A Celebration of the Work of Wendy Gordon, part 4

Natural Right to Copy
by Glynn Lunney, Texas A&M
University School of Law
Thanks to the great
women who encouraged intellectual honesty in topics and analysis of topics, not
just Gordon but also Litman, Samuelson, others.  Gordon doesn’t agree w/how far Lunney takes
her argument, but that’s ok.  Gordon’s “A Property Right in
” shows that Lockean arguments for authors’ rights also
provide limits on those rights that are themselves in the nature of natural
rights.  Lockean proviso: there has to be
enough and as good left over for others in order for property claims to be
justified. Is copying right or wrong? 
There is dispute! 
He thinks natural
rights are nonsense on stilts; natural laws would exist without people.  He thinks it’s often just hidden utilitarian
balancing.  Kant’s Categorical Imperative:
if the Nazis ask you if you’re hiding Jews in your attic, should you tell the
truth?  Utilitarian balancing would give
us a very different answer.  A natural
right should also be technologically independent, which seems inconsistent with
© and its recency.  He thinks of natural
rights as rhetorical tools.  Rhetoric,
though, matters. [Lunney characterizes natural rights arguments about fairness
as “utilitarian arguments for people unable to do math”—but of course none of
us can really do math, in the sense required for doing utility calculations
that would take into account all the knowns and unknowns, especially at the
level of detail required to distinguish two fairly similar policies from one
another.  Thus the appeal of rule
utilitarianism and so on. Obviously this is a much bigger debate than any of us
can do justice to right here!]
Judges sometimes equate
copying with stealing, but he thinks this is wrong.  Moses smashed the original tablets from the
mountain; we only have the Seventh Commandment because Moses copied them and plenty
of others did too. Copying is never stealing and an expansion of the no-harm
principle that equates them is difficult for him.  No-harm principle: Locke says no one ought to
harm another in life, health, liberty or possessions—but there’s nothing in
there about economic harm/deprivation of royalties.  Mixing labor as justification for property
seems inconsistent w/counting economic harm—if value alone justified a property
right, we wouldn’t care about how I got a pile of apples.  This is relevant because of the well
established principle of damnum absque inuria: harm without legal injury, as when
competition decreases profit.  Gordon
does distinguish harm from wrongful harm, but not all free riding is wrongful
harm—Kellogg copying Nabisco shredded wheat and automakers copying the idea of
the minivan are both desirable forms of competition based on free riding. 
Gordon suggests that
utilitarian balancing can trump deontological concerns when the costs are too
great. How do we know when they’re bad enough? Who decides?  Category error: even if you could use Locke
to justify initial ownership of the song, what does that mean when you’ve
shared access w/another? Locke is about initial ownership, not what rights you retain
even once you’ve transferred in the absence of an express or implied contract.
Contributions to value
to a novel other than the novelist’s own work: the people who taught her to
read and write; the people who created moveable type and all the other distribution
elements; people involved in creation of market demand, such as people who paid
workers enough to have money left over to buy the novel. Once you do but-for or
even proximate causation all of those matter. 
He thinks what’s efficient and fair is a cost-based allocation.  Inefficient and unfair to have a rule that’s
cost based for everyone but the © owner who gets a value based reward.
What should be the
default rule? What’s more important to society, copying or creativity? To him,
it’s copying. We talk today b/c we share a language that neither of us came up
with or decided to adopt. We both copied the language and its structure.  What we’re doing in © is important but what’s
more important is the right to copy and talk.

Commentary by Richard Stallman, Free Software Foundation
Defaults are tremendously
important. “IP” is both wrong descriptively and an overgeneralization about the
very different regimes lumped together under that term. It gives you a bad way
of thinking by default.  Law professors
can probably overcome that but if you don’t spend a lot of time with it, that
will mislead you. Natural rights have to be about morality; natural rights
imply natural responsibilities, though that doesn’t mean you have to do a
recommended act every time. E.g., sharing is good/feeding the hungry, but you
don’t have to do so every time you’re asked; it’s instead that if you
never do it then you’re not
a good member of society. Respect natural rights and permit people to carry out
their natural responsibilities to share. 
You don’t “consume” published works. They don’t disappear as your eyes
pass over them. It’s an economic metaphor that also changes your default
thinking. The idea that you have to compensate a business for not being able to
make money from something that it bought is planetary suicide when it comes to
resources, and this relates to © as well. 
Would also distinguish software from creative works; software as a set
of instructions needs to be free or it subjugates users.
Syed: Lunney was
careful and crisp in discussing deontology, but lumped utilitarianism
together.  If you’re truly a maximizer, do
you believe that fair distribution plays no role?
Lunney: people would
choose fair distribution over unfair, because we’re risk averse; distribution
is a utiltiarian consideration. 
Gordon: it’s true that
Locke justifies right to use more than right to exclude. But what he’s
describing is one of many ways of saying, all else equal, if someone has
invested a lot of himself into a project, you have an obligation not to disrupt
that project without a good reason, though we can then talk about what good reasons
might be.
Lunney: prefers the
defaults reversed. Who has to justify a change in the default and what does it
take to do so?
Use as Market Failure
by Ariel Katz, University of
Toronto Faculty of Law
Fair Use as Market Failure’s
contributions include: theoretically coherent framework for understanding fair
use, at the time a mess; pioneering economic analysis of copyright; offering
economic justification for fair use; showing how broad fair use conception is
economically consistent w/©’s premises. Alas, misunderstood as implying that fair
use should only exist when transaction costs are high and should disappear if transaction
costs become low enough to allow negotiation b/t © owner and user. Instead,
looking at whether there is a reason we can’t be confident that deferring to
the © owner’s self-interest will also lead to overall social benefit? If we can’t,
then there is reason to go to fair use. But this logic presumes that we can
ordinarily be confident that deferring to self-interest will serve social
goals, and if and only if that isn’t true,
such as market failure, then
it might make sense to refuse to defer to © owner’s veto.
But should we ordinarily
be confident of this? Why not require © owners to show that their self-interest
aligns with the public interest?  What
creates pull to overly narrow fair use: (1) market supremacy premise: in general,
social welfare will be maximized if market transactions b/t © owners and users
would precede as many uses as possible bc the market is in general the best way
of doing things; (2) broad entitlement: © owner is ordinarily entitled to
revenue for all substantial uses of the work; (3) when economic value is at
stake, we ordinarily want a potential user to seek permission from © owner and
pay a negotiated price.  Begins with the assumption
that © markets are efficient, but they are usually understood as deviations
from static efficiency done in order to create incentives (keeping prices above
marginal cost). Copyright by design undermines the perfect efficiency of the
Relatedly, do we want
as many uses as possible to be market transactions? The opposite: social
welfare is maximized if we have as few uses as possible as market
transactions.  Nor should we agree with (3)’s
broad entitlement: fair use isn’t an infringement and not part of the owner’s entitlement,
and a © owner shouldn’t get more than necessary to generate works. It is, in
other words, unfair uses that present market failures. Copyright is against
natural rights; it is a legal monopoly and a creature of positive law only.

Commentary by Chris Sprigman, NYU School of Law: Microsoft antitrust litigation was
how he started to learn ©: Microsoft’s argument was that it owned the © so
nothing it could do with the © could violate antitrust law. Court says: saying
you own the © so you can’t violate antitrust law with it is like saying that
because you own a baseball bat you can’t be held liable for killing someone
with it.  Monopolies and market
supremacy: this is the key idea, that property structures markets and that the
markets are run by private transactions by default.  Broad entitlement then follows from that: © owner
is entitled to all rents that market supremacy makes available.  So is the idea that we ordinarily want transactions
to take place b/t © owners and users of the works.  Combination: strong deference to © owner,
which then leads to overly narrow reading of Gordon’s work on fair use. 
Katz’s first best
solution where goods are nonrival: competition. 
Katz would presume fairness until unfairness is demonstrated. But what’s
Gordon’s first-best world?  Have to think
about static v. dynamic efficiency. The holy grail would be to optimize static
+ dynamic efficiency. Gordon’s first-best would be a copyright system that does
this. If you believe that copying causes long term welfare loss, you should end
up with “efficient copyright.” Under that scheme, Gordon’s premises hold.  Rights with appropriate scope, term, and
limitations. But we don’t seem to have that, e.g., it’s hard to understand the
point of © for fine art. Balancing static + dynamic efficiency seems unlikely
given how much lumping together Congress has done, even if you ignore problematic
political economy.
What is to be done? Should
judges interrogate the static/dynamic balance, the scope, the limitations that
Congress has enacted?  Care is warranted,
but Congress has left open some room, viz. fair use. Even if fair use is a
defense, it isn’t an affirmative defense: the P should, once raised, have the
burden of going forward—Lydia Loren’s article and the reasoning in
Lenz in the 9th
Circuit.  Skeptical about judges doing
other things in ©; we don’t have a different term for motion pictures than for
software, even though we probably should, and judges would have a hard time
doing that.  [I would note that anywhere
else in speech regulation judges have no problem saying things like this and
performing their own static/dynamic/other analyses—that’s what strict scrutiny

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