1. This brief summary is meant to show only that debates about the proprietary or monopolistic nature of copyrights have recurred persistently and generated reams of commentary dating from the late 17th century to the early 21st century. Law professor Justin Hughes has compiled a far more detailed summary, citing more of the original sources. See Justin Hughes, “Copyright and Incomplete Historiographies: Of Piracy, Propertization, and Thomas Jefferson,” Southern California Law Review 79 (2006):
993–1085.
2. For a discussion of the 1631 grant of a royal monopoly on the manufacture of vegetable oil–based soap, see Yale Brozen, “Is Government the Source of Monopoly?” Orbis 12, no. 4 (1969): 67–78, https://isistatic.org/journal-archive/ir/05_02/brozen.pdf.
3. In George Ticknor Curtis’s Treatise on the Law of Copyright, he says, “Every civilized nation, of any literary rank, has some law recognizing the property of authors in their works.” See George Ticknor Curtis, Treatise on the Law of Copyright (Boston: C.
C. Little and J. Brown, 1847), 17.
4. See, for example, Jefferson to Madison, July 31, 1788, in Vol. V of The Works of Thomas Jefferson, ed. Paul L. Ford (New York: The Knickerbocker Press, 1904), 424 and 428.
5. Compare Stevens v. Cady and Stevens v. Gladding, which both held that the transfer of the personal-property rights in an engraving plate that could be used to reproduce copies of a map did not transfer the copyrights in the map because they were a sep-arate form of property, with Burrows-Giles Lithographic Co. v. Sarony, which called the copyright of an author a monopoly. See Stevens v. Cady, 55 US 528, 531 (1853); Stevens v. Gladding, 58 US 447, 452 (1855); and Burrows-Giles Lithographic Co. v. Sar-ony, 111 US 53, 56 (1884).
6. Barbara Ringer, The Demonology of Copyright (New Providence: R. R. Bowker Co, 1974), 5, www.copyright.gov/history/
demonology_of_copyright.pdf.
7. Edmund W. Kitch, “Elementary and Persistent Errors in the Analysis of Intellectual Property,” Vanderbilt Law Review 53 (2000): 1727 and 1734.
8. For an example of attacking the “anticompetitive interests of the content owners in enforcing their copyright monopolies,”
see Sean M. Flaim, “Copyright Conspiracy: How the New Copyright Alert System May Violate the Sherman Act,” New York Uni-versity Journal of Intellectual Property and Entertainment Law 2, no. 1 (November 2012): 142–87.
9. Peter K. Yu, “Intellectual Property and the Information Ecosystem,” Michigan State Law Review 2005 (Spring 2005): 1–20;
Tom Bell, “Five Reforms for Copyright,” in Copyright Unbalanced: From Incentive to Excess, ed. Jerry Brito (Arlington: Mercatus Center, 2012), 109–111; and Keith Aoki, James Boyle, and Jennifer Jenkins, Bound by Law: Tales from the Public Domain (Durham: Center for the Study of the Public Domain, 2006), 28.
10. Mark A. Lemley, “Property, Intellectual Property, and Free Riding,” Texas Law Review 83 (March 2005): 1031, 1033, and 1037.
11. Adam Mossoff, “Patents as Constitutional Private Property: The Historical Protection of Patents under the Takings Clause,”
Boston University Law Review 87 (2007): 689–725; Adam Mossoff, “Who Cares What Thomas Jefferson Thought about Patents?
Reevaluating the Patent ‘Privilege’ in Historical Context,” Cornell Law Review 92 (2007): 953–1013; and Adam Mossoff, “Exclu-sion and Exclusive Use in Patent Law,” Harvard Journal of Law and Technology 22, no. 2 (August 2008): 2009–68.
12. See, for example, Hughes, “Copyright and Incomplete Historiographies”; Justin Hughes, “Locke’s 1694 Memorandum (and More Incomplete Copyright Historiographies),” Cardozo Arts and Entertainment Law Journal 72 (2010): 555; and Justin Hughes,
“A Short History of ‘Intellectual Property’ in Relation to Copyright,” Cardozo Law Review 33 (2012): 1293–1340. For a detailed
account of this history from a skeptical perspective, see Adrian Johns, Piracy: The Intellectual Property Wars from Gutenberg to Gates (Chicago: University of Chicago Press, 2009).
13. See, for example, Randolph J. May and Seth L. Cooper, “Literary Property: Copyright’s Constitutional History and Its Meaning for Today,” Perspectives from Free State Foundation Scholars 8, no. 19 (July 2013); and Paul Clement, Viet Dinh, and Jef-frey Harris, The Constitutional and Historical Foundations of Copyright Protection (Alexandria: Center for Individual Freedom, 2012). For two reasons, this paper takes no position on whether copyrights are natural or utilitarian rights. First, the historical record on this question can support either position. Second, the historical record seems to be ambiguous because many people can favor treating copyrights as property rights on either natural-law or utilitarian grounds. For example, I think that economic systems based on private-property rights and private markets serve utilitarian purposes because they have tended to produce better and more adaptable results than their alternatives. Moreover, given that copyrights are intended to promote private investment in the produc-tion and disseminaproduc-tion of private expression, First Amendment and other values seem to make it particularly important to ensure that we use these proven market mechanisms as one of several means of promoting the production of expressive works. I thus have no strong opinion on whether copyrights are—or are not—natural rights. In either case, the same conclusion seems to follow: we should treat copyrights as analogs of the rights in personal, real, and intellectual property that we grant to other producers of other potentially socially valuable goods and services so proven market mechanisms can encourage the private creation and dissemination of expressive works.
14. Hughes, “Copyright and Incomplete Historiographies.”
15. Ibid., 1006.
16. Ibid., 1084.
17. Peter Baldwin, The Copyright Wars: Three Centuries of Trans-Atlantic Battle (Princeton: Princeton University Press, 2014), 6.
18. The figure “333” was generated by searching the ebook version for references to “crucifixion,” “crucify,” “battle for the soul,”
“slavery,” “fascism,” “fascists,” “Mussolini,” “Nazis,” “Hitler,” and “authorities’ authorophilia.”
19. Peter Baldwin, The Copyright Wars.
20. See Hughes, “A Short History of ‘Intellectual Property.’”
21. Lemley, “Property, Intellectual Property, and Free Riding,” 1067.
22. Oren Bracha and Talha Syed, “Beyond the Incentive-Access Paradigm? Product Differentiation and Copyright Revisited,”
Texas Law Review 92 (2014): 1841 and 1861.
23. Christopher Yoo has collected academic sources espousing this view of copyright law. See Christopher Yoo, “Copyright and Product Differentiation,” New York University Law Review 79, no. 1 (2004): 212 and 217.
24. “The right to exclude others is more than just ‘one of the most essential’ constituents of property—it is the sine qua non. Give someone the right to exclude others from a valued resource, i.e., a resource that is scarce relative to the human demand for it, and you give them property. Deny someone the exclusion right and they do not have property.” See Thomas W. Merrill, “Property and the Right to Exclude,” Nebraska Law Review 77, no. 4 (1998): 730–55; and Kaiser Aetna v. United States, 444 US 164, 176 (1979).
25. In Armen A. Alchain’s “Property Rights,” he states that a property right must be alienable and confer “the exclusive right to the services of the resource.” See Harold Demsetz, “Property Rights,” in Vol. III of The New Palgrave Dictionary of Economics and the Law, ed. Peter Newman (Palgrave Macmillan, 1998), 146; and Armen A. Alchian, “Property Rights,” in The Concise Encyclo-pedia of Economics, ed. David R. Henderson (Liberty Fund, 2002), 422–24.
26. In Lester Telser’s “Competition,” he states, “Property rights are essential for competition.” See Lester Telser, “Competition,”
in The McGraw-Hill Encyclopedia of Economics, ed. Douglas Greenwald, (McGraw-Hill, 1994), 181.
27. For an excellent short summary of the history and purposes of copyright remedies, see Steven Tepp, “Copyright Remedies,”
Testimony before the Subcommittee on Courts, Intellectual Property, and the Internet of the House Judiciary Committee, 113th Cong., July 24, 2014, http://judiciary.house.gov/_cache/files/adb89ec1-5155-4c8c-95c7-6b88076b8993/tepp-sentinel- remedies-testimony.pdf.
28. Ronald A. Cass and Keith N. Hylton note that “for at least two and a quarter centuries” copyrights “have been explained as
serving the same instrumentalist ends as other property rights.” See Ronald A. Cass and Keith N. Hylton, Laws of Creation: Prop-erty Rights in the World of Ideas (Boston: Harvard University Press, 2013), 6.
29. Golan v. Holder, 132 S. Ct. 873, 889 n. 27 (2012).
30. For example, Charles River Bridge v. Warren Bridge held that a Massachusetts law that authorized a corporation to construct and operate a toll bridge over the Charles River did not grant a trade monopoly that barred Massachusetts from authorizing another corporation to construct and operate another, potentially competing toll bridge over the same river. See Charles River Bridge v. War-ren Bridge, 36 US 11 Pet. 420 420 (1837).
31. In economics, the term “monopoly” sometimes refers to one producer operating in a market protected by entry barriers. That definition posits results akin to those of a true trade monopoly. See Graham Bannock, R. E. Baxter, and Evan Davis, Dictionary of Economics (Princeton: Economist Books, 2003), 262.
32. This paper does not try to analyze whether or when compulsory licensing of copyrights could infringe on the First Amend-ment rights. It makes only a narrower point: compulsory licenses, as well as old antitrust consent decrees that impose the equivalent of compulsory licenses, do heavily regulate some markets for some types of expressive works.
33. Derek Khanna cites the founders’ aversion to the “tea monopoly” as the “backdrop” against which “one must interpret the Copyright Clause.” See Derek Khanna, Guarding against Abuse: Restoring Constitutional Copyright (R Street Institute, 2014), 3–4.
34. Kitch, “Elementary and Persistent Errors.”
35. See Illinois Tool Works Inc. v. Independent Ink Inc., 547 US 28 (2006); US Department of Justice and the Federal Trade Commission, Antitrust Guidelines for the Licensing of Intellectual Property § 2.2 (April 6, 1995), www.usdoj.gov/atr/public/guide-lines/0558.pdf; and Phillip Areeda, Herbert Hovenkamp, and John Solow, Antitrust Law (Wolters Kluwer Law and Business, 2012), 138. Many copyright-skeptical academics concede this point. For an example that concludes that copyrights do not auto-matically “create ‘monopolies’ in an economic or antitrust sense,” see Mark A. Lemley, “The Economics of Improvement in Intel-lectual Property Law,” Texas Law Review 75 (September 2008). Others do not. In Sterk’s “Reality and Rhetoric in Copyright Law,”
he states, “Copyright gives each author at least some monopoly power.” See Stewart E. Sterk, “Reality and Rhetoric in Copyright Law,” Michigan Law Review 94, no. 5 (March 1996): 1197–249.
36. US Department of Justice, Federal Trade Commission, Antitrust Guidelines for the Licensing of Intellectual Property, 1995.
37. Professor Friedman’s claim that copyrights can be said to be monopolies for the same reason that property rights in land can be said to be monopolies has confused some incautious commentators. Khanna claims that Professor Friedman claimed that copy-rights are “monopolies” for purposes of “economic analysis.” See Milton Friedman, Capitalism and Freedom (Chicago: University of Chicago Press, 2002), 127; and Khanna, Guarding against Abuse, 1.
38. At least in theory, perfect competition occurs when producers of a given resource are all equally good—or, potentially, equally bad—at anticipating what potential customers will want and how to produce it at the lowest possible cost. Were this to happen, then all producers of a given resource would become fungible, and market prices would fall to the marginal—or, in a market with copyright laws, the average total—cost of producing another unit of the resource in question. In theory, this perfect competition would result in zero profit but socially optimal production because a given resource could be acquired from fungible producers by anyone who valued it at or above the cost of its production.
39. This follows only in those rare cases in which a given work becomes very popular. By contrast, the copyrights in most works will confer neither the ability to price above average-total costs nor even the ability to recoup production costs and risks. In “Copy-right as Trade Regulation,” Sara K. Stadler concludes that substitutes for most works ensure that most “copy“Copy-rights do not create market power at all.” See Sara K. Stadler, “Copyright as Trade Regulation,” University of Pennsylvania Law Review 155, no. 4 (2007): 899 and 922.
40. See, for example, Bracha and Syed, “Beyond the Incentive-Access Paradigm?”
41. William J. Baumol, The Free-Market Innovation Machine: Analyzing the Growth Miracle of Capitalism (Princeton: Prince-ton University Press, 2002).
42. In The Theory of Monopolistic Competition, Edward H. Chamberlin uses competition among creators of copyrighted works as a paradigmatic case of imperfect competition. See Edward H. Chamberlin, The Theory of Monopolistic Competition (Cambridge:
Harvard University Press: 1962), 57–59; and Joan Robinson, The Economics of Imperfect Competition (Macmillan,1969). For a summary of the differing perspectives of Chamberlin and Robinson and the effects on antitrust policy of the realization that imper-fect competition was widespread and persistent, see Herbert Hovenkamp, “United States Competition Policy in Crisis: 1890–
1955,” Minnesota Law Review 94 (2009): 311–69.
43. Joseph Schumpeter, Capitalism, Socialism, and Democracy (New York: Harper Colophon, 1975), 131.
44. In Capitalism, Socialism, and Democracy, Schumpeter states, “If we look more closely at the conditions . . . that must be ful-filled in order to produce perfect competition, we realize immediately that outside of agricultural mass production there cannot be many instances of it.” He also says that “it is perfectly clear that perfect competition has at no time been more of a reality than it is at present.” See Schumpeter, Capitalism, Socialism, and Democracy, 77, 78–79, and 81.
45. Ibid., 75–76.
46. Ibid., 106. To see how remarkable Schumpeter’s views were—and would remain—consider the following two excepts from the 1985 edition of a leading US economic textbook written by a Nobel Prize–winning US economist. Here is what it said about capitalism: “We know now that the market sometimes lets us down, that there are ‘market failures,’ and that markets do not always lead to the most efficient outcome. One of the major market failures . . . is imperfect competition.” And here is what it said about socialism: “The Soviet economy is proof that, contrary to what many skeptics had earlier believed, a socialist command economy can function and even thrive. That is, a society in which the major economic decisions are made administratively, without profits as a central motive force for production can grow rapidly over long periods of time.” See Paul Samuelson and William D. Nordhaus, Economics (New York: McGraw-Hill, 1985).
47. In fact, Schumpeter rejects perfect competition in virtually all of its potential manifestations. In the real world, something such as perfect competition could occur only if knowledge of supply and demand were, if not perfect, then at least perfectly static (or, perhaps, evolving at a steady and predictable rate). In such cases, Schumpeter argued that socialism, rather than markets, would provide a superior means of ordering an economy. See Schumpeter, Capitalism, Socialism, and Democracy, 105.
48. Schumpeter also says that “the capitalist process, not by coincidence but by virtue of its mechanism, progressively raises the standard of life of the masses.” See Schumpeter, Capitalism, Socialism, and Democracy, 68 and 82–83.
49. Ibid., 90.
50. Ibid., 84.
51. Schumpeter states: “A system—any system, economic or otherwise—that at every given point in time fully utilizes its possi-bilities to the best advantage may yet in the long run be inferior to a system that does so at no given point of time, because the latter’s failure to do so may be a condition for the level or speed of long-run performance.” (Emphasis in original.) See Schumpeter, Capi-talism, Socialism, and Democracy, 83.
52. Tim Wu, “The Copyright Paradox: Understanding Grokster,” Supreme Court Review (2005): 229 and 239. For an acknowl-edgment of the need for intellectual property rights “where the industry in question faces serious prospects of asset misappropriation that will deter investment,” see Tim Wu, “Intellectual Property, Innovation, and Decentralized Decisions,” Virginia Law Review 92, no. 1 (2006): 123, 142, and 145.
53. Eldred v. Ashcroft, 537 US 186, 212 n. 18 (2003). (Emphasis in original.)
54. Pure nonrivalry is an abstract property of information. In theory, one person’s knowledge of given information is nonrivalrous because it does not preclude others from knowing the same information. But for three reasons, copyrighted works are only partially nonrivalrous. First, to become nonrivalous, even information must be created and broadly disseminated—and that is what copy-rights encourage. Second, copycopy-rights protect only expression, not facts, and some third-party uses may undermine an author’s expressive intentions: copyright law’s derivative-works right thus grants authors fairly broad authority to curate even original or innovative third-party uses of their expressive works. Third, copyrights seek to encourage commercial investment in the private pro-duction of expression, and the commercial value of information is often rivalrous. For example, if it costs five dollars to enter tomor-row’s Powerball lottery, then the value to me of information disclosing tomortomor-row’s winning numbers could be either highly positive or slightly negative, depending on how many other people know and act on that information. See 17 U.S.C. § 106(4).
55. Yoo, “Copyright and Product Differentiation,” 212 and 248.
56. The most obvious example is the § 102(b) idea/expression dichotomy: copyrights protect only original expression, but never the ideas or facts expressed; those enter the public domain immediately, after the work is broadly disseminated. Other examples include the § 102(a) fixation requirement and the first commercial-or-nonprofit-educational-use prong of the § 107 fair-use defense.
57. See, for example, Tom W. Bell, Intellectual Privilege: Copyright, Common Law, and the Common Good (Arlington: Mercatus Center, 2014); Bell, “Five Reforms for Copyright”; and Khanna, Guarding against Abuse.
58. In Logic for Lawyers, Ruggero J. Aldisert discusses the fallacies of appeals to prestige and antiquity. The founders’-copyright critique combines these two fallacies. See Ruggero J. Aldisert, Logic for Lawyers: A Guide to Clear Legal Thinking (South Bend:
National Institute for Trial Advocacy, 1997), 180–82 and 187–88.
59. Bell, “Five Reforms for Copyright.”
60. The agreements thus violated would include the United Nations Universal Convention on Human Rights, the WTO’s Agreement on Trade-Related Aspects of Intellectual Property Rights, the WIPO Copyright Treaty, the WIPO Performances and Phonograms Treaty, every version of the Berne Convention promulgated since 1886, both versions of the Universal Copyright Con-vention, the 1910 Buenos Aries ConCon-vention, and at least all US Free Trade Agreements enacted during the last 25 years.
61. Recall that the central thesis of Professor Baldwin’s “battle-book” collapses unless continental Europeans clearly viewed copy-rights as property copy-rights, but Americans clearly did not. By 2014, a credible attempt to prove that thesis would have required a scholar to (1) acknowledge the role and views of James Madison; (2) admit that Jefferson’s early skepticism about patents changed over time and cannot be fairly attributed to the founders and framers as a whole; and (3) confront the contrary data previously assembled by Hughes and Mossoff. Baldwin did not. See Baldwin, The Copyright Wars, 64, 69, 71, 245, 359, 385, 400, 403, 427–
29, 472, 510, 518, and 524.
62. For a description of the role that Paine and Common Sense played in generating majority support for US independence in early 1776, see Joseph J. Ellis, Revolutionary Summer: The Birth of American Independence (New York: Vintage, 2014), 13–15.
63. Oren Bracha, “Early American Printing Privileges,” in Privilege and Property: Essays on the History of Copyright, ed. Ronan Deazley, Martin Kretschmer, and Lionel Bently (Open Book Publishers, 2010), 112.
64. Journals of the Continental Congress Vol. 24 (1783), reprinted in National Archives, Papers of the Continental Congress, no.
36, II, folios 113–114, 180; and Bruce W. Bugbee, The Genesis of American Patent and Copyright Law (New York: Public Affairs Press, 1967), 112.
65. Ibid.
66. Ibid., 326; and “Resolution of May 2, 1783,” reprinted in Copyright Enactments of the United States 1783–1906 (Washing-ton: Government Printing Office, 1906), 11.
67. See Copyright Enactments: Laws Passed in the United States since 1783 Relating to Copyrights (Copyright Office, 1973).
68. Khanna claims that “George Mason refused to sign the Constitution, fearing that, because of its Copyright Clause the Con-gress may grant monopolies in trade and commerce.” The alleged source traces Mason’s concern to the necessary and proper clause, not the copyright clause. Unlike the copyright clause, the necessary and proper clause was a major concern of the antifederalists. See Khanna, Guarding against Abuse; Jonathan Elliot, The Debates in the Several State Conventions of the Adoption of the Federal Con-stitution (1827), http://oll.libertyfund.org/titles/1904; and Murray Dry, The Anti-Federalist, ed. Herbert J. Storing (Chicago: Uni-versity of Chicago Press, 1985) 9, 110, 112, 134–36, 150, 166, 171, 175, and 239–40.
69. H.R. 10, 1st Cong. (1789).
70. George Washington, “First Annual Address to Congress on the State of the Union,” January 8, 1790, www.presidency.ucsb.
edu/ws/?pid=29431.
71 Copyright Act of 1790, ch. 15, § 1, 1 Stat. 124 (1790).
72. Statute of Anne, 1710, 8 Ann., c. 19, § 4 (Eng.).
73. As a result of Section IV, the Statute of Anne did not really “mark[] the divorce of copyrights from censorship and the rees-tablishment of copyright under the rubric of property, rather than regulation.” By vesting copyrights in authors, the statute made an important step toward modern copyrights, but it permitted after-the-fact regulation that impeded the ability of copyrights to serve