Copyright’s Paradox (review)

Copyright law often moves its critics to acts of counterfactual imagination. Some of these thought-experiments conjure alternate universes where the intellectual property laws are less extensive than our own. Others, more darkly, imagine a world in which today’s outsized copyright regime had evolved earlier, preventing the creation of classics (Joyce’s Ulysses, say, or a good number of Shakespeare’s plays) that borrow extensively from other works. We undertake such thought-experiments because, as James Surowiecki puts it, “the effects of underuse created by too much ownership are often invisible. They’re mainly things that don’t happen.” Laws that constrain our expressive powers put us in the strange position of having to imagine the works—the unmade film, the unwritten novel or play—whose absence we deplore. It’s a little like mourning the unborn.

Neil Weinstock Netanel’s Copyright’s Paradox is studded with such counterfactual moments. Had Eliot’s The Waste Land been published under 2008 laws, Netanel postulates, the poem would likely have been held to infringe the copyright in its protected sources. If the recent “contributory infringement” ruling against peer-to-peer file-sharing software company Grokster had been in place twenty years ago, a wide range of new media and consumer electronics—devices that permit home taping or ripping, mixing, and burning—would never have made it to the mass market. And faced with a few examples of big media’s willingness to scuttle projects that might offend controlling shareholders or celebrity affiliates, Netanel writes, “One can only imagine the numerous other such instances that go unreported” (146).

Netanel is especially attuned to lost expressive opportunities because he approaches copyright primarily as a First Amendment issue. Whereas many books on copyright hew closely to the lexicon of property and monopoly, Netanel understands copyright as “an engine of free expression” (3). This is not just a whimsical change of emphasis. Our increasing tendency to view copyright as an absolute property form rather than as a delicate, renegotiable bundle of government grants, Netanel argues, is the root of the problem. In the name of that dominant view, the law constrains fresh expression more and more in favor of proprietary interests. Literary estates enjoy near-sovereign control over works that derive from their holdings; big media companies demand exorbitant royalties from artists who wish to make non-commercial or low-profile use of protected clips, images, and samples. Meanwhile, what Netanel calls copyright’s free speech “safety valves” (fair use, limited term length, and the convention that copyright may protect expression but not ideas) are in growing peril (6). The copyright engine needs a major tune-up, one that would shift the law away from the ossified property model and back to its constitutionally mandated goal of promoting “the Progress of Science and the useful Arts”—of promoting, that is, fresh knowledge, expression, and invention.

Copyright law’s compatibility with the First Amendment is anything but a given. In 1970, the legal scholar Melville Nimmer described the relationship between free speech and copyright as “a largely-ignored paradox.” He meant that the relevant clauses of the Constitution were so deeply antagonistic—one prohibiting Congress from limiting speech through law, the other empowering Congress to limit speech through law—that a person could not coherently advocate both free speech and copyright. Copyright’s Paradox puts Nimmer’s noun in its title without adopting his sense of legal impasse. Instead, it insists, a properly balanced copyright law can use its power to curb speech as a means of generating speech. By giving you some control over how your works are disseminated, quoted, and adapted, copyright burdens the speech of others, preventing them from making unlimited use of your words. At the same time, your having an incentive to speak afresh is a speech benefit for everyone. If you lack that incentive, you might withhold your speech, denying others the benefit of your ideas and expression. Yet if that incentive exceeds the minimum required to induce your speech, it restricts others’ speech...