the harm to the consumer remains constant.

  7. If you have two constraints, which you’d like to get as close as you can to fulfilling, what can you do besides try to strike a balance? What else is there to practical rationality, besides balancing values ("satisficing" them)?

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