Lunch with the Yale Internet Society Project today provided the audience with mediocre chicken, excellent cookies, and some very interesting thoughts on copyright from William Patry, who is the current Senior Copyright Counsel for Google Inc. and has written more about copyright than I ever intend to read. His talk, “Copyright is a Government Program: Lessons from the Recession,” can conveniently be divided into two main lines of argument. The analytic thinking below is his; the mistakes are mine.

Copyright is a Government Program

Much like patents, when one thinks of copyrights they tend to think with a property-oriented mindset: authors have a degree of ownership of the particular arrangements of words and ideas they publish, photographers have the ability to control the use and distribution of their photographs, and so forth. This feeling is easily conflated with the common notion that copyrights are private property, which is basically held as an inherent good under U.S. law – property, and what one chooses to do with it, does not require explanation or justification, it simply is, and disrupting others’ property is generally illegal.

Patry, however, disputes the idea of copyright as a natural, common law, or private property right, pointing out that unlike most property rights copyright is purely a creation of the legislature (and was held as such in the first Supreme Court ruling on the subject). This positive right exists to advance the progress of science, and like any other government program should be both regulated so that it serves its purpose and also cut or reformed if it is failing. Unlike other programs, copyright isn’t given the burden of empirically proving its success or facing reform, and Patry feels that should change.

Lessons from the Recession

In the latter half of his talk, Patry drew a comparison between copyright and the current economic recession: in both situations, we have arrived in an undesirable position through an overreliance on economic freedom and a consequent lack of regulation – “free market fundamentalism,” in the pejorative words of Joseph Stiglitz. Patry advanced, though softened, the Keynesian argument that “It is not a correct deduction from the principles of economics that enlightened self-interest always operates in the public interest. Nor is it true that self-interest generally is enlightened; more often individuals acting separately to promote their own ends are too ignorant or too weak to attain even these.”

He concluded that companies often have a duty to act in the interest of shareholders instead of the public, copyright as currently iterated fails to serve the public. As it is a positive rather than common law right, copyright should be regulated more rigorously according to the public good.

Brief Reaction

As this post is growing beyond the point of quick readability, I won’t react in depth; feel free to talk to me in person or through comments to discuss in detail. Briefly, I thought the positive nature of copyright law was a useful and novel perspective to examine reform and shape its normative goals. I was not, however, as sold on his free market arguments; I would have liked to see at least a cursory look at the downsides of regulation. Finally, though the talk was very interesting, we need a means of reform, not further evidence that reform is necessary.

Also, a word of advice to future copyright scholars: get to talks early if you want chocolate chip cookies. They go fast.