Friday, November 16, 2007

The Indelicate Imbalancing of Copyright Policy

Courts and commentators often claim that copyright policy strikes a delicate balance between public and private interests. I see copyright policy in a different pose, however. I see it wobbling precariously, tipping over, and falling into statutory failure. What has put copyright on such unsure footing? The brutish prodding of special interests. Rather than "delicately balanced," then, I describe copyright policy as "indelicately imbalanced."

Perfect policy equipoise will always elude us. We don't have the numbers necessary to put copyright's many various factors into exact balance. How can we quantify the importance of Picasso's Guernica, for instance, or of Dr. Suess's, Yertle the Turtle? In most cases, the numbers simple do not exist. What numbers we can pin down, moreover, appear to us only in a haze of uncertainty.

We can, however, keep an eye open for evident policy disasters, taking care to steer clear of obvious hazards. We should moreover guard against letting copyright maximalists seize the tiller, lest they overemphasize private interests to the detriment of public ones. We should instead take the Constitution as our lodestar, following its call to "promote the general Welfare" and "the Progress of Science and useful Arts" by checking the excesses of copyright policy.

[NB: The above text comes from part of my draft book, Intellectual Privilege: Copyright, Common Law, and the Common Good. Specifically, it comes from the introduction to Part I, Chapter 3: The Indelicate Imbalancing of Copyright Policy. You can find a complete draft of the full chapter, together with footnotes, here [PDF]. I welcome your comments.]

[Crossposted to Intellectual Privilege and The Technology Liberation Front.]


Dan said...

It sounds to me like much of this post, particularly the stuff about "balancing public and private interests," could be taken out of a leftist critique of physical property. Why should we value the public rather than private interests in this case in particular?

(This is coming from someone who believes that intellectual property rights are a total fiction. But I don't think that our arguments should be phrased in terms of "the public good."

Tom W. Bell said...

Dan: If statism has any justification, it must come from promoting the public good. Lefties, righties, and liberals (classical ones, natch) agree about that. So I don't think I sound so much lefty as, well, reasonable.

I do agree, though, that we should pay a great deal of attention to the private interests affected by copyright. That means, however, that we must take into account the many private interests that it hurts--the interests of each of us whom copyright hinders from using our throats, pens, and printing presses. Other chapters of the book will drive that point home. In this one, I am working with (and against) the "delicate balancing" model that does not invoke the private interests harmed by copyright.

Tom W. Bell said...

Dan: You know, I thought about your comment some more and decided that I should clarify my text somewhat. Now, instead of constantly talking about the need to balance private and public interests, it says things like, "We should moreover guard against letting copyright maximalists seize the tiller, lest they overemphasize their particular interests to the detriment of other public and private ones." Also, I added a footnote expanding on the idea, saying, "copyright policy aims at offsetting not just private interests against public ones, but rather the select private interests of copyright holders against both: 1) the many private parties who suffer violation of their common law rights under copyright and 2) against the public's interest in the positive externalities generated by free access to expressive works."

So thanks, Dan, for making me reconsider my writing!

Anonymous said...

Tom, I liked the previous simplistic version better than the gobbledygook you've just constructed. Please revert to sanity; your likely readership isn't dumb. If you try to be overly precise, you'll seem truly pedantic.

Tom W. Bell said...

Anon: I duly note your objection. Now, though, I think I'll let the matter gestate for a while. I need to let some time pass before I return to the text, so that I can edit it with fresh eyes. But I will keep your admonition in mind, and thank you for it.

Dan said...

That new phrasing reads much more favorably on my "avoid statist language" scanner, and I grasp your point much better now. I'm glad I could help! I'm really looking forward to reading more from your book.

Dan said...

Anon: I don't think it's pedantic to specify what one means by the vague idea of "the public interest." Focusing on the private interests that copyright hurts is part of any "delicate" balance. That said, I don't think that what Tom wrote in that last comment has to be his last draft of it. Surely he will have a better idea about how to phrase it once the rest of the book has taken shape.