Copyright Unbalanced: From Incentive to Excess (16 page)

21
.  17 U.S.C. §§ 503, 506(b).

22
.  17 U.S.C. § 504.

23
.  17 U.S.C. § 505.

24
.  17 U.S.C. § 602.

25
.  17 U.S.C. § 512(h).

26
.  17 U.S.C. § 506.

27
.  1 Stat. 124 § 1.

28
.  17 U.S.C. § 102.

29
.  Patricia Crain, “Print and Everyday Life in the Eighteenth Century,” in
Perspectives on American Book History: Artifacts and Commentary
, ed. Scott E. Casper, Joanne D. Chaison, and Jeffrey D. Groves (Cambridge, MA: Univ. of Massachusetts Press, 2002), 47, 74.

30
.  See Hugh Amory, “Appendix One: A Note on Statistics,” in
A History of the Book in America
, ed. Hugh Amory and David D. Hall, vol. 1,
The Colonial Book in the Atlantic World
(Cambridge, UK: Cambridge Univ. Press, 2000), 511. Amory reports that in America from 1640–1790, imprints of practical and instructional genres, such as government works (7182), sermons (3192), almanacs (1977), schoolbooks (1085), and academic dissertations (323), greatly outnumbered imprints of poetry (1854), hymnals (254), psalm books (253), satires (201), plays (111), and novels (38). See also Julie Hedgepeth Williams,
The Significance of the Printed Word in Early America
(Westport, CT: Greenwood Publishing, 1999), 17–20. Williams describes the typical contents of libraries and private collections in 18th-century America.

31
.  Oren Bracha, “Commentary on the Copyright Act 1790,” in
Primary Sources on Copyright (1450–1900),
ed. L. Bently and M. Kretschmer, 2008,
http://www.copyrighthistory.org
.

32
.  See, for example, Creased Comics, “‘Washington,’” YouTube video, 2:24, posted by “boomtasticracing,” February 13, 2009,
http://www.youtube.com/watch?v=Iqhsot3mk7Q
. The video claims George Washington was “six-foot-eight and weighed a f*cking ton.”

33
.  Perhaps the Founders would have afforded computer programs greater solicitude, as worthy promoters of science and useful arts. If so, they could have kept the 1790 act’s reference to “books” and followed the present practice of classifying computer programs as literary works.

34
.  See Eldred v. Ashcroft, 537 U.S. 186, 211-12 (2003) (deferring to legislative judgments about whether copyright serves constitutional ends).

35
.  Berne Convention, art. 5(2).

36
.  1 Stat. 124 § 1.

37
.  See
Berne Convention Implementation Act of 1988
, Public Law 100–568, 102 Stat. 2853 (Oct. 31, 1988), effective March 1, 1989.

38
.  Lasercomb Am., Inc. v. Reynolds, 911 F.2d 970, 978 (4th Cir. 1990).

39
.  See United States v. Loew’s, Inc., 371 U.S. 38, 50 (1962) (stating that “the principles underlying our
Paramount Pictures
decision have general application to tying arrangements involving copyrighted products”); United States v. Paramount Pictures, Inc., 334 U.S. 131, 158 (1948) (approving an injunction against certain copyright licensing practices on the grounds that the practices “add to the monopoly of the copyright in violation of the principle of the patent cases involving tying clauses”).

40
.  But see Tom W. Bell, “Codifying Copyright’s Misuse Doctrine,”
Utah Law Review
, 2007, 573 (proposing an amendment to the Copyright Act clarifying the misuse defense).

41
.  See, e.g., DSC Commc’ns Corp. v. Pulse Commc’ns, Inc., 170 F.3d 1354, 1368 (Fed. Cir. 1999) (recognizing “copyright misuse is a defense to a claim of copyright infringement”); Alcatel USA, Inc. v. DGI Techs., Inc., 166 F.3d 772, 792 (5th Cir. 1999) (holding the same); Practice Mgmt. Info. Corp. v. Am. Med. Ass’n, 121 F.3d 516, 520 (9th Cir. 1997) (holding the same); Lasercomb Am., Inc. v. Reynolds, 911 F.2d 970, 976 (4th Cir. 1990) (holding the same). See also Rosemont Enters., Inc. v. Random House, Inc., 366 F.2d 303, 311 (2d Cir. 1966) (Chief Justice Lumbard, concurring) (recognizing that the doctrine of unclean hands should bar enforcement of a copyright used to “restrict the dissemination of information about persons in the public eye even though those concerned may not welcome the resulting publicity”).

42
.  166 F.3d 772, 793–94 (5th Cir. 1999).

43
.  121 F.3d 516, 520–21 (9th Cir. 1997).

44
.  See Alcatel, 166 F.3d at 793–94 (5th Cir. 1999);
Practice Mgmt.
, 121 F.3d at 520–21;
Lasercomb
, 911 F.2d at 977–79.

45
.  Bond v. Blum, 317 F.3d 385, 397–98 (7th Cir. 2003) (affirming the trial court’s finding of misuse where the plaintiff brought an infringement suit “to suppress the underlying facts of his copyrighted work rather than to safeguard its creative expression”); Video Pipeline, Inc. v. Buena Vista Home Entm’t, Inc., 342 F.3d 191 (3d. Cir. 2003) (recognizing that a copyright owner might commit misuse in trying to enforce a license that prohibits criticism of copyright-restricted works, though affirming that the licenses in question had not gone that far).

46
.  Assessment Techs. of WI, LLC v. WIREdata, Inc., 350 F.3d 640, 647 (7th Cir. 2003) (explaining that it constitutes misuse “to use an infringement suit to obtain property protection, here in data, that copyright law clearly does not confer”). See also A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1026 (9th Cir. 2001) (“the misuse defense prevents copyright holders from leveraging their limited monopoly to allow them control of areas outside the monopoly”);
Lasercomb
, 911 F.2d at 979 (“the misuse arises from Lasercomb’s attempt to use its copyright … to control competition in an area outside the copyright”).

47
.  See, e.g.,
Lasercomb
, 911 F.2d at 979 n.22 (“Lasercomb is free to bring a suit for infringement once it has purged itself of the misuse”).

48
.  Bell, “Escape from Copyright,” 800.

49
.  See, e.g., Steven E. Siwek,
Copyright Industries in the U.S. Economy: The 2003-2007 Report
(International Intellectual Property Alliance, June 2009),
http://www.iipa.com/pdf/IIPASiwekReport2003-07.pdf
, 4–5 (reporting that US copyright industries had growth rates well above the US economy as a whole during the studied period).

50
.  U.S. Constitution, art. 1, sec. 8, cl.#8, preamble.

51
.  John Locke, “The Second Treatise of Government” (1690), in
Two Treatises of Government
by John Locke, ed. Peter Laslett (Cambridge, UK: Cambridge Univ. Press, 1963).

52
.  See, e.g., Ayn Rand, “Patents and Copyrights,” in
Capitalism: The Unknown Ideal
, by Ayn Rand et al. (New York: Signet, 1967), 130; Herbert Spencer,
The Principles of Ethics
, ed. T. Machan (Indianapolis: Liberty Fund, 1978) (originally published 1893), 2:121; Lysander Spooner, “A Letter to Scientists and Inventors, on the Science of Justice, and Their Right of Perpetual Property in Their Discoveries and Inventions,” in
The Collected Works of Lysander Spooner
, ed. C. Shively (Weston, MA: M and S Press, 1971), 3:68.

53
.  See Ronan Deazley,
Rethinking Copyright
(Cheltonham, UK: Edward Elgar Publishing, Inc., 2006), 143–44n32 (reading Locke’s correspondence to indicate that “Locke himself did not consider that his theory of property extended to intellectual properties such as copyrights and patents”).

54
.  John Locke, “Observations on the Printing Act under Consideration in Parliament in 1694,” in
The Life of John Locke, with Extracts from His Correspondence, Journals, and Common-Place Books
, by Peter King (1830), 1:373, 386.

55
.  Locke could not have done so even had he wanted to, given the contemporary requirement that authors identify themselves and his lifelong refusal to take credit for the “Second Treatise.”

56
.  The so-called
common-law copyright
is neither common (as it appears in very few decisions) nor law (given that the act now expressly preempts it) nor copyright (because it concerns only first publication). Howard B. Abrams, “The Historic Foundation of American Copyright Law: Exploding the Myth of Common Law Copyright,”
Wayne Law Review
29 (1983): 1119, 1128–33.

57
.  See 17 U.S.C. §§ 201–5.

58
.  17 U.S.C. § 302–5.

59
.  17 U.S.C. §§ 203, 304(c), and 304(d). If more straightforward takings of copyrights do not qualify for just compensation under the Fifth Amendment, it seems very unlikely that regulatory takings, which scarcely get any recognition with regard to tangible property, would.

60
.  442 F.3d 1345 (Fed. Cir. 2006),
reh’g den
. 464 F.3d 1335, 1350 (Fed. Cir. 2006) (holding that patent infringement by the federal government does not constitute a taking under the Fifth Amendment), cert. den. 127 S. Ct. 2936, 168 L. Ed. 2d 262 (2007).

61
.  17 U.S.C. § 107.

62
.  Tom W. Bell, “Copyright as Intellectual
Property
Privilege,”
Syracuse Law Review
58 (2007): 523.

63
.  Edmund Sanders and Jube Shiver Jr., “Digital TV Copyright Concerns Tentatively Resolved by Group,”
Los Angeles Times
, April 26, 2002 (quoting Valenti’s speech before a congressional committee).

64
.  Doug Bedell, “Piracy Enforcement Flounders with Rise of MP3,”
Dallas Morning News
, Aug. 11, 1999 (quoting Rosen).

65
.  
The Future of Digital Music: Is There an Upside to Downloading? Hearings on Copyright Issues and Digital Music on the Internet Before the Senate Judiciary Comm.
, 106th Cong. (2000) (statement of Lars Ulrich, drummer for Metallica).

T
HIS COLLECTION OF
essays is something I have wanted to produce since Adam Thierer and Wayne Crews published
Copy Fights
ten years ago. Helping to put that volume together, I saw firsthand how divisive the issue of copyright can be among libertarians and conservatives. The way I saw it, though, there was much on which we could all agree if we took a practical view of copyright grounded in public choice. This book is an attempt to begin to forge a new pragmatic consensus.

I, therefore, have to first thank Adam Thierer for his mentorship and inspiration over all these years. He does not share my optimism that a consensus can be reached, but that has made him an invaluable sounding board who has helped sharpen my thinking on the issue. For that, I’m very grateful.

My sincerest thanks also go to the contributors: Reihan Salam, Patrick Ruffini, David Post, Tim Lee, Christina Mulligan, Eli Dourado, and Tom Bell. If there ever was a dream team of “cyber libertarian” thinkers on copyright, this is it. I am very lucky to have been able to assemble them here. Special thanks go to Eli Dourado, who, as an office neighbor and frequent lunch partner, has greatly influenced my thinking on copyright and other issues.

This book would have not been possible without the hard work of some of the amazing folks at the Mercatus Center at George Mason University with whom I have the privilege of working. Chief among these is James Broughel, whose eternal patience while managing the logistics of this project are sincerely appreciated by me and all the contributors. Garrett Brown and Emma Elliott have made book projects like this one not just a reality, but a pleasure, and for that I am grateful. Thanks also go to Ted Bolema, whose common sense editing was invaluable. And finally thanks to Kate Martin and Taylor Barkley without whose hard work Adam, Eli, and I would merely be talking to ourselves.

I’d like to thank Jim Harper for his encouragement and support as well as comments on an early draft, Ryan Radia for always thoughtful critiques, Dan Rothschild for helpful comments, and my wonderful wife, Kathleen O’Hearn, for her unending love and cheer, which make everything worthwhile.

Arlington, Virginia, October 2012

JERRY BRITO
is a senior research fellow at the Mercatus Center at George Mason University and the director of its Technology Policy Program. He also serves as adjunct professor of law at Mason. His research focuses on technology and telecommunications policy, government transparency and accountability, and the regulatory process. He has written for both online and print publications, including the
Wall Street Journal,
the
New York Times, Reason,
Wired.com, Ars Technica, and the
Atlantic.
He lives in Arlington, Virginia, with his wife, Kathleen O’Hearn.

TOM W. BELL
is a professor at Chapman University School of Law and an adjunct fellow of the Cato Institute. His writings include
Intellectual Privilege: Copyright, Common Law, and the Common Good
(Mercatus Center at George Mason University, forthcoming);
Regulators’ Revenge: The Future of Telecommunications Deregulation
(Cato Institute), which he edited with Solveig Singleton; and many papers and articles. After earning a JD from the University of Chicago, Bell practiced law in Silicon Valley and Washington, DC. He began teaching in 1995, took a year’s leave of absence to serve as the Cato Institute’s director of telecommunications and technology studies, and joined Chapman University School of Law in 1998. Bell and his family live in San Clemente, California.

ELI DOURADO
is a research fellow at the Mercatus Center at George Mason University with the Technology Policy Program, and a PhD candidate in the Department of Economics at Mason. His research focuses on the economics and political economy of technology. Before joining Mercatus, Dourado worked at the Bureau of Economic Analysis and the US House of Representatives. He lives in Arlington, Virginia, with his wife and dog.

TIMOTHY B. LEE
is an adjunct scholar at the Cato Institute. He covers technology policy for Ars Technica, with a particular focus on patent and copyright law, privacy, free speech, and open government. While at Princeton earning his master’s degree in computer science, Lee was a coauthor of RECAP, a Firefox plugin that helps users liberate public documents from the federal judiciary’s paywall. He has written for both online and print publications, including Slate.com,
Reason,
Wired.com, and the
New York Times.
He and his wife live in Philadelphia.

CHRISTINA MULLIGAN
is a postdoctoral associate in law and a lecturer in law at the Information Society Project at Yale Law School. She has written for the
Washington Post,
Ars Technica, and Balkinization, and has journal articles forthcoming in the
Tennessee Law Review,
the
SMU Law Review,
and the
New York University Annual Survey of American Law.
She holds BA and JD degrees from Harvard University. She lives in New Haven, Connecticut.

DAVID G. POST
is professor of law at the Beasley School of Law at Temple University, where he teaches intellectual property law and the law of cyberspace. He is also a fellow at the Center for Democracy and Technology and the Institute for Information Law and Policy at New York Law School, an adjunct scholar at the Cato Institute, and a regular contributor to the influential
Volokh Conspiracy
blog. He is the author of
In Search of Jefferson’s Moose: Notes on the State of Cyberspace
(Oxford), which won the 2010 Green Bag “Exemplary Legal Writing” prize, and a coauthor of
Cyberlaw: Problems of Policy and Jurisprudence in the Information Age
(West), with Paul Schiff Berman, Patricia Bellia, and Brett Frischmann. He has served as a law clerk to Justice Ruth Bader Ginsburg on both the DC Circuit Court of Appeals and the US Supreme Court. He and his wife, Nancy, split their time between Washington, DC, and Marlboro, VT.

PATRICK RUFFINI
is president of Engage, a digital media firm with clients including Fortune 500 companies, presidential and statewide candidates, technology startups, and issue advocacy campaigns. In the 2004 election, Ruffini served as webmaster for the Bush-Cheney campaign, managing day-to-day operations on the campaign’s website. Ruffini is a graduate of the University of Pennsylvania, where he most enjoyed studying the history of presidential communication. He lives in Northern Virginia.

REIHAN SALAM
is a policy advisor at Economics 21, a contributing editor at
National Review,
a Reuters opinion columnist, and a CNN contributor. He is the coauthor, with Ross Douthat, of
Grand New Party: How Republicans Can Win the Working Class and Save the American Dream
(Doubleday). Previously, he worked as an editorial researcher at
The New Republic
and the
New York Times,
a producer for NBC News, an associate editor at the
Atlantic,
and as a fellow at the New America Foundation. He lives in New York.