The Ethical Visions of Copyright Law

While I’m uploading recent papers, here’s another. Last fall, I participated in an enormously fun symposium at Fordham Law School (organized by Kathy Strandburg, Brett Frischmann, and Jay Kesan) called “When Worlds Collide: Intellectual Property at the Interface Between Systems of Knowledge Creation.” The idea was to juxtapose the commercial system of knowledge production with other such systems—open-source software, university research, and developing-world traditional knowledge—and ask what work IP does at these borders. I knew for months that I was going to be on the open-source panel, but I had the hardest time coming up with a topic I felt comfortable with. Visitors to my office in early fall may remember a whiteboard covered in equations, the detritus from a failed attempt to produce a simple but informative economic model of how centralized and distributed software projects plan for the future.

Almost as an afterthought, and with more than a little desperation, I started thinking about rhetoric rather than about resource constraints. But something about the language of the copyfights stuck in my head in just the right way, and I started trying to articulate, as I put it to people, “what copyright law thinks of when it thinks of us.” The answer, I decided, was more than a little ethical; copyright law wants authors and audiences to be good people who treat each other well. (If you’re familiar with standard legal academic arguments in intellectual property, you may have a sense for why this way of putting things struck me as pleasantly perverse.)

The resulting essays have now been published in a symposium issue of the Fordham Law Review. There are plenty of nice contributions in the volume, but I especially recommend Wendy Gordon’s keynote address which combines a generous and cultured musing on the purpose of copyright with a beautiful introduction by Sonia Katyal that tells you exactly why only Wendy Gordon could have written such a generous and cultured musing. My own essay is entitled “The Ethical Visions of Copyright Law, and here’s the abstract:

This symposium essay explores the imagined ethics of copyright: the ethical stories that people tell to justify, make sense of, and challenge copyright law. Such ethical visions are everywhere in intellectual property discourse, and legal scholarship ought to pay more attention to them. The essay focuses on a deontic vision of reciprocity in the author-audience relationship, a set of linked claims that authors and audiences ought to respect each other and express this respect through voluntary transactions.

Versions of this default ethical vision animate groups as seemingly antagonistic as the music industry, file sharers, free software advocates, and Creative Commons. “Respect copyrights,” “Don’t sue your customers,” “Software should be free,” and “I love to share” are all ethical claims about copyright that share some common intuitions, even as they draw very different conclusions. The essay provides a framework for thinking about these ethical visions of intellectual property and then puts these various visions into conversation with each other.

I really like the introduction, which to me very gently chides those who use “imaginary property” as a disparaging term parodying the non-neutral “intellectual property” (I find my reaction strange to some extent, since I, myself, am bothered by the term “intellectual property”).

These courts treat vulgar parodic uses as unworthy of fair use defenses precisely because they have the temerity to knock an iconic original from its cultural pedestal.
Here I find it strange that you do not contrast these results with the outcome of the decision in MATTEL INC. V WALKING MOUNTAIN. Or did you think it obvious that the cases you present do not meet the fundamental “threshold question” of “whether a parodic character may reasonably be perceived”? I rather think that the contrast might have thrown into question whether the the actual threshold question the courts have been using is “whether a parodic character may reasonably be perceived”, or rather is it “to what extent a parodic character may reasonably be perceived to have been intended compared with other motivations for the use of the work”.

I think the cases I discussed make my point adequately. If I’d started writing about parody cases in general in copyright — let alone about parody cases in trademark — I’d be writing still. (Unpacking the imagined ethics of trademark is a job for another day and another, longer, paper.)