As a follow-up to my last post responding to Public Knowledge’s allegations of “regulatory capture” at the US Copyright Office, I thought one of their accusations deserved its own post.  When copyright law is discussed as a broad principle—either in a practical or philosophical context—critics such as PK, Techdirt, the EFF, and Fight for the Future seem to view copyright from a collectivist perspective, stressing that its purpose is to serve society, which is the only reason why it should ever serve the author.  As a result, these parties have at various times raised a fuss over statements to the contrary made by Register Pallante, and this sentiment was reprised in the “report” by Public Knowledge,  Here’s what the report says:

Perhaps the starkest evidence of cultural capture can be found in statements by the current Register of Copyrights, Maria Pallante. She has, at various times during her tenure, commented that:

• “Copyright is for the author first and the nation second.”
• “I think the problem we have today in terms of imbalance that we might feel in the copyright statute is that we have gotten away from the equation that puts the authors as the primary beneficiaries, followed by the public good.”

The report at this point also cites two of Pallante’s statements about enforcement, but that’s a separate topic.  The reason these “author first” quotes twist the copyright skeptic’s knickers stems from their focusing on the IP clause in the Constitution, which reads to promote the progress of the sciences and useful arts as a predicate to the congressional power to enact IP laws.   There can be little doubt that the Framers did have a practical goal in mind when writing IP into the general legislature—that America would one day be all big and have science and culture just like Europe. But they had philosophical principles in mind, as well.  And in both practical and philosophical contexts, the skeptics are wrong to criticize Pallante, let alone to cite these quotes as evidence of her “cultural capture” by big-money rights holders.

Practical Copyright

This one is just mathematical. In the simplest terms, it should be obvious that there is no way for works to be of any benefit to society until they are first created by authors. If Mark Twain doesn’t write the book, we don’t get to read the book; and if anyone can prove the inverse, that would be a powerful magic indeed.  In this purely functional context, Register Pallante’s quotes merely reflect the only order of operations that can occur between creator and consumer, regardless of any other specifics pertaining to the application of copyright law.

If copyright does not first provide the author with a property right in his or her labor, society doesn’t get anything.  To those who would counter this by doubting copyright’s value as an incentive—insisting that the author will create anyway—even if this were true, it is a position that moots the accusations lobbed at Pallante about the proper function of copyright. Instead, the assertion that copyright does not incentivize is a wholesale rejection of its utility, one which obliterates any discussion about the proper functioning of that utility.

Copyright’s Philosophical Beginnings

As Americans, we tend to focus a lot on the practical—usually on the commerce part of the equation—and leave the philosophical to the realm of political rhetoric.  But the early arguments made for the protection of intellectual property, in both the state and federal legislatures, were predicated on the natural rights of the individual, and not on the individual’s fealty to society.  In fact, one could say that John Locke’s assertions about the natural rights of the individual make a case for those rights in spite of society.  This is because Locke’s Two Treatises on Government (1689) are argued from first principles in rebuttal to a treatise favoring absolute monarchy.

Locke asks the hypothetical question why the individual wants to abandon his absolute, natural liberty to the state at all and concludes that among the reasons is the protection of his property.  And because property in Locke’s definition includes the individual’s faculties and capacities, property, therefore, includes the products of those faculties and capacities.  So, the philosophical foundation for intellectual property in the United States is actually predicated on the natural rights of the individual just like the rights codified in the First Amendment.

Madison was well aware of these first principles when he wrote in Federalist #43, “The utility of this power will scarcely be questioned. The copyright of authors has been solemnly adjudged, in Great Britain, to be a right of common law. The right to useful inventions seems with equal reason to belong to the inventors. The public good fully coincides in both cases with the claims of individuals.”

In context to its philosophical heritage, the IP clause does not grant the right of intellectual property to the individual any more than the First Amendment grants the right of free speech to the individual. Both were held to be natural rights; and by affirming these in the law, the state promises to protect those natural rights. This is a manifestation, more or less, of what Locke had advocated 100 years prior to the assembly of the First Congress.

But what about promoting progress?

Back in 2012, Congresswoman Zoe Lofgren (D CA), who represents Silicon Valley, criticized Register Pallante’s “author first” statements when she said, “It seems to me that the Constitution is very clear that copyright does not exist inherently for the author but for the benefit for society at large.”  But Representative Lofgren’s asserting the obviousness of the “promote progress” part of the IP clause is an indication that she doesn’t know her history as well as she knows what’s in the interest of her tech-industry constituents. As copyright scholar Terry Hart addressed in his response at the time, the IP clause in the Constitution isn’t quite so clear as Lofgren thinks. In fact, we have a rather thick body of caselaw in which the courts have consistently reiterated the plain reasoning cited above:  that unless the author first creates, society gets jack.  (NOTE: Oliver Wendell Holmes never used jack in this manner.)

Additionally, there is a rich anthology of debate over exactly what the Framers meant by each of the key terms in the IP clause, which really is something of a grammarian’s enigma. For instance, it has taken a fair bit of judicial haggling to ultimately determine that the word science now firmly refers to copyright law while the term useful arts refers to patent law. But get this:  based on the argument for interpreting meaning in the parallel construction of the clause, that pesky word discoveries maps to useful arts (i.e. patents). And that’s a constitutional conundrum because we are taught even in grade school that a discovery is the antithesis of an invention and is, therefore, the exact word one would use to describe something that is not patentable! You can patent an invented toaster but not the discovered laws of physics that make bread crusty.

Like “discoveries,” both “promote” and “progress” have been variously interpreted in the courts and in legal scholarship, often revealing the biases of the interpreters.  In a very interesting paper, Sean M. O’Connor of University of Washington Law School makes a case for a French influence in the Framers’ choice of words based on his analysis that Madison and others were highly cognizant of the Encyclopédie published in 1751.  Through this lens, the word “progress” would only apply to achievements that could be quantifiably measured to make progress, and this would nullify the entire universe of creative works produced by copyright — and probably quite a few technological innovations to boot. (How many apps could be said to make measurable “progress”?)  Still, O’Connor concedes that this French-influenced interpretation of the clause is an academic exploration in the strictest sense and not a proposal for application of the law.

So, regardless of how one chooses to argue Framers’ clear intent—which is not as clear as Zoe Lofgren implied—I doubt very much that we would choose to reverse history and un-create the American oeuvre.  In this regard, we can know for sure that the Framers could not have imagined the technology-enabled explosion of creative works in the U.S. in the 20th century, and whether one favors the chicken or the egg, it’s hard to dispute that we have a lot of chickens and a lot of eggs.  Individuals and society have benefitted tremendously from copyright.

Public Knowledge and kindred organizations are leaning on weak scholarship when they criticize Register Pallante, or any other copyright expert, for stating that copyright is for the author first and society second.  It’s easy to invoke constitutional clauses in a PR context and claim “obviousness” in the Framers’ intent, but most of the clauses are one sentence long while the laws and histories built upon them fill the pages of some very heavy books.