Responses to Lichtman on Copyright

In his paper, Copyright as Innovation Policy, Douglas Lichtman makes several bold assertions about the purpose, function and intent of copyright law, both generally, and with specific reference to the fair use doctrine. These claims are presented as obviously true on their face. While the effects of legislation are often complex and hard to predict, I do not support Lichtman’s assertions regarding its purpose.

In the first lines of the paper, Lichtman states that:

Copyright serves a second fundamental purpose, however: it encourages the development and distribution of related technologies such as hardware that might be used to duplicate creative work and software that can manipulate it.

While this purpose is consistent with the constitutional basis* for “intellectual property” generally, the US code separates these incentives between patents: intended to promote progress of science, and copyright: intended to promote progress of the arts. This naturally has economic benefits, encouraging the industries associated with producing works of art, since there is a greater economic incentive for artistic creation.

It is important, however, to distinguish the intent of the law, and the means used to implement it. The intent of copyright is to promote the creation of artistic works, to increase the artistic output of our society, increasing the quantity of books, songs, painting &c in our culture. The means that the law uses to achieve this end is economic incentive. It’s authors (rightly) concluded, consistent with the constitution, that the production of artwork could be arranged by securing to artists certain exclusive rights to their works, which increases the economic value of producing artwork, thereby encouraging such artistic production.

This is certainly the case: the behemoth industries centered around the production of books, music, and movies would be all-but-impoosible without the rights granted by copyright law. However, those industries are not the purpose of the law, they are simply an incidental means by which the law produces its true aim: production of more artwork. The technology associated with the production, manipulation and distribution of artwork is in a similar position; it is encouraged by economic implications of the law, but it is not the aim of the law. The purpose of the law would be achieved by whatever means resulted in a greater quantity and quality of artwork.

Lichtman goes on to say that:

Section 107 [fair use] empowers a court to excuse, on public policy grounds, acts that would otherwise be deemed to impermissibly infringe a copyright holder’s exclusive rights.

Which is a miscategorisation of the purpose and function or fair use. As Judge Leval said:

Fair use should be perceived not as a disorderly basket of exceptions to the rules of copyright, nor as a departure from the principles governing that body of law, but rather as a rational, integral part of copyright, whose observance is necessary to achieve the objectives of that law.

Fair use is not some sort of get-out-of-jail-free card whereby certain noble infringements may be excused by a sympathetic and lenient court. It is an inherent limit on the exclusive rights granted by the law: so-and-so rights are granted, but such-and-such are beyond the scope of these rights. Moreover, the court isn’t meant to have any sort of public policy discretion over the scope of fair use: just look at Judge Gertner’s response to Charles Nesson’s attempts to introduce novel public-policy-based fair use arguments in the Joel Tenenbaum case .

*Art 1, §8, clause 8:

The Congress shall have Power… To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;


About flamsmark

I do privacy at Mozilla. Years of security have left me incurably paranoid. Tech, policy, security, privacy, & anonymity are good. Open is better. GPG: 80AF07D3
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