Copyhype

Cross-posted on the Law Theories blog.

One often hears the argument from copyright opponents that copyright is a privilege and not a right. Rick Falkvinge says that copyright is a “government-granted market-distorting privilege” that limits the property rights of others. Stephan Kinsella argues that copyrights are “grants of monopoly privilege by the state” that allow its holder to petition the courts for redress. Mike Masnick claims that it’s “hogwash” not to recognize that copyright is a “monopoly privilege.” Crosbie Fitch believes that copyright grants authors “unethical privileges” over others.

Many claim as well that fair use is a right and not a privilege. Patricia Aufderheide and Peter Jaszi argue that Shepard Fairey had the “fair use right” to make his famous Obama poster. The late Professor L. Ray Patterson claimed that the “statutory right of fair use” is often ignored. ¹L. Ray Patterson, Copyright in the New Millennium: Resolving Conflict between Property Rights and Political Rights, 62 Ohio St. L.J. 703, 704-05 (2001). Professor Lawrence Lessig laments that “[y]ou either pay a lawyer to defend your fair use rights or pay a lawyer to track down permissions so you don’t have to rely upon fair use rights.” The list goes on.

The baseline, so the argument goes, is that we have the right to do whatever we want with our property, including the right to make copies. Copyright changes this by giving authors the privilege to prevent us from copying. Thus, copyright takes away my right to copy by granting an author the privilege to stop me. Moreover, the argument continues, despite the privilege given to authors, we have the right to make fair use of a work. This line of reasoning, to borrow Masnick’s term, is “hogwash.”

In this post, I’ll explain why copyright opponents have it exactly backwards when they claim that copyright is a privilege and fair use is a right. At the outset, I note that these terms can have various, nontechnical meanings that possibly overlap. For example, Black’s Law Dictionary defines “right” to mean, inter alia, a “privilege,” and it defines “privilege” to mean, inter alia, a “right.” ²See Black’s Law Dictionary (9th ed. 2009). But copyright opponents are not using these terms interchangeably; they are using them in contradistinction to each other. In other words, they are saying that right and privilege are mutually exclusive terms. It’s this technical usage of these terms that I’ll address.

Bell’s “Intellectual Privilege”

Perhaps the biggest proponent of the copyright-as-privilege claim is Professor Tom Bell. In his book entitled Intellectual Privilege (draft available here), Bell makes the argument that “copyright more closely resembles a privilege—a special statutory benefit—than it does a right, general in nature and grounded in common law, deserving the title of ‘property.’” ³Tom W. Bell, Intellectual Privilege: A Libertarian View of Copyright 108 (2010) [hereinafter “Bell”]. He claims that “calling copyright a ‘privilege’ follows legal and popular usage, past and present.” ⁴Id. In support of this broad assertion, Bell cites the 6th edition of Black’s Law Dictionary in a footnote. He conspicuously doesn’t quote the actual text from Black’s in that footnote, perhaps because it in fact defines copyright as a “right.” Black’s provides:

Copyright. The right of literary property as recognized and sanctioned by positive law. An intangible, incorporeal right granted by statute to the author or originator of certain literary or artistic productions, whereby he is invested, for a specified period, with the sole and exclusive privilege of multiplying copies of the same and publishing and selling them. ⁵Black’s Law Dictionary (6th ed. 1990) (emphasis added).

Black’s isn’t saying that copyright is a privilege in contrast to a right. Instead, the dictionary merely reflects the fact that, as discussed below, a rightholder has the privilege to exercise the right that he holds. What makes it a right is that he has a legally enforceable claim against another who copies without permission. As we’ll see, copyright owners, just like all rightholders, have both rights and privileges.

Bell notes that both courts and commentators “have often described copyright as a legal privilege.” ⁶Bell at 110. In support, he cites Eldred v. Ashcroft where Justice Stevens in dissent refers to “copyright privileges,” Sony v. Universal where Justice Stevens writing for the majority refers to the “copyright privilege,” and Watson v. Buck where Justice Black writing for a unanimous Court refers to “copyright privileges.” ⁷See Eldred v. Ashcroft, 537 U.S. 186, 233 (2003) (Stevens, J., dissenting); Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 421 (1984); Watson v. Buck, 313 U.S. 387, 404 (1941). No doubt there are many other such references in the case law and commentary. But are those references really making the point that copyright is a privilege and not a right? Not at all.

Justice Stevens in Eldred also refers to copyright as granting “exclusive rights” and “federal rights.” ⁸See Eldred, 537 U.S. at 223, 231-32, and 241 (Stevens, J., dissenting). Similarly, in Sony, Justice Stevens frames the question presented as whether “the rights conferred upon respondents by the Copyright Act” have been violated, and then he goes on to discuss the “exclusive rights” granted by copyright at length. ⁹See Sony, 464 U.S. at 420, 433, 436, and 447. And in Watson, Justice Black refers to copyrights as “property rights.” ¹⁰See Watson, 313 U.S. at 404. Bell’s argument that these Justices considered copyrights to be privileges as opposed to rights is severely undercut by the fact that the very same Justices in the very same opinions also called them rights.

Bell argues that “copyright represents a statutory exception to our common law rights.” ¹¹Bell at 110. It is only with the introduction of copyright, he contends, that our “natural and common law rights” to copy are limited. ¹²Id. Thus, according to Bell, the rule is that we may copy, and the exception is copyright. In this way, he continues, copyright is not a right, but rather it is “an anti-property right” that limits what we can do with our property. ¹³Id. at 110-11 (emphasis in original). Bell’s theory is that this copyright exception gives to authors a privilege that relieves them of the duty they would otherwise have to allow others to copy their works.

Bell ponders whether his version of privilege comports with “Wesley Hohfeld’s influential one,” ¹⁴Id. referencing the late Professor Hohfeld whose well-known law review article discussing the difference between rights and privileges has been extremely influential in legal thinking since its publication one century ago. ¹⁵See Wesley Newcomb Hohfeld, Some Fundamental Legal Conceptions As Applied in Judicial Reasoning, 23 Yale L.J. 16 (1913) [hereinafter “Hohfeld”]. Erroneously, Bell concludes that he is being “more true to Hohfeld’s project” than those who consider copyright to be a right. ¹⁶Bell at 113. To understand how Bell is turning Hohfeld on his head and confusing the difference between a right and a privilege in the Hohfeldian sense, we have to take a step back and look at Hohfeld’s fundamental “jural relations.”

Hohfeld’s “Jural Relations”

Laymen typically use the word “property” to refer to a thing with respect to which legal relations between persons exist. Lawyers, on the other hand, generally use the word “property” to refer to the legal relations that exist between persons with respect to a thing. The aforementioned Professor Hohfeld developed an analytical framework for discussing these legal relations—or as he called them, “jural relations.” Hohfeld identified eight fundamental jural relations: right, privilege, power, immunity, duty, no-right, liability, and disability. With these building blocks, we can precisely define the legal relations that exist between persons with respect to a given thing.

Hohfeld’s system of jural relations has been very popular amongst jurists over the last century. For example, the savants at the American Law Institute adopted Hohfeld’s system in the Restatement (First) of Property, first published in 1936. A quick search on Westlaw shows that Hohfeld’s original 1913 paper and his follow-up 1917 paper together have been cited over a thousand times in the case law and commentary. ¹⁷See Hohfeld; Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning, 26 Yale L.J. 710 (1917). For a great explanation of Hohfeld’s system of jural relations, I recommend this primer from the Chicago-Kent College of Law.

Hohfeld arranged the jural relations into different pairs, called “jural correlatives.” Each pair of jural correlatives looks at a given jural relation from opposing points of view. For example, if O and P have a jural relation between them, we can look at that jural relation either from O’s point of view or from P’s point of view. These jural correlatives arise together, meaning that the existence of one necessarily implies the existence of the other. Hohfeld’s jural correlatives for rights and privileges are: right—duty and privilege—no-right. Thus, as between O and P, if O has a right, then P has a duty, and if O has a privilege, then P has a no-right.

A right is “a legally enforceable claim of one person against another, that the other shall do a given act or shall not do a given act.” ¹⁸Restatement (First) of Property § 1 (1936); see also Black’s Law Dictionary (9th ed. 2009) (A “right” is a “legally enforceable claim that another will do or will not do a given act; a recognized and protected interest the violation of which is a wrong.”). The person against whom the right exists has the correlative duty, which is the legally enforceable obligation on the part of the duty-holder to do or not to do the given act. For example, if O has the right to exclude P from entering his land, then P has the correlative duty not to enter O’s land. If P violates his duty and enters O’s land, O then has a legally enforceable claim against P, and O can summon the power of the state to prevent P from entering his land.

A privilege is “a legal freedom on the part of one person as against another to do a given act or a legal freedom not to do a given act.” ¹⁹Id. at § 2; see also Black’s Law Dictionary (9th ed. 2009) (“A privilege grants someone the legal freedom to do or not to do a given act. It immunizes conduct that, under ordinary circumstances, would subject the actor to liability.”). The person against whom the privilege exists has the correlative no-right, which is the absence of a legally enforceable claim against the privilege-holder to do or not do the given act. For example, if O has the privilege to enter P’s land, then P has the no-right to exclude O from his land. If O exercises this privilege and enter P’s land, P then has no legally enforceable claim against O, and P cannot summon the power of the state to prevent O from entering his land.

It should also be noted that not only can a rightholder prevent another from doing or not doing a given act, but he himself has the privilege of doing or not doing the given act. Thus, a rightholder holds both a right and a privilege. For example, if O has the right to exclude P from entering his land, O then also has the privilege of entering his own land. As Hohfeld explains:

[I]f X has a right against Y that he shall stay off the former’s land, the correlative (and equivalent) is that Y is under a duty toward X to stay off the place. *** [W]hereas X has a right or claim that Y, the other man, should stay off the land, he himself has the privilege of entering on the land; or, in equivalent words, X does not have a duty to stay off. ²⁰Hohfeld at 32 (emphasis in original).

While the person against whom a right exists has a duty of noninterference with respect to the rightholder, ²¹See, e.g., O’Brien v. Leidinger, 452 F.Supp. 720, 726 (E.D. Va. 1978) (“Whenever there exists a right in any person, there also exists a correlative duty in some other person or persons not to abridge or interfere with the exercise of that right.”). the person against whom a privilege exists does not have such a duty with respect to the privilege-holder. Thus, if O grants to P the privilege of entering his land, O then has no duty of noninterference towards P, and O may interfere with P’s attempts to exercise his privilege of entering O’s land.

Hohfeld colorfully illustrates the point:

A. B. C. and D, being the owners of the salad, might say to X: “Eat the salad, if you can; you have our license to do so, but we don’t agree not to interfere with you.” In such a case the privileges exist, so that if X succeeds in eating the salad, he has violated no rights of any of the parties. But it is equally clear that if A had succeeded in holding so fast to the dish that X couldn’t eat the contents, no right of X would have been violated. ²²Hohfeld at 35

And as one commentator explains:

If X’s privilege of entering the land, in relation to Y, consists only in X being under no duty to Y not to enter the land, this means solely that X is not in breach of a duty to Y if he enters the land; nothing is implied by this to prevent Y making it impossible to enter the land—by using threats or violence, by building walls, constructing moats filled with piranha fish . . . . ²³Andrew Halpin, Rights and Law: Analysis and Theory 35 (1997).

The takeaway from this is that a right gives the rightholder a legally enforceable claim against another that he shall do or not do a given act, and the person against whom the right exists has the correlative duty to do or not do the given act. A privilege, on the other hand, negates a duty to do or not do a given act that the duty-holder would otherwise have, relieving him of the liability that he would have for doing or not doing the given act but for the privilege. While the person against whom the privilege exists has the correlative no-right, that is, the absence of a legally enforceable claim against the privilege-holder for doing or not doing the given act, there is no duty of noninterference with respect to the privilege-holder, and the no-right-holder may interfere with the privilege-holder’s attempts to exercise his privilege.

Why Copyright is a Right

Professor Bell cleverly frames things to arrive at his conclusion that copyright is a privilege and not a right. The baseline, as Bell correctly notes, is that in the absence of copyright everyone would be able to copy as they please, and it is only with the introduction of copyright that this baseline changes. Bell then erroneously claims that this ability to copy as one pleases in the absence of copyright is a right. Thus, according to Bell, in the absence of copyright, O has the right to copy P’s work, and P has the correlative duty to permit O to copy his work. Copyright changes this, Bell continues, by granting P a privilege which negates his duty to permit O to copy his work.

It’s simple to dispense with Bell’s claim that copyright is a privilege. It is true that, absent copyright, people can freely copy a given work. The fault in Bell’s argument is in equating this ability to copy freely in the absence of copyright with a right. If it were a right, then others would be under the correlative duty to permit the rightholder to copy a given work, and the rightholder would have a legally enforceable claim against those that breach this duty. But clearly no such duty exists. What cause of action would this supposed rightholder have against another who interferes with his attempt to copy a given work? No such cause of action exists since no one has a duty to permit another to copy a given work.

Nor does copyright grant a copyright owner a privilege. If copyright were merely a privilege, then that would relieve the copyright owner of the duty that he otherwise would have to permit another to copy his work—but again, there is no such duty to permit another to copy his work. Moreover, a privilege does not give its holder a legally enforceable claim against another who does or does not do a given act. Whence does Bell think a copyright owner’s claim against another who copies his work arises if the owner has merely a privilege? Without a right to exclude another from copying his work, there is no legally enforceable claim against another who so copies. And if a copyright owner is merely a privilege-holder, whence does Bell think the duty arises in another not to copy the copyright owner’s work? Without a right, there is no such correlative duty. Yet clearly such a duty does exist.

Two examples demonstrate the point. Take, for instance, Professor Hohfeld’s journal article from 1913 that I linked to on the University of Texas (“UT”) server. Being a century old, Hohfeld’s article is in the public domain, and it is therefore not protected by copyright. According to Bell, being that there is no copyright protection for the article, O has the right to copy this article, and others, including UT, have the duty to refrain from interfering with O as he exercises his right. Thus, according to Bell, UT has the duty to permit O to copy the article. If UT were to password-protect access to the article, thereby interfering with O’s exercise of his right to copy it, O would have a legally enforceable claim against UT for breaching its duty of noninterference with respect to O’s right to copy the article. Obviously there is no such duty on UT’s part, and UT can grant access to the article to everyone in the world except for O if it so chooses without facing any liability.

Take another example, but this time with the work in question being under copyright. Say I write an original manuscript by hand on paper. By virtue of the work being fixed in a tangible medium, I am automatically granted a copyright in the work by the Copyright Act. Bell’s view is that this copyright has only granted me a privilege which relieves me of the duty I would otherwise have to respect another’s right to copy my work as he pleases. But what accounts for the fact that I have a legally enforceable claim against another who copies my work? And what accounts for the duty that another has to not copy my work? If copyright merely grants me a privilege, then there would be no such duty on the part of another to not copy my work, and I would have no legally enforceable claim against another that copies my work. Clearly copyright has given me something more than a mere privilege.

Thus, Professor Bell is mistaken to claim that his view of copyright-as-privilege is true to Professor Hohfeld’s explication of the fundamental jural relations. The proper way to view this is see that, as the Constitution and the Copyright Act acknowledge, copyrights are grants of exclusive rights. ²⁴See, e.g., U.S. Const. art. I, § 8, cl. 8 (West 2013) (Congress has the power “[t]o promote the Progress of Science . . . by securing for limited Times to Authors . . . the exclusive Right to their . . . Writings . . . .”) (emphasis added); 17 U.S.C.A. § 106 (West 2013) (copyright grants “the owner of a copyright . . . the exclusive rights to do and to authorize” certain listed activities such as to make or to distribute copies) (emphasis added); (17 U.S.C.A. § 107 (West 2013) (fair use is one of the “[l]imitations on exclusive rights” of authors.) (emphasis added). Copyrights are rights because they give the rightholder a legally enforceable claim against another who copies his work, and they create in another the correlative duty to not copy the copyright owner’s work.

Why Fair Use is a Privilege

Along these same lines, it’s clear that fair use is a privilege and not a right. If fair use were a right, then the fair user would have a legally enforceable claim against another that he should do or not do a given act. The other would then owe the fair user the correlative duty to do or not do the given act, and he would have a duty of noninterference with respect to the fair user. But fair users have no such claim and are owed no such duty. Fair use instead is merely a privilege. It permits the fair user to do an act—copying—that but for the privilege would give rise to liability. The privilege negates the duty the fair user would otherwise have with respect to the copyright owner, and the copyright owner has the correlative no-right, that is, the absence of a legally enforceable claim to hold the fair user liable for his copying. That fair use is a privilege accounts for the fact that it operates as an affirmative defense and not as an affirmative right. ²⁵See, e.g., Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 561 (1985) (“The drafters resisted pressures from special interest groups to create presumptive categories of fair use, but structured the provision as an affirmative defense requiring a case-by-case analysis.”); H.R. Rep. 102-836, *3 (“Fair use is an affirmative defense, and as such is relevant only after a copyright owner has made out a prima facie case of infringement.”); Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 590 (1994) (“Since fair use is an affirmative defense, its proponent would have difficulty carrying the burden of demonstrating fair use without favorable evidence about relevant markets.”).

Thus, if O is the author of a work, O has certain exclusive rights in that work which give him a legally enforceable claim against P should P copy the work. P, in turn, owes O the correlative duty to not copy the work, and if P breaches this duty, he can then be held liable by O for the infringement. But not all copying by P infringes O’s exclusive rights. P has the privilege of making fair use of O’s work, and this privilege negates the duty to not copy O’s work that P would otherwise have. This privilege on P’s part creates the correlative no-right on O’s part which negates O’s legally enforceable claim against P. But for P’s privilege, O could hold P liable for the copying, but P’s fair use privilege arms P with a perfect defense to a claim of infringement.

As a mere privilege-holder, a fair user has no legally enforceable claim against another that he should do or not do a given act—only a rightholder has such a claim. Moreover, as a mere privilege-holder, a fair user is owed no duty of noninterference by another as he attempts to exercise his privilege. Thus, others may interfere with the would-be fair user’s attempts to make fair use of a given work. That it is not impermissible for the would-be fair user to make fair use of a given work is not the same as being guaranteed that he may do so. This is demonstrated in the passage from Hohfeld quoted above about the salad—I may grant you a license to eat my salad, which would absolve you of any liability should you do so, but your privilege to eat my salad does not come with any guarantees that I will make the salad available to you. “Not impermissible does not equate to guaranteed.” ²⁶David R. Johnstone, Debunking Fair Use Rights and Copyduty Under U.S. Copyright Law, 52 J. Copyright Soc’y U.S.A. 345, 369-70 (2005) (internal quotations omitted).

That a fair user has no legally enforceable claim, i.e., a right, to make fair use of a given work is demonstrated in the Second Circuit’s opinion in Universal v. Corley. ²⁷Universal City Studios, Inc. v. Corley, 273 F.3d 429 (2d Cir. 2001). There, the appellants argued that the DMCA anti-circumvention provisions interfered with their alleged constitutional right to make fair use of a DVD. The court of appeals rejected the argument: “We know of no authority for the proposition that fair use, as protected by the Copyright Act, much less the Constitution, guarantees copying by the optimum method or in the identical format of the original. . . . Fair use has never been held to be a guarantee of access to copyrighted material in order to copy it by the fair user’s preferred technique or in the format of the original.” ²⁸Id. at 459. I think the answer is much simpler than that. Since fair use is merely a privilege, the fair user is owed no duty of noninterference by others. A rightholder, or anyone else for that matter, can make the exercise of a would-be fair user’s privilege as easy or as difficult as he likes—even impossible if he so wishes.

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