Debunking Blackstonian copyright.

• Author: Balganesh, Shyamkrishna

Copyright's Paradox

BY NEIL WEINSTOCK NETANEL

NEW YORK, NY: OXFORD UNIVERSITY PRESS, 2008, PP.ix, 274. $34.95.

REVIEW CONTENTS INTRODUCTION I. BLACKSTONE, PROPERTY, AND COPYRIGHT A. The Sole and Despotic Dominion in Perspective: Property Essentialism B. Blackstonian Copyright and Copyright's Ungainly Expansion II. THE CONTINUING RELEVANCE OF THE DEMOCRATIC PARADIGM A. Beyond Incentives: The Production Function B. Not Just Allocative Efficiency: The Structural Function C. Symbolic Reinforcement: The Expressive Function III. MINIMIZING THE BURDENS OF BLACKSTONIAN COPYRIGHT A. Blackstonian Copyright Versus Free Speech B. Trimming Away Copyright's Blackstonian Influence IV. COPYRIGHT AS A COMMON LAW ENTITLEMENT A. Common Law Adjudication 1. The Role of Courts 2. Bipolarity/Correlativity 3. Incrementalism B. Making Sense of Copyright's Structure 1. The Copyright Act as a Common Law Statute 2. Copyright as a Bipolar Entitlement C. What Should Courts Do? 1. The Instrumentalism of Copyright's Correlativity 2. Copyright as a Conditional Entitlement: The Model of Governance D. Circling Back to Netanel's Blueprint CONCLUSION INTRODUCTION

More than two decades ago, in attempting to make sense of the structural dissonance between copyright and free expression, the U.S. Supreme Court famously declared that copyright was intended to be "the engine of free expression." (1) Ironically, this characterization was at the time intended as little more than a rhetorical device. In that very case, the Court proceeded immediately thereafter to analyze copyright as a "marketable" property right and conclude that absent a showing of market failure, neither fair use nor the First Amendment would preclude a finding of infringement. (2) Instead of injecting a new set of values into copyright analysis, the "engine of free expression" metaphor served to effectively downplay the extent to which the value frameworks underlying the two systems could ever come into conflict with each other. Indeed, later opinions too have used it precisely to this end. (3)

Despite its origins, Neil Netanel has long believed that there may yet be some merit in the Court's characterization. (4) In his view, copyright is a state mechanism directed at enhancing the "democratic character of civil society." (5) By providing creators with an incentive to produce creative expression, supporting expressive activity via the market, and setting limits to private control of creative expression, copyright contributes directly to the development of a vibrant civil society. (6) Netanel's "democratic paradigm" stands in contrast to both the market-based and minimalist accounts of copyright and attempts to take seriously copyright's ability to be an engine of free expression. (7)

For the last several decades, however, the analysis of copyright law has come to be dominated by the traditional law and economics account of the institution. (8) In this account, copyright exists to provide creators with an incentive to produce creative expression and to ensure that the expression so produced is efficiently allocated through the market. (9) Copyright thus provides creators with a property right in their creative expression, and given the centrality of strong property rights to the efficient functioning of the market, stronger copyright is thought to be efficiency enhancing. Netanel's prior work directly targeted this economic account of copyright, which he termed the "neoclassicist approach," by emphasizing that copyright as an institution was "in, but not of, the market." (10)

In his new book, Copyright's Paradox, Netanel further develops his democracy-enhancing approach to copyright law, attempting to remake copyright in the "First Amendment's image." (11) This time though, his target is not the nuanced economic account, but rather the systematic use of property rhetoric and propertarian ideas to understand and justify copyright's major expansions--the trend toward what he characterizes pejoratively as "proprietary copyright" or "Blackstonian copyright." (12)

Across different areas of the law, the idea of property has time and again proven to be immensely powerful in furthering a particular conception of an issue and thereby influencing change along a desired dimension. (13) William Blackstone's legendary characterization of the fight to property as a "sole and despotic dominion" (14) has proven to be particularly useful in this process, by helping to conjure up images of an owner's absolute and unconditional right to exclude others from a resource. (15) Scholars have long debated the extent to which Blackstone himself believed in this version of property, with most concluding that he intended it as little more than a functional metaphor. (16) Yet, it has had significant influence over time, with the absolutism inherent in it having lent itself perfectly to a noninstrumental view of ownership and, in the process, to a vision of property rights and ownership as universally necessary ends in themselves, commonly characterized as "property essentialism." (17)

Copyright law is no exception. Since its entitlement bundle consists of a set of exclusive use privileges protected by a coextensive right to exclude (much like tangible property), copyright is commonly characterized as a form of property. (18) But unlike tangible property, where an owner's exclusive use privileges are presumptively infinite, copyright limits a creator's exclusive privileges to those connected to the work, in turn representative of its underlying purpose. The perfunctory invocation of property rhetoric often glosses over this nuance. Yet, once copyright is characterized as a form of property, the noninstrumentalism of ownership is considered an end in itself, allowing for the scope of its exclusive privileges and exclusionary right to be extended with little regard for its underlying purpose. In Copyright's Paradox, Netanel rightly identifies this essentialism as central to copyright's recent expansionist trend. (19)

Copyright's Paradox does an exemplary job of setting up the copyright/free expression tension in the context of the democratic paradigm. Netanel systematically lays out recent instances of copyright expansion where the conflict has been most apparent and traces them to uses and modalities of property thinking that are often well concealed within doctrine. Building on the idea of copyright as a democracy-enhancing mechanism, the book makes a convincing argument that copyright can continue to serve as an engine of free expression notwithstanding the emergence of the Internet and with it new technologies of distribution that allow for expressive content to be shared, transformed, and copied with ease. (20)

Having (1) elaborated on his vision for copyright (the democratic paradigm), (2) described the main impediment to its realization (copyright's expansion and its conflict with free speech), and (3) identified the principal source of the problem (the proprietary vision of copyright), Netanel then proceeds to lay out a remedial "blueprint" to allow for copyright to be recast in the "First Amendment's image." (21) It is here that his proposals seem surprisingly unambitious and perhaps more importantly, do not offer an alternative to the source of the problem: the propertarian vision.

Copyright expansionism has certainly gone too far, and property rhetoric has no doubt played a major role in this. Yet, Netanel's proposals seem to do little to minimize the influence of property essentialism within copyright. They focus principally on moving copyright away from its reliance on exclusionary remedies to systems for remunerating creators without altering its underlying entitlement structure in any way. With property ideas being as well entrenched in all of copyright thinking as Netanel tells us they are, what copyright needs, if indeed it is to serve its purpose as an engine of free expression, is a viable structural alternative to propertarian thinking. A large part of the reason why the essentialist rhetoric has continued to dominate is precisely because its critics are hard-pressed to offer such an alternative.

An alternative to property essentialism in copyright law need not require accepting a "minimalist" approach, or indeed seeking to "overly truncate[]" copyright. (22) But it would entail a structural recognition that the copyright grant differs significantly from that of other tangible and intangible property rights. Copyright differs from other forms of exclusive rights (including patents and trademarks) in that the existence of a creator's entitlement and its scope are only ever determined judicially and correlatively--that is, in reference to a defendant's actions. The absence of an administrative agency overseeing a formal grant process means that it falls entirely to courts to both delineate and enforce a creator's entitlement during an infringement action. Copyright law thus closely resembles the common law process of adjudication, where the existence and violation of an entitlement are determined purposively, by reference to an underlying policy or objective; circumstantially, in the context of the parties before the court; and additionally, ex post. Taking these attributes seriously and understanding copyright to be a strongly conditional common law entitlement wherein courts balance a host of competing interests before making a finding, I argue in Part IV, is likely to move copyright away from its reliance on property as a structural ideal, allowing it to realize its role as an engine of free expression unimpeded by property essentialism.

Part I begins by examining Netanel's real target in Copyright's Paradox: Blackstonian copyright. Section I.A starts by setting out the application of Blackstonian rhetoric to property and copyright. Section I.B analyzes Netanel's claims that the use of Blackstonian rhetoric in copyright is responsible for copyright's recent expansions by...