Escape from Copyright: Market Success vs. Statutory Failure in the Protection of Expressive Works

Note: This HTML version faithfully reproduces the text of published print version but for footnote 202, p. 781, and Table 1, p. 783, both of which this version offers in amended form. This HTML version also differs from the print version by adding an abstract and various non-substantive edits that faciliate online access. Notation such as "[p. 742/p. 743]" indicates the print version's pagination.

Abstract

I. INTRODUCTION


II. THE COPYRIGHT TRAP

     A. The Alarming Combination of Copyright, Common Law, and Technology

     B. The False Choice Between Copyright with or without Common Law

     C. Commentary Consciously Rejecting the Exit Option


III. WHEN COPYRIGHT CONSTITUTES UNJUST IMPRISONMENT
     A. Copyright: A Response to Market Failure

     B. The Natural Copyright Argument

          1. Irrelevance of the Natural Rights Argument

          2. The Unnatural Origins of Copyright

               a. Original Meaning via State Copyright Acts

               b. Original Meaning via Madison on Copyright

     C. The Public Discourse Argument

     D. The Unconstitutionality of Forced Access

     E. The Statutory Failure of the Copyright Act

          1. Copyright's Indelicate Imbalance

          2. A Public Choice Tragedy


IV. EXITING COPYRIGHT GRACEFULLY

     A. Election of Remedies

     B. Copyright Abandonment

     C. Copyright Suspension

     D. Toward an Open Copyright System


V. CONCLUSION: THE PACKET-SWITCHED SOCIETY

Escape from Copyright: Market Success vs. Statutory Failure in the Protection of Expressive Works

by
Tom W. Bell[n*]

I. INTRODUCTION

Copyright law,[n1] originally excused as a necessary evil, now threatens to become an inescapable burden. It arose as a response to market failure.[n2] Because the Founders regarded state and common law rights [p. 742/p. 743] as inadequate "[t]o promote the Progress of Science and useful Arts,"[n3] they gave explicit constitutional authority to federal legislation "securing for limited Times to Authors . . . the exclusive Right to their . . . Writings."[n4] Lawmakers have read that mandate liberally. Each new version of the Copyright Act[n5] has awarded longer, broader, and more [p. 743/p. 744] powerful legal protection[n6] to expressive works.[n7] At the same time, private parties have developed increasingly effective means of protecting copyrights by combining their common law property, contract, and tort rights with technological self-help tools.[n8] Alarmed that these dual trends benefit copyright owners at too great an expense to the public interest, many commentators have argued that the Copyright Act, or perhaps even the Constitution, should limit and preempt the private protection of expressive works.[n9] But to so favor statutory law over private protections puts the matter exactly backwards. Courts should instead allow owners of expressive works to escape from copyright.

Insofar as common law and self-help technologies unite to secure exclusive rights in expressive works, they overcome the market failure that justifies the Copyright Act. All else being equal, therefore, such private protections ought to trump statutory ones. Commentators who embrace the contrary view, one that would trap us within the confines of the Copyright Act, do so because they fear the power of statutory and private rights in combination. Their fear may engender our sympathy, but it does not necessitate the response. There remains a third option--one that has only just begun to attract scholarly attention--of abandoning copyright's legislative protections and relying once more on common law's.[n10]

This paper explores the theory and practice of opening such an exit from copyright to common law. The fundamental idea, in very brief: If copyright and common law prove too powerful in combination, copyright owners should have the right to choose between these two means of protecting expressive works.[n11] The escape route, in other [p. 744/p. 745] words, opens a new way out of preemption and other federal limits on private rights.[n12] If we regard a license as invalid in whole or part on grounds that it secures rights disallowed under copyright law, for instance, we ought to give the licensor a choice between: 1) abandoning suspect terms of the license and falling back on copyright protection; or 2) abandoning copyright and relying on contract law to secure the interests in question. A parallel argument applies to private protections that combine property or tort rights with technological self-help tools developed to safeguard--and, given that technological innovation itself relies on property, contract, and tort law, developed thanks to--common law rights.[n13] If for instance we regard as excessive, when combined with copyright law, the technological protections that a company develops, owns, and protects from trespass and tortious interference, we ought to give that company a choice between: 1) limiting the effect of those non-statutory protections and exploiting the Copyright Act's; or 2) abandoning copyright and relying on technological tools and the common law rights affiliated with them.

Letting copyright owners rely solely on their common law rights, both as defended by and used in defense of technological self-help tools, might sound like a modest and reasonable proposal. This paper, at any rate, finds that offering such an exit from copyright would probably promote both equity and efficiency. But it first bears reviewing why many commentators worry about the power of copyright and common law in combination--and why they advocate limiting the latter in such cases. Part II thus surveys the views of those who would put copyright before common law. For the most part, those concerned about the [p. 745/p. 746] over-powerful protection of expressive works do not even consider the exit option described in these pages. Some few commentators do, however. Their arguments naturally merit careful attention.

Part III explains why refusing to open an escape from copyright would unjustly imprison the owners of expressive works within the confines of the Copyright Act. Case law, commentary, and the historical record all confirm that copyright represents a statutory response to market failure. To the extent that common law and technological self-help protections of expressive works fulfill the constitutional mandate "[t]o promote the Progress of Science,"[n14] they undercut the very reason for the Copyright Act. In such instances, therefore, an owner of an expressive work should have the right to opt out of copyright and rely on common law rights, both as secured by and used to secure technological self-help tools.

Claiming that copyright aims to cure not just an overabundance of copying but also a shortage of public discourse does not alter that conclusion. The Constitution by no means creates a "welfare" right[n15] to expressive works. Even if the public were empowered to force open access to copyrighted works, moreover, it would not thereby enjoy a similar power over works protected solely by private means. Letting the owners of expressive works exit into private protections would make sense even if the Copyright Act really did, per the aphorism, strike "a delicate balance" between public and private interests. In fact, however, it does no such thing. Thanks to their inevitable ignorance of the pertinent variables, legislators could not strike such a balance if they wanted to; thanks to the influence of copyright lobby, they may not even care to try. Only opening an escape from the Copyright Act offers the hope of freeing us from that distressing case of degenerative statutory failure.

Granted that legal and policy considerations favor the exit option, will practical considerations permit it? Taking up that question, Part IV identifies both potential and currently functioning means of opening an escape from copyright into private rights. There of course remain serious hurdles to reaching an "open" copyright system--a system that respects and encourages movement across copyright's porous border. Fully recognizing and enabling the exit option represents merely the first step. More fundamentally, those who shape copyright policy must [p. 746/p. 747] understand that in a liberal society as in a packet-switched network, information flows most freely when directed by only a few simple rules.

II. THE COPYRIGHT TRAP

What once seemed like a haven will turn into a trap if in trying to escape you find the way barred. As this Part explains, copyright law now threatens to undergo just that sort of cruel transformation. Copyright law arose as a response to the market's failure to protect expressive works, a failure that in digital contexts private innovation looks increasingly likely to cure. As Part A relates, many commentators thus worry that copyright, common law, and technological self-help have begun to combine to give expressive works too much protection. Facing what they regard as a choice between copyright with or without additional, excessive protections, such commentators unsurprisingly call for limiting the private protection of expressive works. Part B analyzes that false choice, explaining that it fails to consider letting the owners of expressive works escape from copyright law's reach. As Part C observes, however, some commentators consciously consider and reject letting private parties rely solely on private protections. Subsequent Parts of this paper argue, in contrast, that however well it sheltered us from former market failures, copyright law will become a prison if we cannot escape it for newer and better legal regimes.

A. The Alarming Combination of Copyright, Common Law, and Technology

Commentators largely agree that the combination of copyright, common law, and technological self-help has begun to give copyright owners unprecedented control over their works.[n16] The result--call it automated rights management (ARM)[n17]--employs various and fluctuating methods. To speak generally and in functional terms, however, ARM allows the owners of intellectual property to limit access to, regulate use or reuse of, obtain payment for, and imbed identifying information in their works.[n18] Though ARM remains imperfect, consideration of financial incentives alone suggests that ARM will see [p. 747/p. 748] wider use and continued improvement.[n19] Newly-enacted laws levying civil and criminal penalties against the circumvention of copyright protection and management systems encourage the same conclusion.[n20]

Not all commentators bemoan the trend towards increasingly powerful ARM. Some regard it as almost an unmitigated good.[n21] Others, foreseeing both peril and promise in ARM, regard it with a bit more equanimity.[n22] Here as elsewhere, though, commentators who worry the most write the most. So much the better; we all benefit from dispassionate and foresighted warnings of impending disaster. Such service in the public interest does, however, give the academic literature on ARM a predominately dark cast.[n23]

Professor Neil Weinstock Netanel, for instance, sees in ARM "the specter of all-consuming copyright owner control."[n24] That prospect, he claims, "threatens to upend copyright's already uneasy accommodation [p. 748/p. 749] of public access with private ownership."[n25] Professor Dennis J. Karjala projects a world where to access a copyrighted work a consumer will have to promise "not to use the underlying ideas to create a competing work, not to further distribute the work or anything contained in the work, not to download any of the factual information contained in the work, not to quote from the work, and so forth."[n26] Enforce such promises, he concludes, and "all of the users' rights of copyright will soon disappear."[n27] Professor Michael J. Madison argues that trends in the law and practice of regulating access to information "increasingly mean that no open space exists save that which information producers choose explicitly to provide."[n28] Professor Julie E. Cohen worries that ARM ultimately "will allow content owners to insist on greater protection than copyright law would afford."[n29] That result, she claims, would "fundamentally alter the social welfare equation."[n30]

This paper addresses those sorts of general concerns about the combined power of copyright, common law, and ARM. It does not attempt to resolve facially similar but fundamentally different concerns that statutory measures like the Digital Millenium Copyright Act (DMCA)[n31] and the Uniform Computer Information Transactions Act[n32] threaten to give ARM greater protection than common law alone would allow.[n33] Such legislative actions call for separate treatments--and separate justifications--than the actions of private parties exercising [p. 749/p. 750] their traditional common law rights. One can support the freedom to protect expressive works with technological self-help, licenses, and tort claims without further demanding that such efforts get special statutory treatment.[n34] In fact, because the DMCA imposes new limits on the research and development of devices that might be used to infringe copyrights,[n35] it violates common law rights to the peaceable enjoyment of one's property and person.[n36] More generally, clumsy attempts to legislatively amplify common law rights threaten to stifle a vital discovery process, trigger unintended consequences, create public choice problems, and, in sum, do more harm than good.[n37]

B. The False Choice Between Copyright With or Without Common Law

Most commentators who worry about the combined power of copyright law and private protections of expressive works reflexively attack the latter source of rights. Because they do not address the exit option set forth in these pages, it remains uncertain how such commentators would regard the alternative possibility of limiting copyright and relying solely on common law rights, both as defended by and used in defense of technological self-help tools. That those commentators frequently appeal to collective deliberation perhaps hints that they would not favor a world where private parties decide how to allocate rights to expressive works. But at any rate, intentionally or not, to counter the combined power of copyright and private protections solely by negating the latter poses a falsely limited choice. Whether ultimately attractive or not, the option of escaping copyright at least merits consideration.

Professor Netanel offers a good example of commentary that, without expressly addressing the exit option, sounds rather unlikely to embrace it. He argues for a "democratic paradigm" under which copyright law protects not only expressive works but also--and affirmatively--the public domain. Netanel concludes that "the limits to copyright's duration and scope represent the outer bounds not only of copyright protection, but also of other forms of private control over [p. 750/p. 751] publicly disseminated expression."[n38] Because copyright law carefully balances the rights of owners and users, claims Netanel, the protection of expressive works "cannot be subordinated to market vicissitudes and the vagaries of private contract."[n39]

Similarly, Professor Karjala argues that "copyright cannot be simply a 'default position' against the background of which copyright owners and users should be fully free to make variations by contract."[n40] He justifies limiting contract in such cases largely because he regards access to copyrighted works as part of "the quid pro quo that benefit[s] the public in exchange for the public's recognition of the exclusive rights of copyright."[n41] Would Karjala furthermore object to common law and technological protection of works that have escaped copyright? He does not address that question directly, but he does object to common law protections that seem "copyright-like" because they cover publicly distributed works even absent bargaining.[n42] He thinks that shrinkwrap licenses clearly fall afoul of that standard,[n43] suspects that clickwrap licenses do,[n44] and does not address whether purely technical self-help protections, effective regardless of user assent, would.

Interestingly, Professor Mark A. Lemley isolates from the exit option most--but not all--of his critique of contract law's impact on copyright.[n45] He admits that § 301 of the Copyright Act offers little hope of voiding contracts that interfere with federal policy[n46] and presents implied conflicts preemption under the Supremacy Clause as a more powerful, albeit unruly, cure.[n47] In neither case does Lemley discuss whether the owners of expressive works might avoid preemption by abandoning their copyrights.[n48] Intriguingly, however, he surmises that "a plaintiff who truly does 'opt out' of copyright in favor of contract [p. 751/p. 752] presumably would not be bound by the limits of the copyright misuse defense."[n49]

The influence of ends-oriented positivism, under which final results outweigh prior rights, can make it difficult to discern exactly which half of the copyright and common law combination most worries a commentator. Professor Cohen, for instance, has recently attacked the distinction between statutory and common law rights, claiming that all "[d]eclarations of entitlement are definitional, public acts and should be understood as such."[n50] Unsurprisingly, she does not take great pains to distinguish between copyright bolstered by common law rights and common law rights acting alone. With regard to all, it seems, "we must reach a considered, collective decision about what social welfare means."[n51] As argued below, however, common law rights generally merit greater deference than those created by the Copyright Act.[n52] It thus does not suffice to claim, as does Cohen, that "it is impossible to say with certainty that the market would be better at promoting access and progress than the existing system of public ordering via the legislative process."[n53] The advocate of legislative ordering bears a heavy burden of proof, one that, in this context, she will find quite hard to carry.

Notwithstanding that her recent scholarship does not clearly distinguish between statutory and common law rights, Professor Cohen [p. 752/p. 753] deserves credit for having elsewhere consciously considered the option of escaping from copyright. Granted, and as set forth in the next subpart, she disparages that option for questionable reasons. But Cohen can at least claim to have avoided the false choice, apparent in other commentary, between copyright with common law rights and copyright without them.

C. Commentary Consciously Rejecting the Exit Option

Of the few commentators who have consciously addressed the exit option, most have treated it with detached curiosity.[n54] Professor Lemley, for example, said in passing, "I suspect that copyright owners would find this an unattractive alternative, however, and that in fact they would prefer to 'pick and choose' only the copyright rules that benefit them."[n55] He recently explained and amended that assessment in light of new legal developments:

Until recently, copyright owners would probably have found [exiting from copyright] an unattractive alternative, precisely because there were some types of conduct that copyright could reach but contract could not, and because the remedies for copyright infringement were so much stronger. The proposed expansion of contract in Article 2B [of the U.C.C.] . . . may make those differences disappear.[n56]

Professor Jerome H. Reichman reflected that attempts to escape copyright law might trigger new limits on freedom of contract[n57] and doubted that, at any rate, common law protections would prove effective.[n58] In apparent reference to the exit option, Professor Niva Elkin-Koren said,

The ability of copyright owners to license a use and thus to establish an additional market and prospective profits, does not call for [p. 753/p. 754] copyright protection of that power. It is conceivable that in some cases the law should not allow copyright owners to exercise both their monopoly under copyright law and under licenses.[n59]

In candid response to the question of what would actually transpire were the exit option widely pursued, Professor David Lange offered perhaps the most accurate of any commentary on the topic: "I do not know the answer, but then I have never lived under anything but a copyright dominant regime."[n60]

Alone among commentators who directly address opening an escape from copyright, Professor Cohen forcefully denounces it. She begins by critiquing not the right to exit copyright but the duty to do so, wondering whether "if copyright owners prove determined to implement [Copyright Management Systems (CMS)] that comprehensively augment the rights afforded them under the Copyright Act, perhaps Congress should consider whether these individuals and entities should be required to elect only contract remedies, and to abandon their claims to copyright protection."[n61] She immediately dismisses that proposal, however: "I hope that most readers will think this suggestion absurd--and will react that way because they recognize that the semi-permeable barrier of copyright promotes the public interest."[n62]

Perhaps most people would indeed think it absurd to require copyright owners to abandon their statutory rights in such cases, but perhaps not.[n63] Nobody should judge that question on the mere [p. 754/p. 755] allegation that copyright promotes the public interest. Protecting expressive works through private methods surely promotes the public interest, too. It might even do a better job of it than copyright does. In all likelihood, though, no attempt to measure "the public interest"--even if we could agree on what that term means--would ever give us sufficient data to choose between requiring copyright or forbidding it.[n64] We can set aside the alleged absurdity of requiring an exit from copyright law, at any rate, since this paper concerns whether or not to allow one.[n65]

As Professor Cohen continues her critique, however, she shifts her aim toward the very exit option at issue here: "[I]f the copyright system is necessary, then allowing unlimited numbers of copyright owners to opt out of the system as it suits them is bad law and bad policy."[n66] Though she offers no additional defense of that claim, her conclusion indicates that she remains concerned about the public interest: "At the very least, a CMS regime should be subject to an analogous set of restrictions designed to balance the affected interests."[n67] In fairness to Professor Cohen, it bears noting that her more recent scholarship devotes a great deal of attention to the general question of copyright's relationship to the public interest. Analytical flaws limit the utility of these later works, however. For instance, Professor Cohen claims that her intellectual counterparts, "cybereconomists" whom she blames for favoring private rights over public policy,[n68] rely on unrealistically static and formal economic models.[n69] In fact, however, Austrian economists appreciate the merits of market ordering while recognizing that the case for it "does not rest on the conditions that would exist if it were perfect."[n70] Notwithstanding Cohen's attempt to define away the problem,[n71] there remain sharp and, insofar as her argument goes, highly significant differences between Austrian and other types of neoclassical economics.[n72] Apart from any other problems [p. 755/p. 756] in her critique--and Cohen's critique does have other problems[n73]--it thus overlooks a unique and powerful defense of market processes.

In any case, regardless of the soundness of Professor Cohen's arguments, we must ask how in practice she or anyone else could know which copyright policy best promotes the public interest.[n74] As observed below, it looks quite unlikely that any process--much less a legislative one--could ever compute such an imponderable.[n75] And even apart from utilitarian fantasies about perfect information and completely disinterested deliberation, there remain nettlesome questions about rights. Can one who would have copyright law trump alternative, private means of protecting expressive works justify the concomitant violations of property, contract, and First Amendment rights? As I will argue below, one cannot.[n76]

III. WHEN COPYRIGHT CONSTITUTES UNJUST IMPRISONMENT

This Part explains why refusing to open an escape from copyright would unjustly imprison the owners of expressive works within the confines of the Copyright Act. Subpart A observes that the right to exit copyright follows quite directly from the consensus view that copyright represents a statutory response to market failure. To the extent that the [p. 756/p. 757] market succeeds in protecting expressive works, it undercuts the very reason for the Copyright Act. At the least, therefore, if courts find public and private protections too powerful in combination, they ought to give the owners of expressive works the right to opt out of copyright and rely solely on common law, both as defended by and deployed in defense of technological self-help tools.

One might reply that copyright represents more than simply a response to market failure or, rather, that it would if courts heeded the original meaning of the Constitution's copyright clause. Subpart B addresses that claim and finds it both irrelevant and unconvincing. The case for allowing owners of expressive works to opt for common law would remain strong even if copyright did not represent a response to market failure. At any rate, we have ample reason to reject the natural rights defense of copyright today and ample evidence that the Founders felt likewise.

One might also critique the market success justification of the exit option on grounds that it ignores the persistence of a peculiar type of market failure: the failure to promote public discourse. Subpart C addresses that argument and finds it wanting on several counts. Although the Constitution's copyright clause invokes the public interest, it by no means authorizes the creation of a generic welfare right to expressive works. Subpart D adds that even if the public can force open access to copyrighted works (already a controversial claim), it by no means follows that the public has a similar right to expressive works protected solely by private means. Advocates of forced access, because they face contrary principles of copyright law, federal policy, and the Bill of Rights, bear an insupportably heavy burden of proof.

Letting the owners of expressive works exit into common law would make sense even if the Copyright Act offered sound and attractive shelter. As subpart E details, however, the Act suffers from degenerative statutory failure. Far from striking a delicate balance between public and private interests, the Copyright Act appears to have fallen into a vicious cycle, creating beneficiaries who use their clout to lobby for still greater benefits. Opening an escape from the copyright would help to relieve such public choice pressures, whereas trapping the owners of expressive works within the bounds of the Copyright Act would save neither them, nor it, nor us.

[p. 757/p. 758]

A. Copyright: A Response to Market Failure

Courts and commentators agree that copyright law represents a statutory response to market failure.[n77] As Justice Holmes explained, copyright "restrains the spontaneity of men where but for it there would be nothing of any kind to hinder their doing as they saw fit."[n78] Why bother limiting the unrestrained copying of expressive works? "To promote the Progress of Science and useful Arts,"[n79] the Constitution explains.[n80] Even the few academics who would justify copyright law as something other than a response to market failure must admit that they find scant comfort in modern U.S. jurisprudence.[n81] As Lord Macaulay [p. 758/p. 759] famously said of copyright, "For the sake of the good we must submit to the evil; but the evil ought not to last a day longer than is necessary for the purpose of securing the good."[n82]

Copyright law thus represents a notable exception to the default rule that a free people, respecting common law rights and engaging in market transactions, can copy expressive works at will.[n83] The Founders, in fact, regarded copyright as an exception so notable that it required explicit constitutional authorization.[n84] Contrasting it with the more tangible rights protected by common law, Holmes described copyright as "a right which could not be recognized or endured for more than a limited time, and therefore . . . one which hardly can be conceived except as a product of statute, as the authorities now agree."[n85] The Copyright Act thus offers emergency shelter for expressive works that, but for its protection, would have fallen between common law's cracks and been left wandering homeless through the market economy.

The right to exit copyright follows quite directly from this, the consensus view of copyright's justification. If copyright represents an extraordinary response to market failure, and advances in publishing models and technology overcome that failure, courts ought not imprison the owners of expressive works within the obsolete confines of copyright. At the least, if courts find the combination of copyright, common law, and technological self-help too powerful, they ought to give the owners of expressive works the right to opt out of copyright and rely solely on private means of protection.[n86]

Indeed, perhaps we ought to withdraw copyright as even an option in such cases. Why, after all, should we continue to offer the owners of expressive works the benefits of an intellectual property welfare program that they no longer need? One might reply that rather than creating a welfare right by statute, copyright recognizes a pre-existing liberty right to enjoy authorship free of copying. The next subpart, subpart B, [p. 759/p. 760] considers and dismisses that argument. In theory, then, we might go beyond requesting an escape from copyright to boldly demand an exile from it.

The practical and legal challenges to creating an exile from copyright, however, put detailed consideration of it beyond the bounds of the present paper. Because the Copyright Act does not clearly allow copyright owners to abandon their statutory rights even on a voluntary basis,[n87] it scarcely authorizes courts to compel the same result. But the public choice pressures that so evidently shape copyright legislation[n88] make it unrealistic to expect lawmakers to add a banishment clause to the Act. That leaves it up to courts--or at least commentators--to find a constitutional basis for imposing an exile from copyright. The free speech clause of the First Amendment offers the most plausible argument: Copyright law, as a content-based restriction on unoriginal expressive speech, should have to face strict scrutiny,[n89] a test under which non-statutory means of protecting expressive works offer alternatives to state action rendering the Copyright Act unconstitutional as more restrictive than necessary.[n90] But to call that the most plausible argument for creating an exile from copyright is hardly to call it uncontroversial,[n91] and to give the matter a complete hearing would unnecessarily tax the present effort. It proves challenging enough, in this paper, to describe and defend the relatively modest proposal that we open an escape from copyright.

B. The Natural Copyright Argument

Because the argument for allowing an escape from copyright follows from regarding copyright as a statutory response to market failure, one might think that regarding copyright as a natural right would somehow lead to a counter-argument. That strategy would fail on two counts, [p. 760/p. 761] however. As section one explains, to open an exit from copyright would remain useful and even necessary regardless of whether natural copyrights made sense. Moreover, as section two explains, they do not. The only hope of legal viability for a natural right to copyright lies in reinterpreting the original meaning of the Copyright and Patent clause, a scheme that ill survives careful scrutiny of the applicable evidence. In sum, then, both irrelevance and implausibility dog the counter-argument from natural copyrights.

1. Irrelevance of the Natural Rights Argument

The case for opening an escape from copyright would remain strong even if--contrary to current jurisprudence,[n92] common sense,[n93] and the Constitution's original meaning[n94]--copyright did qualify as a natural right. In that event, copyright would merely join a panoply of other natural rights, including our rights to person and property. Nothing about a natural copyright would dictate that it always trump other rights, such as our rights to protect our expressions through property and contracts. Priority alone suggests that copyright should generally cede ground in such cases.

Original meaning likewise argues against giving copyright the power to preempt common law protections of expressive works. State copyright laws from the Founding era did not include preemption clauses.[n95] To the contrary, the statutes often took care to constrain copyright from unduly interfering with common law rights.[n96] More importantly, the Founders regarded statutes as legislative attempts to remedy salient defects of common law and, hence, interpreted statutes against the backdrop of that general aim.[n97] It thus seems very unlikely [p. 761/p. 762] that the Founders would have understood copyright to preempt common law protections of expressive works.

Because it embraces that same canon of statutory interpretation that the Founders did, the Supreme Court would presumably regard common law rights to expressive works with similar solicitude. The Court has long held that "'statutes which invade the common law . . . are to be read with a presumption favoring the retention of long-established and familiar principles, except when a statutory purpose to the contrary is evident."'[n98] Congress legislates against a background of common-law principles;[n99] it "does not write upon a clean slate."[n100] The Supreme Court has consequently held that common law doctrines "'ought not to be deemed to be repealed, unless the language of a statute be clear and explicit for this purpose."'[n101] The Copyright Act of course offers no exception to that general principle of interpretation.[n102]

Elevating copyright to a natural right therefore would hardly render it inviolate. Courts and legislatures would still need a rule for settling conflicts between copyright and natural rights of the more traditional sort, presumably as embodied in constitutional and common law.[n103] They would have little reason to automatically favor copyright-qua-natural right over other natural rights, and ample reason to instead favor the former, but at any rate every reason to let the owners of expressive works choose which rights to exercise.

Readers who by dint of such observations conclude that the ontological status of copyright has no bearing on the desirability of opening an escape from it may find the next sub-section unnecessary. Others, however, may find probative its critique of the notion of natural copyrights.

2. The Unnatural Origins of Copyright

The instrumentalism that pervades cases, legislation, and commentary on U.S. copyright law leaves scant room for a natural right [p. 762/p. 763] to copyright.[n104] The Supreme Court has, for instance, described copyright as "the creature of the Federal statute" and observed that "Congress did not sanction an existing right but created a new one."[n105] That has by no means prevented some few commentators from arguing that copyright law could and should rely on a Lockean labor-desert justification on grounds that an author mixes herself, through her creative effort, in her expressions.[n106]

That facially plausible extension of Locke's theory does not, however, withstand close scrutiny. His labor-desert justification of property gives an author clear title only to the particular tangible copy in which she fixes her expression--not to some intangible plat in the noumenal realm of ideas.[n107] Locke himself did not try to justify intangible property.[n108] Modern commentators who would venture so far beyond the boundaries of Locke's thought and into the abstractions of intellectual property thus ought to leave his name behind.

More pointedly, copyright contradicts Locke's justification of property. He described legislation authorizing the Stationers' Company monopoly on printing--the nearest thing to a Copyright Act in his day--as a "manifest . . . invasion of the trade, liberty, and property of the subject."[n109] Even today, by invoking government power a copyright owner can impose prior restraint, fines, imprisonment, and confiscation on those engaged in peaceful expression and the quiet enjoyment of physical property.[n110] By thus gagging our voices, tying our hands, and [p. 763/p. 764] demolishing our presses, copyright law would violate the very rights that Locke defended.[n111] As Tom G. Palmer explains, "a system of intellectual property rights is not compossible with a system of property rights to tangible objects, especially one's own body, the foundation of the right to property in alienable objects."[n112]

We need not dwell on that modern philosophical debate here, though. Whether and to what extent Locke's theory of property applies to copyright certainly merits academic consideration, but it runs little risk of convincing contemporary legislators or courts to forsake the market failure view of copyright. The Lockean labor-desert theory has only one viable road to practical and present influence--via original meaning.[n113] Many judges find appeals to the original meaning of constitutional language, such as that embodied in the Copyright and Patent Clause,[n114] quite persuasive.[n115] It thus suffices for present purposes to investigate the claim that the Founders understood copyright not only to cure market failure but also to secure authors' natural rights against unauthorized duplication. A careful review of the historical record indicates that they almost certainly did not.

[p. 764/p. 765] Only meager and faint evidence has ever suggested that the Founders understood the Constitution to endorse a natural right to copyright. On close scrutiny, moreover, that evidence proves fairly phantasmal. Citing rhetoric in the preambles of some states' copyright acts and Madison's brief plea to supplant those laws with a single national one, Professor Alfred C. Yen concludes that "early American copyright theorists did not share the modern view that copyright is motivated solely by economic considerations. Instead, early Americans saw copyright as a matter of both economic policy and natural law."[n116] But even so qualified a claim arguably goes too far in ascribing to the Founders a natural rights view of copyright. Subsection a offers proof that the state copyright acts invoked natural rights only as a matter of rhetoric--not substance. Subsection b surveys Madison's views on copyright to show that he, too, declined to regard it as a natural right.

a. Original Meaning via State Copyright Acts

Start with the copyright acts passed by twelve of the thirteen states under the Articles of Confederation.[n117] Granted, seven of those acts had preambles that invoked natural rights.[n118] The historical context of those [p. 765/p. 766] statutes, however, gives their rhetoric more the air of apology than philosophy.

State legislators must have realized that they were contradicting the view, pervasive during the Founding era, that such statutory monopolies favored special interests over common liberties.[n119] The Maryland Declaration of Rights, for example, had decreed in 1776 "[t]hat monopolies are odious, contrary to the spirit of a free government, and the principles of commerce; and ought not to be suffered."[n120] State legislators almost certainly realized, furthermore, that they had indeed enacted copyright statutes to appease a special interest-a small but influential lobby of authors.[n121] By invoking the rhetoric of natural rights, [p. 766/p. 767] state legislators discouraged criticism that they had, after less than a decade of independence, disinterred statutory monopolies of the sort that earlier sparked the Revolution.

That the states invoked natural rights merely as rhetoric appears on the face of their copyright statutes, none of which actually treated copyright as a natural right. A natural right would last indefinitely and cover all expressions; state copyrights lasted only a few years[n122] and covered just a few types of expressions.[n123] A natural right would protect all authors; state copyrights generally protected only U.S. authors.[n124] A natural right would disregard publication dates; most states denied copyright to any pre-printed work, regardless of its originality, as a general matter.[n125] A few states even discriminated against original [p. 767/p. 768] expressive works by denying copyright protection to pre-printed books and pamphlets, while granting it to maps and charts.[n126] A natural right would not censor; Connecticut, Georgia, and New York barred copyright protection of works "prophane [sic], treasonable, defamatory, or injurious to government, morals or religion."[n127]

A natural right would arise, well, naturally. In contrast, no state allowed copyright protection as a matter of course. New Hampshire and Rhode Island demanded that authors identify themselves[n128] and all the other state copyright acts imposed registration requirements of one sort or another.[n129] North Carolina demanded that copyright owners forfeit a copy to the secretary of state[n130] whereas Massachusetts demanded that two copies go to "the library of the University of Cambridge."[n131] Several states went so far as to demand that copyright owners provide works at reasonable prices and in sufficient numbers.[n132] No true natural right would admit all the many sharp, artificial, and arbitrary limitations seen in the state copyright statutes. Despite their [p. 768/p. 769] invocation of natural rights rhetoric, the states in fact treated copyright purely as a utilitarian tool for advancing the arts and science in general, and special interests in particular.[n133]

At any rate, every iota of faith that one invests in the view that some state legislatures embraced a natural rights view of copyright ultimately ends up weighing against the view that the Constitution embodies the same philosophy. Those taking part in the Constitutional Convention almost certainly had state copyright practices in mind as they crafted the Copyright and Patent clause.[n134] The absence of any reference to natural rights in the Constitution's Copyright and Patent clause thus suggests that the Framers considered and rejected the natural rights defense of copyright.[n135] It will not do to claim, in that regard, that the Constitution's terse language precluded such justifications. The clause's command that Congress use copyright to "promote the Progress of Science and the useful Arts"[n136] plainly retains the utilitarian rhetoric of the state copyright statutes.[n137] Even apart from the expressio unius [p. 769/p. 770] argument, moreover, that plain language supports only the utilitarian justification of copyright.[n138]

b. Original Meaning via Madison on Copyright

Finding no record of substantive discussions about copyright in the Philadelphia Convention or in the state ratification debates, commentators intent on reconstructing how Founders understood the Constitution's Copyright and Patent clause have largely relied on Madison's brief analysis of it in the Federalist Papers.[n139] Madison's defense of the power granted to Congress in that clause reads, in full:

The utility of the power will scarcely be questioned. The copyright of authors has been solemnly adjudged, in Great Britain, to be a right of common law. The right to useful inventions seems with equal reason to belong to the inventors. The public good fully coincides in both cases with the claims of individuals. The States cannot separately make effectual provision for either of the cases, and most have [p. 770/p. 771] anticipated the decision of this point, by laws passed at the instance of Congress.[n140]

Like the oratorical preambles that some states added to their copyright acts,[n141] however, Madison's defense of copyright sounds more in rhetoric than logic.[n142]

Intentionally or not, Madison misrepresented copyright's standing at common law. He presumably relied on the 1769 decision of the King's Bench in Millar v. Taylor, which read the Statute of Anne not to abrogate common law's protection of copyrights.[n143] But the House of Lords overruled that case five years later, in Donaldson v. Becket[n144]--some thirteen years before Madison published Federalist Paper No. 43.[n145] His claim that copyright "has been solemnly adjudged, in Great Britain, to be a right of common law," therefore had as much truth as the modern claim that "slavery has been solemnly adjudged constitutional."[n146] In neither case would old bad law justify new bad law.

Notwithstanding Madison's reference to solemn adjudications at common law and the "claims of individuals" to copyrights, moreover, he appears not to have held a natural rights view of copyright. The telling evidence appears in what he said--or rather what he did not say--in his correspondence with Thomas Jefferson about the Copyright and Patent clause. Jefferson wrote from Paris critiquing the proposed Constitution for failing to include a Bill of Rights, advocating in particular that it "abolish . . . Monopolies, in all cases . . . ."[n147] Jefferson [p. 771/p. 772] explained that "saying there will be no monopolies lessens the incitements [sic] to ingenuity . . . but the benefit even of limited monopolies is too doubtful to be opposed to that of their general suppression."[n148] Madison's remarkable reply merits a lengthy quote:

With regard to Monopolies they are justly classed among the greatest nusances [sic] in Government. But is it clear that as encouragements to literary works and ingenious discoveries, they are not too valuable to be wholly renounced? Would it not suffice to reserve in all cases a right to the public to abolish the privilege at a price to be specified in the grant of it? Is there not also infinitely less danger of this abuse in our Governments than in most others? Monopolies are sacrifices of the many to the few. Where the power is in the few it is natural for them to sacrifice the many to their own partialities and corruptions. Where the power, as with us, is in the many not in the few, the danger can not be very great that the few will be thus favored. It is much more to be dreaded that the few will be unnecessarily sacrificed to the many.[n149]

Madison said three things here that bear notice. Firstly, contrary to his claim in Federalist No. 43 that the "utility of the power" granted to Congress in the Copyright and Patent clause "will scarcely be questioned," in private Madison takes Jefferson's concerns quite seriously. Secondly, note that Madison appears never to have followed up on his suggested remedy for abuse of the monopoly power; namely, reserving "a right to the public to abolish the privilege at a price to be specified" in its grant.[n150] Thirdly, Madison's assessment of the relative power that the many, who suffer monopolies, hold over the few, who enjoy them, ignores what public choice theory would predict and what experience has amply confirmed: The few who enjoy copyright protection have in practice more power to determine the scope of their monopoly rights than do the many who live under them.[n151]

Madison's reply to Jefferson's critique of the Copyright and Patent clause most bears noting, however, for what it does not say. Madison nowhere defends the clause as a measure necessary to protect the natural rights of authors and inventors (much less to protect their rights at common law). Madison's silence on that point would prove [p. 772/p. 773] remarkable in any context.[n152] Here, though, writing to one of the foremost advocates of natural rights, in reply to his call for a bill of rights, and in defense of the Copyright and Patent clause, Madison's silence speaks tomes. Could any context cry out more loudly for an appeal to the supposed natural right to copyright? Madison instead treated copyright as nothing more than an admittedly dangerous tool for advancing industrial policy, and one of dubious efficacy at that.[n153]

Madison later made more clear and public his views on the proper subject matter for property rights. Speaking in terms that presaged Palmer's complaint against copyright,[n154] Madison explained,

That is not a just government, nor is property secure under it, where arbitrary restrictions, exemptions, and monopolies deny to part of its citizens that free use of their facilities, and free choice of their occupations which not only constitute their property in the general sense of the word, but are the means of acquiring property strictly so called.[n155]

By restricting what free people do with their voices, pens, and presses, copyright plainly falls afoul of Madison's indictment of government monopolies.

Before closing this exploration of Madison's thought, it bears noting that a thorough-going originalist--one devoted to following the Founders in matters both of substance and process--might question the propriety of interpreting the Constitution's Copyright and Patent clause by light of the original understanding of "copyright." The Founders generally agreed that extrinsic evidence of legislative intent ought not shape statutory language; they demanded fidelity to the plain meaning of the text.[n156] In this particular case, however, it proves imminently [p. 773/p. 774] appropriate to observe that the Founders regarded copyright as an infringement, albeit perhaps a necessary one, on common law rights to person and property. Because the Founders viewed statutes as attempts to remedy the defects of common law, they thought it proper to construe ambiguous statutory language against the backdrop of that general purpose.[n157] Questions about the original understanding of copyright thus neatly join with questions of how to interpret the constitution's language on copyright. The Founders regarded copyright as an exception to common law rights and would have interpreted the Constitution to treat it exactly as such.

C. The Public Discourse Argument

It takes extraordinary circumstances to justify copyright law's transgression of the background assumption that a free people, exercising their common law rights to person and property, can copy others' expressions at will.[n158] It takes, that is, a market failure.[n159] But what sort of market failure? The majority view emphasizes a looming risk that authors and publishers, dispirited by unrestrained copying, would underproduce expressive works were it not for copyright protection. By correcting that deficiency in the common law, the argument goes, copyright creates a system of incentives that, when pursued by private parties, ultimately promotes the public good.[n160]

Some commentators offer an alternative market failure analysis, one that emphasizes copyright's role in promoting public discourse.[n161] Professor Lydia Pallas Loren, for example, argues that copyright protection and licensing "does not cure the market failure that exists when there are diffuse external benefits that cannot be efficiently internalized in any bargained-for exchange."[n162] She cites research, scholarship, and education as particularly likely to give rise to such externalities. "These kinds of non-transformative uses that have significant external benefits represent the enhancement of the core goal [p. 774/p. 775] of copyright by furthering the progress of knowledge and learning."[n163] Similarly but more broadly, Professor Netanel argues that copyright forestalls not just market failure but social failure.[n164] He presents a "democratic paradigm" that "views copyright law as a state measure designed to enhance the independent and pluralist character of civil society."[n165]

The problem with such commentary lies not in its content but rather its intended effect. The Constitution's stipulation that copyright "promote the Progress of Science and useful Arts"[n166] certainly speaks generously enough to embrace the public interest writ large. But it by no means follows that the public has any affirmative right to access copyrighted works. Although the promotion of public discourse "surely underlies the institution of copyright, it is not clear that it means that the copyright owner should be under a greater obligation to facilitate copying or even to avoid steps to make copying harder just because some user may be a fair user."[n167] Under the conventional and quite plausible view of copyright (and of property generally), the public gets benefit enough from the aggregate effect of private parties pursuing their various individual interests. As Professors Melville and David Nimmer observe,

there is nothing to indicate that the Framers in recognizing copyright intended any higher standard of creation in terms of serving the public interest than that required for other forms of personal property. We may assume that the men who wrote the Constitution regarded the system of private property per se as in the public interest.[n168]

It may of course turn out that lawmakers have vested too much power in copyright owners; indeed, the analysis below argues exactly that.[n169] But the Copyright Act's all-too-salient statutory failure should hardly encourage reformers to lobby congress for bluntly pro-public amendments. Political realism alone suggests that the effort would come to little good and might unintentionally cause great harm. Here, as always, commentators must not compare actual--and thus inevitably imperfect--markets with impossibly ideal political schemes.

[p. 775/p. 776] More to the point, even if the "public discourse" lobby did manage to shoulder aside the special interests that now shape copyright legislation, it ought not try to recast the Copyright Act to pry open access to works protected solely by common law rights and the self-help tools that defend and are defended by such rights. Whatever the merits or flaws of the public discourse justification of copyright, it applies only to works protected by copyright. It does not justify a generic welfare right to access expressive works. That much should appear on the face of the Copyright and Patent clause, which empowers Congress only to secure "for limited Times to Authors . . . the exclusive Right to their . . . Writings." Congress thereby wins no power over expressive works generally, and indeed faces an implied bar on any more aggressive attempt "[t]o promote the Progress of Science and useful Arts."[n170] Should such an expressio unius interpretation not suffice to make the point, and as the next subpart explains, the Bill of Rights plainly limits congressional power to force open access to expressive works.

D. The Unconstitutionality of Forced Access

The First Amendment does not require the owners of expressive works to abandon their private rights in the name of public access. The First Amendment does, of course, rightly limit the scope of copyright. The Bill of Rights postdates and trumps[n171] the Constitution's grant to Congress of power to secure "for limited Times to Authors . . . the exclusive Right" to their works.[n172] But that hardly justifies breach of contract or trespass to chattels in the name of subsidizing the public's enjoyment of expressive works. To the contrary, such forced access would itself run the risk of violating the First Amendment.

Suppose, for example, that Congress and the President amended the Copyright Act to create exclusive rights not merely in expressions but in ideas. The wrong would lie in the Act's unconstitutional breadth and the remedy in judicial review. To attack the statute by violating the private rights of owners of expressive works would prove not only futile (since it would treat mere symptoms of the constitutional disease) but facially improper.[n173] More pointedly, awarding the public forced access to [p. 776/p. 777] expressive works, even if in response to a clearly unconstitutional Copyright Act, would arguably violate the First Amendment rights of the owners of expressive works.[n174]

The Copyright Act might properly condition the grant of its privileges on the sacrifice of certain common law rights. In some few respects it already plainly does, as with regard to authors' non-waivable rights to terminate transfers of rights in their works[n175] or the nontransferable nature of certain rights of visual artists.[n176] More generally but less predictably, the Copyright Act preempts common law claims that fail to allege any elements other than those required for a claim of copyright infringement.[n177] Federal lawmakers might go still farther and require, for instance, that anyone enjoying copyright's privileges put all licenses in bold print or give copies of protected works to public schools.[n178] Courts should so abrogate common law rights only if and when the Copyright Act clearly demands it.[n179] But at any rate such limitations do not and should not automatically apply to all expressive works; only works that partake of copyright's benefits should bear its burdens.

Regardless of whether the Copyright Act demands common law rights as the price of its protection, the First Amendment exacts no such quid pro quo. To the contrary, it recognizes freedom of speech as one of many rights that the state simply shall not abridge.[n180] Among the rights thereby automatically protected by the First Amendment, we enjoy "the right not to speak as well as the right to speak."[n181] When we do speak, moreover, the right of "expressive association" lets us choose those with whom we join in exercising our First Amendment [p. 777/p. 778] freedoms.[n182] "Effective advocacy of both public and private points of view . . . is undeniably enhanced by group association, as this Court has more than once recognized by remarking upon the close nexus between the freedoms of speech and assembly," the Supreme Court has explained.[n183] The Court moreover had recent occasion to explain that, "The First Amendment's protection of expressive association is not reserved for advocacy groups."[n184] It seems reasonable to conclude, therefore, that owners of expressive works "refusing access and opposing imposition of access duties may assert property rights in their systems and the privilege of free expression under the First Amendment."[n185]

It makes no difference that copyright represents a government subsidy in favor of authors and publishers.[n186] The public does not thereby win the right to a counter-subsidy. The Supreme Court has by its own account "soundly rejected" the proposition "that if the Government chooses to subsidize one protected right, it must subsidize analogous counterpart rights."[n187] Copyright therefore does not [p. 778/p. 779] impliedly give the public a right to pry open access to protected works. Even if it did, moreover, the owners of expressive works would still deserve, for reasons set forth throughout this paper, the right to exit from copyright and rely on private protections.

To deny owners of expressive works their common law rights would arguably violate not only the First Amendment, but other provisions of the Bill of Rights. Would not an author forced to make her work publicly available justly complain that she had been denied the right "to be secure in [her] . . . papers, and effects, against unreasonable searches and seizures"[n188] or, more generally, that she had suffered an unconstitutional violation of her "zone of privacy"?[n189] Although our constitutional right to privacy has of necessity somewhat vague borders, it certainly extends beyond a claimant's intimate family relations[n190] or property rights.[n191] An author might thus enjoy a privacy right to distribute her work to only a small, select group of subscribers.

To violate contract rights in the name of public access would give rise to a claim that private property had been "taken for public use, without just compensation."[n192] As the Supreme Court has observed, "A contract is property, and, like any other property, may be taken under condemnation proceedings for public use. Its condemnation is of course subject to the rule of just compensation . . . ."[n193] Furthermore, courts should not think that their disposition of such constitutional questions exhausts the rights of an author subjected to forced access. The Bill of [p. 781/p. 780] Rights demands that courts not read it to "deny or disparage" rights--such as, surely, common law rights predating the Constitution--"retained by the people."[n194]

E. The Statutory Failure of the Copyright Act

Courts and commentators routinely claim that the Copyright Act strikes a delicate balance between public and private interests.[n195] This subpart offers a contrary view. A careful review demonstrates that the term, scope, and power of copyright law has steadily increased over the years. A public choice analysis readily explains that trend and, disturbingly, predicts its continuation. At best, then, the Copyright Act represents a political bargain between the various special interests that lobby Congress. But the Act does not, will not, and cannot strike a delicate balance between all the public and private interests that it affects profoundly.[n196] Even if legislators wanted to strike such a balance, they would necessarily lack the information to do so. The Copyright Act has, in short, fallen prey to statutory failure.

[p. 782/p. 781]

1. Copyright's Indelicate Imbalance

The term of copyright has steadily expanded under U.S. law. The first federal copyright legislation, the 1790 Copyright Act, set the maximum term at fourteen years plus a renewal term (subject to certain conditions) of fourteen years.[n197] The 1831 Copyright Act doubled the initial term and retained the conditional renewal term, allowing a total of up to forty-two years of protection.[n198] Lawmakers doubled the renewal term in 1909, letting copyrights run for up to fifty-six years.[n199] The 1976 Copyright Act changed the measure of the default copyright term to life of the author plus fifty years.[n200] Recent amendments to the Copyright Act expanded the term yet again, letting it run for the life of the author plus seventy years.[n201] Table 1, below, illustrates the growth of the general U.S. copyright term over time, including the retroactive effects of various statutory extensions.[n202]

The subject matter covered by copyright has steadily expanded, too. The plain language of the Constitution authorizes legislation protecting only "Writings."[n203] Lawmakers began almost immediately to read that grant broadly, protecting in the 1790 Copyright Act not only books but also maps and charts.[n204] Subsequent legislation stretched copyright protection, bit by bit, to include: prints;[n205] musical compositions;[n206] performance [p. 781/p. 782] rights in dramatic compositions;[n207] photographs and negatives thereof;[n208] paintings, drawings, chromos, statutes, and models or designs intended to be perfected as works of the fine arts;[n209] motion pictures;[n210] for-profit public performances of nondramatic literary works;[n211] sound recordings;[n212] computer programs;[n213] and architectural works.[n214] A search of extant laws relating to copyright uncovers only one instance in which a statute arguably reduced the subject matter covered by copyright: with regard to publications of the federal government.[n215] The Copyright Act has expanded even beyond the bounds of copyright, protecting artists' moral rights,[n216] new designs of vessel hulls,[n217] and [p. 782/p. 783] technological systems that themselves protect copyrights.[n218]

Table 1: Trend of General U.S. Copyright Term

The exclusive rights granted by copyright law have expanded, as well. The 1790 Copyright act covered merely the reproduction and distribution of protected works.[n219] The present statute gives copyright owners exclusive rights to the reproduction, distribution, preparation of derivative works, public performance, and public display of protected works.[n220] Remedies for infringement have grown from the mere [p. 783/p. 784] destruction of infringing works and payment of statutory damages,[n221] to vesting copyright owners with a broad panoply of powers. Current remedies include: impounding of infringing articles and devices used in infringement;[n222] statutory damages or actual damages and profits;[n223] costs and attorneys fees;[n224] bars on the importation of infringing articles;[n225] the power to supoena digital service providers to disclose the identity of an alleged infringer;[n226] and criminal sanctions including fines and imprisonment.[n227]

The Copyright Act itself has exploded in size and complexity over the years. The Copyright Act of 1790 had just seven sections, was organized in zero chapters, and had no subsections.[n228] It ran some 1224 words.[n229] The current version of the Copyright Act includes eleven chapters, 122 sections, and a superabundance of subsections, sub-subsections, and so forth.[n230] It lumbers along at about 70,400 words.[n231]

It bears noting, in all fairness, that the Copyright Act has come to include a number of limitations on the exclusive rights that it establishes. Most of these limitations, such as those that excuse secondary transmission of superstations and network stations for private home viewing,[n232] reproduction and distribution of works adapted for disabled persons,[n233] and automated or innocent infringement by Internet service [p. 784/p. 785] providers,[n234] undoubtedly mean far more to the special interests that they favor than they do to the citizenry as a whole.[n235] A few limitations benefit the public more generally, although only in circumstances so narrowly defined as to aggrieve few copyright owners and, indeed, to qualify in most cases as fair use.[n236] Other limitations merely specify means of administering compulsory licenses.[n237] But the legislative process deserves little credit for the most general and powerful of the Copyright Act's limitations--the fair use doctrine[n238] and the first sale doctrine[n239]--because they originated not in Congress, but in the courts.[n240] With regard to the first sale doctrine, moreover, federal lawmakers have repeatedly trimmed back the judicial exception that they earlier codified.[n241]

[p. 785/p. 786] Federal legislation has steadily increased the term of copyright, the subject matter covered by copyright, and the remedies for infringement of copyright. Even the Copyright Act itself has swollen over the years. The Act's few, narrow, and judicially-created limitations do very little to counteract the clear message in such trends: Federal lawmakers favor expanding the rights of copyright owners over all else--including, a skeptic might easily conclude, the public interest.

2. A Public Choice Tragedy

Public choice theory offers a ready explanation for copyright's steady growth.[n242] Those who create, own, and distribute expressive works know who they are, what they want, and how badly they want it. Unsurprisingly, such copyright protectionists approach Congress as a well-defined, highly-motivated, and apparently effective lobby.[n243] In contrast, those who might benefit from a less expansive Copyright Act typically have disparate, inchoate, slight, or non-monetized wishes. Such anti-protectionists thus have relatively little impact on the legislative process. In sum, copyright policy combines all the elements of a public choice tragedy: concentrated benefits, diffuse costs, and pervasive state power.

It does not take excessive skepticism to conclude that the Copyright Act has fallen prey to statutory failure; mere realism compels the same result. The Act's record of expansion under the influence of special interests proves worrying enough.[n244] Matters may now have passed the point of no return, however. The Copyright Act has created an immensely wealthy and, through its control of the mass media, potent class of beneficiaries. Citizens have little hope of countering such a [p. 786/p. 787] lobby because few politicians have ample incentive to do so. The Copyright Act may have thus fallen into a vicious cycle, empowering special interests to lobby for still more power, over and over again.

Copyright does not strike a delicate balance between public and private interests. It will not and indeed cannot. The problem runs deeper than the Act's public choice afflictions, such that no amount of open, sincere, and disinterested discourse would set copyright law into delicate balance.[n245] Political authorities cannot measure even the economic factors that would have to go into such a calculation,[n246] much less the myriad fluctuating and intangible ones.[n247] Even if they could measure all the relevant economic, legal, technological, and cultural factors, moreover, politicians could not balance such incommensurable values.[n248]

Does "delicate balancing" rhetoric merit any place in copyright jurisprudence? The Copyright Act does reflect compromises struck between the various parties that lobby congress and the administration for changes to federal law. As noted above, however, such a truce among special interests does not and cannot delicately balance all the interests affected by copyright law. To hold otherwise confounds politics with truth. Not even poetry can license the "balance" metaphor, which aggravates the public choice problem by endowing the legislative process with more legitimacy than it deserves. Worse than committing a jurisprudential fiction, to claim that copyright law strikes a delicate balance between private and public interests aids and abets a statutory tragedy.

[p. 787/p. 788]

IV. EXITING COPYRIGHT GRACEFULLY

This paper has argued on a variety of legal and policy grounds for opening an escape from copyright into private protections of expressive works. Even if those arguments prove convincing, however, they will matter little if practical problems block the way forward. This Part thus analyzes whether and how courts and litigants can in fact exit from copyright. Subpart A finds the election of remedies doctrine to represent something of a divagation, inviting but ultimately immaterial. Abandonment, discussed in subpart B, offers a much more promising tool for prying open copyright, particularly if copyright owners have sufficient incentives to "preempt preemption" by relying solely on common law and technological self-help protections of their works. Somewhat surprisingly, subpart C reveals that courts applying the doctrine of copyright misuse already effectuate a type of escape from copyright, albeit perhaps inadvertently. In sum, the practical problems with opening an escape from copyright, while serious, do not rise to the level of impossibility. Subpart D thus concludes that achieving an open copyright system looks like both a desirable and attainable goal.

A. Election of Remedies

The mildest sort of escape from copyright invokes the doctrine of election of remedies to allow copyright owners to choose between inconsistent statutory and common law protections of expressive works. It relies on quite conventional, if underutilized, legal tools to help ensure that the Copyright Act does not completely displace private protections of expressive works. The doctrine cannot forestall preemption, however, which generally favors copyright over coincident common law rights. Furthermore, commentators who worry about the power of copyright and common law in combination would probably find that election of remedies offers too forgiving an exit from copyright.

The election of remedies doctrine both liberates and constrains parties found to have suffered multiple legal wrongs. As a general matter, the doctrine grants a wronged party freedom to choose "one out of several means afforded by law for the redress of an injury" while at the same time providing that if a party "having two coexistent but inconsistent remedies chooses to exercise one . . . [it] loses the right to thereafter exercise the other."[n249] Copyright owners can of course plead [p. 788/p. 789] common law causes of action along with their infringement claims.[n250] Where a party claims violations both of copyright and common law, the election of remedies doctrine suggests, at a minimum, that a court should allow that party to enforce the rights of its choosing.[n251]

Moreover, the doctrine should require a party to choose between copyright and common law remedies to the extent that they contradict one another. Courts have found such a contradiction to arise when, for instance, copyright and contract provide overlapping and redundant remedies.[n252] Exactly when copyright and common law remedies contradict so as to require an election remains a matter of some uncertainty and dispute.[n253] For present purposes, it suffices to observe [p. 789/p. 790] that no court has disclaimed the doctrine as utterly inapplicable to inconsistent copyright and common law remedies. Getting courts to recognize and apply the doctrine of election of remedies in copyright cases sometimes poses a distinctly different problem, but one that thoughtful commentary and artful pleading should rectify.[n254]

One might counter that federal law should void common law causes of action that overlap copyright ones, disqualifying the former as even an option in such cases.[n255] Both that premise and conclusion merit sharp qualification, however. In the first place, because § 301(a) of the Copyright Act preempts only "legal or equitable rights that are equivalent" to those established by the statute,[n256] a common law cause of action that alleges an element not required for a showing of copyright infringement will escape preemption under that section.[n257] A contract claim that alleges the "extra element" of privity, for example, should suffice to defuse § 301 preemption.[n258] Courts applying § 301 will thus [p. 792/p. 791] preempt a contract claim only if it alleges nothing more than an act of copyright infringement.[n259]

Consequently, and in the second place, careful pleading can often save a common law claim from preemption under § 301. Case law indicates that copyright owners can escape § 301 preemption, for instance, merely by alleging contract rights greater than, and thus not equivalent to, those specified by the Act.[n260] A similar policy applies in the [p. 791/p. 792] context of the first sale doctrine,[n261] allowing copyright owners to assert contract claims beyond the statutory limits set on infringement claims. The Supreme Court, when it initially recognized the first sale doctrine, hinted at its willingness to uphold contract claims on the post-sale disposition of particular copies of copyrighted works notwithstanding its holding that the Copyright Act allowed no similar cause of action.[n262] Other courts have confirmed the effectiveness of contracts that go beyond the limits of the Act[n263] and, to judge from legislative history, Congress has embraced the same view.[n264] In sum, a common law claim will probably escape § 301 preemption if it asserts rights more extensive than those allowed under the Copyright Act, a circumstance from which, through their election of remedies, copyright owners can fully benefit.[n265]

Commentators who worry about the power of copyright and common law in combination might well prefer that § 301 preemption do more to curtail the election of remedies doctrine. Allowing copyright owners to elect common law remedies to the exclusion of overlapping statutory ones can hardly discourage aggressive licensing practices or impenetrable technological fences, after all. To the contrary, it might encourage copyright owners to leverage their already considerable statutory rights to win extra-statutory contractual remedies, the enforceability of which the doctrine of election would sustain. Preemption [p. 792/p. 793] under § 301 looks like the wrong tool to combat that problem, however, as it speaks to the equivalency of rights rather than of remedies. Perhaps implied conflict preemption via the Supremacy Clause or copyright misuse doctrine could help to correct overpowering combinations of statutory and common law protections.[n266] That, however, remains a separate--and difficult--question.[n267]

Certainly, at any rate, the election of remedies doctrine will do nothing to curtail statutory rights. Although it calls on copyright owners to step outside of the Act to assert any inconsistent common law remedies, they continue to enjoy the benefits of copyright law in all other respects. Far from casting them out of the statute's sanctuary, in other words, the election of remedies doctrine offers copyright owners a revolving door that opens onto a covered patio. The problem with the election of remedies doctrine lies in the Copyright Act's generosity to copyright owners. The solution lies in making copyright owners exit the statute more finally.

B. Copyright Abandonment

Courts[n268] and commentators[n269] agree that a copyright owner can reject the Copyright Act's protections and abandon an expressive work [p. 793/p. 794] to the public domain.[n270] Because such an abandonment of copyright happens only rarely--and sees defining litigation even less frequently--some interesting questions remain unresolved. Can a copyright's owner abandon only some of the Act's protections and, to divide things still more finely, abandon them for only a certain period of time?[n271] Do the Copyright Act's termination provisions[n272] limit the effectiveness of an abandonment made prior to the vesting of any contingent reversionary rights?[n273] But how one answers those questions [p. 794/p. 795] at most affects only the means by which copyright owners abandon their works--not whether they can abandon them at all.[n274] Abandonment remains an option.

Granted that copyright owners can choose to abandon their statutory rights and rely solely on common law, both as defended by and used in defense of technological self-help tools, could courts force them to so exit copyright? As a practical matter, yes. If courts consistently nullified private protections of copyrighted works as too powerful when combined with statutory protections, and the works' owners preferred the former protections over the latter, courts would give self-interested copyright owners a nearly irresistible incentive to save their private rights by sacrificing their statutory ones. In other words, the owners of expressive works might abandon copyright to preempt preemption.[n275]

Would a court respect the choices of such former copyright owners and uphold their private rights? The claimants would of course have to frame their common law causes of action so as to avoid preemption under § 301 of the Copyright Act, but that should pose a relatively easy task.[n276] Nor does the doctrine of copyright misuse appear likely to negate an abandonment of statutory rights, given that the doctrine aims to limit the power of statutory and common law rights acting in concert.[n277] Indeed, courts have invoked copyright misuse to limit statutory rights even as they let stand coincident common law ones.[n278]

[p. 795/p. 796] How a court would apply Supremacy Clause preemption to common law claims left standing after abandonment of copyright looks less certain.[n279] In all likelihood, the question would never arise. Content to rely on § 301,[n280] courts have apparently never invoked implied conflicts preemption under the Supremacy Clause to determine the scope of preemption of a common law claim in such instances,[n281] much less to strike one down.[n282] Courts prefer to avoid those sorts of abstract constitutional questions.[n283] Suppose, however, that a court overcame that aversion and tested against the Supremacy Clause a common law claim to a work in which its owner had abandoned the copyright. Rather than finding that common claim preempted, the court should, in returning to fundamental constitutional principles, recognize that copyright represents an extraordinary exception to common law's default rules[n284] and that to favor the former over the latter would violate [p. 796/p. 797] not only principles of statutory interpretation[n285] but also the Bill of Rights.[n286]

Even granted that courts could give copyright owners powerful incentives to abandon their statutory rights, and that courts would uphold common law rights to works the owners of which have abandoned copyright, it remains a separate question whether courts could directly demand a copyright owner to choose between statutory and common law protections of expressive works. Doubtless, no court prepared to preempt a common law claim under § 301 would be so bold as to offer escape from copyright as an alternative. Section 301 plainly forbids that option, providing both that "all legal or equitable rights" within its scope "are governed exclusively by" the Copyright Act and expressly denying protection to any "equivalent right in any such work under the common law."[n287] To re-open an exit from copyright in that context would require lawmakers to amend § 301 by adding something like the following: "(g) Nothing in this title annuls or limits any person's legal or equitable right to a work under the common law of any state if that party permanently abandons with respect to that work all rights and remedies under this title."[n288]

Would Congress pass, and the President sign, a bill amending § 301 to guarantee an exit from copyright in such cases? To do so would, for reasons set forth above, bring the Act into greater conformity with the Constitution's original meaning[n289] and with current copyright policy.[n290] But, as also set forth above, public choice factors evidently have far greater influence over copyright legislation than mere rectitude does.[n291] How the "indelicate balance" of lobbyists would unfold remains unclear. On the one hand, copyright industries might welcome the proposed § 301(g) as a way to open, without apparent cost to their extant rights and remedies under the Act, new options for protecting their expressive works.[n292] On the other hand, they might worry that courts [p. 797/p. 798] would more readily threaten preemption under § 301 if (g) stood ready to soften the impact of (a). Far- seeing federal officials might disfavor the proposed § 301(g), too, calculating that it would decrease their political rent-seeking opportunities by removing some expressive works from the scope of the Copyright Act.

Ultimately, though, § 301(g) could remain hypothetical without having too great an impact on whether courts open an escape from copyright. Because careful copyright owners should find it fairly easy to avoid having their common law claims preempted by § 301(a),[n293] courts would seldom hear its call to close the exit option. That leaves two other options for directly confronting a copyright owner with the choice between statutory and private protections of expressive works: implied conflicts preemption under the Supremacy Clause and copyright misuse. The former remains wholly theoretical; research uncovers no case in which a court has struck down a common law right as impliedly preempted by federal copyright law.[n294] Nor should any court do so.[n295] More to the point, however, no court is likely even to consider the question. The defense of copyright misuse offers a more proven, moderate, and incremental way to mitigate potentially harmful combinations of copyright and private rights. Interestingly, it has also come to offer something like an escape from copyright.

C. Copyright Suspension

The doctrine of copyright misuse will bar enforcement of a copyright if its owner leverages rights afforded under the Copyright Act in an attempt to achieve particular types of wrongs.[n296] Created fairly recently by courts applying general principles of equity, copyright misuse remains a somewhat exceptional defense.[n297] Circuits have split on whether it can arise independent of an antitrust violation.[n298] Perhaps [p. 798/p. 799] the trend runs toward recognizing copyright misuse for violations of public policy generally; the theory has certainly proven popular in, well, theory.[n299] Suffice it to say, then, that copyright misuse holds potential for correcting abusive combinations of statutory and common law rights. [p. 799/p. 800] It does so, moreover, by forcing copyright owners to choose between those two means of protecting expressive works.

In contrast to courts considering preemption under § 301 or the Supremacy clause, courts finding copyright misuse show no particular favoritism for statutory over common law rights. To the contrary, they suspend enforcement of the copyright in question unless and until the misuse ends,[n300] while leaving coincident common law rights standing.[n301] Copyright misuse thus effectuates a contingent sort of exit. It requires a copyright owner who has violated public policy by combining statutory rights and common law rights to either forsake the former and rely on the latter, or reform any associated practices so as to end the misuse. A copyright owner could conceivably find exile comfortable enough to compensate for the loss of his statutory rights and happily choose to remain there. Notably, however, and in contrast to someone who has abandoned her copyright,[n302] he could presumably reclaim extant statutory rights at will.[n303] Copyright misuse nonetheless has bite; in contrast to an election of remedies,[n304] it sharply reduces the sum of rights enjoyed by copyright owners.

Although the doctrine of copyright misuse has opened an escape from copyright, it bears noting that it has done so only in a somewhat fragile and even accidental fashion. The doctrine remains controversial--especially as invoked for generic violations of public policy--and wholly the creature of equity.[n305] Because courts apparently did not have opening an escape from copyright in mind when they first recognized copyright misuse, they risk developing the still-nascent doctrine in ways that derogate common law protections of expressive works. Further and more fundamentally, because courts measure misuse against public policy as expressed in the Copyright Act, the scope of misuse shrinks [p. 800/p. 801] each time lawmakers expand the statutory powers afforded to copyright owners. Legislative trends thus suggest that the exit option opened by the doctrine of copyright misuse will shrink over time.[n306] However much that conclusion discourages, who would wish it otherwise? Unless and until courts find the Copyright Act unconstitutional, they will quite understandably read it as an official statement of public policy with regard to expressive works.

D. Toward an Open Copyright System

A variety of paths lead toward an exit from copyright. In addition to the effects of copyright owners "preempting preemption"[n307] and of courts enjoining copyright misuse,[n308] authors can find themselves former copyright owners because the term of their statutory rights has expired,[n309] or simply because they choose to dedicate their works to the public domain. An "open" copyright system, one that respects and encourages movement across the Act's porous border, ought to provide for the clear demarcation of works that have exited from statutory protections. For better or (more likely) worse,[n310] copyright now inheres by default in fixed works of expression.[n311] Copyright owners no longer need to register[n312] or to attach copyright notices to their works[n313] in [p. 801/p. 802] order to qualify for protection under the Copyright Act.[n314] Absent some sort of notice, then, the public will often not know when a work lies outside of the Act's scope.

Common law or technological self-help protections might limit the use of certain uncopyrighted works, of course, but even then users would benefit from knowing that copyright does not lurk in the background.[n315] More importantly, someone who comes across a work unprotected by copyright, common law, or technological tools--just lying about the commons, as it were--would want very much to know that fact. The rest of us would want her to know it, too, so that she might fearlessly pick up the work and put it to good use. Attaching an uncopyright notice to such works would helpfully clarify the public's rights.

What might an uncopyright notice look like? A "©" overlaid with a backslash, per the international iconography of things forbidden, would have done nicely back in the days of typewriters. Contemporary word processing programs do not generally allow double-struck characters, however, and the hypertext markup language standard that applies to the world wide web allows such tricks only grudgingly and indirectly.[n316] Fortunately, notice practices under copyright law suggest some ready fixes for this typographical problem. The Act expressly provides that a notice may employ "Copyright" or "Copr." in lieu of "©",[n317] suggesting obvious parallels like "Uncopyright" or "Uncopr." Similarly, the ASCII "(c)" by custom suffices when the "©" character [p. 802/p. 803] cannot be had, suggesting that "(¢)"[n318] would suffice to put the public on notice that a work comes free of the Copyright Act's limitations.[n319]

An open copyright system would ideally do more to promote public discourse--on some accounts the fundamental justification for the Copyright Act[n320]--than simply providing clear notice of uncopyrighted works. By encouraging, and sometimes forcing, exit from copyright, it would drive the development of private protections of expressive works.[n321] That would in turn decrease the relative importance to copyright owners of securing favorable treatment under the Act, perhaps mitigating the statutory failure that now afflicts copyright legislation. More fundamentally, however, a market success in creating effective common law and technological protections of expressive works would finally obviate the original, exceptional, and only viable justification for copyright.

V. CONCLUSION: THE PACKET-SWITCHED SOCIETY

Although copyright arose as a necessary but sharply limited evil, it has grown into a pervasive and potent tool of federal information policy. [p. 803/p. 804] At the same time, market-driven innovation has led to increasingly effective private means of protecting expressive works. Commentators rightly worry that copyright and common law combine to give too much power to the owners of expressive works. The problem, however, lies with copyright law. This paper has thus explored the theory and practice of opening an escape from copyright.

If copyright and private protections prove too powerful in combination, the exit option described in these pages would allow copyright owners to choose either route toward safeguarding their expressive works. To offer that choice wholly comports with fundamental copyright policy, because insofar as common law and self-help technological methods suffice to protect an expressive work they overcome the very market failure that justifies copyright law. To imprison the owners of expressive works within the confines of the Copyright Act, conversely, would do little good and much harm. Congress could not delicately balance public and private rights to expressive works even if it wanted to; it faces powerful incentives to not even try. Nor can federal lawmakers force the owners of expressive works to sacrifice their common law rights without also putting basic constitutional rights at risk. Fortunately, courts have both good reasons and good ways to start implementing a better, more open copyright system.

Comparing the sharply contrasting views described in this paper demonstrates that, as a general matter, two models of society drive the debate over copyright policy. In one, collective deliberation guides central authorities who, after a delicate balancing of competing interests and in the name of the general welfare, define iron-clad terms of access to expressive works. In this model, politicians invoke State power to override private rights, laying down unbreakable lines of communication between copyrighted works and the public. It strongly recalls how the power of eminent domain violates private rights so as to build telecommunications infrastructure and how regulators define the public obligations of common carriers. Call it, then, the circuit-switched model of information policy.

An alternative model inspires the present call for opening an escape from copyright: packet switching. A packet-switching protocol drives Internet communications, of course, making them flexible, robust, scalable, and resistant to central control. But packet switching also explains the success of yet another vital network--the network we call the liberal society.[n322]

[p. 804/p. 805] Persons in a liberal society pursue countless different goals, some shared and some unique. Each person chooses his, her, or its[n323] own route through a web of consent-rich relationships. No one authority directs all these countless various pursuits of happiness. Nor could it, given the complexity of the system. Our packet-switched society instead relies on a few simple rules--based in common courtesy and common law--to define a protocol universal in form, but local in application.[n324] Order arises spontaneously, the result of conscious action but not conscious design.[n325]

As wire-bound parts of the Internet demonstrate, a packet-switched network may sometimes rely on a circuit-switched infrastructure. Similarly, liberal societies typically rely on some measure of State intervention to help patch the gaps where private means fail. But in neither case should one confuse an old fix for a necessary feature. Thanks to open-access[n326] and packet-switched radio communications,[n327] the Internet can--and probably should--escape from the circuit-switched bottlenecks so susceptible to seizure and censorship.[n328]

Similarly, private means stand ready to finally cure the market failure that alone justifies copyright, a political kludge. It would thus prove unfortunate, indeed, if courts trapped the owners of expressive works within the confines of copyright law. Once rendered superfluous, a necessary evil becomes simply an evil.

[*]. Visiting Professor, University of San Diego School of Law. Associate Professor, Chapman University School of Law. B.A., with Honors, University of Kansas; M.A., University of Southern California; J.D., University of Chicago. I thank: participants at an Institute for Civil Society colloquium for critiquing my preliminary arguments; colleagues at Chapman University School of Law for taking part in a workshop on an early draft of the paper; faculty of the George Mason University School of Law, the University of San Diego School of Law, and the University of Utah School of Law for hearing presented and discussing a late draft; Kimberly A. Moore, David Post, Malla Pollack, Julie Cohen, Alfred C. Yen, Mark A. Lemley, Doug Galbi, Lee A. Hollaar, and Debra Tussey for commenting on the penultimate draft; John C. Eastman for sharing his expertise on constitutional law; Timothy Sandefur for research and editing; Richard Bonenfant for research; Geoff Fortytwo for a bit of timely technical assistance; and Chapman University School of Law for a summer research scholarship. I bear sole responsibility for this work as submitted for publication. (C) 2001, Tom W. Bell, All rights reserved.

[1]. Here and elsewhere, this paper impliedly focuses on U.S. copyright law. Much of the discussion will, however, apply to copyright law generally.

[2]. This paper defines as "market failure" those instances when civil mechanisms, most notably institutions operating under common law rules, function suboptimally. See Joseph E. Stiglitz, On the Economic Role of the State, in The Economic Role of the State 11, 38 (Arnold Heetje ed., 1989) (explaining that market failure [analysis] asks, "[W]hen will voluntary organizations not work effectively?"); Richard A. Posner, Economic Analysis of Law 343 (3d ed. 1986) (criticizing overly-narrow views of market failure on grounds that "[t]he failure is ordinarily a failure of the market and of the rules of the market prescribed by the common law"). As should (but cannot) go without saying, no mere finding of market failure will justify state action. Because neither civil nor political mechanisms work perfectly, to respond to market failure requires a choice between "the common law system of privately enforced rights and the administrative system of direct public control--and should depend upon a weighing of their strengths and weaknesses in particular contexts." Id.; accord Stiglitz, supra, at 38-39 ("[T]he issue becomes one not of identifying market failures, for these are pervasive in the economy, but of identifying large market failures where there is scope for welfare- enhancing government interventions."). This paper analyzes market failure in terms generous enough to accommodate the concern of some commentators that narrower, purely monetary analyses risk slighting vital aspects of copyright law. See, e.g., Lydia Pallas Loren, Redefining the Market Failure Approach to Fair Use in an Era of Copyright Permission Systems, 5 J. Intell. Prop. L. 1 (1997) (offering a comprehensive argument for viewing market failure broadly in the context of copyright's fair use doctrine); Mark A. Lemley, Beyond Preemption: The Law and Policy of Intellectual Property Licensing, 87 Cal. L. Rev. 111, 129 n.59 (1999) (arguing that market failure analyses of fair use doctrine should extend beyond consensual licensing). The use of "market failure" herein also effectively conveys a central aspect of the Founders' views on justifying state action, though of course without implying that they employed "market failure" itself, a term that arose only much later under neoclassical economics.

[3]. U.S. Const. art I, § 8, cl. 8. The implication here that U.S. copyright law may constitutionally promote both science and the useful arts merits a brief explanation. The clause in full grants congress power "[t]o 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." Id. Some authorities argue that "respective" imposes on the clause a comprehensively parallel construction under which congress has power "[t]o promote the Progress of Science . . . by securing for limited Times to Authors . . . the exclusive Right to their . . . Writings." See, e.g., In re Bergy, 596 F.2d 952, 958 (C.C.P.A. 1979) (quoting H.R. Rep. No. 82-1923 (1952), reprinted in 1952 U.S.C.C.A.N. 2394, 2396) ("The purpose of the first provision is to promote the progress of science[,] . . . the word 'science' in this connection having the meaning of knowledge in general . . . ."); Robert A. Kreiss, Accessibility and Commercialization in Copyright Theory, 43 UCLA L. Rev. 1, 7 n.21 (1995) ("The copyright portion pairs 'Science' with 'Authors' and 'Writings' . . . ."); Loren, supra note 2, at 3 n.2 ("The clause should be read distributively with 'Science,' 'Authors,' and 'Writings' representing the copyright portion . . . ."); William Patry, The Failure of the American Copyright System: Protecting the Idle Rich, 72 Notre Dame L. Rev. 907, 910 n.18 (1997) ("Structurally, the Constitution couples 'Science' with 'Authors' and 'writings' . . . ."). I have quoted the clause in such a fashion, albeit reflexively. See Tom W. Bell, Fair Use Vs. Fared Use: The Impact of Automated Rights Management on Copyright's Fair Use Doctrine, 76 N.C. L. Rev. 557, 585 n.130 (1998). It seems more plausible, however, to read "respective" as imposing a parallel construction not on the clause's justificatory preamble but on only the types of creators and creations listed in the last two sub-clauses. See Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 349 (1991) (quoting U.S. Const. art. I, §8, cl. 8.) ("The primary objective of copyright is . . . '[t]o promote the Progress of Science and useful Arts."'); Malla Pollack, Unconstitutional Incontestability? The Intersection of the Intellectual Property and Commerce Clauses of the Constitution: Beyond a Critique of Shakespeare Co. v. Silstar Corp., 18 Seattle U. L. Rev. 259, 282-83 (1995) (applying a parallel reading to only last two sub-clauses on grounds of legislative history and canons of construction). This more generous reading comports with good grammar, makes more clear that "limited Times" applies to both the copyright and the patent power, and slightly reduces (but certainly does not eliminate) suspicions that the extraordinarily broad scope of contemporary copyright law transgresses constitutional limits. See infra Part III.E.1 (contrasting the Copyright and Patent Clause's plain language with the expansion of copyright law).

[4]. U.S. Const. art I, § 8, cl. 8.

[5]. Copyright Act of 1976, as amended, 17 U.S.C.A. §§ 101-1332 (1994 & Supp. V 1999).

[6]. See infra Part III.E.

[7]. The Act does not define "work" and uses the term inconsistently, sometimes implying that a work must be fixed, see, e.g., 17 U.S.C. § 101 (1994) ("A work is 'created' when it is fixed . . . ."), and other times implying that a work may be unfixed, see, e.g., id. (defining "derivative work" without reference to fixation). It thus bears noting that this paper uses "expressive works" as shorthand for "original works of authorship fixed in any tangible medium of expression," id. § 102(a) (defining the subject matter of copyright).

[8]. See infra Part II.A. Because the development and use of such self- help tools involves common law rights-such as the right to own a computer, contract with a programmer, or forbid trespass to a research lab--this paper refers to the combination of common law and technological protections as "private" or "common law" protections.

[9]. See infra Part II.B-C.

[10]. See infra Part IV. By way of clarification, it bears noting that mere appeal to the unfortunately mislabeled "common law copyright" cause of action will by no means resurrect an author's statutory rights in common law guise. See Howard B. Abrams, The Historic Foundation of American Copyright Law: Exploding the Myth of Common Law Copyright, 29 Wayne L. Rev. 1119, 1129-33 (1983) (arguing that "common law copyright" does not accurately describe the limited rights that authors have to prevent publication of their works).

[11]. I first briefly raised the idea of offering an exit from copyright in Bell, supra note 3, at 614-18. The present Article represents my attempt at a more comprehensive treatment of the concept. See also Julie E. Cohen, Some Reflections on Copyright Management Systems and Laws Designed to Protect Them, 12 Berkeley Tech. L.J. 161, 182-83 (1997) (criticizing escape option on grounds that "allowing unlimited numbers of copyright owners to opt out of the system as it suits them is bad law and bad policy"); Open Discussion, 17 U. Dayton L. Rev. 839, 839-45 (1992) (discussing utility and desirability of avoiding copyright misuse claims by dedicating work to public domain and relying on common law rights); Mark A. Lemley, Intellectual Property and Shrinkwrap Licenses, 68 S. Cal. L. Rev. 1239, 1273-74 (1995) (conjecturing that copyright owners would prefer to avoid choosing between copyright and contract rights); Lemley, supra note 2, at 149-50 (arguing that U.C.C. 2B might make abandoning copyright to rely solely on contract law an attractive option); see also 1 Melville Nimmer & David Nimmer, Nimmer on Copyright § 1.01[B][1][a], at 1-16 n.69.5 (2000) (criticizing a court for preempting a contract term and suggesting that instead it should have allowed an election of remedies).

[12]. Regarding those other types of federal limits, see Lemley, supra note 2, at 151-63 (describing effects of copyright misuse doctrine and various federal rules affecting intellectual property contracts).

[13]. At the margin of technological advance, of course, the proper shape of common law remains subject to debate and refinement. See, e.g., Dan L. Burk, The Trouble With Trespass, 4 J. Small & Emerging Bus. L. 27 (2000) (critiquing courts' use of trespass to chattles as a means of restricting access to computer networks and proposing a new theory of digital nuisance). The present paper does not attempt to settle such theoretical disputes; it suffices to note that they arise relatively rarely and that they should prove just as susceptible to resolution by courts and commentators as other questions about common law do.

[14]. U.S. Const. art I, § 8, cl. 8.

[15]. The substitution herein of "welfare" and "liberty" for what some commentators respectively call "positive" and "negative" rights follows the suggestion of Randy E. Barnett, The Structure of Liberty 67 n.11 (1998) (crediting Loren E. Lomasky for that usage and praising its "moral neutrality").

[16]. See