English 
Vol. 7, No. 2 (March 2017) pp. 27-34
WHAT’S WRONG WITH COPYING? by Abraham Drassinower.
Harvard University Press, 2015, 288 pp., Hardcover, $39.95
Author’s Response by Abraham Drassinower
University of Toronto Faculty of Law
abraham.drassinower@utoronto.ca
The purpose of WHAT’S WRONG WITH COPYING? is to set forth a rights-based account of copyright law. The book seeks to provide an alternative to the currently prevailing law and economics framework of copyright interpretation. The task is admittedly ambitious, perhaps even ill fated from the very outset. The sheer dominance of the economic framework, certainly in North America, can hardly be overestimated. It is so pervasive, so deeply constitutive of our copyright common sense, that the undertaking to raise questions about it cannot help but appear as irremediably foreign – reminiscent less of an aspiration to address others in a shared language, than of a timid archaeological impulse doomed to retrieve quaint traces of a superseded dialect. Aspiring to provoke a transition from value to right as metaphors structuring copyright interpretation is akin to whispering in an emperor’s ear that the world-view her power has cemented is incoherent, if not altogether precarious. One can count oneself as fortunate if the impertinence is met with ire rather than with incredulous indifference, silent contempt, or even plain bewilderment.
Yet the burden of WHAT’S WRONG WITH COPYING? is not quite as difficult as that of addressing an audience in the cadences of a language other than its own. It is true, of course, that the book’s alien or unusual intonations, at least in North America, require a level of abstraction sufficient to reformulate the very focus of theoretical attention, and thus both the way in which questions are posed and the parameters that define what an adequate answer looks like. But the exercise does not proceed in a vacuum. It is not as if the language of right approaches the language of value in the absence of at least the possibility of a common referent. On the contrary, WHAT’S WRONG WITH COPYING? operates on the uncontroversial assumption that copyright doctrine informs and structures copyright practice. Whatever else it is or needs to be, a theory of copyright practice is inevitably a theory of central copyright doctrines. To be sure, debate about what is truly fundamental to copyright practice is likely interminable. But that truism need not distract us away from the unassailable observation that, to cite the most basic of examples, any conceivable theory of copyright practice must provide a prima facie persuasive account of the doctrine of originality. To be sure, we can and do debate whether a particular set of concepts can make sense of originality. But we do not debate whether the doctrine of originality is among the dimensions of copyright practice that any copyright theory must elucidate.
Glynn Lunney begins his irate review of WHAT’S WRONG WITH COPYING? by objecting to my view that the law and economics approach cannot account for originality. The economic approach construes copyright as a legal instrument designed to facilitate the production and dissemination of works of authorship conceived as instances of value. Briefly put, my argument is that the economic approach cannot get copyright off the ground because originality, the threshold condition of copyright protection, affirms and must affirm a distinction between kinds of value. Originality distinguishes copyrightable from uncopyrightable subject matter. It grants copyright to some but not all instances of economic value. It recognizes works of authorship but not facts, poems but not alphabetically arranged white-pages phone directories. Originality is thus literally constituted as a distinction between kinds of value. It therefore cannot be generated out of a theoretical focus on the production and circulation of value because its intelligibility presupposes categories other than value. In short, no matter how sophisticated, a theory of value is just not a theory of authorship.
Lunney concedes that a distinction between “authorship” and a “variety of non-authorship creative products” cannot be made on the basis of value, but he adds that this “fact” is “simply irrelevant”. He informs us that the law and economics framework makes the required distinction not on the basis of value but on the basis of “cost investment and recovery structure[s].” But this move from value to markets by no means addresses the difficulty raised in WHAT’S WRONG WITH COPYING? Just as there is nothing in the concept of value per se that permits a distinction between works and facts, so there is nothing in the concept of markets per se that permits that distinction. The concept of market structure does nothing more than (re-)state the preoccupation with value: copyright law remains defined as a mode of remedying relevant market failure while minimizing cost or maximizing value. Both works and facts, however, are public goods generating market failure requiring remedy. Yet only works activate copyright. The specificity of authorship vis-à-vis non-authorship products thus remains unresolved. Lunney’s objection in fact confirms my viewpoint.
Originality as a legal category is in fact indifferent to market structures. On the one hand, it collapses economically diverse nonrivalrous and nonexcludable commodities into a single category of authorship. That is, it does not distinguish between kinds of works on the basis of market analyses. Cooking recipes, doctoral dissertations, Broadway plays, large iron sculptures of inter-galactic aliens and atonal jazz are indiscriminately protected. On the other hand, as I just noted, originality distinguishes between works and facts at a literally foundational level, as a matter of copyright principle, and does so regardless and in the absence of market analyses. The inappropriateness of the category of value as the linchpin of copyright interpretation could hardly be more apparent: a market-driven approach would intimate distinctions (between kinds of works) where it shouldn’t, and would fail to distinguish (between facts and works) where it must. My point in WHAT’S WRONG WITH COPYING? is not that there is anything particularly wrong with the economic approach as a mode of analyzing the efficient production and distribution of nonrivalrous and nonexcludable commodities. It is rather that the focus on value (i.e. cost investment and cost recovery structures) is not a focus on copyright law. The palpable distance between the market failure inquiry and the originality inquiry makes that observation abundantly clear. The theory of market failure is just not a theory of authorship.
Just as originality is indifferent to market structure, so is the analysis of market structure indifferent to legal doctrine. Consider, for example, Lunney’s casual remark that “idea” and “expression” are “labels we attach upon instrumental balancing”. Legal determinations are arrived at elsewhere. Legal doctrine is not worthy of investigation in its own terms. It has no terms of its own. It is radically derivative, like an empty heteronomous shell responsive to “changes in the costs and economics of copying and distribution.” The impoverished result is that market analysis has ears only for what it hears as “empirical” questions. Thus, Lunney complains that I object to “empirical balancing of costs and benefits” on the grounds that it is (or can be) “indeterminate.” He suggests that “better data and proper application of the burden of proof would seem the proper response, rather than abandonment of the economic approach altogether.” Of course, this is a vast misunderstanding of my position. My point is not that the economic approach does not have the answers but that, as a matter of foundations, it is asking the wrong questions. No amount of data can provide a definition of a work of authorship. No amount of data can render copyright intelligible. The meaning of originality is not an empirical problem. The economic analysis of copyright law regards itself as empirically evidenced, yet only once it has theoretically decided, as if by intuitive fiat, what counts as evidence. The methodology I adopt in WHAT’S WRONG WITH COPYING? is, by contrast, genuinely empirical: it seeks to observe, analyze and understand the fundamental co-ordinates, as expressed in copyright doctrine, informing copyright practice. The legal empiricism of WHAT’S WRONG WITH COPYING? is far more attuned with and respectful of its specifically juridical object than are the economics of public goods.
Mark Rose’s classic AUTHORS AND OWNERS is among the copyright books that have most deeply influenced my thinking. I cannot think of a single work from which I have learned as much as I have from AUTHORS AND OWNERS. I find in it an indispensable, canonical account of copyright from a historical point of view – an account widely accepted, even assumed, not only among those who share Rose’s deeply critical stance towards copyright law, but even among those who support it. Rose is entirely correct when he observes that the copyright system he described in AUTHORS AND OWNERS is precisely what I set out to “dismantle” in WHAT’S WRONG WITH COPYING? There is a significant sense in which WHAT’S WRONG WITH COPYING? is a response to AUTHORS AND OWNERS – a theorist’s insistence, one might say, to envision an alternative to the historian’s account of things as they are.
In AUTHORS AND OWNERS, Rose renders Lord Mansfield’s judgment in Millar v Taylor as a foundational, paradigmatic moment in the construal of authors as owners, works of authorship as commodities subject to ownership. WHAT’S WRONG WITH COPYING? provides an alternative exegesis. It reads Mansfield’s judicial text as a pivotal moment not in the construction of authorship as proprietorship but rather in the emergence of authorship as a legal category necessarily distinct from proprietorship. In my view, Mansfield’s is a specifically juridical reflection into the impossibility of grasping works as things, speech as subject to ownership. Authors are speakers, not owners.
Rose’s reaction to my representation of Mansfield’s judgment as antidote to the conflation of authorship and ownership is elegant. Noting that WHAT’S WRONG WITH COPYING? is aimed at a philosophical construction of copyright law as a coherent juridical order, Rose writes that “At the same time, however, Drassinower reaches back into the period of copyright’s formation to find an historical anticipation of his theoretical account in the classic debate between Lord Mansfield and Sir Joseph Yates in Millar v Taylor in 1769.” Rose does not disagree with my citation of Mansfield, he tells us, but he does find it unnecessary:
My point is not that Drassinower is ‘wrong’ in his citation of Mansfield. I don’t think he is. In fact, I found his reading of Mansfield one of the most exciting and provocative moments in his book and I would not have him excise it. But nor do I think the citation of Mansfield is really essential to his argument. History and philosophy have different agendas. History – a narrative of struggles, contentions, and ambiguities – provides, I think, too slippery a foundation for the erection of an elegant intellectual edifice such as Drassinower is constructing. Drassinower’s enterprise is not to tell stories but to rationalize and formalize the residue of history, to reconstruct from its contradictions a coherent and more humane account of copyright.
Even if my citation of Mansfield were wrong, in other words, the mistake would not threaten the integrity of my enterprise. No one could mistake the generosity of Rose’s remarks. Yet I hesitate. I worry that this opposition between philosophy and history, coherent vision and slippery reality, erodes the aspirations of the theoretical imagination. On the one hand, the philosophical stance Rose finds in WHAT’S WRONG WITH COPYING? inoculates its project against the ambiguities of history. Yet on the other, and at the same time, this very philosophical indifference to the rigors of historical truth appears to render its formalizing aspirations unpersuasive. It is as if – though of course this is not the import of Rose’s comment – theory were somehow to be expected to bow to the sovereignty of history.
One way to approach this fruitful dialogue between history and theory is to distinguish between the historian’s history and the lawyer’s precedent. Both history and precedent take place in the past, of course, but a precedent is not an historical event, a moment in a narrative of struggles, contentions and ambiguities. It is rather an aspect of a specifically juridical practice ordered as an aspiration to treat like case alike. Legally speaking, the fact that Mansfield’s judgment took place in the past does not mean it is history, at least not in the sense of a fragment in an irreducibly incoherent narrative fraught with contention and contradiction. As precedent, Mansfield’s judgment is, on the contrary, a foundational moment in an institutionalized practice constitutively seeking its own coherence. Legal thinking does not develop independently of its past, seeking anticipation, confirmation or falsification only subsequently, in the sovereign archives of the historical record. Rather, the history of law is always already the history of its thinking. One might say that law is a craving to treat like case alike under the auspices of coherence. In this vein, precedent is but a particularly dramatic illustration that, in law, the vicissitudes of history are irreducibly intertwined with the exigencies of theory. In WHAT’S WRONG WITH COPYING?, Mansfield’s judgment appears, I hope, not as history but as precedent. I would thus hesitate to characterize its citation of Mansfield either as unnecessary or as reaching back into history seeking anticipation of the copyright vision it unravels.
To be sure, there can be no doubt that history and philosophy have different agendas. But it does not follow that the past provides too slippery a foundation for the elaboration of juridical insight. That, I think, would be too historical a way to portray the relation between thought and practice, history and theory. In its own terms, legal thinking is a rendering of legal practice as a positing of its own coherence. Legal thinking is what legal practice says of itself as an ongoing project to treat like cases alike – to do justice. This is not to say that legal thinking requires slavish obedience to precedent. But it is to recall that the very idea of precedent is unintelligible as anything other than a dimension of an existing practice insistent on its own coherence. A precedent is not a piece of history. It is a nodal point through which the present construes its past so as to formulate its future. Precedent is an aspiration that legal practice shall have been coherent.
I agree wholeheartedly with Rose that, certainly in the context of a discussion of Mansfield’s judgment in Millar v Taylor, the term “copy” carries dual meaning. On the one hand, it denotes a right. On the other, it denotes a thing, a physical copy. I think that my construal neither denies nor underplays this duplicity. My point is rather to (re-)emphasize that it is the analysis of right that frames the specifically juridical meaning of the thing, and not the market value of the physical copy that generates the rights attendant on it. More specifically, the distinction between law and thing catalyzes the analysis of works of authorship as acts, not things, and thus pierces through the perceived conflation of copyright and property that Rose lays bare. It goes without saying that this relation between law and thing is by no means devoid of ambiguity, tension, or deliberate and systematic contestation. Rose is no doubt correct to note that it is impossible to say whether Mansfield’s 1769 judgment in Millar v Taylor truly presents a view of the “copy” as an act rather than a thing, a right rather than an instance of propertized value. Rose suggests that it was Blackstone, “arguing [before none other than Lord Mansfield] in Tonson v Collins in 1762 and later developing his argument in the second volume of his COMMENTARIES in 1766, who fully transformed discourse into property” by allowing the notion of the “copy” to “acquire solidity and the aspect of a thing rather than an action.” Yet Blackstone’s position in Tonson v Collins is itself rich with ambiguity, by no means a stranger to the construal of authors as speakers and of copyright as a right attendant on acts of speech. “Consider writing, 1st,” Blackstone says in Tonson v Collins,
as an assistant to the memory; 2dly, as a means of conveying sentiments to distant times and places. In neither of these lights does the writer relinquish his title of making profit by his works; except that, when he has once written and published, he gives up the exclusive privilege of reciting to the ear; since, by parting with his manuscript, he has constituted a substitute in his stead, which speaks perpetually to the eyes of every reader. But, though he has given out one or a hundred copies, has constituted one or a hundred substitutes to speak for him; yet no man has a right to multiply those copies, to make a thousand substitutes instead of one; especially if any gain is to arise from such multiplication.1Black W 321, 324 [emphasis added]. This passage is quoted in Maurizio Borghi and Stavroula Karapapa, COPYRIGHT AND MASS DIGITIZATION (Oxford: Oxford University Press, 2013), 52.
While there can be no doubt that proprietary language pervades many aspects of Blackstone’s position in Tonson v Collins, as it also does, a few years later, Mansfield’s judgment in Millar v Taylor, the substantive right described in and through that language is not the exclusive right to the use of a thing but rather the exclusive right to perform an act in respect of one’s speech; in a word, the exclusive right to authorize another to speak on one’s behalf. To “copy” is not to convert another’s chattel but to speak for another in the absence of her authorization. Perhaps this is more implausible a reading of Blackstone’s position in Tonson v Collins than of Mansfield’s judgment in Millar v Taylor. But however far it may have been developed in Blackstone’s COMMENTARIES, the peculiar project to transform discourse into property is not subject to completion. I believe Mansfield knew that. He knew that any compelling response to Yates’ magnificent dissent in Millar v Taylor required a differentiation of authors from owners, communication from possession, and copyright from property.
Jessica Silbey’s comment focuses on the role of equality in WHAT’S WRONG WITH COPYING? To begin with, she skillfully brings into relief the role of equality in the conception of the public domain I portray in WHAT’S WRONG WITH COPYING? She then notes that, while it seems clear that equality is not the subject of WHAT’S WRONG WITH COPYING? but rather its “assumed baseline,” it would have been helpful, nonetheless, for me to address it more explicitly. Thus, I would like to set forth even if briefly how I conceived the role of equality in the book.
The equality of authors as authors I develop is, in my mind, less an assumed baseline than a proposition derived from the analysis of copyright doctrine. I do not go to copyright, so to speak, with equality in mind, asking copyright to live up my a priori assumptions. It is rather that I find equality embedded in copyright. My analysis of the fundamental principle of independent creation presides over equality-driven readings of the doctrine of originality, of the defence of independent creation, of the idea/expression dichotomy, of certain paradigmatic aspects of fair use, and of the public domain. The basic point is that, as a matter of copyright doctrine, an author’s right cannot be inconsistent with any other author’s entitlement to speak in her own words (even, of course, if those independently created words happen to be identical to those already uttered by another). In short, authorship cannot assert itself as a subjugation of authorship. Speech cannot be a silencing tool. Precisely as a speaker, the defendant neither is nor can be required to request the plaintiff’s permission to speak. “Fair use,” as I put it at one point in WHAT’S WRONG WITH COPYING?, “literally drops out of the author’s mouth as she speaks.”2
The equality embedded in the principle of independent creation thus defines and limits the author’s entitlement. Authorship must be consistent with authorship. Following her very helpful précis of that argument, Silbey queries whether the concept of equal dignity is sufficient to ground the legitimacy of the defendant’s fair use of the plaintiff’s speech. The point is well taken and worth developing. Equality per se is, after all, consistent with at least three possibilities as a principle structuring the relation between plaintiff and defendant in a copyright action. That is, each of
(a) reciprocal forbearance from any unauthorized use of each other’s work (no copying is permitted);
(b) reciprocal freedom to use without restriction each other’s work without authorization (all copying is permitted); and
(c) reciprocal freedom to use without authorization each other’s work in one’s own (some copying is permitted);
is equally consistent with the idea of equality per se. We may say that (a) is plaintiff-centred, (b) is defendant-centred and (c) is, broadly speaking, a paradigmatic instance of what we call fair use. Silbey’s point is that I need to say more than what I have said to persuade her that equality does the work I want it to do in WHAT’S WRONG WITH COPYING? Of course, she herself points to the answer when she notes that at stake is not equality per se but rather the equality of authors as authors notionally engaged in dialogue. An author is someone who addresses another. To address another is to presuppose the possibility of her response. It is precisely this response by another that the idea/expression dichotomy and fair use contemplate and safeguard. In other words, while (a) and (b) are compatible with equality per se, only (c) is compelling as a manifestation of a principle capturing fundamental features of copyright doctrine. Whereas (a) posits a copyright devoid of limits, and (b) posits the absence of copyright, (c) captures copyright as a juridical structure ordering the relation of plaintiff and defendant as authors. Descriptively, copyright is just not about either (a) or (b). The equality of authors as authors is thus less an assumed baseline than the result of an analytical elucidation of copyright doctrine.
Still, Silbey is correct to point out that it would be both fruitful and helpful to elaborate the concept of equality further. She ends her comment with the observation that, whether I would accept the characterization or not, WHAT IS WRONG WITH COPYING? is a book about human rights because it is a book about equality and dignity. Silbey’s comment taps into themes that the book evokes but does not explicitly invoke. Sufficiently explicit, I believe, are the book’s insistence to see copyright law in its own terms, as well the consequent deployment of copyright as an uncompromising affirmation of the public domain, and thus as a critique of the proprietary exaggerations in the name of which it is currently deployed. Perhaps more deeply, or at least less explicitly, the book finds itself animated by a muted ambition to grasp the theory of copyright as a necessary, specifically juridical moment in a comprehensive theory of speech, and of the role speech in the constitution of the human self. Of course, WHAT’S WRONG WITH COPYING? is, first and foremost, a legal book about copyright doctrine. It starts and ends there. But I cannot help but share what I take to be Silbey’s adrenaline in respect of the constellation of themes to which she alludes. I am deeply appreciative of her awareness that, precisely as a book about legal doctrine, WHAT’S WRONG WITH COPYING? is also a book about law as a depository of knowledge and insight.
It goes without saying that I am grateful to Lunney, Rose and Silbey for their attentiveness to my book, and to Bill Gallagher for making this conversation possible. I look forward to many future engagements on these shared concerns.
Suggested Citation: 7(2) The IP Law Book Review 27 (2017).
© 2017 Abraham Drassinower