"enough and as Good" in the Intellectual Commons: a Lockean Theory of Copyright and the Merger Doctrine

• Citation: Vol. 65 No. 5
• Publication year: 2016

"Enough and as Good" in the Intellectual Commons: A Lockean Theory of Copyright and the Merger Doctrine

Alexander D. Northover

"ENOUGH AND AS GOOD" IN THE INTELLECTUAL COMMONS: A LOCKEAN THEORY OF COPYRIGHT AND THE MERGER DOCTRINE

Abstract

Embedded in our national identity, the right to reap the fruit of one's labor defines the quintessential American Dream. This ownership right seems so intuitively obvious that it needs no logical explanation, and thus John Locke's foundational theory of property rights is often misinterpreted from the start. Locke's labor theory of acquisition has perpetuated a kind of philosophical circuit split among scholars, relegating his ideas to a realm of partisan politics. These misinterpretations are unfortunate because, when properly applied, Locke's property theory holds the promise of resolving complex issues in copyright law and theory.

In the tradition of Locke's contextualist interpreters, this Comment examines Locke's philosophy and its context with the aim of describing a theory of Lockean copyright that is compatible with the basic tenets of American copyright law. Because the Lockean copyright theory offered here accounts for both procedural and consequential goods, it has stronger prescriptive power than the current utilitarian model and can do more work. Also, because Lockean duties lend well to bright-line rulemaking, applying Lockean thinking to legal analysis can streamline litigation. As an example of Locke's cash value to copyright law, this Comment expounds upon his thoughts on the natural law duties of property owners and the state's role in mitigating transaction costs of private ownership to assign burdens of proof at trial. This framework is utilized to outline a potential solution to the circuit split over whether the merger doctrine should apply during the copyrightability stage or the infringement stage of a copyright infringement lawsuit.

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Patents and copyrights approach, nearer than any other class of cases belonging to forensic discussions, to what may be called the metaphysics of the law, where the distinctions are, or at least may be, very subtle and refined, and, sometimes, almost evanescent.

—Justice Joseph Story¹

Introduction

Although the test for copyright infringement seems simple enough on paper,² Justice Story's observation that intellectual property (IP) distinctions approach "the metaphysics of the law"³ forecasted the storm of confusing philosophical conjecture, internal contradictions, and circuit splits that plagues copyright law today.⁴ Although copyright law is widely considered a statutory creation, some scholars attribute this doctrinal confusion to the constitutionally enshrined foundation of intellectual property law: utilitarianism.⁵ Unfortunately, the absolutely objective perspective required to carry out the utilitarian balancing calculus of the Copyright Clause is not a position that real-life judges can occupy.⁶

This Comment argues that applying John Locke's theory of property rights to copyright law can resolve much of the doctrinal mess. Rather than engage in ad hoc balancing of the public welfare against private interests in a utilitarian framework, Locke's property theory—imposing rule-based duties on the property owner at the outset of ownership—serves underlying utilitarian ends.⁷

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This Comment explores how Locke's rigid structure of prima facie rights and duties can be utilized to allocate burdens of proof and streamline copyright infringement litigation proceedings.⁸

Beyond matters of efficiency, Locke's property theory is useful in contemporary IP discussions because it embodies normative judgments that substantially contributed to the first copyright law ever enacted, from which all American copyright law originated.⁹ Locke's concerns with monopolies and societal progress undoubtedly shaped early copyright theory and should still serve as guiding principles today.¹⁰

This Comment's aim is to define a theory of Lockean copyright from a perspective of reconciliation, considering Locke's compatibility with basic tenets of American copyright law as a starting point. This approach avoids making broad-sweeping claims that call for paradigmatic shifts in copyright jurisprudence, instead focusing on how piecemeal application of Lockean theory can solve real problems in the law.¹¹ To further demonstrate Locke's pragmatic value within copyright law, this Comment applies Locke's theory to the longstanding circuit split over whether the merger doctrine (barring copyright protection for an expression that effectively confers a monopoly over an idea¹² ) should be applied at the initial copyrightability stage or the later infringement stage of a copyright infringement suit.¹³

This Comment proceeds in Part I by describing Locke's labor theory of acquisition as well as its historical significance and various interpretations. Part II follows with a brief examination of Locke's political advocacy against the renewal of the Licensing Act of 1662 as contextual evidence of his perspective on intellectual property. Part III draws on the ideas of other contextualist Lockean copyright theorists to describe a system of Lockean copyright that is compatible with the Copyright Clause and § 102 of the Copyright Act. This Part concludes with a rebuttal to Adam Moore's interpretation of Lockean copyright theory.

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To demonstrate the practical utility of the Lockean copyright theory advocated by Part III, Part IV explores how that theory is capable of resolving the tedious circuit split concerning the merger doctrine. Part IV argues that the merger doctrine should be split into separate inquiries that take place at different stages of the infringement suit.¹⁴ Locke's rumination on the state of nature and the formation of the social compact provides a foundation to assess the state's role in alleviating high transaction costs on property owners.¹⁵ Locke's goal of minimizing transaction costs justifies placing simple legal disputes, like instances of merger where there is only one possible way to express an idea, at pretrial dismissal stage. These issues can be deduced from simple logic such that an actor in the state of nature could self-adjudicate.¹⁶ However, more complex legal issues, like instances of merger where there is a finite set of potential expressions available to express an idea, require a complete examination of the trial record to make a sound determination; this kind of complex property dispute was the primary reason inhabitants in the state of nature formed the social compact and empowered judges.¹⁷ As explained in Part IV, the Lockean theory of merger proposed here would always impact copyrightability, causing either complete reversion to the public domain or a diminution of the scope of copyright protection.¹⁸

I. A Brief Examination of Locke's Property Theory and Its Relevance

In order to best understand John Locke's theory of property rights, it is paramount to examine the tumultuous political climate in which it was conceived. Around 1680, religious sectarianism dominated English politics; Locke was closely entangled in this conflict through his employer, Lord Shaftesbury, who introduced the Exclusion Bill that sought to prevent King Charles II's Catholic brother, James II, from ascending to the throne.¹⁹ After

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Charles II uncovered an assassination plot on his life concocted by several of Locke's acquaintances, Locke feared for his life and fled to Holland, where he stayed until the Glorious Revolution saw an end to the absolute monarchy in 1688.²⁰

To combat negative sentiments toward the crown in the years preceding the Glorious Revolution, Tory loyalists utilized Sir Robert Filmer's moral apologia, Patriarcha, to assert that the landed gentry's continued wealth depended on maintaining the King's authority.²¹ Relying on Scripture, Filmer argues that God created the entire world and gave it to one man, Adam.²² Over the course of human history, Adam's private dominion was partitioned by various kings who retained Adam's paternal jurisdiction, empowering them to allocate property based on a system of feudal entitlement.²³ According to Filmer, maintaining exclusive ownership would be impossible without the centralized power of a monarch because to exclude others from land claimed as property, the property owner would require consent from all humans on Earth.²⁴ Thus, Filmer surmised that any title to property is both morally and practically contingent on the monarchy's divine authority and power.

Appealing to Lord Shaftesbury's political constituents, who later organized as the Whig faction and advocated for constitutional restraints on the monarch's authority, John Locke argues in the Second Treatise of Government that one's color of title to property can be discerned independent of royal decree.²⁵ Like his rival, Locke begins his analysis of private property with a biblical account of the time prior to civilization, which he calls the state of nature; however, Locke devises a way that individuals so situated could acquire property rights without requiring direct consent from anyone.²⁶

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A. The Labor Theory of Acquisition and Its Major Interpretations

Contesting Filmer's biblical interpretation, Locke argues that God originally bequeathed the world to all of humanity to be shared in common.²⁷ While resources in the state of nature are held in common, individuals retain property in themselves and their labor.²⁸ In what would later be called the labor theory of appropriation, Locke argues, "Whatsoever then he removes out of the state that nature hath provided, and left it in, he hath mixed his labour with, and joined to it something that is his own, and thereby makes it his property."²⁹ This move allows Locke to avert Filmer's consent problem by demonstrating that the unilateral act of mixing one's labor with raw materials held in common invokes a natural right to the...