Tyranny of The Few: The Case For Copyright Buyout

TYRANNY OF THE FEW: THE CASE FOR COPYRIGHT BUYOUT
CHRISTOPHER H. MEREDITH
4911 Old Canton Road

Apartment 240
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TABLE OF CONTENTS
I. BACKGROUND AND INTRODUCTION..........................................................................................1
II. FOOD FOR THOUGHT – RIGHTS OF OWNERSHIP IN THE FRUITS OF CREATIVITY..............................2
A. The Philosophical Rationales for Recognition of Intellectual Property.....................2
1. John Locke.............................................................................................................2
2. Jeremy Bentham.....................................................................................................4
3. Friedrich Hegel......................................................................................................7
B. Legal Development of Intellectual Property Rights...................................................9
1. Competing Visions of Copyright and its Legal Evolution in England..................10
2. Copyright, the Constitution, and the Founding of the United States....................13
3. Congress and the Copyright Acts.........................................................................18
C. Foundational Socio-Economic Principles of Property Rights..................................23
1. The Commons – Tragedy or Comedy?.................................................................24
2. An Anticommons Problem?.................................................................................25
3. Free Riding and Copyright...................................................................................27
III. WHERE DO WE GO FROM HERE?....................................................................................30
A. Civil Disobedience...................................................................................................30
B. Public Buyout..........................................................................................................34
1. Michael Kremer and the Patent Buyout Proposal...............................................35
2. Open Source Software Bounties..........................................................................37
3. Copyright Buyout – A Modified Bounty System.................................................39
IV. CONCLUSION..................................................................................................................45
i
TYRANNY OF THE FEW: THE CASE FOR COPYRIGHT BUYOUT
Christopher H. Meredith†
I. BACKGROUND AND INTRODUCTION
The Constitution confers upon Congress the right “[t]o promote the Progress of
Science and useful Arts, by securing for limited Times to Authors and Inventors the
exclusive Right to their respective Writings and Discoveries.” 1 The first exercise of this
authority came in the form of the Copyright Act of 1790. Since that first foray into
federal protection of what has since been termed intellectual property, the level of
government involvement has steadily increased.
As legislative policy regarding intellectual property has evolved, it has steadily
moved away from its legal, economic, and philosophical underpinnings, causing the
concept of intellectual property to assume a life of its own. The focus has shifted from
the interests of society to the interests of authors and producers. As a result, copyright
has transformed from a necessary evil intended to achieve a greater public benefit into a
an entitlement in its own right, one that enables strong industry players to form large and
wealthy information empires.
Industry-fueled Congress has abandoned its Constitutional moorings and allowed
expanded copyright power to be wielded by interested parties rather than by the people,
as the founding fathers originally intended. Without this protection, the law allows the
public good to be sacrificed to the whims of private entities and powerful corporations.
The suggestion of this Essay is that our current copyright scheme places
† Law clerk to the Hon. Jess H. Dickinson, Mississippi Supreme Court, 2010-2011; J.D.,
Mississippi College School of Law, 2010; B.A., Biblical Studies, Belhaven University, 2004. The author
would like to acknowledge Professor Alina Ng for her thought-provoking scholarship, classroom
assignments, and insight, and his family for their support, feedback, and love.
1 U.S. CONST. art. I, § 8.
1
unnecessary and harmful restrictions on the public as a means of maximizing the profits
of a few. Because this effect is not authorized by the Constitution, the current copyright
framework is constitutionally infirm and something must be done. Part I of this essay will
review the philosophical and economic factors affecting the recognition of intellectual
property. I will apply these foundational principles to the concept of intellectual property
and discuss how they affected the development of United States copyright law. Part II will
explore possible responses to the current situation. Specifically, I will suggest the
adoption of a copyright “buyout” system by which the public will be able to push a work
into the public domain by paying to the copyright owner a set price. Such a system would
be a means of restoring to the copyright system a balance that has been lost for some
time.
II. FOOD FOR THOUGHT – RIGHTS OF OWNERSHIP IN THE FRUITS OF CREATIVITY
A. The Philosophical Rationales for Recognition of Intellectual Property
1. John Locke
Most discussions of the philosophy of intellectual property begin with the writings
of John Locke. In his Two Treatises of Government, the typical starting point for
discourses on Lockean property theory, Locke developed his now-famous rationale for the
protection of property rights.2 “[E]very man has a property in his own person. . . . The
labour of his body, and the work of his hands, we may say, are properly his.” 3
Apparently anticipating the problem of the commons, 4 Locke articulated a limitation on
this broad principle of property: “As much as any one can make use of to any advantage
2 JOHN LOCKE, TWO TREATISES OF GOVERNMENT: AND A LETTER CONCERNING TOLERATION 111 (Vail-Ballou
Press, 2003) (1690).
3 Id. at 111.
4 See infra note 126 and accompanying text.
2
of life before it spoils, so much he may by his labour fix a property in: whatever is beyond
this, is more than his share, and belongs to others.” 5
While Locke did not directly address the notion of intellectual property in his
Treatises, many modern writers have concluded that this paradigm favors strong
intellectual property laws.6 Others are not convinced that the Lockean paradigm applies
well to intellectual property.7 At the very least, there are some analytical difficulties. For
example, why does labor entitle the laborer to a common resource? 8 In some places,
Locke indicates that appropriating common resources is the only way for man to survive, 9
yet intellectual property is hardly a resource necessary for survival. 10 And what exactly
constitutes intellectual “labor” in the first place?11 There are at least four different ways
to answer the question, each with very different implications for a Lockean theory of
intellectual property.12
Whatever problems might exist for one trying to import Locken property theory
into an intellectual property paradigm, Locke was much more explicit on the issue when
writing in opposition to the Stationers' Company monopoly 13 at the end of the 17th
century. He articulated a view which bears certain similarities to current U.S. copyright
5 LOCKE, supra note 2, at 113.

6 See, e.g., Alina Ng, The Social Contract and Authorship: Allocating Entitlements in the
Copyright System, 19 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. 413, 500 (2009) (“Locke's reasoning . . .
provides a unique theory of property that supports the grant of strong intellectual property rights to
creators and authors”).
7 See, e.g., William Fisher, Intellectual Property Theories, in NEW ESSAYS IN THE LEGAL AND POLITICAL
THEORY OF PROPERTY 168 (Stephen R. Munzer ed., 2001), available at

http://cyber.law.harvard.edu/people/tfisher/iptheory.pdf (surveying the numerous ambiguities that arise when
trying to apply Lockean property rationale to intellectual property and concluding that the resulting
obstacles “may well prove insurmountable”) (subsequent citations are to the PDF).
8 Id. at 22.
9 Id. at 21 (citing LOCKE, TWO TREATISES OF GOVERNMENT, supra note 2, at §§ 25-26).
10 Fisher, supra note 7, at 23.
11 Id.
12 Id. at 23-24.
3
law:
That any person or company should have patents for the sole
printing of ancient authors is very unreasonable and injurious
to learning. And for those who purchase copies from authors
that now live and write it may be reasonable to limit their
property to a certain number of years after the death of the
author or the first printing of the book as suppose 50 or 70
years. This I am sure, ’tis very absurd and ridiculous that
anyone now living should pretend to have a property in or a
power to dispose of the property of any copies or writings of
authors who lived before printing was known and used in
Europe. 14
Locke's suggestions here include the non-protection of “ancient” writings, the
limitation of protection of works by living authors based on the date of first printing or
the death of the author, and time periods of 50 or 70 years. All of these suggestions have,
at one time or another, been features of U.S. Copyright law. 15
Nevertheless, Locke's views on printing patents differ in one key respect from
modern Copyright formulas. A printing patent as described by Locke was not an author's
right to the fruit of his intellectual labors. Instead, it was property right that vested in
printers which was predicated on their purchase of a manuscript from an author. This is
evident from the language Locke employed in the quote above. Locke's concern here was
with the “property” of “those who purchase copies from authors.”
2. Jeremy Bentham
By the early 19th century, the idea of ownership of artistic embodiment had a
14 JOHN LOCKE, Liberty of the Press (1695), in LOCKE: POLITICAL ESSAYS 329 (Mark Goldie ed., 1997),
cited in Lior Zemer, The Making of a New Copyright Lockean, 29 HARV. J.L. & PUB. POL'Y 891, 901 (2006).
15 The Copyright Act of 1976 provided retroactive protection for works already under the
protection of the 1909 Act. Copyright Act of 1976 § 304(a)(1) (2009). As an outworking of this scheme,
works published prior to 1923 are not copyrightable. Until the 1976 Act, works were protected based on
the date of publication. Copyright Act of 1909 § 24. Beginning in 1978, works were protected, regardless
of the date of publication, until 50 years following the death of the author. Copyright Act of 1976 § 302(a)
(1997). Since 1998, protection now lasts for 70 years following the death of the author. Copyright Act of
1976 § 302(a) (2009). For a more detailed history of the U.S. Copyright Acts, see Section I.B.3., infra.
4
firmer place in philosophical thought. Jeremy Bentham represented a school of thought in
stark contrast to Locke. Whereas Locke held to a concept of natural law grounded in
biblical revelation, Bentham may be considered the father of hedonistic utilitarianism. 16
Because of his rejection of natural law, Bentham viewed property not as a
transcendent, fundamental right, but as a mere “creature of law.” 17 Instead of grounding
property law in revelation or nature, Bentham considered it the product of a social
contract wherein members tacitly agreed to respect one another's property expectations. 18
Eventually, the social contract was replaced by law which now represents the ultimate
grant of property protection.19 Even so, the law has an obligation to protect property
rights because, by creating property in the first place, the law has fostered man's
expectation of security.20 To fail to protect the expectations thus created would result in
“shock or disturbance,” leading to “a proportionate measure of positive evil.” 21
Unlike other philosophical systems rooted in the objective, Bentham's
utilitarianism has as its only aim “the happiness of the community as a whole.” 22 Indeed,
“it is only happiness in the aggregate which has an intrinsic value.” 23 Thus Bentham is
constantly on the defensive. For every civil enactment he favors, he must also answer any
anticipated objections; he must explain how a given law will result in the greatest
aggregate happiness of the community.
In the case of property law, Bentham identifies four “evils resulting from attacks
16 See, e.g., John G. Sprankling, Owning the Center of the Earth, 55 UCLA L. Rev. 979, 1022
(2008).
17JEREMY BENTHAM, BENTHAM'S THEORY OF LEGISLATION 145 (Charles Milner Atkinson trans., Oxford
U. Press 1914) (1802).
18 Id. at 146.
19 Id.
20 Id. at 147.
21 Id.
22 Id. at 21.
23 Id.
5
upon property.”24 First, Bentham assumed that the acquisition of property is good and
reasoned that the non-possession of property is therefore bad. 25 Second, Bentham argued
that man becomes emotionally invested in his property over time and would consequently
be “wound[ed] to the quick” if his property were taken away. 26 Third, the fear of losing
property would provide a disincentive to acquiring property and would prevent the
enjoyment of property already acquired.27 Finally, and perhaps most relevant to a
discussion of intellectual property law, Bentham argued that a failure to recognize
property would result in the “abatement of industry.”28
Even though Bentham attributed the flourishing of western civilization entirely to
legal protection of property,29 he was slightly more reticent to endorse strong intellectual
property protection. Bentham believed that “monopolies in general are pernicious
institutions.”30 Nevertheless, Bentham saw some utility in the recognition of intellectual
24 Id. at 151.
25 “If by calumnious reports you deter my friend from leaving me a legacy which I did not expect,
is not that doing me an injury? In what does the injury consist? Why, in the negative evil which results to
me from not possessing what I should have possessed but for your calumnies.” BENTHAM, THEORY OF
LEGISLATION, supra note 17, at 151.
26 BENTHAM, THEORY OF LEGISLATION, supra note 17, at 151-52. Fellow natural law skeptic Oliver
Wendell Holmes had perhaps the more well-known quote:

A thing which you have enjoyed and used as your own for a long time, whether
property or an opinion, takes root in your being and cannot be torn away
without your resenting the act and trying to defend yourself, however you came
by it. The law can ask no better justification than the deepest instincts of man.
Oliver Wendell Holmes, The Path of the Law, 10 HARV. L. REV. 457, 477 (1897).
27 “Treasures are secretly conveyed away or buried: our enjoyment of them becomes sombre,
stealthy, and solitary, and is afraid to display itself lest cupidity should be apprised of the whereabouts of its
prey.” BENTHAM, THEORY OF LEGISLATION, supra note 17, at 152.
28 “If I once lose the hope of assuring to myself the product of my toil, I shall seek only to live
from day to day, and become unwilling to undergo labours for the benefit of my enemies.” BENTHAM,
THEORY OF LEGISLATION, supra note 17, at 152.
29 Reflecting on the domestication of North America, Bentham mused: “What has brought about
these wonders? What is it that has thus changed the surface of the earth? What has bestowed on man this
dominion over nature – splendid, fruitful, and complete? The beneficent genius is 'Security': security alone
has wrought this glorious change.” BENTHAM, THEORY OF LEGISLATION, supra note 17, at 156.
30 CLARE PETTITT, PATENT INVENTIONS—INTELLECTUAL PROPERTY AND THE VICTORIAN NOVEL 57, n. 84
(Oxford U. Press 2004) (quoting JEREMY BENTHAM, 1 JEREMY BENTHAM'S ECONOMIC WRITINGS: CRITICAL EDITION
BASED ON HIS PRINTED WORKS AND UNPRINTED MANUSCRIPTS 264 (Werner Stark ed., George Allen & Unwin Ltd.
1952)).
6
property, declaring patents “a recompense for industry and genius and ingenuity,” 31 a
position which had been advocated by James Madison not long before. 32
3. Friedrich Hegel
Hegel, a German philosopher in the tradition of Immanuel Kant, brought a more
ontologically nuanced approach to property theory. For Hegel, property is to be thought
of as a person manifesting his will upon his external environment. 33 Unlike Bentham who
considered property law to be a creature of the government, 34 Hegel viewed property as
an “absolute right” of man.35
In contrast to most of his predecessors for whom discussion of “intellectual
property” would have been anachronistic, Hegel specifically addressed “[t]he process by
which a mental possession passes into the external world and comes under the category of
a legal property.”36 In so doing, Hegel articulated concepts (if not phrases of art) that are
part and parcel of modern Copyright law. For example, Hegel may have foreshadowed
the First Sale Doctrine37 when he wrote that “the purchaser of such a product of mental
skill possesses the full use and value of his single copy, [and] he is complete and free
owner of that one copy.”38 Similarly, Hegel describes how mental property can be
acquired from others through the process of learning: “[T]hose who have worked over the
material a second time may regard as their own possession whatever money they may be
31 PETTITT, supra note 30, at 57 (citing BENTHAM, ECONOMIC WRITINGS, supra note 30, at 263).
33 GEORG WILHELM FRIEDRICH HEGEL, THE PHILOSOPHY OF RIGHT 48 (Samuel Walter Dyde trans.,
George Bell & Sons 1896) (1821).

34 See supra note 17 and accompanying text.
35 HEGEL, PHILOSOPHY OF RIGHT, supra note 33, at 51.
36 Id.
37 “[T]he owner of a particular copy . . . lawfully made . . . is entitled, without the authority of the
copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.” Copyright
Act of 1976 § 109(a), 17 U.S.C. § 109(a) (2009).
7
able to extract from their work, and may contend that they have a right to reproduce
it.”39 This conclusion prefigures the fair use copyright exception of “transformative
works.”40
Nevertheless, Hegel's formulation contained some limitations which could dampen
an attempt to marshal his views in favor of strong intellectual property protection. While
Hegel was concerned with protecting creative works,41 he also realized that creating a
dichotomy between a right of ownership and right of duplication posed a potential
problem.
For Hegel, partial use of a thing was distinct from ownership of a thing. 42 Since
property is, by its nature, the embodiment of a person's will in an external object, 43 how
can one person be said to own an object which is, at least in part, the embodiment of the
will of another?44 “The total use of a thing cannot be mine, while the abstract property is
somebody else's. The object would in that case contain a contradiction. It would be
39 Id. at 74.
40 “Transformative works,” as opposed to “derivative works,” as explained by the Supreme Court:
The central purpose of this investigation [into whether the use is for criticism,
or comment, or news reporting] is to see, in Justice Story's words, whether the
new work merely “supersede[s] the objects” of the original creation, [Folsom v.
Marsh, 9 F. Cas. 342, 349 (C.C. Mass. 1841)], or instead adds something new,
with a further purpose or different character, altering the first with new
expression, meaning, or message; it asks, in other words, whether and to what
extent the new work is "transformative." (citation omitted). Although such
transformative use is not absolutely necessary for a finding of fair use . . . the
goal of copyright, to promote science and the arts, is generally furthered by the
creation of transformative works. Such works thus lie at the heart of the fair
use doctrine's guarantee of breathing space within the confines of copyright . . .
and the more transformative the new work, the less will be the significance of
other factors, like commercialism, that may weigh against a finding of fair use.
Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 578–79 (1994).
41 “The primary and most important claim of trade and commerce is to give them surety against
highway robbery. In the same way the primary though merely negative demand of the sciences and arts is
to insure the workers in these fields against larceny, and give their property protection.” See HEGEL,
PHILOSOPHY OF RIGHT, supra note 33, at 74.
44 HEGEL, PHILOSOPHY OF RIGHT, supra note 33, at 66 (“How can what is mine in one single object be
without qualification my individual exclusive will, and also be the individual exclusive will of another?”).
8
wholly penetrated by my will and yet contain something impenetrable, namely, the empty
will of another.”45
Hegel considers this problem in the context of intellectual property when
discussing the separation of an object from the power to reproduce it. 46 To solve the
problem, Hegel identifies the wealth-creation use of intellectual property as distinct from
its “natural use.”47 For example, the natural use of a book would be in reading it and
deriving enjoyment or learning from its contents. The wealth-creation use would, of
course, be manufacturing copies and selling them to the public. By drawing this
distinction in the realm of “external use,” the ownership of an object in Hegel's paradigm
is not destroyed because the owner enjoys the full realm of its natural use, even where the
artist reserves the wealth-creation use for himself.48
B. Legal Development of Intellectual Property Rights
We in twenty-first century America have inherited an evolving legal system that
traces copyright antecedents back over 500 years. By viewing this history in light of the
foregoing philosophical principles, it becomes evident how far copyright law has drifted
from its moorings.
The summary in the previous subpart spans the ferment of philosophical
development from roughly 1690 to the early 1800s. This same time period saw the birth
and infancy of the United States. Because many of the Founding Fathers were both
philosophers and statesmen, the United States Constitution was born out of legal theory
inherited from Europe as well as contemporary philosophy. Thus the Copyright Clause

46 Id. at 73.
47 Id. at 74.
48 Id.
9
bears the mark of Queen Mary as well as of Locke, Bentham, and others.
1. Competing Visions of Copyright and its Legal Evolution in England
Western civilization's first foray into copyright protection was born out of a
markedly “unAmerican” motive: government censorship. With the excommunication of
King Henry VIII in 1534, the English Reformation was in full swing. 49 By 1557, King
Henry's daughter, Queen Mary I was desperately trying to undo her father's separation of
England from the Bishop of Rome.50 In order to do this, she needed a way to control the
press,51 which the Reformers had been using to great advantage. On November 5, 1558,
less than two weeks before her death, Queen Mary introduced the Licensing Act into
Parliament that required all published works to be printed under the royal seal. 52 The
previous year, the Queen had granted a royal charter to a guild of printers and publishers
normally referred to as the Stationers' Company. 53 Combining that royal charter with the
Licensing Act resulted in a system under which only members of the Stationers' Company
could lawfully publish works in England.
The nature of the government-granted guild monopoly is important to understand.
The Stationers' Company was not chartered to protect the integrity of intellectual
property nor to compensate authors to induce them to create more works. On the
contrary, the fundamental purpose of conferring such power was to allow the British
Crown to control the press, to limit the spread of information, and to suppress material it
deemed undesirable.54 The Stationers' Company exercised this generous grant of

49 FRANCIS CHARLES MASSINGBERD, THE ENGLISH REFORMATION 281-82 (Longmans, Green, & Co. 1866)
(1842).
50 LYMAN RAY PATTERSON, COPYRIGHT IN HISTORICAL PERSPECTIVE 29 (Vanderbilt University Press 1968).
51 Id.
52 Id. at 29-30.
53 Id. at 29. The full name of the guild is “The Worshipful Company of Stationers and Newspaper
Makers.”
54 See, e.g., PATTERSON, supra note 50, at 30 (quoting GEORGE UNWIN, THE GILDS AND COMPANIES OF
10
authority in a fairly misanthropic manner, ensuring the maximization of profits for larger,
influential guild members.55
One interesting feature of the Stationers' Company guild monopoly was that it was
not in any sense based on a concept of intellectual property. The Stationers' Company
had the exclusive right to print and publish works, but the scope of the monopoly did not
include modifications to works or the creation of what we would today call derivative
works.56 In other words, the “stationers' copyright” 57 was a privilege to print, not an
ownership of the work itself.58 In this sense, the Stationers' copyright was more limited in
scope than a modern statutory copyright, which extends to nearly every economic
advantage that can be realized from a given work.59
In other respects, however, the Stationers' copyright was a broader privilege. Most
notably, the sale of a manuscript to a printer operated as a “perpetual lease of personal
property” for the purpose of publishing.60 The physical possession of a manuscript was
LONDON 261 (Methuen & Co. 1908)) (“The amount of attention the Stationers' Company received from the
government, however, was such that no other company 'ever attained the same degree of monopoly as that
which the State thought it expedient to confer on the Stationers.' The reason for this, of course, was the
government's need to control the press.”); Lasercomb Am., Inc. v. Reynolds, 911 F.2d 970, 974 (4th Cir.
1990) (“The development of copyright law in England likewise grew out of a differentiation by Parliament
between a monopoly that restricts publication of works and a limited copyright that encourages the efforts
of authors.”); Alfred Bell & Co. v. Catalda Fine Arts, 191 F.2d 99, 100 n.3 (2d Cir. 1951) (quoting STEPHEN
P. LADAS, THE INTERNATIONAL PROTECTION OF LITERARY AND ARTISTIC PROPERTY 15 (Macmillan Co. 1938))
(observing that the early British publishing monopolies “were not granted to encourage learning or for the
benefit of authors”).
55 Glynn S. Lunney, Jr., The Death of Copyright: Digital Technology, Private Copying, and the
Digital Millennium Copyright Act, 87 VA. L. REV. 813, 815 (2001) (“[S]ecuring the profits of a favored few
within the guild seemed to be the Stationers' Company's guiding principle.”).
56 PATTERSON, supra note 50, at 10.
57 The term “copy right” is in a sense anachronistic because it did not appear in the Stationers'
Company register until 1701. PATTERSON, supra note 50, at 4 (citing III EYRE & RIVINGTON, A TRANSCRIPT OF
THE REGISTERS OF THE WORSHIPFUL COMPANY OF STATIONERS, 1640-1708 A.D. 494, 496 (1914)). The phrase
“stationers' copyright” is generally used to refer to the right to print that was created by a combination of
royal grant and the Stationers' Company's own regulations made pursuant to their monopoly. PATTERSON,
supra note 50, at 4-5.
59 Id. at 11.
60 Id. at 10.
11
the equivalent of permission to print it, creating an eventual source of tension between
authors and publishers. Could an author write a revised manuscript and sell this second
edition to a rival publisher? This was one of the issues that arose under the Stationers'
copyright which ultimately and ironically contributed to its demise.
In 1694, the Licensing Act finally expired, much to the consternation of the
Stationers.61 Feeling the need for more adequate protections and desiring a legal
recognition of a perpetual and exclusive right to publish, the Stationers' Company lobbied
Parliament for new, stronger legislation.62 What they received, however, was far different
from what they requested.63
The Statute of Anne was passed in 1709 as a direct result of the Stationers'
lobbying efforts.64 Under this new law, the rights to literary works were vested in authors
instead of publishers, and even then only for fourteen years. 65 The new statute specified
the scope of the rights granted, abolishing the self-serving private regulations of the
Stationers' Company.66 Perhaps most importantly, the Statute of Anne was a dramatic
shift away from government censorship in favor of the enrichment of the public. 67 So
important was this change that the law is actually titled: “An Act for the encouragement
of learning by vesting the 'copies' of printed books in the authors or purchasers of such
copies during the times therein mentioned.” 68 This shift in focus is perhaps the most
important effect of the Statute of Anne and the role it played in the development of
modern copyright law.

61 THOMAS EDWARD SCRUTTON, THE LAW OF COPYRIGHT 30 (William Clowes & Sons 1903) (1883).
62 Id. at 30-31.
64 SCRUTTON, supra note 61, at 31.
66 Lunney, supra note 55, at 816-17.
67 Id. at 817.
68 SCRUTTON, supra note 61, at 31.
12
2. Copyright, the Constitution, and the Founding of the United States
A “behind the scenes” look at the drafting of the United States Constitution reveals
that many of the principles discussed up to this point factored into the decisions made by
the founding fathers. By understanding some of the historical context of the drafting of
the Constitution, we may see with greater clarity how modern legislation (which still
purports to be based on the Constitution) has gotten out of step.
The United States Constitution was drafted by the Constitutional Convention, the
final, signed draft being read in Congress on September 20, 1787. 69 After it was
transmitted to the states for ratification, many delegates began to feel that it needed a bill
of rights, an enumeration of fundamental human rights which must not be infringed by
the government.70 During the time between the drafting of the Constitution and the final
ratification of the Bill of Rights in December 1791, 71 the drafters engaged in considerable
discussion regarding the content and scope of the proposed Bill of Rights.
69DAVID K. WATSON, THE CONSTITUTION OF THE UNITED STATES: ITS HISTORY APPLICATION AND
CONSTRUCTION 1344 (1910).
70 Id. at 1351. Justice Harlan eloquently described the process of the formation of the Bill of
Rights:
When the Constitution was adopted by the convention of 1787 and placed
before the people for their acceptance or rejection, many wise statesmen whose
patriotism no one then questioned or now questions earnestly objected to its
acceptance upon the ground that it did not contain a bill of rights guarding the
fundamental guaranties of life, liberty, and property against the unwarranted
exercise of power by the national government. But the friends of the
Constitution, believing that the failure to accept it would destroy all hope for
permanent union among the people of the original states, and following the
advice of Washington, who was the leader of the constitutional forces, met this
objection by showing that when the Constitution had been accepted by the
requisite number of states and thereby became the supreme law of the land,
such amendments could be adopted as would relieve the apprehensions of those
who deemed it necessary, by express provisions, to guard against the
infringement by the agencies of the general government of any of the essential
rights of American freemen. This view prevailed, and the implied pledge thus
given was carried out by the first Congress, which promptly adopted and
submitted to the people of the several states the first ten Amendments. These
Amendments have ever since been regarded as the national Bill of Rights.
Maxwell v. Dow, 176 U.S. 581, 606–07 (1900) (Harlan, J., dissenting).
71 WATSON, supra note 69, at 1368.
13
During this time, Thomas Jefferson and James Madison had an exchange which
has particular bearing on our discussion of copyright law. On July 31, 1788, Jefferson
wrote to Madison to register his suggestions regarding the need for a Bill of Rights. 72 By
that time, nine states had ratified the Constitution, which Jefferson referred to as “a good
canvas, on which some strokes only want retouching.”73 For Jefferson, one of the issues
in need of “retouching” was copyright protection.74 Jefferson wrote that he favored the
abolition of monopolies in all cases:75 “The saying there shall be no monopolies lessens
the incitements to ingenuity, which is spurred on by the hope of a monopoly for a limited
time, as of 14 years; but the benefit even of limited monopolies is too doubtful to be
opposed to that of their general suppression.” 76 Thus while Jefferson admitted that the
lack of copyright protection (in the form of “limited monopolies” for even 14 years)
might “lessen[] the incitements to ingenuity,” he believed that it was more important to
guarantee the people freedom from such monopolies. 77
Madison's reply to Jefferson indicates only a slightly milder position:
With regard to monopolies they are justly classed among the

greatest nuisances in government. But is it clear that as
encouragements to literary works and ingenious discoveries,
they are not too valuable to be wholly renounced? Would it
not suffice to reserve in all cases a right to the public to
abolish the privilege at a price to be specified in the grant of
it? Monopolies are sacrifices of the many to the few. Where
the power is in the few it is natural for them to sacrifice the
many to their own partialities and corruptions. Where the
72 Letter from Thomas Jefferson to James Madison (July 31, 1788), in 11:1 DOCUMENTARY HISTORY
OF THECONSTITUTION OF THE UNITED STATES OF AMERICA, 1786-1870, at 824 (1905).
73 Id.
74 Id. Jefferson referred to “monopolies,” a phrase which denoted not only copyright protection
but patents as well. For Bentham's use of the term, see supra note 30 and accompanying text.
75 Letter from Thomas Jefferson, supra note 72, at 824.
76 Id. at 825.
77 Jefferson's letter also addressed other issues which did ultimately find their way into the Bill of
Rights, perhaps suggesting that Jefferson believed that freedom from copyright was as fundamental a
human liberty as freedom of religion, freedom of the press, and the writ of habeas corpus.
14
power, as with us, is in the many not in the few, the danger
can not be very great that the few will be thus favored. It is
much more to be dreaded that the few will be unnecessarily
sacrificed to the many.78
At least with respect to his hesitancy to abolish copyright protection altogether,
Madison here articulates the utilitarian argument which would later be espoused by
Bentham.79 For Madison, the allowance of limited monopolies had an accompanying
benefit that militated in favor of its retention and the Constitution already had a sufficient
built-in protection against abuses.
Madison believed that the form of government created by the Constitution
obviated the need for a Bill of Rights altogether. Since the power of the government
derives from the popular will and not monarchical fiat, Madison felt it unnecessary for
the people to enumerate rights not to be trampled by the government. After all, if the
power were ever to be wrested away from the people thereby giving rise to a situation
where a Bill of Rights would be needed, would it even be effectual? As Madison put it, in
the context of a proposed prohibition of standing armies, “[s]hould an army in time of
peace be gradually established in our neighbourhood by Britain or Spain, declarations on
paper would have as little effect in preventing a standing force for the public safety.” 80
In the context of copyright protection, while Madison considered monopolies
“among the greatest nuisances in government,” he believed that the form of our fledgling
government was sufficient to prevent the inevitable abuses feared by Jefferson and
others.81 A monopoly is a “sacrifice[] of the many to the few,” meaning that the general
78 Letter from James Madison to Thomas Jefferson (Oct. 17, 1788), in 5 DOCUMENTARY HISTORY OF
THE CONSTITUTION OF THE UNITED STATES OF AMERICA, 1786-1870, at 90-91 (1905).
79 See, e.g., PETTITT, supra note 30 and accompanying text.
80 Letter from James Madison, supra note 78, at 90.
81 Id. at 91.
15
public must give up some of its rights in favor of the monopoly-holder. If the few
monopoly-holders wield the power of government, according to Madison, “it is natural
for them to sacrifice the many to their own partialities and corruptions.” 82 But Madison
believed that putting the power of government in the hands of the people would prevent
this unhappy outcome. As Madison explained earlier in the same letter,
Wherever the real power in a Government lies, there is the

danger of oppression. In our Government, the real power lies
in the majority of the Community, and the invasion of private
rights is chiefly to be apprehended, not from acts of
Government contrary to the sense of its constituents, but from
acts in which the Government is the mere instrument of the
major number of the constituents. . . . Wherever there is an
interest and power to do wrong, wrong will generally be
done, and not less readily by a powerful and interested party
than by a powerful and interested prince.83
Therefore, because the real power of the government lies in the many, the many are
protected from an undue invasion of their rights by the few monopoly-holders. As long
as the government is the “mere instrument of the major number of the constituents,” the
public need not fear the few. Only when the “power is in the few,” or in a “powerful and
interested party” will the people be “sacrifice[d] . . . to their own partialities and
corruptions.”
In the end, Madison's support for the so-called “copyright clause” was rooted in
social utility. Conspicuously absent is any notion of natural rights springing from a
concept of intellectual property. Although the philosophical groundwork for a moral
rights rationale existed, it is clear that the Constitutional recognition of “monopolies”
arose out of a desire to encourage literary and scientific development rather than a
recognition of a natural right of authors and inventors.

82 Id.
83 Id. at 88.
16
Although Madison's support of copyright flowed from strictly utilitarian concerns,
moral rights did play a significant part in Madison's intellectual property paradigm.
Writing in 1792, Madison explained that property “embraces everything to which a man
may attach a value and have a right, and which leaves to every one else the like
advantage.”84 He continued:
[A] man has a property in his opinions and the free

communication of them. . . . He has an equal property in the
free use of his faculties, and free choice of the objects on
which to employ them. In a word, as a man is said to have a
right to his property, he may be equally said to have a
property in his rights.85
This two-fold discussion of the use and object of one's faculties indicates that for
Madison, not only does man have the right to think, work, and communicate as he
chooses, he also has the right to think, work, and communicate about whatever he
chooses. In other words, for Madison the free use of “intellectual property” is a moral
right. Accordingly, Madison had harsh words for the government that unreasonably
inhibits this right.
That is not a just government, nor is property secure under it,

where arbitrary restrictions, exemptions, and monopolies
deny to part of its citizens that free use of their faculties and
free choice of their occupations which not only constitute
their property in the general sense of the word, but are the
means of acquiring property strictly so called.86
Taken together with his earlier writings on the copyright monopoly, these
pronouncements make clear that Madison considered arbitrary restriction of free
expression in the form of unreasonable monopolies to be an unjust infringement of a
84 4 JAMES MADISON, LETTERS AND OTHER WRITINGS OF JAMES MADISON: 1829-1836, at 478 (1884)
(emphasis original). In this respect, Madison seems to echo Locke who considered a man's property right to
not encompass hording. See supra note 5 and accompanying text.
85 Id.
86 Id. at 479.
17
human right.87
Under this paradigm, copyright is problematic for two reasons. First, the grant of
monopoly power has the distasteful tendency to concentrate power in the hands of the
privileged few if proper checks and balances are not not carefully employed. Second, by
its very nature, copyright achieves its purpose by treading upon the public's right to freely
employ its faculties as it chooses. While Madison nevertheless considered the benefits of a
conservative grant of copyright “too valuable to be wholly renounced,” 88 he made clear
that such a grant would inevitably lead to the abuses feared by Jefferson and others if the
power of the government were ever to be wielded by the “few” or a “powerful and
interested party.”89 Unfortunately, the subsequent development of U.S. Copyright law is
the story of how the power of the government gradually shifted into the hands of the few
powerful and interested parties.
3. Congress and the Copyright Acts
A utilitarian copyright system such as that of the United States must balance the
private interests of authors against the public interest of society. Too many rights in the
hands of authors restricts freedom and leads to an anticommons problem. 90 Too few
rights in the hands of authors leads to what Hegel called the “abatement of industry” 91
and a resulting paucity of creative works. Ideally, Congress should attempt to achieve a
perfect balance, giving equal weight to the rights and interests of all parties and society as
87 See also Tom W. Bell, Escape from Copyright: Market Success vs. Statutory Failure in the
Protection of Expressive Works, 69 U. CIN. L. REV. 741, 773 (2001) (“By restricting what free people do
with their voices, pens, and presses, copyright plainly falls afoul of Madison's indictment of government
monopolies.”).
88 Letter from James Madison, supra note 78, at 90.
89 Id. at 88.
18
a whole. In practice, however, it appears that authors92 have their thumbs on the scale.
The first Congressional exercise of the power granted by the Copyright Clause 93
was the Copyright Act of 1790.94 Mirroring the time limitations of the Statute of Anne,95
the 1790 Act granted an initial copyright term of 14 years and allowed for a renewal term
of an additional 14 years.96 Since that time, subsequent revisions of the Copyright Act
have only lengthened these time limitations and radically expanded the scope of copyright
protection.
The 1831 revision of the 1709 Act doubled the initial term to 28 years with a 14-
year renewal term.97 It also allowed an author's heirs to trigger the extension term 98 and
prevented the copying of portions of copyrighted books. 99
The next major revision was the Copyright Act of 1909. 100 In addition to
broadening the scope of works covered by copyright (even including a catch-all provision
encompassing “all writings of an author”),101 the 1909 Act extended the renewal term to
28 years (for a total protection period of 56 years). 102 The 1909 Act underwent periodic
revision. In 1971, near the end of its life, it was amended to include sound recordings as
a protected work.103 This provision was carried over into the next major iteration, the
92 Or more accurately, authorship industry lobbies.
93 U.S. CONST. art. I, § 8.
94 Copyright Act of 1790, 1 Stat. 124.
95 Copyright Act of 1709, 8 Anne, c. 19, §§ I, XI. Section I provided an initial 14-year term for
new works while section XI allowed for the 14-year renewal term.
96 1 Stat. 124 § 1.
97 4 Stat. 436 § 1.
98 4 Stat. 436 § 2.
99 4 Stat. 436 § 7. This was later removed in an 1870 revision which also prohibited the making
of a translation of a book without the author's consent. Act of July 8, 1870, §§85-111, 41st Cong., 2d
Sess., 16 Stat. 198, 212-16.
100 Copyright Act of 1909, 35 Stat. 1075.
101 35 Stat. 1075 § 4.
102 35 Stat. 1075 § 24. This section actually resulted in an even larger practical extension by
beginning the term of protection at first publication rather than initial registration of the copyright which
was typically done long before the work was ready to be published.
103 Act of October 15, 1971, Pub. L. No. 92-140, 92d Cong., 1st Sess., 85 Stat. 391.
19
Copyright Act of 1976.104
The 1976 Act introduced several revolutionary changes to the benefit of copyright
holders. Most notably, the two-tiered scheme requiring renewal was abolished in favor of
a single term beginning when the work is created and lasting the entire life of the author
plus 50 years besides.105 The 1976 Act also did away with the publication requirement of
prior acts as well as an enumeration of the types of work protected. Instead, it
encompassed any “original works of authorship fixed in any tangible medium of
expression,”106 whether published or unpublished.107
Other provisions intending to protect the public interest included the codification
of the judicially-created “fair use” exceptions,108 exemptions for public libraries,109
education and religious institutions,110 non-profit entities, and public broadcasting uses. 111
A decade after it became effective, the 1976 Act received significant amendment in
the form of the Berne Convention Implementation Act of 1988. 112 The most notable
“ground level” change wrought by this Act was the abolition of the mandatory notice
requirement for published works.113
But Congress was not done. In 1998, the Sonny Bono Copyright Term Extension
Act114 tacked an additional 20 years on to all existing copyrights, bringing the new
104 17 U.S.C. §§ 101-810.

105 17 U.S.C. § 302(a) (1976).
106 17 U.S.C. § 102(a).
107 17 U.S.C. § 104(a).
108 17 U.S.C. § 107.
109 17 U.S.C. § 108.
110 17 U.S.C. § 110.
111 17 U.S.C. § 118. Notably, section 118 sets up a system of “compulsory licensing” under which
Copyright Royalty Judges set fixed royalty rates for certain types of copyrighted works and such works may
be used in enumerate manners provided the royalty is paid. This system will serve as a model for the
Copyright Buyout proposal I advance in Section II-B-3 infra.
112 Act of October 31, 1988, Pub. L. No. 100-568, 100th Cong., 2d Sess., 102 Stat. 2854.
113 17 U.S.C. § 401(a) (1988).
114 Pub. L. No. 105-298, 112 Stat. 2827.
20
copyright term to its present115 duration, the life of the author plus 70 years.116
Shortly thereafter, Congress enacted the Digital Millennium Copyright Act. 117 One
of the primary effects of the DMCA was the creation of the anti-circumvention provisions
of § 1201. This section governs legal protection of technological measures that had been
developed to prevent unauthorized copying and distribution of copyrighted digital
material. It does so by prohibiting a “person” from “circumvent[ing] a technological
measure that effectively controls access” to a copyrighted work. 118 One thus runs afoul of
this section by, among other things, removing or bypassing “digital rights management”
(DRM) schemes on digital files, or by employing unauthorized means of decrypting media
sold and distributed on physical media such as DVD and Bluray Disc.
While the most obvious trend in the evolution of American Copyright law is the
ever-lengthening duration of copyright protection (see Fig. 1 below), this cursory
historical survey also reveals an alarming doctrinal shift in the legal principles
undergirding copyright law in general. The elimination of the registration requirement in
the Berne Convention Implementation Act of 1998 emphasized the ideological paradigm
shift that had been occurring since the beginning of the century, a shift away from the
utilitarian rationale held by Madison and Jefferson and toward the natural law view of
continental Europe. No longer is copyright a privilege that must be claimed by affixing
that iconic encircled letter “C.” Since 1998, simply by changing “shall” to “may,” 119
115 As of the writing of this Essay.

116 17 U.S.C. § 302(a) (2010).
117 Pub. L. 105-304, 112 Stat. 2860 (1998). The DMCA is very complex litigation designed to
implement two 1996 treaties of the World Intellectual Property Organization (WIPO). Its provisions and
effects are the subject of other scholarship and this Article will not attempt to cover them all. For a more
detailed analysis of the DMCA, see Lunney, supra note 55.
118 17 U.S.C. 1201(a)(1)(A).
119 Before the Berne Convention Implementation Act of 1998, § 401(a) read in relevant part, “a
notice of copyright as provided by this section shall be placed on publicly distributed copies” of the work
(emphasis added).
21
copyright (and all its attendant restrictions and reservations) now attaches itself a priori
to every creative endeavor undertaken in the United States.
Fig. 1120
Another indication of the drift away from our Constitutional moorings has been
described by Professor Glynn Lunney who observed that the anti-circumvention
provisions of the DMCA operate as a return to the guild monopoly scheme of the
Stationers' Company heyday.121 Then, as now, a technological key was required in order
to disseminate information to the public and the government granted access to that
technology only to a select few. Then, that technology was the printing press; today, it is
decryption.122 In both instances, the power is in the few, the very scenario that Madison
and Jefferson agreed would be disastrous, but were confident could never happen in the
United States.123
120 Tom W. Bell, Trend of Maximum U.S. General Copyright Term, July 23, 2008,
http://www.tomwbell.com/writings/(C)_Term.html. The chart is licensed under a Creative Commons
Attribution-Share Alike 3.0 Unported License.
121 Lunney, supra note 55, at 819.
122 Id.
22
So how did this happen?
Public choice theory offers a ready explanation for copyright's

steady growth. Those who create, own, and distribute
expressive works know who they are, what they want, and
how badly they want it. Unsurprisingly, such copyright
protectionists approach Congress as a well-defined, highly-
motivated, and apparently effective lobby. In contrast, those
who might benefit from a less expansive Copyright Act
typically have disparate, inchoate, slight, or non-monetized
wishes. Such anti-protectionists thus have relatively little
impact on the legislative process. In sum, copyright policy
combines all the elements of a public choice tragedy:
concentrated benefits, diffuse costs, and pervasive state
power.124
In other words, money talks. By granting authors an economic advantage in the
form of a market monopoly, copyright law (which was originally intended to exist only
for the public good) has become the primary instrumentality through which “the few”
have been able to form powerful empires and amass fantastic wealth. The incremental
and gradual expansion of this economic advantage has provided both the means and the
incentive to continually strive to further expand it. This “vicious cycle” shows no signs of
abatement.125
C. Foundational Socio-Economic Principles of Property Rights
As U.S. Copyright law has grown and expanded, so has the field of economics and
its role in legal theory and the lawmaking process. Space precludes a comprehensive
survey of all the economic forces driving modern copyright law, but several principles help
illustrate how we got where we are and what might be done about it.
1. The Commons – Tragedy or Comedy?
In 1968, renowned ecologist Garret Hardin published a highly influential article
124 Bell, supra note 87 at 786 (internal citations omitted).

125 Id. at 787.
23
entitled The Tragedy of the Commons.126 The purpose of this oft-cited article was to
illustrate how human nature cannot sustain communally-owned resources. To
demonstrate the result of under-privatization of property, Hardin asks the reader to
envision an open pasture in which all herdsmen may graze their herds freely. 127 Assuming
the herdsmen act rationally and in their own self interest, each will realize that if he adds
cattle to his herd, the cost (in terms of reduced supply) will be borne by every herdsman,
but he will reap the entire benefit of the additional cattle. 128 Since the herdsman realizes
that the benefit (to him) outweighs the cost (to him), he concludes that it is a good idea to
add an animal to his herd.129 And another, and another, and another. Since the common
pasture cannot sustain an infinite number of animals, the common resource will quickly
become exhausted as each user seeks to maximize his own advantage. 130 The answer to
the resulting “tragedy of the commons” is to parcel the communal field in such a way that
each herdsman owns his own portion. Each herdsman now reaps the benefit and bears
the whole cost of adding cattle to his herd, an effect economists refer to as “internalizing
externalities.”
One important feature of Hardin's analysis is that it is predicated on the principle
of scarcity. In a sense, the concept of scarcity is the engine that drives market economics.
Whereas supply and demand dictate the price of goods, scarcity dictates whether a thing
is a commodity at all. As Margaret Radin has put it, “[t]here will be no property in a
particular good if the good is so plentiful that everyone can take what she wants and there
126 Garrett Hardin, The Tragedy of the Commons, SCIENCE, Dec. 13, 1968, at 1243.
127 Id. at 1244.
128 Id.
129 Id.
130 Id.
24
will always be enough left.”131 In other words, if there is only so much of a thing,
property law is a necessary means of avoiding the tragedy of the commons.
When a book is printed, there are only so many physical copies in existence and
transferring them is, in an important respect, a zero-sum game. If you own a book and I
take it from you, it means that I gain and you lose. The same is not true of the story
contained within the book. If you impart the story to me, you do so without losing it
yourself. Thus information is not naturally a scarce resource. Information, ideas, and
even expressions can be multiplied infinitely, instantly, with little or no cost, and without
ever running out. Because of this, copyright law is a means of artificially creating scarcity
in order to support a market for intellectual property. 132 Far from being a tragedy of the
commons in intellectual property, as Mark Lemley has observed, “an information
commons is a 'comedy' in which everyone benefits.”133 Indeed, if there is a tragedy at all,
it arises from the inverse of the commons.
2. An Anticommons Problem?
Thirty years after Hardin's article warning against the consequences of under-
privatization appeared in Science magazine, those pages featured an article by Michigan
Law School professors Michael A. Heller and Rebecca S. Eisenberg which discussed the
opposite problem: the over-privatization of property.134 Termed the tragedy of the
anticommons, Heller and Eisenberg used the field of biomedical research to show that
when too many people have the right to exclude others from a resource, that resource can
131 Margaret Jane Radin, Property Evolving in Cyberspace, 15 J.L. & COM. 509, 515 (1996).
132 Mark A. Lemley, Property, Intellectual Property, and Free Riding, 83 TEX. L. REV. 1031, 1055
(2005) (“Intellectual property, then, is not a response to allocative distortions resulting from scarcity, as real
property law is. Rather, it is a conscious decision to create scarcity in a type of good in which it is
ordinarily absent in order to artificially boost the economic returns to innovation.”).
133 Id. at 1051.
134 Michael A. Heller & Rebecca S. Eisenberg, Can Patents Deter Innovation? The Anticommons
in Biomedical Research, SCIENCE, May 1, 1998, at 698.
25
become under-utilized, leading to socially undesirable outcomes. 135 The example given by
the authors is the proliferation of street kiosks in the shadows of vacant storefronts in
developing post-Soviet republics.136 Why would so many vendors choose to operate
flimsy street carts while the storefronts remained empty?
One reason was that the transition governments often failed

to endow any individual with a bundle of rights that
represents full ownership. Instead, fragmented rights were
distributed to various socialist-era stakeholders, including
private or quasi-private enterprises, workers' collectives,
privatization agencies, and local, regional, and federal
governments. No one could set up shop without first
collecting rights from each of the other owners.137
The obstacle of obtaining permission from numerous rights-holders is the linchpin
of the tragedy of the anticommons and has particular significance in the discussion of
intellectual property and copyright. Consider the example of the typical big-budget
motion picture. It is not uncommon for a Hollywood producer to have to obtain
intellectual property licenses from numerous people in order to create a movie. Licenses
may have to be obtained from authors of books upon which the story is based, musicians
and songwriters whose music is to be used or adapted in the film, visual artists whose
works may be in view of the camera, companies whose names or logos appear or are
mentioned, even artists upon whose magazine cover the movie poster is based. 138
But why should this be necessary? In most cases, a Hollywood motion picture will
not compete in the same market as the underlying works which must nevertheless be
licensed under to current U.S. copyright law. Even in the case of strict book-to-screen
135 Id.
136 Id.
137 Id.
138 In the case of the latter, Columbia Pictures was successfully sued by Saul Steinberg after
Columbia created a poster for the movie “Moscow on the Hudson” that appeared substantially similar to
the cover of an issue of The New Yorker that had been designed by Steinberg. Steinberg v. Columbia
Pictures Indus., Inc., 663 F. Supp. 706 (S.D.N.Y. 1987).
26
adaptations, the movie is not competing against the book for sales or market share. 139
The same is true of musical soundtracks, visual art, and other forms of copyrightable
expression. Despite the fact that the primary markets for the underlying works will
generally not be negatively impacted by their use in a motion picture, the recognition of a
right to restrict derivative works (for example) forces the producer to seek out and
negotiate with numerous individual rights-holders. The result is an entertainment
anticommons in which only the privileged few may compete.
3. Free Riding and Copyright
The tragedy of the commons provides a justification for internalizing negative
externalities through property law; that is, using the concept of ownership to get people
to bear the costs associated with their own behavior. The economic principle of free
riding deals with the inverse: internalizing positive externalities. The focus here is on
ensuring that people reap the rewards associated with their behavior, again through the
instrumentality of property law. This focus has had a profound impact on the
development of the notion of “intellectual property,” and by extension, U.S. copyright
law.
Free riding occurs when someone “obtain[s] a benefit from someone else's
investment.”140 In many contexts, the problems arising from free riding are readily
139 Indeed, movie or television adaptations of books often increase demand for the underlying
work. For a recent example, consider the fact that within four days of the release of the trailer for the
upcoming movie Scott Pilgrim vs. The World, “all six volumes of the Bryan Lee O'Malley [graphic novel
series, on which the movie is based] – including the final installment, which won't be released for another
four months – rest[ed] comfortably in Amazon.com's Top 20 Bestsellers in Graphic Novels.” Kevin
Melrose, 'Trailer effect' gives Scott Pilgrim series an Amazon sales boost,
http://robot6.comicbookresources.com/2010/03/trailer-effect-gives-scott-pilgrim-series-an-amazon-sales-
boost/ (last visited May 12, 2010). Another example involving comic book screen adaptations is the so-
called “Spidey Effect,” which describes the dramatic increase in sales of Spiderman comic books in the wake
of the 2002 movie adaptation. See Alexander Coolidge, The Spidey Effect, SARASOTA HERALD-TRIBUNE, May
10, 2002, at D1, available at http://news.google.com/newspapers?id=WEIgAAAAIBAJ&sjid=
1X8EAAAAIBAJ&pg=3981%2C4826321.
140 Lemley, supra note 132, at 1040.
27
apparent. Companies and individuals are less likely to make risky investments if
competitors can reap the benefits without paying for them. Would Coca-Cola have
developed its secret formula without the ability to prevent competitors from using it? But
in other contexts, attempts to eliminate free riding would strike the average person as
absurd. No reasonable person would expect to charge his neighbor for the benefit
received from looking at his freshly-planted flower bed. 141 Property law generally does
not allow property owners to recapture the full social value of their investments, as the
flower bed example indicates.142 So how much is enough? More importantly, how much
is too much?
In the intellectual property context, the conflict can be illustrated best with a
borrowed example, J.R.R. Tolkein's The Lord of the Rings book series.143 To the strict
utilitarian such as Bentham or Madison, it would be appropriate for Copyright law to
restrict the unauthorized copying of Tolkein's books in order to allow Tolkein to be
compensated, thus providing him with the necessary incentive to write the books in the
first place. In other words, copyright is a government-created economic monopoly to
prevent the author from having to compete with his own work.
Yet the social value of Tolkein's masterpiece is not bounded by the pages of his
books. The story has spawned numerous other works such as smash hit motion pictures,
cartoon adaptations, musical works, and even highly successful video games. 144 At the
big-picture level, these represent positive externalities that are not encompassed by a
141 Id. at 1048.

142 Id. at 1046 (“We do not permit producers to capture the full social value of their output. Nor
do we permit the owners even of real property to internalize the full positive externalities associated with
their property.”).
143 See Alina Ng, Copyright's Empire: Why the Law Matters, 11:2 MARQ. INTELL. PROP. L. REV. 337,
342-43 (2007).
144 Id.
28
simple prohibition of copying. The social value in this scenario exceeds the price the
rights-holder could recover under a simple restriction of copying. The question, therefore,
is to what degree the law should allow a rights-holder to be compensated for the full
social value of his work. To state it differently, when there is a discrepancy between the
amount of money an author can make off her work on the one hand, and what that work
is “worth” to society on the other hand, who should get the benefit of that excess value?
For the copyright protectionist concerned with minimizing or eliminating free
riding, the answer is that copyright law should allow the rights-holder to recover an
amount as close as possible to the social value of her work. 145 Professor Lemley argues
that this preoccupation with free riding has played a significant role in the inexorable
growth and expansion of U.S. copyright law.146
As should be clear by this point, the Copyright Clause was not included in the
Constitution to minimize free riding in intellectual property. Indeed, Madison and
Jefferson would likely have recoiled at the thought of copyright being used as a means of
enabling authors to commercially exploit nearly every conceivable use of their works for a
century or more.147 The expansion of copyright and the misplaced emphasis on free
145 Lemley, supra note 132, at 1041.

The way to get private parties to invest efficiently in innovation is not only
to give them exclusive ownership rights in what they produce, but to
define those rights in such a way that they permit the intellectual property
owner to capture the full social benefit of the invention. The law should
accordingly permit and even encourage mechanisms allowing intellectual
property owners to price in ways that extract consumer surplus, such as
Ramsey optimal pricing.
Id.
146 Id. at 1043 (“Courts applying the property theory of intellectual property are seeking out and
eliminating uses of a right they perceive to be free riding. . . . Even the courts that reject intellectual property
claims do so because they cannot find evidence of free riding.”).
147 Consider the fact that when Madison discussed the “public discontents resulting from the
exorbitant gains of individuals, and from the inconvenient restrictions combined with them,” (See infra note
172) he was referring to the Copyright Act of 1790 which offered a maximum of 28 years protection,
covered only books, maps, and charts, and prohibited only wholesale copying.
29
riding has turned the Constitutional rationale for copyright on its head. Madison viewed
copyright as a necessary evil that served a greater public good.148 The excess social value
was the greater good Madison had in mind, and Madison intended it to accrue to the
benefit of the people. In other words, the expansion of copyright with its attendant
emphasis on free riding destroys the social utility that the Copyright Clause was intended
to promote.149
III. WHERE DO WE GO FROM HERE?
To a certain extent, the suggestion of remedies is a futile exercise. Scholars far
more august than this Writer have identified these concerns and advocated for legislative
relief.150 Because public choice theory suggests that appeals to Congress to “roll back”
previous expansions is unlikely to be successful,151 the only viable alternatives would seem
to be either the public taking matters into its own hands, or convincing the copyright-
reliant industries that increased public access is in their best interests.
A. Civil Disobedience
Professor Glynn Lunney has analyzed many of the factors heretofore discussed and
concluded that a significant portion of the protection afforded by current copyright law is
“excess incentive” and therefore unconstitutional. 152 Accordingly, he suggests that there is
149 See also Lunney, supra note 55, at 872.
Where copyright initially sought to protect a copyright owner against the
copying competitor in order to provide the owner with a fair opportunity
to recover the costs of her work, today it increasingly seeks to protect a
copyright owner against the loss of any opportunity to license her work in
order to permit her to capture fully the work's associated market value.
Id.
150 See, e.g., Stephen Breyer, The Uneasy Case for Copyright: A Study of Copyright in Books,
Photocopies, and Computer Programs, 84 HARV. L. REV. 281 (1970). Written during his tenure as Dean of
Harvard Law School, Justice Breyer's article preceded the Copyright Act of 1976. In his article, he analyzed
the economic factors, concluding that “although we should hesitate to abolish copyright protection, we
should equally hesitate to extend or strengthen it.” Id. at 284.
30
a need for civil disobedience in the form of private copying. 153
The Constitution permits copyright protection for a specific purpose: “To promote
the Progress of Science and useful Arts.”154 The service of the public interest is therefore
the only constitutional aim of copyright law.155 Because the Constitution authorizes the
recognition of copyright as an incentive to create, the only constitutional Copyright Act is
the one that seeks to limit its protection to allowing a return only large enough to induce
the creation of the work.156 Any additional returns that are enabled by copyright
protection are “excess incentive.”157 Those works that earn only a marginal return
sufficient to induce their creation are referred to as “marginal works” and are held up as
examples of copyright doing what it is supposed to do. 158 But the majority of works are
“popular works” and all receive excess incentive to greater or lesser degrees. 159
Professor Lunney suggests that civil disobedience in the form of private copying
“enables otherwise disenfranchised consumers to express their dissatisfaction with
copyright's present scope.”160 In this respect, private copying is a form of public
pushback against the infringement of its moral rights. 161 Professor Lunney identifies a
second purpose served by private copying:
[B]y allowing individuals to determine the proper level of

protection for themselves, private copying can serve as a type
of direct democracy that avoids the agency-cost pitfalls
present when relying on a representative democratic process
153 Id. at 893.
154 U.S. CONST. art. I, § 8.
155 Lunney, supra note 55, at 817 (“Congress may enact a copyright statute, but only if, and to the
extent that, it serves the public, and not merely a private, interest.”).
156 Id. at 872-73 (“[W]en protection provides an incentive far in excess of that necessary to ensure a
work's creation, the public interest justification is far less clear.”).

157 Id. at 873.
158 Id. at 872.
159 Id.
160 Id. at 893.
31
to determine copyright's proper scope.162
Professor Lunney identifies several “network effects” that explain why private
copying will usually only reduce the unconstitutional excess incentives and will not
threaten marginal works. The first is that popularity increases desirability. 163
[A]n important element in a work's success is whether the

work develops an audience sufficiently large to offer its
members an opportunity to share their enjoyment of the work
with each other. Once a work's audience reaches that size, the
resulting shared enjoyment reinforces the work's desirability
and enhances the work's appeal to potential new audience
members.164
The second network effect is that instances of copying are a function of
availability.165 These network effects work together in such a way that “private copying
will affect popular works disproportionately.” 166 Because an increase in popularity is
usually accompanied by an increase in excess incentive, private copying will merely serve
to allow the public to recapture some of that excess incentive which the Constitution does
not authorize anyway.167
In the eight years that have lapsed since the publication of Professor Lunney's
article, peer-to-peer (“P2P”) technology has evolved in a way that further supports his
suggestion that the incidence of private copying will more or less correspond with the
popularity of a given work. Today, the most prominent P2P technology is BitTorrent. 168

163 Id. at 883.
164 Id. at 884 (“[W]e should expect that a work either becomes sufficiently popular to generate a
popularity network and then becomes even more popular, or it does not and thus never will.”).
165 Id. at 883.
166 Id. at 886.
167 Id. (“[P]rivate copying is unlikely to reduce creative output. It may simply reduce the excess
incentive copyright otherwise provides for the most popular works.”)

168 Ipoque.com, Internet Study 2008/2009, http://www.ipoque.com/resources/internet-
studies/internet-study-2008_2009 (last visited May 11, 2010) (finding that the BitTorrent protocol
accounted for more traffic than any other internet protocol, with HTTP – the protocol which transmits
internet web pages – coming in second).
32
Whereas past P2P protocols focused on matching a single uploader with a single
downloader, BitTorrent allows the creation of ad hoc distributed networks (called
“trackers”) devoted to specific files or sets of files. The target file is logically divided into
numerous pieces which are separately downloaded by users and then reassembled on the
users' computer. As users connect to and disconnect from the tracker, the protocol
evaluates the distribution of the pieces throughout the network and attempts to equalize
the ratio by more rigorously propagating those pieces which are less evenly distributed
across the network. In most trackers, there is at least one user (called a “seeder”) who
already has the complete file and who is present merely to “seed” the file to the other
users.
One of the technical advantages of this system over the centralized, one-to-one
“Napster” model of yesterday is that it is possible for a complete version of a file to be
assembled by multiple users even if no single user with the complete file is present on the
network for an extended time. As long as all the users have the entire file distributed
between them, each user will eventually have the entire file.
The upshot of all this is that the structure of the BitTorrent protocol virtually
ensures that Professor Lunney is correct when he says that “popularity itself, because of
its associated network effects, leads individuals looking to engage in private copying both
to seek and to find popular works far more often than less popular works. Thus private
copying will affect popular works disproportionately.”169 Because the “health” of
BitTorrent networks is a function of the number of seeders, the more popular trackers will
always be the healthiest. By extension, the healthiest networks tend to attract more users,
a small percentage of whom in turn become seeders, and in this way the cycle continues;
33
popular works grow in popularity and marginal works, if they ever appear on the
network in the first place, typically languish and die. By this mechanism, the most
prominent method of private copying of copyrighted works virtually ensures that excess
incentives will be its only casualties.170
B. Public Buyout
The second suggestion is mine, and it is that we turn ad fontes to consider James
Madison's proposal that we reserve “a right to the public to abolish the privilege at a
price to be specified at the grant of it.”171 Writing approximately thirty years later, after
the conclusion of his presidency, Madison again discussed this proposal:
In all cases of monopoly, not excepting those specified in

favor of authors & inventors, it would be well to reserve to
the State, a right to terminate the monopoly by paying a
specified and reasonable sum [to the holder.] This would
guard against the public discontents resulting from the
exorbitant gains of individuals, and from the inconvenient
restrictions combined with them.172
In general, the idea is that the public can “fast-track” a work's journey to the
public domain by paying the author a “buyout” price. But how should this price be set?
Who should pay it? When should this be an option?
1. Michael Kremer and the Patent Buyout Proposal
In a 1998 article, Michael Kremer outlined a proposal for a buyout system for
patents.173 While patent law is readily distinguishable from copyright law in many key
170 Id.
171 Letter from James Madison to Thomas Jefferson, supra note 84.
172 Elizabeth Fleet, Madison's “Detached Memoranda,” 3 WM. & MARY Q. 534, 551-52 (1946).
The Detached Memoranda is a collection of Madison's miscellaneous writings produced between 1817 and
1832. Id. at 534. The manuscripts were mislaid and rediscovered in 1946. Id. at 536. Although portions
of the Detached Memoranda had been published in prior collections, the parts excerpted here were not
published until Fleet printed the Detached Memoranda it its entirety in 1946.
173 Michael Kremer, Patent Buyouts: A Mechanism for Encouraging Innovation, 113 Q. J. ECON.
1137 (1998).
34
respects, they both inhabit the sphere of “intellectual property” and therefore share many
important points of similarity.174
Under Kremer's mechanism for patent buyouts, the government identifies a patent
to be “liberated” and determines its value by means of a sealed-bid auction. 175 The
market price thus determined is then multiplied by a fixed markup value (probably “2”)
which is intended to correct for “the typical ratio of social to private value.” 176 Upon
paying this price to the patent holder, most patents would then be placed in the public
domain.177 But because the process relies upon the honest valuation of the auction
bidders, this honesty is induced by allowing a small and random number of patents to be
sold to the highest private bidder.178 In either case, the patent holder has the right to
refuse the buyout and retain the patent.179
Several considerations make it difficult to apply this system “as-is” to copyright
law. Perhaps the biggest problem is that it is much more difficult to determine the
boundaries of a copyright than it is of a patent. It is easy to identify what is covered by a
patent; it is whatever is contained in the grant from the patent office. But since copyright
no longer requires registration (let alone an application), it is more difficult to identify
which works might be subjected to this process and where the line might be drawn.
Another difficulty is created if the system depends on the government to determine
174 For example, the discussion of the “anticommons” problem in subpart I-C-2 supra relies on an
article that was originally written in the context of biomedical research patents. See Heller, supra note 134.
Kremer himself observed that the problems with patent law giving rise to his article also affect copyright
law: “Patents and copyrights create insufficient incentives for original research, since inventors cannot fully
capture consumer surplus or spillovers of their ideas to other research. Patents and copyrights also create
static distortions from monopoly pricing and encourage socially wasteful expenditures on reverse
engineering to invent around patents.” Kremer, supra note 173, at 1137.
175 Kremer, supra note 173, at 1146.
176 Id.
177 Id.
178 Id. at 1147.
179 Id.
35
which works should be bought out. In the case of pharmaceutical patents, it might be
relatively easy to identify promising patents for important and socially beneficial
medicines. But do we want the government determining what music, movies, books, and
artwork are most desirable and socially enriching? Surely this sort of “inverse
censorship” would merely replace one form of government overreaching with another.
Third, the ability of the copyright holder to reject the buyout and retain the
copyright is problematic because it could amount to the exception that swallows the rule.
As it is, the suggestion is being raised as a means of counterbalancing a powerful and
influential industry. It is unlikely to have the intended effect if the industry could opt out
of it altogether. The veto feature is more appropriate to a system intended to correct
market failures resulting from prohibitively high transaction costs. The situation here is
different. A copyright buyout would be a mechanism for protecting a positive right
reserved by society.180 It would therefore not do to allow the powerful few to “opt out”
of the exercise of that right.
Finally, the notion of a governmentally mandated transfer of a copyright from one
private entity to another carries with it an air of injustice that does not appear in the
patent context, at least not in the same way. While inventors undoubtedly have a
connection with their inventions, the subject matter of copyright law is of a kind far more
personal and intimate.181 While some might quail at the thought of their art being placed
in the public domain, the average author would doubtlessly react in horror at the prospect
of another disinterested individual obtaining the rights to her creation to commercially
180 Indeed, Madison considered copyright a socially useful privilege that nonetheless infringes upon
man's natural right to chose the object of his expression. See supra note 87 and accompanying text.
181 See, e.g., Rosemary Coombe, Challenging Paternity: Histories of Copyright, 6 YALE. J.L. &
HUMAN. 397, 404 (citing MARK ROSE, AUTHORS AND OWNERS: THE INVENTION OF COPYRIGHT (1994)) (observing
that some envision a paternal relationship between the author and his work).
36
exploit in any way imaginable, no matter what the buyout price might be.
A copyright buyout system that addresses these considerations will likely not
resemble Kremer's government auction paradigm. Instead, a successful system would
need to establish reasonable and fair buyout prices without putting the government in the
role of “art critic” and without allowing buyouts to favor private individuals or entities.
2. Open Source Software Bounties
A more appropriate model might be found in the realm of “open source” software
development. “Open source” software describes a model of community-centric software
production and development. Under a traditional commercial or proprietary model,
programmers and developers guard the software's source code and license the resulting
software under restrictive terms that forbid copying, modification, redistribution, and
other such activities. Under this model, the number of individual programmers that work
on a given project is usually small, with larger development teams usually existing in large
companies such as Microsoft or Apple. By contrast, those following the “open source”
model make the underlying source code publicly available. One of the primary purposes
of utilizing such a system is to enable wide-ranging collaboration on projects that is
generally not possible under a proprietary model. In effect, every user of open source
software can also be a contributing developer since he may view and modify the source
code, sharing his improvements and enhancements with everyone else in like manner.
One of the key features of open source software development can also be a
hindrance. Because open source software is freely available, it is not susceptible to
traditional market forces, at least not in many key respects. In the case of commercial,
proprietary software, users can express their preferences through the market, and
37
products develop according to familiar economic and market principles. The same is not
true in the realm of open source software.
If a company like Microsoft sets out to create a software product, it needs to take
into account factors such as the potential market for the product, its target audience, the
needs and desires of the target audience, similar competing products, etc. The impetus to
create such a product is usually the prospect of financial gain or increase in market share.
On the other hand, the open source developer rarely needs consider anything beyond his
own personal requirements.182 If other people have additional desires or needs, they are
free to implement them themselves, if they are able.
Because the number of people who use open source software is significantly greater
than the number of people who have the requisite knowledge and skill to modify it,
attempts have been made to incentivise the implementation of other features and
requirements. One such attempt is the “bounty” method.
While different organizations have set up bounty systems of various kinds, the
basic concept is common to all of them. Under a software bounty system, a user submits
a feature or requirement that he would like to see added to an existing program. He also
pledges a sum of money to be paid to the person who successfully implements the feature
or requirement. Other users who have the same needs or desires may also make pledges
to increase to bounty. A programmer who has the necessary skill and knowledge may
then implement the request and collect the bounty.
182 A prime example is one of the most popular open source projects, MythTV. A combination
digital media library and digital video recorder (DVR), MythTV was originally created by Isaac Richards in
2002 because Richards wanted to build his own DVR rather than paying monthly service and rental fees to
his cable company or TiVo. See Chris Barylick, MythTV Invades Realm of Cable and TiVo, WASH. POST,
March 26, 2006, available at http://www.washingtonpost.com/wp-dyn/content/article/2006/03/25/
AR2006032500115.html.
38
3. Copyright Buyout – A Modified Bounty System
The goals of copyright and of a software bounty system are similar despite the fact
that these systems work at that goal from opposite ends. Both systems attempt to induce
creative production through the offer of a financial reward. The bounty system collects
the reward first, then promises it to the first successful author. Copyright provides the
author nothing up front, but grants him property rights which he may commercially
exploit as he chooses. In the case of the bounty, the would-be author knows what the
reward is and, if successful, collects it all immediately. A copyright holder is not certain
to receive a reward at all and even if he does, it is of an uncertain amount and is often
received over a long period of time. My proposed copyright buyout system would
supplement (not replace) the existing copyright system by implementing Madison's
suggestion. Allowing the public to raise funds and “claim” a work for the public domain
would ensure that authors receive just compensation while simultaneously protecting the
public's right of expression free from unreasonable restrictions regardless of how
expansive copyright protection becomes. The rest of this Paper will lay out the practical
elements of this system.
The first consideration concerns when and how works should be valued. Because
the United States no longer has a registration requirement, it is impossible to implement
Madison's suggestion literally, by determining the buyout price when the copyright is
“granted.” Also complicating matters is the fact that we cannot determine a fair price
through the use of an auction for the reasons discussed in Part III-4-A, supra.
My suggestion is that the Copyright Office be expanded and the compulsory
licensing model be adapted to determine buyout prices on a per-application basis. An
39
individual or entity wishing to initiate the buyout process with respect to a specific work
would file and submit an application to the Copyright Office. The application would
include a copy or reasonable description of the work at issue. The copyright owner
would be given reasonable notice of the proceedings. A panel of Copyright judges would
then determine the buyout price from within a statutory range by evaluating factors such
as:
• The type and nature of the work;

• The length, size, or duration of the work;
• The commercial success already enjoyed by the work; and
• The costs incurred in producing the work.
A hearing would be held in which representatives for the public and for the
copyright holder would offer arguments and evidence to help the Copyright judges make
a fair and reasonable determination. For example, if the subject of the hearing were a
very recent motion picture, the studio might present evidence of the costs it incurred in
producing the film to support a higher buyout price from within the statutory range. The
applicant might produce evidence of box office receipts to date to show how much the
copyright owner has already earned, a figure which would lower the buyout price.
In order to limit the use of the valuation process to those actually intending to
complete the buyout process, the application should be accompanied by a fee in the
amount of 50% of the statutory minimum buyout price. So if the lowest end of the price
range were $250,000, the application fee would be $125,000. 183
The next consideration is the mechanism by which the buyout is actually achieved.
Once the price is set, it is necessary to raise and distribute the funds in a fair manner. I
suggest that once the buyout price is determined, the application fee should be placed in
183
This fee would not be absorbed by the agency; rather it would be applied to the total buyout
price once it is determined.
40
an interest-bearing trust account. The buyout price must be met within two years of that
date. The application will be deemed withdrawn if, one year from date of initial
investment (i.e. the half-way point), the trust account contains less than 60% of the
buyout price, exclusive of interest.
In the event either that the buyout price is not met within two years or that the
application is abandoned, the principal investments held in trust will be returned to their
contributors. The interest will be used to pay any administrative expenses associated with
the trust and the remainder will be paid pro rata to the contributors.
In the event that the buyout price is reached in principal investments (exclusive of
interest), the balance of the account (less administrative expenses) will immediately be
paid to the copyright holder and the work specified in the application will pass into the
public domain.
This system is intended to address several issues. First, the process must be stable
if it is to induce contributors to participate. Most open source bounty systems allow
contributors to change, withdraw, or redistribute their pledges after they have been made.
This results in uncertainty and instability. Suppose person A makes a significant
contribution (50% of the total price). Person B, encouraged by the progress and wanting
to assist, makes a nominal contribution (5% of the total price). If person A then retracts
his contribution, person B may become less optimistic about achieving the goal and decide
to retract his contribution. Spread throughout a large contribution pool, it is easy to see
how the withdrawal of a “big player” can cause instability and uncertainty, perhaps
resulting in the collapse of the system. To address that, contributions may not be
retracted, but contributors are assured that they will either achieve the ultimate goal or
41
receive their money back (with interest) within a maximum of two years.
Providing that the public must raise at least 60% of the price within one year is
intended to ensure that contributor funds are not unnecessarily tied up by hopeless
applications.
The final consideration concerns how the funds are to be raised. This is perhaps
the easiest of the three phases to describe because no description is really necessary. An
application fee may be raised however the applicant likes. Once the fee is paid and the
buyout price set, contributions may be paid into the trust fund by any traditional method.
Whatever reasons people have for paying into the fund are their own. In some instances,
the entire buyout price might be funded by consumer advocacy organizations or even
industry players. In other cases, individuals might mount a yearlong grassroots internet
campaign. Perhaps some particularly anxious individuals might even stage a
“moneybomb.”184 In the end, it matters not how the money is raised, so long as it is.
One other important qualification must be made. In order to be subject to buyout,
a work must be published. While publication is no longer a requirement for copyright
protection, it must be for the buyout system. A man must be secure in his right to keep
his expressions to himself. The right of the public to employ its faculties on the object of
its choosing should be extended only as far at those objects which have been offered for
public consumption. It must not be forgotten that this proposal is being suggested as a
means of compensating for a copyright system that disproportionately favors copyright
holders and the entertainment industry. This purpose is not served by forcing the contents
of one's neighbor's desk drawer into the public domain.
184 See Wikipedia, Moneybomb, http://en.wikipedia.org/wiki/Moneybomb (last visited Apr. 13,

2010).
42
One final consideration bears mentioning. Adoption of a copyright buyout system
like the one outlined above would have secondary benefits that might even overshadow
the primary function of the system. That is, it would give copyright owners an incentive
to support and advocate the public interest. I envision this effect taking two forms: lower
prices and more robust fair use rights.
Suppose Universal Studios decides to produce a motion picture adaptation of
Blacksone's Commentaries. They do so with a budget of $30 million. On opening
weekend, Blackstone: The Movie exceeds studio expectations and takes in $20 million.
Believing the movie has tremendous potential as a training tool, an attorney files a buyout
application that Monday morning. At the resulting hearing, the copyright judges see
evidence that Universal spent $30 million making the movie. Judging a 40% return on
their investment to be an appropriate award, the panel would set the buyout price at $42
million. But the professor presents evidence that the work had already earned $20 million
by the date the application was filed, and this is treated as an offset, making the buyout
price $22 million. The professor then has two years to raise $22 million.
In this scenario, a high-grossing opening weekend has put the studio in a less
favorable position in the buyout process than it would otherwise have been in. Because of
this, if such a buyout system were in place, studios would need to take this added effect
into consideration when determining box office prices. If copyright owners elect to
protect themselves from a buyout by keeping consumer prices low, it makes the buyout
more difficult to achieve but the public still benefits from the lower prices. In this respect,
the copyright owner still benefits from the copyright monopoly which restricts market
competition. But the presence of a buyout system such as this would have the effect of
43
putting the public at large in the position of a competitor, thereby preventing monopoly
pricing and restoring some of the free market features.
The other secondary effect of a buyout system would be to give copyright owners
an incentive to support, rather than erode, fair use rights. Copyright owners would be
more likely to support certain “unauthorized” uses of their works if it meant fewer
participants in the buyout system. Return to the example above of Blackstone: The
Movie. The aforementioned attorney would like to show the film to his law firm and has
even considered the possibility of editing it into shorter, topical segments to be used
during CLE presentations. The first use implicates the public display right 185 while the
second use likely implicates the derivative works right.186 Knowing that these are non-
competitive uses unlikely to significantly affect its primary market, the movie studio has
an incentive to allow such uses or contend that they constitute fair use, thus eliminating
the reason for applying for a buyout in the first place. The spectre of losing the work to
the public domain could be enough to encourage the powerful industry players to self-
regulate, mitigating the public choice problems that have thus far gone largely unchecked.
IV. CONCLUSION
Intellectual property protection is a good thing, but more is not always better.
James Madison, the father of the Constitution, warned that anything more than a
conservative, utilitarian copyright scheme posed a serious risk of abuse. Copyright was
intended as a means of furthering the public good. Instead, it has become a means of
securing power and wealth for the fortunate few. Modern copyright has created what has
been aptly described as an “empire,” 187 a sobering observation given the fact that the
185 17 U.S.C. § 106(5).
186 17 U.S.C. § 106(2).
187 See Ng, Copyright's Empire, supra note 143, at 377.
44
primary purpose of the Constitution is the prevention of imperial power.
The current scope of copyright protection is not justified by the constitutional
purpose of promotion of progress. The current scheme is not mandated by economic,
legal, or philosophical principles. The evolution of U.S. Copyright law, particularly the
changes wrought in the past half-century, has been driven by an unchecked industry.
Congress has created a tyranny of the few.
Not only does the public pay the price in terms of restricted liberties, it also suffers
the inevitable decay of artistic integrity that accompanies a bottom-line mindset. By
holding out the prospect of fabulous wealth in exchange for fleeting popularity, our
current copyright paradigm may be incentivising the wrong kind of creativity. “Popular
works offer currency; great works endure. Popular works offer superficial enjoyment;
great works offer meaning. Most importantly for copyright law, popular works have
large sales great works may not.”188 Thus a would-be Shakespeare today is faced with a
choice: Should I “strive for a great work or a popular one?” 189
Public choice theory suggests that the situation will not improve unless the public
recognizes its interest, bands together, and asserts its rights. A copyright buyout scheme
serves this purpose not only by giving the public a means and a mechanism for asserting
its rights, but it provides much-needed checks on the industry itself. Perhaps like the
nation's nuclear arsenal, the deterrent effect of the possibility of buyout might even suffice
to address many of the existing problems without ever being used.
Madison proved to be right about the dangers of excessive copyright protection.
Perhaps he was also right about the solution.

189 Id.
45

Tyranny of The Few: The Case For Copyright Buyout

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TYRANNY OF THE FEW: THE CASE FOR COPYRIGHT BUYOUT

4911 Old Canton Road

I. BACKGROUND AND INTRODUCTION..........................................................................................1

II. FOOD FOR THOUGHT – RIGHTS OF OWNERSHIP IN THE FRUITS OF CREATIVITY..............................2

A. The Philosophical Rationales for Recognition of Intellectual Property.....................2

B. Legal Development of Intellectual Property Rights...................................................9

1. Competing Visions of Copyright and its Legal Evolution in England..................10

2. Copyright, the Constitution, and the Founding of the United States....................13

3. Congress and the Copyright Acts.........................................................................18

C. Foundational Socio-Economic Principles of Property Rights..................................23

1. The Commons – Tragedy or Comedy?.................................................................24

3. Free Riding and Copyright...................................................................................27

III. WHERE DO WE GO FROM HERE?....................................................................................30

1. Michael Kremer and the Patent Buyout Proposal...............................................35

2. Open Source Software Bounties..........................................................................37

3. Copyright Buyout – A Modified Bounty System.................................................39

I. BACKGROUND AND INTRODUCTION

government involvement has steadily increased.

As legislative policy regarding intellectual property has evolved, it has steadily

wealthy information empires.

Industry-fueled Congress has abandoned its Constitutional moorings and allowed

II. FOOD FOR THOUGHT – RIGHTS OF OWNERSHIP IN THE FRUITS OF CREATIVITY

A. The Philosophical Rationales for Recognition of Intellectual Property

Apparently anticipating the problem of the commons, 4 Locke articulated a limitation on

this, is more than his share, and belongs to others.” 5

5 LOCKE, supra note 2, at 113.

THEORY OF PROPERTY 168 (Stephen R. Munzer ed., 2001), available at

Locke's suggestions here include the non-protection of “ancient” writings, the

at one time or another, been features of U.S. Copyright law. 15

with the “property” of “those who purchase copies from authors.”

biblical revelation, Bentham may be considered the father of hedonistic utilitarianism. 16

Because of his rejection of natural law, Bentham viewed property not as a

transcendent, fundamental right, but as a mere “creature of law.” 17 Instead of grounding

property law in revelation or nature, Bentham considered it the product of a social

“shock or disturbance,” leading to “a proportionate measure of positive evil.” 21

Unlike other philosophical systems rooted in the objective, Bentham's

aggregate happiness of the community.

enjoyment of property already acquired.27 Finally, and perhaps most relevant to a

discussion of intellectual property law, Bentham argued that a failure to recognize

property would result in the “abatement of industry.”28

Even though Bentham attributed the flourishing of western civilization entirely to

property protection. Bentham believed that “monopolies in general are pernicious

institutions.”30 Nevertheless, Bentham saw some utility in the recognition of intellectual

Wendell Holmes had perhaps the more well-known quote:

Hegel, a German philosopher in the tradition of Immanuel Kant, brought a more

ontologically nuanced approach to property theory. For Hegel, property is to be thought

considered property law to be a creature of the government, 34 Hegel viewed property as

an “absolute right” of man.35

In contrast to most of his predecessors for whom discussion of “intellectual

George Bell & Sons 1896) (1821).

Nevertheless, Hegel's formulation contained some limitations which could dampen

dichotomy between a right of ownership and right of duplication posed a potential

Hegel considers this problem in the context of intellectual property when

artist reserves the wealth-creation use for himself.48

B. Legal Development of Intellectual Property Rights

We in twenty-first century America have inherited an evolving legal system that

from its moorings.

The summary in the previous subpart spans the ferment of philosophical

45 HEGEL, PHILOSOPHY OF RIGHT, supra note 33, at 66.

1. Competing Visions of Copyright and its Legal Evolution in England

markedly “unAmerican” motive: government censorship. With the excommunication of

could lawfully publish works in England.

The nature of the government-granted guild monopoly is important to understand.