What We Don't See 08/10/18 1 WHAT WE DON'T SEE WHEN WE SEE COPYRIGHT AS PROPERTY --JESSICA LITMAN * ABSTRACT It is becoming increasingly clear that the supposed copyright wars that copyright scholars believed we were fighting – nominally pitting the interests of authors and creators against the interests of readers and other members of the audience – were never really about that at all. Instead the real conflict has been between the publishers, record labels, movie studios, and other intermediaries who rose to market dominance in the 20th century, and the digital services and platforms that have become increasingly powerful copyright players in the 21 st . In this essay, I argue that it would make good sense for at least some of us to leave the fight between 20th century publishers and 21st century platforms to the many lawyers that represent both sides, and to focus on some of the issues that aren’t as likely to attract their attention. While copyright scholars have been writing about whether authors' interests or readers' interests should be paramount, we’ve missed the opportunity to look more closely at the issues that the copyright wars obscured. Here is one: For all of the rhetoric about the central place of authors in the copyright scheme, our copyright laws in fact give them little power and less money. Intermediaries own the copyrights, and are able to * John F Nickoll Professor of Law and Professor of Information, University of Michigan. This essay is adapted from the 13th Annual University of Cambridge Centre for Intellectual Property and Information Law International Intellectual Property Lecture, delivered at Emmanuel College on 13 March, 2018. I'm grateful to Jon Weinberg, Rebecca Giblin, Lionel Bentley, Gautam Hans, Pam Samuelson, Kirsten Carlson, and Laura Harlow for their extremely helpful comments and suggestions. I first learned about the Dawes Act from Judge Betty Binns Fletcher, when she was working on her en banc opinion in Blackfeet Tribe of Indians v. State of Montana, 729 F.2d 1192 (9th Cir. 1984), aff'd 471 US 759 (1985). I was lucky to clerk for Judge Fletcher that year, and her continuing encouragement and support was immensely helpful in my career as a legal scholar. Judge Fletcher died in 2012 at the age of 89, an active senior judge who was still carrying a full case load. According to the New York Times, she presided over a 9th Circuit hearing a week before her death. Douglas Martin, “Betty Binns Fletcher Dies at 89; Liberal Stalwart on the Bench”, New York Times, 24 October 2012, at https://www.nytimes.com/2012/10/25/us/betty-binns-fletcher-liberal-federal-judge-dies- at-89.html.
Transcript
WhatWeDon'tSee08/10/18
1
WHATWEDON'TSEEWHENWESEECOPYRIGHTASPROPERTY
--JESSICALITMAN*
ABSTRACTIt is becoming increasingly clear that the supposed copyright wars thatcopyrightscholarsbelievedwewerefighting–nominallypittingtheinterestsofauthorsandcreatorsagainsttheinterestsofreadersandothermembersoftheaudience–wereneverreallyaboutthatatall.Insteadtherealconflicthasbeen between the publishers, record labels, movie studios, and otherintermediarieswho rose tomarket dominance in the 20th century, and thedigital services and platforms that have become increasingly powerful
copyrightplayers inthe21st. Inthisessay, Iarguethat itwouldmakegoodsense for at least some of us to leave the fight between 20th centurypublishers and 21st century platforms to the many lawyers that representbothsides,andto focusonsomeof the issues thataren’tas likely toattracttheir attention.While copyright scholars have been writing about whetherauthors'interestsorreaders'interestsshouldbeparamount,we’vemissedtheopportunity to look more closely at the issues that the copyright warsobscured. Here is one: For all of the rhetoric about the central place ofauthors in the copyright scheme, our copyright laws in fact give them littlepower and less money. Intermediaries own the copyrights, and are able to
structurelicensessoastomaximizetheirownrevenuewhileshrinkingtheirpay-outs to authors. Copyright scholars have tended to treat this pointsuperficially, because—as lawyers—we take for granted that copyrightsare property; property rights are freely alienable; and the grantee of apropertyrightstandsintheshoesoftheoriginalholder.Icomparethe1710StatuteofAnne,whichcreatedstatutorycopyrightsandconsolidatedtheminthehandsofpublishersandprinters,withthe1887DawesAct,whichservedacrucial function in theAmericandivestmentof Indian land. Idraw fromthestories of the two laws the samemoral: Constituting something as a freelyalienable property right will almost always lead to results mirroring orexacerbating disparities in wealth and bargaining power. The legal dogmasurroundingpropertyrightsmakesiteasyforusnottonotice.
If you follow copyright law, it can't have escaped your attention that, in theUnitedStates,thecommunityofcopyrightlawscholarshasbeendeeplypolarizedforthepast25years.Someofusseeourselvesasadvocatesfortheundervaluedinterestsof readers and other users; others argue that we need to increase the copyrightprotectionwegivetoauthors. It'sgottena littleugly.1 We'vecalledoneanotherbadnames.2 Advocates for copyright owners have described scholars who defend therights of users as hired guns paid by Google towrite papers advancing its business 1 See,e.g.,TracyReilly,“CopyrightandaSynergisticSociety”(2017)18MinnesotaJournalofLaw,
Ibelieve(oratleastIhope)thatthatwholesorryeraisalmostover,orwillbeover as soon aswe forgive one another for all the nasty name-calling. As concretereformproposalshaveemergedfromthemuck,ithasbecomeapparentthatwhatwasbilled as a conflict between authors and userswas never about that at all. Instead,what's been going on is a fight to the death among intermediaries. The highlypublicized record label lawsuits against individual users of peer-to-peer file sharingapplications5turnouttohavebeenafeintinafighttoholdinternetserviceprovidersliable for the activity of their subscribers.6 Bitter complaints about online consumerpiracy7werelargelyapreludetoeffortsbymajorcopyrightownerstonarrowthesafeharbours for online services.8 Legacy intermediaries (by which I mean publishers,recordlabels,andmoviestudios)arefightingwithnew-fangledintermediaries(thatis,online service providers, platforms, and digital delivery businesses); what they are
reallyfightingaboutiswhogetstoeatthebiggestpieceofpie.9 Copyrightscholarscansafelyleavethemtoworkitoutwithoutourhelp.Ifthecore question in that dispute is whether the law ought to favour publishers overplatforms or vice versa, the answer is unlikely to significantly change the copyrightecosystem. Neithersidehasmuchofaclaimtothemoralhighground.10Theplayerson both sides are large,well-financed businesseswith lots of lawyers in harness, sothey don't particularly need the assistance of legal scholarship. That debate is lesscompelling from a theoretical or policy perspective than many other problems thecopyright system faces. If the distribution of goodies among old-fangled and new-fangledintermediarieswon'thavemuchimpactondecisionssurroundingthebalancethe lawshould strikeamongwritersandreaders,manyscholarswill lose interest inthis particular conflict. So, after we get our feet extracted from all the mud we'vethrownateachother,Iexpectthatthecommunityofcopyrightscholarswillmoveontomoreintriguingissues. In this essay, I hope to do two things. First, I'd like to focus attention on animportant issue that should have been central to our prior debates, but somehowwasn't: For all of the rhetoric about the central place of authors in the copyrightscheme,ourcopyright lawsinfactgivethemlittlepowerandlessmoney. Ifa legalregime purportedly designed for the benefit of authors systematically short-changesthem,whydoesthathappen,andwhatoptionsmightwehavetorespond?Copyrightscholars mention this problem often,11 but have only rarely given it sustained
I.DISEMPOWEREDAUTHORSLetmeacknowledgemypriors.21stcenturycopyrightlawisacomplexsystemwithabunchofinterlockingandsometimesinconsistentpurposes,butIbelievethatthemostimportantofthosepurposesarethese:First,copyrightlawshouldencourageauthorsto create and widely disseminate works of authorship; second, it should give themmeaningful opportunities to earn money from doing so; and, third, copyright lawshouldencouragereaders,listeners,viewers,andotheruserstoencounter,enjoy,andlearn from those works of authorship.12 There are other purposes, but they'resubsidiary. To hijack a turn of phrase popularized by Amazon.com's vice presidentRussGrandinetti,theonlyessentialplayersinthecopyrightsystemaretheauthorandtheaudience.13 Of course, the copyright system needs intermediaries to convey theworks ofauthorshiptotheiraudiencesandtochanneltherevenuesflowingfromtheenjoymentof those works back to authors, but we can, and I think should, be agnostic as towhether the lawshould favouranyof the competing intermediariesover theothers.The most important consideration is how well they accomplish their tasks ofdisseminatingworkstoaudiencesandpayingmoneytoauthors.14
So,let'slookathowthey'redoingatthosetasks.Howwellisthecurrentglobalcopyright systemworking out for authors and for readers? I've spentmuch ofmycareer arguing that the copyright interests of readers and other consumers arereceiving too little attention.15 The problems the copyright law poses for readershaven'tevaporated.Foronething,atleastintheUnitedStates,readersarepayingforaccesstotheworkstheyencounterbygivingupmassivechunksofpersonalprivacy.16US policymakers are beginning to appreciate the risks of that approach, but it mayalready be too late to mend them. For another, many copyright owners havesucceeded,at leastso far, in theirefforts tonullify the legal rights that thecopyrightlawgivestousers,bypurportingtobindconsumerstooverreachingenduserlicenseagreements.17I'mconcernedthatthatwillendupseverelyunderminingthecopyrightsysteminthelongterm.Still,evenwiththoseproblems,totheextentthatonegoalofcopyrightistogivemembersofthepublicmanyopportunitiestoenjoyalargevarietyofdifferentworks,indifferentformatsandatdifferentpricepoints,thecurrentsystemisfabulouslysuccessful. Thesituationforauthors,ontheotherhand,ismoredepressing.Thecopyrightsystem, in truth, has never been very good at either giving authors their choice ofmyriad channels fordistributing theirworks to thepublic, or enabling them to earnmeaningful amounts of money from doing so.18 If an author's goals are tocommunicateherworkstotheirbestaudienceandtoearnan incomefromdoingso,herchoicesendupbeingnarrowlylimited.Evenifshesucceedsindisseminatingher
workthroughthemostsuitablechannel,sheneedstoacceptthattheintermediarywhooperates thatchannelwill likelybothcontrol thedistributionofherworksandkeepmostofthemoneythoseworksearn.19 In the 18th, 19th, and 20th centuries, this bargain probably seemed prettyreasonable. Paper was expensive.20 Mass distribution required paper, along withprintingpresses,bookstores,warehouses, trucks,moviecamerasandmovietheatres,broadcast towers and communications satellites – required, in other words, asignificant capital investment.21 Itmade sense in that context to expect that as therevenuesfromworksofauthorshipflowedfromuserstoauthors,mostofthemoneywouldbedivertedalong theway topay forexpensive reproductionanddistributionsolutions. Inthe21stcentury,thatexplanationdoesn'tseemsoreasonable.Atleastsomepopular reproductionanddistributionalternativesaremuchlessexpensivethantheolder sorts.22 Digital reproduction, digital downloads, and online streaming can bedownrightcheap–thefactthatanyonecanaffordtodoitissaidtobeaprimarydriverofincreasingconsumerpiracy.23Byallaccounts,moreover,themoneyattributabletothe distribution and enjoyment of works of authorship is at an all-time high.24 Yet 19SeeLitman,“RealCopyrightReform”,pp.8-12.20SeeMichaelA.Carroll,“WhoseMusicisitAnyway?HowWeCametoViewMusicalExpressionasa
usedto,thereareotherfactorsatwork. Thisisacomplicatedproblemwithmultiplecauses,butoneofthecausesisthatmanyof the intermediaries inourstoryhaverecently figuredoutwaystoearnmorebut pay authors less. I alluded earlier to the conflict between old-fangled and new-fangled intermediaries. The legacy intermediaries seem to be incensed that serviceproviders and platforms are collecting a large share of the revenues earned bycopyrightedworks.They'veinventedacatchphrase,the“valuegap,”todescribetheircomplaint, which is that the new-fangled intermediaries have too much bargainingpowerandareabletousethatbargainingpowertonegotiatelowerlicensefeesthanthelegacyintermediariesbelievethattheyshouldpay.33Publishers,recordlabels,andmotionpicturestudiosarguethatlawmakersshouldchangethelawtotilttheplayingfieldintheirfavour,sothattheycanbargainforhigherfees.34Meanwhile,though,theyare making up for what they believe are pitifully inadequate licensing fees by
structuring the licensing deals to minimize their own obligation to pay royalties tocreators.35 If Spotify or YouTube pays copyright owners for the use of music, forexample,bygivingmusicpublishersandrecordlabelsanequitystakeinthecompany,orbypayinganannualup-frontblanket license fee,noneof thatmoneyneeds tobepassedontocomposersormusicians.36 Inasimilarvein,publishershavereinterpretedextantcontractsandredraftednew contracts to reduce the royalty rates for digital distribution of the works theycontrol.Instandard20thcenturybookandmusicpublishingandrecordingcontracts,authorswerepaidasmallpercentageofrevenueforthemanufactureanddistributionof hard copies and a larger share of the income from licensing thework to anotherbusiness.37Thatmadesense;thesmallerroyaltyforhardcopiesreflectedtheexpenseof manufacturing and distributing the copies, neither of which were implicated bylicensingdeals.WhenpublishersandrecordlabelslicensedworkstomusicandeBookdistributionservicestoenabletheservicestomaketheworksavailableforpaiddigitaldownloads, though, they insisted that they need only pay the lower royalty rate
designatedforthesaleofhardcopies,andthat'stheratethattheypaid.38 Ononelevel,noneofthisshouldsurpriseus.Ofcourse,thepeoplewhocontrolthetermsandconditionsofusewillstructurethosetermsandconditionsinwaysthatbest advance their own interests. What I find notable is how little attention theserecentmoveshaveattractedfromlegalscholars.Indeed,eventhoughwearealllikelyawareofthesedevelopments(becauseweliveintheworld),ifyoureadmostofwhatAmericancopyrightscholarshavewrittenaboutcopyrightrevision,you'dconcludewedon't think that these developments shouldworry us asmuch as other problems.39European scholars have recently paid somewhatmore attention to this collection ofissuesaspartofacontentiousefforttorevisetheEuropeanDirectiveonCopyrightinthe Digital Single Market,40 and their reports have been dismaying. Real-world
39Thisassertion is controversial. Indeed, somescholarswill find itoffensive. Everyonewhowrites
copyright scholarship views her work as pro-creator and pro-creativity, and believes that herproposals will improve the way the system works for the ultimate benefit of creators, howeverdefined.I'mnotsuggestingthatscholarshavenotcaredaboutcreators,orhavefailedtoproduceproposals designed to benefit them. I'm urging, rather, that our scholarship has paid too littleattention thepractical obstaclesmany creators face in taking advantageof the rights conferredbycopyright law on copyright owners. Almost all of us (and I don't excludemyself) have failed toexaminethewaysthatrecentcopyrightpracticesandproposalsgivecreatorseven lessmoneyandcontrolthanpastpracticesandproposals.Totheextentthatwehaveanimperfectunderstandingofthemechanicsofthecopyrightsysteminpractice,ourideasforfixingitarelikelytofallshort.
creators encounter significant obstacles to enjoying the rights and receiving thecompensationthatthelawintheoryaffordsthem.41Yetproposedsolutionsseembothmodestandunlikelytoeffectsignificantimprovement.42Meanwhile,eventhosesmallcorrectivesseemasiftheywouldbeunthinkableadditionstocurrentAmericaneffortsatcopyrightreform. Ifallofuscanseetheseissues,atleastinbroadoutline,andifatleastsomeofus believe that these problems undermine the value and legitimacy of the copyrightsystem,whyhavewenotcomeupwithbettersuggestionsforaddressingit? One possibility is that many of us have concluded that it's hopeless: theproblem seems insoluble. Copyright intermediaries have toomany opportunities totakeadvantageofcreatorsandtoofewreasonstorefrainfromexploitingthem.Overthepastthreehundredyears,copyrightlawshaveincorporatedavarietyofprovisionsintendedtoprotectcreatorsfromoverreachingintermediaries;noneofthemhasbeenparticularlyeffective.IntheUnitedStates,ourcopyrighthistoryisteemingwithcourtdecisionsthatguttedstatutorysafeguardsforauthors'rights. AlthoughUS copyright lawhas always required that transfers of copyrightbemadeonlybyasignedwriting,43nineteenthcenturypublisherspersuadedcourtsthatthat prerequisite did not limit their ability to secure ownership of the copyrights inworks thathadnotyetbeenpublishedandregistered.44Thecopyrightrenewal termwasintendedtoenableanauthorwhohadassignedhercopyrightinthefirsttermto
renegotiate the terms of any licenses or assignments.45 In 1943, however, musicpublisherM.Witmark&SonspersuadedadividedSupremeCourtthatanassignmentoftherenewaltermduringtheinitialtermwasenforceableagainsttheauthor.46Inthe1976CopyrightAct,Congressreplaced therenewal termwithan inalienableright toterminateanyassignment,grant,orlicense,andprovidedexpresslythatanauthorwasentitled to terminate “notwithstanding any agreement to the contrary.”47 TheHouseReportexplainedthat, incontrasttotheownershipoftherenewalterm,“therighttotakethisactioncannotbewaivedinadvanceorcontractedaway.”48Yet,assigneesofcopyright have devised strategies for undermining the supposed inalienabletermination right, and have largely succeeded in persuading courts of theireffectiveness.49 Thus, authors' ability to recapture copyright rights has, in practice, 45H.R.Rep.No.2222,60thCong.14(1909).SeeJamesJ.Guinan,Jr.,“DurationofCopyright:StudyNo.
beennarrowlylimited.50 Also in the 1976 Act, Congress narrowed the circumstances under which anindependent contractor's work could be deemed a work made for hire, legallyauthoredbythecreator'semployer.Underthecurrentcopyrightact,workscreatedbyemployees are works made for hire. Works created by independent contractors,however, canbeworksmade forhireonly if the creator signs aworkmade forhirecontract.51 That hasn't prevented courts from concluding that works created byindividualswhoarenottreatedasemployeesforthepurposesoflabourandtaxlawsshouldnonethelessbedeemedtobeemployee-createdworksmadeforhire,52orthatworkscreatedbyindependentcontractorswhohavenotsignedaworkmadeforhireagreementshouldbeconsideredtohavebeenauthoredbytheentitythatpaidfortheircreation, because that entity's decision-making authority made it the “dominantauthor”ofthework.53 Evenwhenthecourtsconstruethestatute inauthors' favour,moreover, those
interpretationshavelittlepracticaleffectonauthors'opportunitiestocontrolorearnmoneyfromtheirworks.In1993,freelancejournalistsfiledsuitagainsttheNewYorkTimes,claimingthattheTimes'licensingoftheircontributionstoelectronicandonlinedatabases infringed their reproduction,distribution, andpublicdisplay rights. TheirinitialpermissiontotheTimestoprinttheirarticlesinitsnewspaper,theyinsisted,didnotallowtheTimestoresellthosearticlestoelectronicdatabaseservices.TheTimesarguedthataprivilege in thestatutepermitting thepublisherofacollectiveworktoreprint contributions to the collectivework only as “part of the collectivework, anyrevision of that collective work, or any later collective work in the same series,”54authorizedittolicensefullissuesofitsnewspapertodigitalpublishers.Thetrialcourtagreed.55In2001,theUnitedStatesSupremeCourtconcludedthatthepurposeofthestatutory privilege was to protect authors' abilities to license their works to otherpublishers,whileenablingthepublisherof the initialcollectiveworktoprintrevisededitions without again securing permission from every contributor. That purposewould be frustrated if the publishers could license the individual contributions toelectronicdatabases.56 InresponsetotheSupremeCourt'sruling,theNewYorkTimesannouncedthatrather thancompensating27,000 freelanceauthors for theunauthorized licensingoftheirworkstodigitaldatabases,itwouldinsteadpermitindividualauthorstorequestthat the Times continue to make all their works digitally available, without anyadditionalpayment,on thecondition that theauthors releaseall legal claimsagainsttheTimes and its database licensees. Otherwise, the newspaperwould purge all ofthose freelancers' contributions from its database.57 Further, in response to the 5417USC§201(c).55TasinivNYTimes,972F.Supp.804(SDNY2007),rev'd206F.3d161(2dCir.2000),aff'd533US483
lawsuit,theNewYorkTimesandotherlargepublishersinsisted,goingforward,thatallfreelance journalists sign work made for hire or all rights contracts authorizingpublishers to exploit theworks in future aswell as existingmedia for no additionalpayment.58AsMaureenO'Rourkenoted, “Although theholding in thecaseostensiblygave freelancers a bargaining chip, a lack of bargaining power precludes theirobtainingadditionalconsiderationforlicensingtheirjudiciallyvindicatedrights.”59 NorhaveauthorsoutsideoftheUnitedStatesfaredsignificantlybetter.RecentstudiesoftheeffectivenessofcopyrightlawreformsintheEUdesignedtoimprovethelotof creatorshave concluded that the reformsenacted so farhavebeen ineffective,primarilybecauseauthorslackthebargainingpowertotakeadvantageofthem.60 Toooften,copyrightscholars'workneglectsquestionsofmoney.Evenwhenwefocusonauthors'compensation,wedon'talwayspayattentiontowhetherthemoneyactuallymakes itsway intocreators'pockets. Recently,we'vebeenaskingcollectingsocietiestodothehardworkofmanagingremunerationformanysmall-changeuses.61We've learned thatcollectingmoney iseasy,but figuringouthowtodivide itamongworthyclaimantsisreallyhard.62Thestatutory,regulatory,andcontractualprovisions
that authorize collective licensing call for the revenues to be distributed to creatorsandotherrightsholders,butthemechanismsthatweusefordecidinghowtoallocateandpaythemareatbestimperfect63andoftendeeplyflawed.64Collectingsocietiesarethemselves intermediaries who will seek to protect their own positions in thecopyright food chain.65We know that there are some collecting entities that pay atleastashareoftheirreceiptsdirectlytocreators. Thereareotherswhopayowners,andrelyon theowners topass thecreators' shareon.Othersdoleout themoney toorganizations that represent creators and task those organizationswith figuring outwhether and how to distribute the funds to their members. Still others hold themoneyinaninterest-bearingaccountuntilprospectiveclaimantscanagreewitheachother on who receives what share, and divide the money up according to theiragreement.Therearestillotherswhodon'tdisbursetheroyaltiesatall–theyusethemoneytopayadministrativecostsandfundgoodworks.66 Most legal scholars don't spend much attention examining this problem, ortryingtoascertainwhatmechanismsdifferentcollectingentitiesusefordecidinghowtodisbursethemoneytheycollect.It'sasif,oncewe'veprovidedthatconsumersandusersmustbuyaticketinordertoenjoyacopyrightedwork,we'redone.Theremaybe somepolicy justification for charging feesasapurelyexpressiveexercise, so thatuserswillunderstandthatenjoymentofacopyrightedworkhascommercialvalue.It's
wasteful, in the sense that some members of an author's audience will missencounteringtheworkbecausetheycan'taffordordon'twanttopaytheticketprice,butwemaymakethatchoicenonethelesstosendthemessagethatenjoyingworksofauthorshipshouldnotbefree.67Ifthat'swhywe'redoingit,though,weshouldsayso.If,ontheotherhand,ourpurportedreasonforlevyingthechargeistoputmoneyintocreators'pockets, itmightbeagood idea to look toseehowmuchof itactuallygetsthere. AtleastintheUnitedStates,thatquestionhasn'tbeenthefocusofmuchlegalscholarship.68 Some copyright scholars have begun to ask the question whether and whencreators respond to the rewards promised by copyright, and to try to harness theinsightsofdisciplinesotherthanthelaw–economics,psychology,neurology,history–toseewhetheritmightbepossibletocomeupwithanswers.69It'sdifficult,though,toevaluatewhether the answers to that question have real-world significancewithoutknowingwhether and underwhat circumstances creatorswill actually collect those
rewards. If I'm right that most of us have given up on close scrutiny of authorcompensationbecausewesuspectthatit'sahopelessinquiry,thismaybeagoodtimetore-examinethatimpulse.That,however,wouldrequireustoconfrontthequestionswe no longer ask and the features of the copyright system that we seldom notice,becausewe'vegrowninuredtothewaysthatthecopyrightsystemfailstodeliveronthepromisesofcopyrighttheory.
II.COPYRIGHTANDPROPERTYIntherestofthisEssay,I'llarguethatonereasonwetalklessthanweshouldabouthowthecopyrightsystemcommonlyfailstorewardcreatorsisthatourassumptionsabout legal property rights distort our perceptions of the way the copyright lawsoperate.Copyrightexpertstakealotforgrantedaboutthewaythecopyrightsystemworks and is supposed towork. Copyright is aproperty right. We're lawyers. Thelegalcharacteristicsofpropertyrightsarebasicbuildingblocksofourlegaleducation. One element of legal property rights is control, andmost of the debates overtreatingcopyrightasa formofpropertyhave focusedon thecontrol thatapropertyowner is able or should be able to exercise.70 Control is an important aspect ofproperty,butitisn'ttheonlyoreventhemostimportantaspect.Afterall,wehavelotsofdifferentwaystogiveanindividuallegalcontroloversomethingwithoutgivingherapropertyright. What makes property rights special is that they are alienable.71 Treatingsomethingaspropertymakesiteasiertosell.Wedefinearightasapropertyrighttoencourageitstransfer.72 Thisintrinsicfeatureof legalpropertyissomethingthatit'seasy for lawyers to take for granted.Whatmakes it possible for publishers, recordlabels,andother intermediaries tobehave theway they'vebeenbehaving is that thepowers conferred by a copyright belong to the copyright owner rather than the 70See,e.g.,LawrenceLessig,FreeCulture(NewYork2004),83-173;Patry,MoralPanicsandthe
author.73Thatstrikesnon-lawyersasodd,butit'ssecondnaturetous.Ourcopyrightsystem empowers publishers and record labels to structure licensing deals for theirown benefit, since they own the copyrights, and set the terms and conditions forcopyrightlicenses. Becausewe'relawyers,weknowthatthegranteeofapropertyrightstandsinthe shoes of the grantor and is entitled to exercise the powers embodied in thepropertyright. Weassumethattheoriginalpropertyownerhashadtheopportunityto extract compensation for the value of the right, because that's just how propertyrights work. Indeed, copyright lawyers and scholars sometimes use the words“author”and“copyrightowner” interchangeably, treating themassynonyms.74 Afterall, the author is the initial copyright owner, and the person towhom she transfersthoserightsisentitledtostepintohershoes.Formostpurposes,intheeyesofthelaw,theowneristheauthor.75 We could take a more nuanced look at how legal copyright property rightsactuallybehaveintheworld.Weshouldexamineourviewoflegalpropertytoidentifythethingsthatourassumptionsmaypreventusfromseeing.
Unfortunately,thenewlandalreadyhadoccupantswhohadlivedonthatlandforcenturies.TheEuropeansettlersmovedinanyway.Sometimes,itwaspossiblefortheEuropeansandtheindigenoustribestocoexist,atleastinitially;inothersituations,though, the indigenous Indian tribes occupied area that the Europeans wanted tocontrol.77 The Indiansweren'twhite,weren't Christian, andweren't farmers. Theyweren't using the land for what the Europeans believed to be the best and highestpurpose.78SomeoftheEuropeansettlementsfeltlittlecompunctionaboutseizingthelandfromitsoccupants.Violenceensued.79 Eventually,afterenoughpeoplehadbeenkilledandenoughpropertyhadbeendamaged,thesettlementsandthetribesreachedagreements,dividingupthedisputedterritorybetweenthem.80Thoseagreements,though,turnedouttobeunstable. TheEuropean-Americanskeptseekingtoexpandtheir territory. Overthenext200orsoyears, they used money, persuasion, threats, citizen violence, and military force toconvince or compel Indian tribes to relocate westward to more remote and lessdesirable land.81 Along theway,more violence ensued.82 TheAmerican armywasbusyconductingoneoranotherwarwithIndiantribesformostofthe19thcentury.83 77Seegenerally,e.g.,NellJessupNewton,(ed.),Cohen'sHandbookofFederalIndianLaw:2005edition
AmericancourtsconcludedthatIndianshadanenforceablelegalrighttooccupytriballand,butthattheydidn'tactuallyownit.84TheUnitedStatesfederalgovernmentcameunderimmensepressuretoopenIndianlandforsettlementbywhiteEuropean-Americans.85Ittriedtousethetoolsatitsdisposal(moneyandsoldiers)tomovethetribesoutofthewayofwhitehomesteaders.Indiantribeswhohadagreedtoresettlewest of the Mississippi river, only to be asked to move again, were increasinglyreluctant to consent to be uprooted.86 Besides, the government was running out ofsurplusland.87Yetmoreviolencefollowed.88 WhiteAmericansresentedthetribes'controlof landthattheybelievedshouldby rights be available to them. They pursued a variety of devices, many of themunlawful,towrestcontrolofthelandfromthetribes.89 Whatendedupdoingthetrickwasaseriesofstatutesofwhichthemostfamouswas the Dawes Act, also known as the General Allotment Act of 1887.90 Instead oftaking the land away from the tribes, the Dawes Act gave title to the tribal land toindividual Indians. The Act divided the vast tracts of territory controlled by Indiantribesintomany160-acreplots,andawardedeachplottoanindividualIndianheadofhousehold,intrustforashortperiodandtheninfeesimple.Duringthetrustperiod,
theIndianownerswerepermittedtoleasetheplottowhiteAmericans.Afterthetrustperiod expired, the Indian household that owned the landwas free to sell it to anybuyer. Anyunallocatedplotsweredeemed“surplus land,”andwerepurchasedfromthetribebythefederalgovernmentandmadeavailableforsaletonon-Indians.Atthetime, I'm sure that some of the supporters of the law believed it would empowerindividual Indians to vest themwith ownership of a plot of land; other supporters,though,hadmorecynicalmotives.Inanyevent,totheextentthatonepurposeofthestatuteswas to encourage the transferof land from Indian tribes towhiteAmericancitizens,itwasastunningsuccess. Veryquickly,themajorityofthelandoccupiedbyIndian tribes passed out of Indian hands through sales to non-Indians. Thewinnerswerewhitesettlersandlandspeculators;theIndiansendedupbothimpoverishedandoftendisplaced.91 Iwanttodrawacoupleofparallelsfromthatstorytoastatutethatcopyrightlawyersaremorefamiliarwith. Thisstorystartsataboutthesametime. Inthe16thand 17th centuries, the members of the Stationers' Company had a monopoly onpublishing,augmentedbyanakedhorizontalrestraintoftradeamongthemembers.92Aftermorethanacenturycontrollingthebusinessofpublishing,theStationerssurelyfeltentitledtocontinuetoexercisethatcontrol.Theyhad,afterall,investedsignificantmoneyandeffortsintoprintingandsellingtheirtexts.WhenParliamentdeclinedtore-enactthelicensingactthatgavethemembersoftheStationerscompanytheirprintingmonopoly,theStationersengagedinstrenuouslobbyingtopersuadethegovernmenttorestoreit.93 I don't want to simplify the complex set of considerations that went into
enacting the Statute of Anne,94 or to minimize the provisions included for theprotection of universities, readers and consumers,95 or to suggest that some of thelaw's supporters didn't believe that it would empower authors. Whatever theintention,thelawendedupworkingoutprettywellforthemembersoftheStationers'company. Byestablishinganassignablepropertyright forauthorsandtheirassigns,the law encouraged authors to convey their copyrights to printers and publishers(who,afterall,werethefolkswiththeprintingpresses),wheretheyhavestayedprettymuchforthenext300years.96 Therestof theworldfollowedthatmodel.97 Inalmosteverycountry,authorsreceivecopyrightprotectionasaninitialmatter,butthosecopyrightsaretransferredto and then owned and controlled by publishers and other intermediaries.98 In theUnited States, where capitalism is both our economic system and our dominantreligion, courts were especially eager to conclude that authors had conveyed theircopyrightstopublishers,evenintheabsenceofanyevidence,andthatinclinationhaspersisted.99 When it didn't work to simply presume that the copyright had beentransferred,ourcourtsinventedtheworkmadeforhiredoctrineoutofwholecloth.100
Themoralofbothofthesestories isthatdeemingaresourcetobeapropertyright is often an extremely effectiveway to gain control of that resource, especiallywhenyoudon'thavecontrolof itattheoutset. Whenthe lawtransformssomethingthatwas not formerly property into a property right, the accompanying alienabilitywill cause control of it to flow to thosewith themost bargaining power. If you arelookingtogetyourhandsonsomearablelandortoregainyourcontroloftheprintingoftexts,creatingnewpropertyrightsturnsouttobeanexcellentstrategy.Sometimestheoriginal recipientof thepropertybenefits,butnotalways. Sometimes theworldimprovesasaresult;othertimesitdoesn't.
IV.THEWAGESOFPROPERTYRIGHTSSo, here's theupshot: Immense sumsofmoney slosh through the current copyrightsystem, but only a tiny share of thatmoney ends up in authors' pockets. By someaccounts,thatsharehasbeendecreasing.Weallknowthat,because,asIsaid,welivein theworld and see the evidence all around us, butwe have tended to overlook itwhenwe talk about copyright law reform.Over thepast 300years,we've expandedand extended copyright repeatedly, and larded the law up with new licenses andpaymentobligations.101 We've failed,however, topayenoughattentiontohow–orwhether– the intermediaries taskedwithdistributingtherevenuesactuallydisbursethem.Wedon'tlookinsidetheblackboxsurroundingtheauthor'sconveyanceofherrightstoanewowner.Becauseweunderstandhowpropertyrightswork,wetrustandassume that the profits flowing from copyright expansion redound to the benefit ofauthors. But, becausewe live in theworld,we know, or should know, that often theydon't.Ifwebelievethatthat'saproblem(andIhappento),wewon'tbeabletofigureouthow to fix itwithout a careful examinationofwhat is inside theblackbox.Thatmeansaskingsomequestionsthatwearen’tinthehabitofasking,andthatcopyrightownersarenotinthehabitofanswering.102 (Letmesay,parenthetically,thatifwedecidethatitisn'taproblemthatauthorsreceivesosmallashareoftheproceedsfromtheirworks,thefussaboutthesocalled“valuegap”makesevenlesssense.Ifwebelievethateconomicsandpolicysupportthe 101See,e.g.,NeilWeinstockNetanel,Copyright'sParadox(Oxford2008),54-80.102Idon'tmeantominimizethepracticaldifficultiesposedbyintermediaries'insistencethatcontract
conclusion that authors' teeny-weenypercentageof thevast sumsgeneratedby theenjoymentofworksofentertainmentandinformationistherightamounttopaythem,it'shardtoseeanyjustificationforinterferinginthenegotiationsamongcommercialdistributors to dictate which of them gets the largest share of the very substantialremainder.) Iftheproblemisworthaddressing,though,weshouldhavelearnedbynowthatit isn't a useful solution to throwmoremoney and control at copyright owners andtrustthat,thistime,theywillsharealargerpartofitwithauthors. IwanttoemphasizethenarrowlimitsoftheargumentthatI'mmaking.I'mnotarguingthatthealienabilityofcopyrights is itself theproblem,northatIbelievethatwecouldsolve it simplyby limitingcopyright transfersormakingrights inalienable.After all, consider Germany. Germany treats copyrights as inalienable, at leastformally,103butGermanauthorsdon'tappeartoenjoysignificantfinancialadvantagesoverauthorsfromothercountries.104Ithinktherolethatthealienabilityofpropertyrightsplaysinmyargumentistwofold.First,wheneverwehavesignificantdisparitiesinwealthandbargainingpower,thedistributionoffreelyalienablepropertyrightsisalmostalwaysgoingtomirrorandwilloftenexacerbatethosedisparities.Second,thelegal dogma surrounding property rights,which, as lawyers,we've inhaled sincewewerestudents,cankeepusfromappreciatingthosedisparities.Wedon'tpayenoughattentiontotheuseofalienablepropertyrightsasadevicetoallowpowerfulactorstoappropriatevaluableitemsinthecontroloflesspowerfulactors.
V.SEEINGWHATWEDON'TSEE
Istheproblemindeedasintractableatitsometimesseems,oristheresomethingwecoulddotoaddressit? Copyrightinthe21stcenturyisabyzantinelegalecosystem.Ibelievethattherewouldberealvalueinourexploringthatecosystem,carefullyandfromtheinside, inorder to understand the reasons that it has persistently given creators short shrift.Thatwouldinvolveourtakingapainstakinglookatthewaythatauthorsandcopyright 103SeeGermanCopyrightAct§§29,31.104See,e.g.,MartinKretschmer&PhilipHardwick,Authors'EarningsfromCopyrightandNon-
ownersstructuretheir interactions, to figureoutwhere, ifanywhere,an interventionmightbeeffective. Idon'thaveaneasysolutiontopropose.It'spossible,butunlikely,thatwecouldtweakcopyrightownershiplaworrevisecopyrightlicensingrulesinwaysthatcouldsignificantlyimprovetheworldforatleastsomeauthors.105Throwingmorecopyrightrights at copyrightowners106 isunlikely to trickledown to creators – at leastunlessanduntilweunderstandmoreofthedynamicthatresultsintheirgettingsuchasmallshare of the proceeds from their creations. Adjusting the law to enhance thebargainingpower of publishers overplatformsor platformsoverpublishers107 isn'tcalculated tomake life better for creators. I don't seemuch promise in any of thepending statutory or treaty proposals currently on the table. It may be that thoseproposalsaretheonlyproposalsthathaveanypracticalchanceofadoption,preciselybecauseReedElsevier,Vivendi,Disney,orGooglewon'tcountenanceanynewlawortreaty that leaves themnobetteroff than thecurrent law. Copyright intermediarieshave enoughpolitical power to insist onwateringdown reformproposalsuntil theywillbeoflittleactualusetocreators,andhaverecentlyexercisedthatpowertorevise
legislativeandtreatyproposals in their favour.108 Over thepast twentyyears,we'veseenseveralunsuccessful efforts to reformnationaland international copyright law-makingprocesses toweaken the influencewieldedbypowerful copyrightplayers.109Suchefforts faceobstacles thatseeminsurmountable. The firmholdthatcopyrightintermediaries have on national and international law-making processes, and theircurrentpreoccupationwithmarshallingallavailableresourcestovanquisheachother,suggestthatrealisticopportunitiesforauthor-empoweringcopyrightreformsmaybescant. Isuspectthatwemayendupconcludingthatthemorepromisingproposalsareonlytangentiallyrelatedtocopyrightlaw.Manycreatorslackthebargainingpowertoexercise the rights theoretically afforded to them by current law.110 If the pivotalproblem is a lackofbargainingpower, though,neworenhancedproperty rightsareunlikelytosolveit.Itisjustremotelypossiblethatwemightmakemoreheadwaybyattackingtheproblemfromtheotherend.Theremaybeinterventionstoaddressthebargaining power deficitmore directly. Catherine Fisk has argued that encouragingauthorstoengage incollectivebargainingmaybethemostpracticalsolution,even ifthepriceofthatbargainingwouldbethelossofcopyrightownership.111Icanimaginerequiringthecollectingentitiesthatdon'tcurrentlypaythecreators'shareofroyaltiesdirectlytocreatorstodosofromnowon.112 Somescholarshavesuggestedthatself-publishing over the Internet may allow creators to compete directly withintermediaries and to collect a larger share of the proceeds from theirworks.113My 108See,e.g.,RebeccaGiblin,“ShouldItBeCopyright'sRoletoFillHouseswithBooks?”inSusyFrankel
colleague Jeremy Peters has suggested that we could get a lot of mileage fromencouragingorrequiringcopyrightownerstoadoptgenerallyrecognizedaccountingstandards,alongwithmandated,publicly-availableannualaudits.Isuspectwemightget somewhere by imposing labelling rules that required purveyors of copies of oraccesstocopyrightedworkstodisclosethepercentageofthepurchasepricethatwillbe paid directly to creators of the work.114 It might be useful to set up and fundgovernmentornon-profitorganizationstaskedwitheducatingandsupportingcreatorsin appreciating and enforcing their current legal rights against the entities towhichthey’vetransferredtheircopyrights.115 None of these approaches comes from the copyright scholar's usual toolbox.There'svalue, though, inexploringthecopyrightsystemfromunaccustomedvantagepoints.Ifnothingelse,itcanhelpustoappreciatewhatwetendnottoseeandwhywedon'tseeit.
