 Welcome to Free Thoughts, a podcast project of the Cato Institute's Libertarianism.org. Free Thoughts is a show about libertarianism and the ideas that influence it. I'm Aaron Powell, a research fellow here at Cato, an editor of Libertarianism.org. And I'm Trevor Burrus, a research fellow at the Cato Institute Center for Constitutional Studies. Today, we're talking about copyright. Our guest is Tom W. Bell, professor at the Chapman University School of Law and author of a new book, Intellectual Privilege. Welcome to Free Thoughts. Thank you. Thanks for having me. The term intellectual property makes it sound like copyrights and patents and so on are just forms of property like anything else. But you don't agree with that. And so you think that there's something wrong with thinking about them in the same way that we typically use the term property. Yes. I think it's a misnomer. It's got some truth to it, but it's apt to mislead people. It's apt to mislead policy makers and I think that's part of the reason why copyright has gotten far too big. Big in the sense of too many or too many laws, too many regulations, too long, maybe all of the above. I don't know if there's too many copyrights. I would say there are too many privileges granted to copyright holders. They have too much power and it includes term, but it's other things too. The scope of the rights that they can command at law have gotten too broad. Those traditionally copyright requires a few things to obtain one under legal. What does that usually require? Under U.S. law, it's basically any fixed expression of authorship that's original. And authorship here doesn't mean writing a book. It can be a computer program, a painting. It's any creative expression. As long as it's recorded in a tangible medium and it's original, you have a copyright. What makes this sort of thing different from property as we typically use that term when I'm talking about my car or my house? I do think property, we have property rights and it's a wonderful thing. In fact, that's one reason I'm a little concerned about the word being overextended with regard to copyright. The problem is basically that copyright's fundamentally different from those tangible types of property in a number of ways. One way is that copyright originates only in a federal statute. It's a government-granted privilege, kind of like a taxi medallion or wealth or benefits versus our property rights in tangibles, which exist in a state of nature, I would argue, and exist at the common law. You can't say that of copyright. It doesn't exist in a state of nature and it's not recognized at common law. Because of those factors, some people, some libertarians actually believe that there is no such thing as intellectual property in a true world. You think that there should be, you're not against copyright as a privilege. That's right. I wouldn't advocate abolishing copyright simply from the argument that it's a privilege. If you think the federal government should do anything, there's a good argument for having it support copyrights. At least it's in the Constitution, which is more than you can say about much of what the federal government does. There are people who doubt that we should even have a federal government if you don't think we should. You're not going to like copyright. But to the extent you think what the federal government does is justified or can be justified, if it's done constitutionally, then I think you can find something to like in copyright. You say that copyright or intellectual property doesn't exist in the state of nature. It's not the kind of property and that that's why we should stop necessarily thinking of it in the same way and think of it more as a privilege, but is it that it doesn't exist in the state of nature because, say, the technology to have this sort of thing didn't exist? So presumably something like sculpture or painting could exist in the state of nature because you could make these things and then there's this object that you could claim a property right in, but songwriting or books or whatever else, the other things and a lot of things that we typically think of when we talk about copyright couldn't have existed simply because there was no way to even make these sort of things. So did the property get created then because, you know, so now we have a technology to make books or whatever, so now there's a property in it? Well, I think to answer that we have to describe what's special about copyright. It's not the works themselves. Humans are inherently creative. They've been creating songs, I suppose, even before they were humans, right? Birds create songs and diddo paintings and other things that we protect with copyright. No, the problem isn't the creation of those expressions. It's how you grant people powers to control what other people do with them. So in a state of nature, suppose I come up with a song. I'm living in a tribal society. There's no federal government, nothing like it. And I come up with an original song and you like my song and you start singing it. I really don't have any way to stop you. Not practically. You know, I can complain but, you know, our neighbors hear the song, they like it too. They all start singing it. There's just no mechanism. You say technology and I suppose if you think of social institutions as a form of technology, yes, I'd say there's no technology. Well, I'm also thinking the technology of fixing this thing into, so we didn't have writing in the state of nature. So there couldn't be written works. Well, I guess if you go back far enough and you deal with a primitive enough creature that's true, there's no fixation. But I don't think that's really the problem. That's not the problem with copyright. In the Renaissance, for example, they had plenty of ways to fix works, you know, musical notation, painting, sculptures and marble. And even there, I would say you have the same arguments to regard copyright as a privilege as you have today. And as you had with the caves at Lascaux, I mean, where they had paintings on the walls. So in the Constitution, as you mentioned, you kind of implied a little bit that there's a freedom limiting aspect to this if you have a claim. You can't sing the song that I just sung type of thing, which I think applies to happy birthday, unless it's apocryphal. But I hear that a lot. And as you mentioned today, when you're speaking earlier, the Martin Luther King speech is not something that you could legally go onto the sidewalk and start reciting to the point of actually being penalized for. So that seems a little bit problematic from a freedom standpoint. Would you agree? I do. That's one of my concerns with copyright is it does limit specifically our freedoms of expression, but more generally, our freedoms to use our property rights in tangibles as we see fit. You know, you're saying to me, I can't use my throat in this way. I can't use my guitar, my printing press, and that's what copyright does. And in the Constitution, there is a little bit of a of a proviso about why the copyright is allowed. It says to promote the useful, useful arts and that is both the useful arts and sciences, I believe, is the actual terminology. And does that limit the clause? Do you think in some way? Well, it doesn't undercurrent jurisprudence. Effectively, the Supreme Court has said, well, they've made it a dead letter. They don't see any constraint in that that I've been able to discern from their jurisprudence. I think it is there for a reason and it should limit what lawmakers can constitutionally do. I'm one guy talking, but the words are there for a reason, I figure. And interestingly, in your new book, you have copyrighted it or tried to under the 1790 Copyright Act. What do you call the Framers? The Founders. Founders copyright. And so he tells what that is. Sure. And what's neat about it, yeah. Well, basically the same parties who ratified the Constitution in the first Congress passed the first copyright law, the 1790 Copyright Act, right, Constitution 1789 next year, the first Copyright Act. And so I think what they did in that act tells us a lot about what the Founders thought about the proper scope of copyright. And when you compare the 79 Copyright Act to our present act, wow, it was a huge difference. The maximum term, for example, was 28 years. It forbade only exact duplications of works. It didn't forbid derivative works. And in a number of other ways, it was much more modest than what we have now. And that appeals to me. I mean, I really admire the Founders and I thought it would be a good idea since I think copyright today has gone so far. And when I was figuring out, well, how much copyright should we have? I thought, well, you could do worse than to go back to what the Founders had. So yes, we've released the book. It's essentially under a public license that is designed to replicate in so far as possible the 1790 Copyright Act. So the copyright will expire, well, certainly in 28 years. It might actually expire earlier than that for reasons I could get into. And if you want to create a musical of my book, I will not be able to stop you. I've already said it's up for grabs. And in other ways, it's designed to recreate that historical model. And that is not what copyright looks like now in the sense that copyright is a little bit more what rent seeking in some way you discuss. But what does Mickey Mouse have to do with current property or copyright law? Well, yes, copyright is fundamentally based on a federal statute. And we all know what happens when you have federal lawmakers together with lobbyists. They seem to push federal powers always towards them more and more and more. It's a big part of what Kato does is noting that and trying to resist that. And so too with regard to copyright. The 1790 Copyright Act, as I said, was 28 years maximum now. The maximum term could be, well, it depends on the kind of work. But usually it's life of the author plus 70 years, death of the author plus 70 years. And that could easily get you over 100 years. Or for certain types of works, it's 120 years maximum. It's a lot longer than it used to be. And that is, I think, indisputably the result of lobbying. Now I don't want to point to the Disney Company as the only lobbyist. In fact, I don't think anybody's able to prove it's Disney ever lobbied anybody for an extended copyright term. But it wouldn't surprise me if they did. You have this graph showing as, I mean, it's pretty remarkable how much it sinks up that as Mickey Mouse gets awfully close to public domain, suddenly the term of copyright shoots up and it happens over and over again. Yeah, the book, which I encourage your listeners to purchase and download. And it's... Make musicals of, too. Make musicals of. No charge for that. Yeah, the book has a number of charts and graphs. And I put them in there because I do think they illustrate these things so nicely and neatly. And so what one of those charts shows is that Steamboat Willie, created and first published in 1928, initially only had a maximum term of 56 years. And as that term started running out, the 76 copyright act kicked in very conveniently. And this is the cartoon where Mickey Mouse is first. Yeah, Steamboat Willie was where Mickey Mouse's character was introduced. And there's an aside about that we could get into where it turns out probably Steamboat Willie is actually not copyright protected. But Disney treats it like it is and they have a lot of attorneys and nobody wants to mess with Disney. So it started getting close to expiration and, low and behold, 1976, the new Copyright Act issues and the term of then existing copyrights were extended. So they said, you know, here, Disney, here's another 20 or so years on your copyright term. Well, thank you very much. I'll take that. And then it started getting close to expiration again in 1998. And, low and behold, here comes the Sunny Bono Copyright Extension Act, which extended it again. And now it's slated to expire sometime before 2030. I think it's something like 2024 or 26. Well, we don't know what's going to happen, but past practice indicates it looks like Steamboat Willie might get pulled out of the fire again. And this is one of the reasons why you talk a lot about the common law as being preferential in many ways to these statutory schemes, which not only allow for certain types of rent seeking and special interest, but and therefore shift at a more constant rate possibly than looking at the common law. Can we talk a little bit about what the common law is in this regard and how they viewed copyright if they viewed it at all in that way? Well, I should observe up front that, you know, some scholars disagree with me on this. I'm going to be fair to my counterparts. There's a lot of debate about a lot of things in copyright. But I think the best argument is that the copyright didn't really, that common law did not recognize copyright. What is the common law? It's basically the decisions of various courts on various issues. So it's a very decentralized bottom up system. No one court says in the common law system, I'm setting down the law for everybody everywhere for all time. That's what legislators do. That's a very top down process legislation. The common law just has a judge says in this dispute, I'm settling this dispute between these two parties. This is the right thing for them as to other parties is merely precedent. And another court has a similar dispute and it makes a different decision. Another court has a similar dispute and it makes the same decision. And over time in the aggregate, we can see out of these many different decisions as sort of an epiphenomenon, the rule kind of arising. And so it's a very different process. It's a spontaneous order. Your listeners might be familiar with that term. It's the common laws of spontaneous order that arises from the bottom up versus this planned order statutory law from the top down. And that has a number of policy impacts. I think one reason copyright has gotten so big is because it's centralized. There's a place to go to lobby for more of it. And that's what happens. In the common law, there's nobody to lobby. You know, you just have these courts that you go take your dispute to. I'm imagining someone listening to that and thinking that from what you've described, sure we don't run into the problem of one body upping the terms kind of arbitrarily to perhaps help out Disney. But at the same time, there seems to be maybe a lack of certainty present in there because you said, you know, one court makes this decision and it may be precedent and other courts may then follow it, but some may not. And so someone saying, look, that doesn't sound necessarily better because as an author, you know, I may dedicate the next 10 years to writing this book and I want to know how long I'm going to be able to sell it before someone else can just run off their own copies. And now you're telling me some judge could just make up a number and there's no kind of higher authority or another judge could change his mind the next time? That's an excellent observation and there's a couple of things to say about that. One is a lot of commentators conclude from your very apt analysis that we need a little of both. We need a common law system. And once in a while, the legislature has to step in and maybe kind of decide one way or the other or kind of clarify some obscurity. Other commentators and I lean more in this camp say, well, we don't need necessarily legislatures to do that. It is enough that people like academics and scholars look at these common law decisions and say after many observations, it's an empirical process. We've concluded that most courts resolve the issue this way. And so that allows you to turn to these commentators, things like the restatements of law or commentators like Brackden or Cook or others, sort of scholars who've studied a lot of common law systems. We go to them and figure out the rules. And the third thing I'll say is, well, to some degree, we should stop having courts innovate in the common law. The idea with the common law, the thing that really charms me about it, is if you stick to the big three, I've taught all three of these classes, property contracts and torts, there's really just a few simple rules. A few simple rules are all that you need to make a society work well. In fact, Richard Epstein wrote a book along, which I think he called it a few simple rules or something. And the idea is that with just a few simple rules, you can solve most of your questions that way. So you have a question about duplicating somebody's song. Under common law, you ask, not did a court create a common law copyright somewhere? You ask, well, can we solve this problem using contract law and property law? Did he steal your piece of paper? No. Well, I don't see a property violation. Did you have an agreement with the person that you say stole your work? No. There's no contract claim. And you're left with tort and we just kind of run through really relatively few causes of action. No cause of action. You say tough nuts. Why don't you go use a contract next time? Why don't you lock it in a box so you have a property claim? And the argument I'd make is really those few simple rules will suffice to create a very complicated, rich, prosperous, culturally variegated society. I want to follow up on some of that. But it raised, I think, an interesting distinction that you have brought up when you say, did he take your piece of paper or you can lock it in a box? One of the things that's different is this non-rivalrous nature of intellectual property to other property. Can you explain what you mean by that? Sure, yes. That's a fundamental distinction between copyright and what I'm willing to consider property, non-rivalry in consumption. And Thomas Jefferson described this in his beautiful quote where he described in ideas like a lighted taper by which he meant candle. And a single candle can illuminate the whole world. So your candle's lit and you can touch or your neighbor's candle and light it and ditto down the line. Their illumination in no way takes away from yours. And that's why copyright is too. If you come up with a beautiful song and you sing it and I hear it and I sing along, we both have a beautiful song. That's wonderful. It's magical. One of the things I like about copyright is it does seem to encourage the production of those wonderful sources of wealth. As opposed of course to tangible property. You know, if I eat an apple, you can't eat the same apple. It's rivalrous in consumption. So fundamentally at an economic level, it's almost like a law of physics. Copyright is different from other types of property and I think public policy should take that into account. I think one of the ways that people think it, when they're talking about it being as property and so there's theft of it is not so much, if I steal the song that you wrote from you, it's not that you can't continue to enjoy that song. I'm not taking your ability to sing it. But instead, one of the things that we can do with property is sell it. We can transfer it to other people in exchange for something. And if I take your song, then suddenly I can transfer it to other people or if I promulgate it enough, I can take away your not ability but the possibility of a market in your good. So I've taken, it's that ability to use property to make money that we see as being stolen as opposed to the thing which obviously can't because it's not tangible. Yeah. The same point came up in the forum earlier today we had here at Kato and it comes up very often in these discussions and there's two things I'll say to that. One is that can't be an argument in and of itself for copyright. Really all that is an argument for is someone wants more money than they're getting. And this institution lets them get that money but that doesn't tell us whether or not they should get the money. So the second point is we have to ask is this a place where we want to give somebody an exclusive right? So they can say when you do that you're infringing because I don't get to make as much money on it as I'd like. Well that's a question of fact and there are reasons to say, I mean I'm willing to concede that there are reasons for copyright. There's reasons to worry that an author for example, she sits down at a typewriter. She's got the idea for the great American novel in her head and she starts typing in a world without copyright. She might stop. She might say oh my goodness, I don't want to complete this because the first person to read it's going to run off with it and I'll never make any money. And we lose out. We don't get the great American novel. So it's a good reason for copyright but at the same time we have to recognize that every time we enforce copyright we are in some way restricting the possibility of someone to enjoy something for free. Now that's a gift, that's a wonderful thing. You have to say to the person who wants to make their copy ordinarily you'd be able to do this at basically zero marginal cost. There's nothing in the rules of physics that says you have to pay for this. It's like magic. But we're going to impose this law and you prevent you from doing that and that's an opportunity cost. The question for us should be given we want this good outcome, the new expressive work, is it worth bearing the cost of restricting people's liberty? And that's exactly the question we need to ask. There's not an easy answer but it's the right question. The wrong question with copyright is to say, well it's property, shouldn't we stop people from stealing property? That's way too simple. That's one reason I think it's important to think about it as a privilege because it puts us into the right frame of mind to address these questions. How would we go about trying to answer those? One of the big ones here would be term, correct? 14 years is going to maybe give someone more, but less incentive than 70 years. Maybe you wouldn't write the great American novel if you don't think your kids can reap any benefits from it or anything like that. Could we ever use anything to try and figure out what the proper term of a copyright should be? Well you know I write about this in the book. People talk about copyright being in a delicate balance. They say copyright delicately balances public and private interests and I think that's absolutely absurd for two reasons. One is it presumes we have the numbers to do the calculations. I think people have this picture as if in the Wizard of Oz you know there's a scene where Toto pulls back the curtain and you see the Wizard of Oz is actually he's a charlatan but this you know big control panel and he's manipulating things and they think of lawmakers like that like lawmakers are you know they're turning this public utility dial just so and they're adding a little bit of derivative rights just because they want to balance it out. Well there's no numbers for that. There's no control panel. It's a few lobbyists who happen to get the ears of a few legislators and secondly even if they had the numbers they wouldn't really care because that's just not the way the legislative process works. So you ask me well then how do we find the numbers? Well a couple things. One is we should look for salient disasters where we say oh my gosh nobody's writing novels or we don't have enough sculptures or there's just way too few of them and if we see that then there's a reason to say well let's try something and we should also on the other hand look for salient examples of where copyright has gone very much too far when people are being thrown in jail and this just happened for taking a few seconds of a recording on their their cell phone in a movie theater because you're now every cell phone's a recording device. It's very easy to record almost incidentally you know a bit of a move and that's a federal offense. You can be thrown in jail for that. Now when people are getting thrown in jail for that I think we have reason to say wow that's maybe too much or the fact that if I were to sing happy birthday if I would have sung that in the forums today as I mentioned I could potentially be liable for $150,000 in statutory damages for singing a short little song in a crowd of like 60 people that's a bit much so we can look for these salient examples of where there's obviously not enough protection I don't think we're in that world in any way or there's obviously too much too many restrictions and I think we can argue we're in that world. It also seems though that you if you would be willing to maybe concede that there maybe the optimal thing is having no copyright whatsoever. Because you get a lot of benefits from that too a classic example being modern hip-hop music which has moved away from being a sample-based artistic form because of the kind of copyright claims that you've been making and I do think it'd be a weird question to try and weigh the subjective value of all this hip-hop music against the subjective costs of all these people so maybe the best solution but then there's the possibility that if there hadn't been copyright around you wouldn't have had the stuff for them to be working with in the first place. But maybe we shouldn't be trying to tilt the levers at all in the sense of just saying this isn't property no copyright whatsoever. Well you know there are whole areas of our economy where effectively there's no intellectual property protection at all for example jokes recipes perfumes designs of furniture divine designs of cars and all these areas there's no way there you come up with the best new perfume ever there's really no way to stop someone else from copying the smell. Do we lack for innovation and perfumes or jokes or recipes in these other areas? We do not and I think that's highly suggestive. I don't know if that answers every question there's a few areas where even you know where even I a copyright skeptic worry if for example Hollywood had no copyrights would they create you know those huge blockbuster avenger films? I don't know maybe not maybe big software projects like say Halo wow a lot of person hours went into Halo and people get a lot of utility out of playing that game and if you could just make a copy like that I worry it would never happen but I do think and this is the final sort of my overarching answer to this I do think we should encourage a system where people have an incentive to try they have an incentive to try to do without copyright because right now you're given copyright automatically even if you don't need it and so everyone it's too easy on people who want to create business models and sell creative works they just say well I got my federal rights I can sue the bejesus out anybody I want so they never look into the possibility of using technical protections or business models or licensing schemes or other common law based ways of solving these problems without running the risk of statutory failure people talk about market failure copyrights of statutory failure so in the book I described some ways we could just with tinkering of the few little statutory provisions create a system where copyright is more open where people have an incentive to exit the copyright system and kind of stand on their own two feet in the common law system and do their what the copyright act does for them can we already say like contract around copyright I'm thinking of things like the creative commons licenses that were at least a big deal a few years ago aren't those an attempt to say I'm going to create a new system of copyright or set of rules for how this is going to be used and put it out into the world does that not work does it get trumped by federal legislation well it is true you can forgo some of your statutory privileges indeed as as you noted I've done that with the book I've said I'm not going to take everything I can but you know what's my incentive for doing that I'm kind of a quirky guy not many people are going to follow me in that did it with the creative commons I'm a big supporter of what they do and they do make it easier for people who want to kind of take a more minimalist approach a less restrictive approach to to do that but there's very few incentives to do that just it takes I don't I won't say a hero but a certain kind of person who's you know got different incentives and interests those people are very rare so I don't think that's enough I think we also need to implement reforms that give people a little bit more of a push out the door it's a little bit like everyone's sheltered under copyright now and sure the doors are there but there's no reason to go outside so the idea is we need to open up those doors and say to people once in a while you know we're going to nudge you over there you know try stepping outside for a little bit doesn't work maybe you can come back in but right now people don't have much of an incentive to try something less what sort of incentives I mean what sort of benefits would flow to someone who opted for a less restrictive system well one of the proposals I've set forth in the book is section 301 g if you want to look for that and basically what it says is it's a reassures people that if they want to rely solely on their common law rights contracts technical protections which would be protected under tour to property rights federal law will not strike those down as interfering with copyright now there's some risk now that that could happen so I believe there might be a disincentive at the margin for some innovators where they say well look I don't I don't want to try to go the common law route solely because I'm worried it'll be struck down as preempted by federal statute whereas with this system if someone came up with say say a technical protection that could potentially last forever now they might say wow that's even better than copyright so I want to try that it's actually worth more money to me than copyright and I'd say good try it please because now you're not going to be going to congress and lobbying for more protections you're going to be standing on your own if you put your work in the public domain will let you do as much as you can with the common law so that's one innovation does give an incentive I won't pretend it's a huge one but it's a step in the right direction it gives an incentive for people to say I'm going to try doing without copyright because for me it could be better than copyright in terms of the technical innovation you're talking about do you mean like a DRM in digital rights or what do you mean in terms of I was unclear on an example of what you were talking sure that would be one example also there's some people doing some exciting stuff with regard to smart contracts and micro payments bitcoin is especially well implemented for this there's been proposals for systems under which you could use bitcoin to make very low transaction cost sales of basically access to copyright it works like for every second you're listening to a song a little tiny bit of money is going to the artist's pocket and this is done merely as a matter of protocol it's not because you have some you know a lawmaker who passed a statute and some attorney who negotiated a license it's just built into the system and world like that it's not clear to me you need copyright and we may even be able to structure it so you don't even want copyright well the interesting thing that that brings up which is one of these sort of copyright skepticism skeptical viewpoints and even for patents is that if you have the state here protecting the parameters of your right then you're not innovating to protect the parameters of your right and this of course happens in many areas the FCC came in and protected the parameters of radio licenses so they'd never had to figure out a way to lock their own licenses down their own radio bandwidth down but all these things such as DRM or any other way of trying to getting people into the movie theater is another good example when as soon as they started filming movies and pirating them the movie companies went to 3d and everything else to try and get people into the theater and they because they couldn't stop these people from doing that so is that another argument against copyright that it's stopping a certain type of technical innovation to protect your own works it is I like that observation I'm I have a lot of faith in human nature and in freedom both and I like to draw the analogy between packet switching and the common law so the beauty of the internet is a packet switch network as with common law is just a few simple rules you take your message you break it into packets and you basically throw the packets into the cloud and how do they get to the intended recipient basically routers direct the packet through the cloud and each router you know just has it's just a few simple rules this this packet has this address on it the router passes it on to the next router it's as opposed to this is technical you'll have to excuse me but I do think the analogy holds up as opposed to a circuit switched network such as we use for landline telephone in which case you know there's a central system AT&T connects you and you have a dedicated line between the east coast and the west coast to do your phone call that's like legislation and as the internet shows when you have a distributed system with a lot of simple rules with easy access you get unforeseeably wonderful things happen that never happened under the circuit switch network and so that's how I see the common law it's kind of like the internet it's like a the tcpip the protocol that runs the internet that's what those few simple rules of common law are like on this technology so we're talking about now about how copyrights can stop technological innovation but at the same time you've argued that technological innovation can make copyright less necessary in the first place copyrights are becoming I think less important than they used to be I think that's true yes I definitely argued that in the book I'm not sure that's the point you're making though I think I mean I'm willing to I definitely believe technology makes copyrights superfluous in a lot of areas but I think you're making a slightly different point no I think I'm arguing that the importance for the importance of copyright so far as like we need this thing in order to protect people's creative work so that they will create because if they're not protected they won't technology has made it less important that we have these legal protections in order to facilitate creation yes yes the examples I like to use or there's a number of examples we could use but think of music I mean back in the say the 1950s for you to get your pop single out to the world was really expensive the recording studio was expensive the distribution network was it had to move atoms around imagine trucks with LPs that broke really expensive and so someone like Elvis Presley could not do it on his own whereas today if you're a budding artist and a musician you get a laptop internet connection you have instant access to the whole world you got studio grade recording facilities right there in your laptop and boom and so in that kind of world you can be a hobbyist Elvis Presley could be a hobbyist and enrich our lives now where you have to wonder would Elvis be as rich and our conclusion might be he would not be as rich and to me that's a red herring because copyright is not about helping artists in the final analysis that is the means to the end the end is making us better off with lots of expressive works and if people are willing to do it as hobbyists which they obviously are which they obviously are that's right then that's everything we want from copyright but you see artists and and composers and people kind of bemoaning this I heard Bette Middler the other day saying it's really hard she seemed to think it was unfair and I'm sure to her it seems unfair because she grew up and worked in a system where there are stars and they're coddled and they make a lot of money but you know Bette Middler and people like her basically are being pushed out of the market by amateurs who actually keep us just as happy for a lot cheaper for us that's a win well that really underscores the privilege part because yes because so Bette Middler is complaining that that someone who does it for free is making taking money away from other people and so it's sort of like the taxicab medallion that uber uber comes in or people giving ride shares and lift and things like that are taking money away from the established people who've been giving a certain type of property right so it's an interesting observation still is the case of me even back with at the time of Elvis or when Bette Middler was making all of her money there were lots and lots of people who were hobbyists simply because they couldn't make any money doing this anyway just like there are today I mean this but they couldn't distribute at all but but the difference is now those people can have an audience at least that's right before they couldn't even have that it's actually better all around because in the old days you know if you were someone who loved music you realized you know I really don't have a shot I'm not that good at it and now you know you can find the maybe 15 or 20 people in the world who just love your music and you're not going to have the audience but their lives are better your lives are better the only people lose out are people like Bette Middler and she's made plenty of money so my heart really doesn't go out to her much let's go from the other side which is the copyright should be perpetual and enforced to the hilt because there's this other element too where where it seems to me that there's a moral case for for copyright and if you came straight in sort of a Lockean type of idea that you get property you get property and land because you put your effort into it and produce something usually valuable then if you do the same thing with sitting down with a bunch of paper in front of you and you produce the Cheyne or Stephen King then then you also just because of a moral case deserve to have that claim in a situation it seems like it should be not limited at all you should have that claim forever as much at least as the same way that land property is is not similarly limited how would you feel about arguments such as that well I agree that's an argument for copyright that I've heard made and some Libertarians I really respect have that view Lysander Spooner Einrand and others so I think it deserves some credence but I think there's some serious problems with it first of all Locke himself this is kind of an argument from irony did not claim copyright in any of the works that people roll out in justification of this point of view that's that it's pretty ironic it is ironic and I've heard people say Locke supported in fact one of the commentators today said as much in our book forum that Locke supported copyright I've looked through Locke and I've never seen that in fact he said some things about the copyright of his day the stationers company which were highly critical so I'm skeptical of that what else what other problems are there well let's keep in mind copyright is fundamentally different from land and other tangibles in that it's non-rivalrous in consumption you're doing something very different when you give somebody a copyright then you are when you recognize their property rights in acorns or land that they improve and here's another problem the the borders on copyright are very fuzzy and this just makes it difficult to get property rights to work well it's one thing to say you know you have the copyright in your novel maybe that would work if we stuck to the 1790 copyright act which only forbade exact duplications but you know as Stephen King is going to say I have the movie rights as well and also you can't do a cartoon based on it oh and your novel actually is a little too much like my novel you seem to have borrowed the character it's very fuzzy borders and we get these terrible fights that don't happen with tangible property tangible property you say uh there's my fence that's mine that's not yours very easy to figure out these acorns are mine I collected them your acorns are over there so there's other things I could say and I will add that me personally I'm not I don't regard Locke's arguments for property as the best arguments for property you can be a libertarian and say that's like a third tier kind of argument for property that's my view I prefer Hayek's approach to property so there's plenty of room for other libertarian defenses of property that don't raise these problems let me push back a little bit because it seems like land property and land isn't is not as clear as you would say and we have things like adverse possession where you have to pay attention to your land for some period of time how long should that be you know 18 or 21 years statutory period all these things how high above your land do you own how you know rules of perpetuities all these things that are also fuzzy around the border so I'm not sure we're always choosing these rules in real property usually to produce economic efficiency and we can do that in copyright too possibly are we doing the same thing with copyright and real property well I mean this is good good arguing I like that let's admit that there's always fuzzy borders in the law that I often have students show up at law school and they're very quickly disabused of the notion that it's like playing monopoly you know you turn over the lid of the box and they're the rules and you read when you're done everything's contestable but I do think it's a question of degree most copyright disputes that you see litigated are basically these boundary disputes it happens all the time about the only time it doesn't happen is when someone like a pirate just does exact copies of something but those aren't the typical things that get litigated I mean those guys when they get caught they know they're guilty they get thrown in jail or they plead bargain it's all the interesting cases are people fussing over boundaries when you look at case law in property that's not where people fuss they fuss about you know other things typically you know title but I mean I'll just say it's a question of degree copyright is much more fuzzy than real property and I'd say real property is even fuzzier than property rights intangibles we don't have all these many complicated doctrines like oh you know use of drugs and easements it with regard to chattel property you know simple things computers cars and such so it's question of degree good point but I don't think it really saves copyright because it's so far out there on the fuzzy side you mentioned the so Stephen King we have this he's got he's written this book but now he's claiming these rights to lockdown derivative works including movies and whatnot and I'm wondering so if we say that you know property rights even in real property are at the start grounded in some sort of moral claims that we have you know whether it's a lockie and I've mixed my labor with it or whatever we have this moral claim that then the law is coming in and codifying and enforcing but it seems like there's there's an intuition that authors have would have similar sorts of moral claims in say derivative works that you know so HBO right now is making a bundle of money and getting all sorts of people off this Game of Thrones TV series which are based on a set of books and the author of it is presumably being well paid by HBO because they weren't allowed to make this series without it but if derivative works are kind of fair game then HBO could have just seen these books thought that would make a pretty good series and just turned them into scripts and shot them and made you know millions tens of millions of dollars and it feels like there would be something morally wrong with that if they they didn't even ask permission and they certainly aren't paying the author and the author I mean could be poor to begin with and the novels didn't sell very well and now we're just saying tough you don't have any claim over that sort of thing that's a couple of things to say there those are things to worry about and I would agree that authors have moral claims in certain circumstances like that I don't think it should follow automatically that they should therefore have legal claims and you might say well well that's wonderful so they get to scold you know HBO but that's it well I would say that in fact experience has taught us that in a world without copyright because everyone seems to sense these moral concerns it actually ends up at after you have some evolution of social institutions really making a difference this fellow Spoo wrote a book called without copyright and he has this wonderful historical account of how copyright worked in the United States in a certain period of its history when foreign authors basically had no copyright protections so you would think that you know you bring Dickens work over here to America on a fast boat and you can make as many copies as you want did that happen no actually it didn't it turns out publishers because they understood and their readers cared about these moral arguments worked out these kind of um I guess I'd call them quasi legal institutions they certainly didn't lean on the copyright to solve all their problems instead they use things like gentlemen's agreements uh first publication contracts uh authors would used to include in books they would put in a statement saying this is the in return for royalties they'd say this is the authorized edition and you as a fan of Dickens would want that book why because you have the same moral sense you say I love this man's work he makes me weep he makes me laugh I want him to be rewarded also I have reassurance that this is the legit deal it's not some guy named Dickens who's actually from Australia you know who writes rubbish so institutions arise that satisfy our I think quite sound moral sentiments even the absence of copyright I think copyright's a little bit of a bullying approach it's a subtle problem I mean we can say of HBO did they not contribute a lot to this guy's book so they certainly did well then HBO deserves something too copyright just comes in and says give that guy a veto and he can squeeze HBO as hard as he wants because of some kind of maybe moral sentiment I think in the real world we should have a more sophisticated gentle kind of evolved approach to these things that's the flip side where you think about libertarians have to do this a lot it's not just George R. R. Martin might seemingly get a little bit robbed here but then you have someone like J.K. Rowling or who who puts the kibosh it says no one can do anything no one can do fanfic I think that that's I think she's done that or someone else who says so so you give the author to control over this and they can they can keep anyone from making a show like Game of Thrones and enriching our lives because they have complete bullying control over it so and that's the problem where we have to think about the world that it does not exist and how people would behave but as your point is well taken if we have the moral sense that I think most of us do that George R. R. Martin deserves something from Game of Thrones even in the absence of his ability to control that then people would contribute to that in some way yeah I think here Trevor we should use the same arguments that we use with regard to charity you know people come against libertarianism they say oh you're not going to have any kind of charity no actually I think charity is really important I contribute to my local united way I you know help people when I can well but you're not going to make people do that no because it's ethical I think people will do the right thing this is the same kind of responsive copyright is that a guarantee I suppose if we got rid of you know all the welfare programs run by the state you know there's a possibility everyone would say oh good I don't have to do anything with regard to the poor anymore I just have more faith in human nature I think enough people maybe more would say I'm going to step up to the plate because it's just the right thing to do it's a very different approach so you're saying that an author who has poured years into writing this novel has no Lockean claim to it I wouldn't put it that way I would say they have mixed their labor with the paper that they're writing on and so they own that piece of paper just like you go out in nature and you collect acorns you own those acorns now of course you will probably respond to that's not creating copyright and I would agree because if you take a photo of that piece of paper you don't take the atoms you can run away with that but it's the gen the genesis the germ of what could be something like a copyright like protection because if you own that piece of paper and we defend that that's those are atoms it's property you can lock it in a box or you can you can lock it in a box and then say to someone I'm only going to open this box for you if you agree to my contract and in the contract you agree to pay me a license and you agree to pay me if you create a movie based on my book now it's true that if the wind blows away the piece of paper and someone else picks it up and they're not under contract going to be hard to stop them but with technological protections you can pretty much make sure the contract always sticks to that you know in effect the piece of paper the idea is we can use common law rights and the locking arguments if we have institutions that you know adapt to the common law world that creates something very much like copyright but without the statute and then also some things like trade secrets and trade and trade marks can be which can be used which are often called one of the four types of intellectual property the other one being patents trade secrets trade marks and copyright we can use trade secrets and trademarks too for those things right yeah and as a someone who really likes liberty and property rights I have no problems with trademarks and trade secrets I think it's important for people who care about the philosophy of intellectual property to distinguish those two copyrights and patents purely statute based nothing in the common law and trade secrets and trademarks are pretty much based in common law I'm pretty happy with those in fact and it's almost like fraud impersonation if you say if I watch rent saying I am George R. R. Martin and this is my my or you republish the his book under your name would that be yeah that would be like fraud trade trade mark in effect trademark and then with regard to trade secrets it's you know if if you uh I have you promise not to crack the lock on the digital lock on my work you promise that and you do are your employee and you sneak out a copy you know I should be able to catch you for that under trade secret I don't think any friend of liberty has an objection to that so to fix it you have some few suggestions I assume you liked this 14-year term renewable possible and then a few other things to just make it not do away with it but make it more sensible for human flourishing what are some of your suggestions well you know that step one is the title what the title of the book suggests is we need to stop regarding it as property that it just answers too many questions too easily especially it kind of agrees me to see my friends in support of liberty and property rights it seems like they see the word property intellectual property and they stop thinking because they like property to me it's a funny thing it's a little bit like another type of intellectual property it's a little bit like trademark property's like a trademark and what the advocates of intellectual property that's done is they're basically infringing on the trademark property they're taking a word that's a great word when it's applied to tangibles and they're overextending it I expect now people to say well tax medallions of property in fact the argument's been made with regard to welfare benefits well it's a type of property deserves 14th amendment protections so just reconceiving that's really my arch goal here is let's just take another approach to copyright and see what that shows us and I think it opens our eyes to some other possibilities all right a little more concretely I'd like to see more experimentation which I'm engaged in with the book and as you noted creative comments makes this easier too I'm a big fan of creative comments just get a culture where people don't always have to grab everything that they can you know just to get people to think you know maybe you don't need life for the author plus 70 because when you do that buddy you're kind of taken something away from the rest of us so why don't you have a big spirit and share a little bit and I like about the founder's copyright is it's not saying give everything away it says out of respect for the founders for whom I have a great deal of respect and out of respect for your you know fellow travelers in this world who might take your work and do something wonderful with it why don't you just not be so greedy you don't have to grab it all and then there's a specific statutory suggestions little tweaks to the act which are very subtle I like to think I'm as legal jiu-jitsu now I don't actually have I'm going to be up on the hill soon talking to lawmakers I don't want to say don't actually have a lot of faith that they will implement these laws if they do it'll be in part because they don't realize the subtle long-term effects they might have do you have a Walt Disney masterware because that will help so there is you know the prospect of legislation and then I guess I'd say the last thing is to keep hoping for technological advances and I have every you know reason to think that technology is going to increasingly make copyright just kind of a not interesting to most people not relevant I mean you think about the things we do online every day we're basically running publication and duplication shops every laptop connected the internet's a massive copying machine and you and me everybody every day we're making lots of copies nobody cares it's just not relevant once in a while somebody will you know frame some kind of copyright dispute most of the time people kind of you know laugh at them what are you doing this that's not what we do in this place and I think there's hope as time goes on people kind of see copyright as an anachronism that maybe applies in a few areas big Hollywood blockbusters big software projects but for the rest of us just nobody cares it doesn't really you could use it but we just don't do that not culturally thank you for listening to free thoughts if you have any questions or comments about today's show you can find us on twitter at free thoughts pod that's free thoughts pod free thoughts is a project of libertarianism.org and the Cato Institute and is produced by Evan banks to learn more about libertarianism visit us on the web at www.libertarianism.org