The film Decasia, an interweaving of clips from decaying film footage, shows that something lovely can be created from material in the public domain. But it leaves one with a sense of loss, not only because the people in it—young and old, happy and sad—are so long forgotten, but because the original films are lost as well. Perhaps had someone “owned” those clips a little longer, they would have been preserved, and recorded histories worth knowing or stories worth telling. For the most part, the world of the unowned is not a creative commons, it’s a tragedy of the commons. Information is fleeting, never recorded, because there is rarely advantage to anyone from it.
This is a point nicely made by Jim Delong in Intellectual Property in the Internet Age: The Meaning of Eldred. He argues that the Court should have gone further in asserting that the natural right of creators to profit from their works. This point dovetails with economic arguments that property rights yield plenty, not scarcity. One might respond, that there are other ways of ensuring that creators get paid—the “needs a new business model” argument—from contractual restrictions to encryption. The answer to this, implicit in the economics, is why force creators into endless technical gymnastics, when some legal ground rules help, may even be essential, and do little harm? If the public yields net gains from the incentives given creators, what exactly is the objection to IP? This is part of the Supreme Court’s answer, as well. In Delong’s view, a long run view of the first amendment should trump the short run view (copyright lets owners say “no” to some uses and users)?
But there is another view, too--that there is no short run conflict between free speech and copyright, either. Professor John McGinnis, in his classic law review article The Once and Future Property-Based Vision of the First Amendment, 63 UNIV. CHI. L. REV. 49 (1996), explains that the framers and their British intellectual antecedents viewed free speech as a property right, an extension of one’s right to do what one wills with one’s own pen, paper, or printing press. So free speech has natural boundaries; it ends where others’property rights begin. Just as one has no right to march into a stranger’s house to deliver a speech, one has no natural right to speak with another’s intellectual property.
So the line of argument that copyright has an inherent conflict with the first amendment has failed, and should fail. What does this mean for the future of access to ideas and creative works? Nothing bad.
In the hilarious memoir of sixties right-radicalism It Usually Begins With Ayn Rand, the author tells of his encounter with a Galambosian. The latter assures him that Galambos’ theory would turn the world into a paradise, but he can’t tell him about it because the theory is the “primary property” of Galambos. (Galambos himself was said to believe that the concept of liberty was the “primary property” of Thomas Paine. Whenever he used “liberty” in a speech, he would drop a coin into a small cup, to pay Paine’s ancestors.) Not surprisingly, there are few Galambosians.
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