TYRANNY OF THE FEW: THE CASE FOR COPYRIGHT BUYOUT

CHRISTOPHER H. MEREDITH

4911 Old Canton Road Apartment 240 Jackson, Mississippi 39211 (601) 212-8845

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

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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.

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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

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.

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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
LOCKE, supra note 2, at 113. 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. 13 See infra note 53 and accompanying text.
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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.

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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
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See, e.g., John G. Sprankling, Owning the Center of the Earth, 55 UCLA L. Rev. 979, 1022

(2008). JEREMY 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.
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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
Id. at 151. “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)).
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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
PETTITT, supra note 30, at 57 (citing BENTHAM, ECONOMIC WRITINGS, supra note 30, at 263). See infra note 78 and accompanying text. 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). 38 HEGEL, PHILOSOPHY OF RIGHT, supra note 33, at 73.
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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
Id. at 74. “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. 42 HEGEL, PHILOSOPHY OF RIGHT, supra note 33, at 65. 43 See supra note 33 and accompanying text. 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?”).
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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
45 46 47 48

HEGEL, PHILOSOPHY OF RIGHT, supra note 33, at 66. Id. at 73. Id. at 74. Id.

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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
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FRANCIS CHARLES MASSINGBERD, THE ENGLISH REFORMATION 281-82 (Longmans, Green, & Co. 1866) LYMAN RAY PATTERSON, COPYRIGHT IN HISTORICAL PERSPECTIVE 29 (Vanderbilt University Press 1968). Id. Id. at 29-30. Id. at 29. The full name of the guild is “The Worshipful Company of Stationers and Newspaper See, e.g., PATTERSON, supra note 50, at 30 (quoting GEORGE UNWIN, THE GILDS AND COMPANIES OF

(1842).
50 51 52 53

Makers.”
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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. 58 PATTERSON, supra note 50, at 9. 59 Id. at 11. 60 Id. at 10.

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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 62 63 64 65 66 67 68

THOMAS EDWARD SCRUTTON, THE LAW OF COPYRIGHT 30 (William Clowes & Sons 1903) (1883). Id. at 30-31. PATTERSON, supra note 50, at 12. SCRUTTON, supra note 61, at 31. PATTERSON, supra note 50, at 13. Lunney, supra note 55, at 816-17. Id. at 817. SCRUTTON, supra note 61, at 31.

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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.
DAVID 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.
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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
Letter from Thomas Jefferson to James Madison (July 31, 1788), in 11:1 DOCUMENTARY HISTORY CONSTITUTION 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.
OF THE

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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

THE

Letter from James Madison to Thomas Jefferson (Oct. 17, 1788), in 5 DOCUMENTARY HISTORY OF 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.

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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 83

Id. Id. at 88.

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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
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.
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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

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. 90 See infra note 134 and accompanying text. 91 See supra note 28 and accompanying text.

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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 14year 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
Or more accurately, authorship industry lobbies. 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.
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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
17 U.S.C. §§ 101-810. 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.
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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
As of the writing of this Essay. 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).
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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
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. 123 See supra note 78 and accompanying text.
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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, highlymotivated, 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
124 125

Bell, supra note 87 at 786 (internal citations omitted). Id. at 787.

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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

126 127 128 129 130

Garrett Hardin, The Tragedy of the Commons, SCIENCE, Dec. 13, 1968, at 1243. Id. at 1244. Id. Id. Id.

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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 underprivatization 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
Margaret Jane Radin, Property Evolving in Cyberspace, 15 J.L. & COM. 509, 515 (1996). 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.
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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
Id. 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).
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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
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-salesboost/ (last visited May 12, 2010). Another example involving comic book screen adaptations is the socalled “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.
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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
Id. at 1048. 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.
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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
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.
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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 copyrightreliant 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
See supra note 87 and accompanying text. 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. 151 See supra note 124 and accompanying text. 152 Lunney, supra note 55, at 882.
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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
Id. at 893. 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. 161 See supra note 87 and accompanying text.
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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
Lunney, supra note 55, at 893. 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/internetstudies/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).
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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;
169

Lunney, supra note 55, at 886.

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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
Id. 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).
171 170

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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.

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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
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).
180

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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

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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.

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.

182

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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

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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
This fee would not be absorbed by the agency; rather it would be applied to the total buyout price once it is determined.
183

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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

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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

2010).

See Wikipedia, Moneybomb, http://en.wikipedia.org/wiki/Moneybomb (last visited Apr. 13,

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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

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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 noncompetitive 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 selfregulate, 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
185 186 187

17 U.S.C. § 106(5). 17 U.S.C. § 106(2). See Ng, Copyright's Empire, supra note 143, at 377.

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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.
188 189

Lunney, supra note 55, at 888. Id.

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