Intellectual property law has grown like a cancer,[1] with copyright growing on creative content to produce a tangled, dysfunctional knot of proprietary rights that eat away at what could be a robust system of incentives and digital production. (How about you ask how I really feel?) Which is one of my main reasons for obsessing about copyright protection. As part of a proud legal/philosophical tradition that traces itself back through the Queen’s England to the Republic of Rome – egalitarian for all, or at least for white male landowners[2] – it gives me pause to think about how the old philosophers would think about intellectual property rights today. Would they be proud of how we’ve developed upon their legal theories? Would the founding fathers approve of the direction we’re heading?[3] If Socrates were here today, what would he have to say about the Copyright Wars?
Despite the fact copyright bases its legitimacy on the public good, through the modern legal tendency for expansive copyright protection proprietary rights are growing to reappropriate works that would otherwise be public domain.
“Public domain works of art ought to remain accessible to the public and granting copyright privileges to public domain works of art inevitably creates unwarranted, unjustifiable barriers to access.”[4]
As a staunch believer in all things creative, to the extent an IP regime actually does incentivize creative production I’m all about it. Yet somehow we’re building fences rather than aqueducts, and it’s our whole culture that’s suffering for it.
After the Internet made copyright into an exciting field again, it also managed to make most young Americans into felons. Aristotle would probably be against all the constant changes in the legal system.[5]
Especially when so much of copyright law is so dense and technical that it’s almost impossible to interpret – developers of new technologies may just have to develop a wide user base, wait to get sued, then use it to negotiate a valid licensing deal.
Here it would be useful to point out that intellectual property may not have been considered property at all. Many influential ancient philosophers understood knowledge and art as belonging to a transcendent class of forms that were universal and accessible to anyone. To “own” some particular way of experiencing those forms probably wouldn’t have made a whole lot of sense to them. It would have been like owning “being a human” or “having brown eyes.” The idea/expression distinction of present day copyright law – where the creative expression is copyrightable but the ideas or facts are not – would not have been seen to be distinct at all, but rather part of the same universal class.
Socrates would probably be on the side of the government.[6] We each have an obligation to uphold laws and to submit ourselves to the punishment for violating them. Which, presumably, would include today’s up-to-$150,000 per willful violation + attorney’s fees.[7][[7]]Copyright Act Ch. 5 §504(c)(2))Though one would have to be careful with option B – many countries are adopting similar if not stricter intellectual property laws than those of the US. In Europe fair use is not much of an excuse, and some claim the US standards so low they violate international treaties. [[8]]
To follow Socrates’ lead, infringers always have the option to go into self-imposed exile.
- Or a HeLa culture!↵
- Three strikes I’m out based on those criteria. Latina female scholars have not played a huge role in the law as of yet, though Sonia Sotomayor in the Supreme Court was a huge step in the right direction.↵
- About as likely as that our founding fathers being proud of what we’ve done with the Commerce Clause.↵
- Robert C. Matz, Bridgeman Art Library, Ltd. v. Corel Corp., 15 Berkeley Tech. L.J. 3, 22 (2000).↵
- Many of his arguments regarding law center around the fact that there’s a social benefit to have law-abiding people, so laws should be structured so people can understand them and abide by them. Well… of the 14 million songs claimed by music platforms, 4 million are commercially viable works and around 10 million are unregistered and potentially infringing works by smaller bands (think: covers, remixes, sampled tracks, etc.). The music industry ignores them because it’s polite and the defendants are likely to be judgment-proof anyways.↵
- However, Socrates and Plato were almost pathologically against unnecessary obfuscation. The current state of the legal system would cause them to despair for our society – huge cases and seas of regulations may turn on who can present the better argument regarding a hair-splitting legal distinction. Socrates and Scalia would probably have lots of fun discussing the whether textualists of purposivists should carry the day. One of the arguments that Socrates had against the Sophists was that they used obfuscatory language and needlessly complex arguments in order to seem correct, regardless of the truth of their arguments. I imagine he’d take one look at the modern regulatory environment and just assume that the Sophists had won.↵
- ↵
- Famously, in the Crito, Socrates justifies staying and allowing himself to be put to death even though he has a chance to escape because he had submitted to the laws of Athens his entire life and enjoyed the benefits of living in the city. If he left when the laws turned against him, it would be immoral because it would be violating an implied contract between the citizen and the state. To generalize this and apply it to the present day, as citizens our options are a) obey the laws (and attempt to change those that are unjust) or b) leave the country.{{8}}↵
Have you heard about this effort to get older, public domain works of international origin re-copyrighted?
Meep! Ginsberg needs to stop ruling on copyright issues, and the Supreme Court needs to acknowledge that things have changed in the Digital Age. Goodness, that sort of ruling doesn’t even satisfy utilitarian logic, which the Justices must surely be familiar with. Encroachments on the public domain make me sad.
I’m not so sure about Socrates and his take, it’s hard to imagine the perspective of classical philosophers on modern regulatory offenses, where the criminal code can reach a swath of activity far broader than was historically the norm (to the extent that the law was more than just “be nice to the sovereign”). With public domain enclosure, as with copyright term extensions, it’s ludicrous to see congress effectively making retroactive incentives for the creation of long-established works.
Legal logic appears to have a huge blind spot where common sense (or even common intelligence) gives way to precedent. If the same amount of legal genius that goes into rationalizing inane precedent went into establishing better laws, then perhaps we wouldn’t have a system that makes most of us de jure criminals.