Pirates of the Information Infrastructure: Blackstonian Copyright and the First Amendment

Copyright law's expansion must be analyzed from the standpoint of the comparative history and philosophy of exclusive rights in lands on the one hand, and in creative expression on the other. Expansion is driven by the persistence of a particularly influential mode of discourse about property rights from the English Enclosure Movement of the seventeenth and eighteenth centuries down to the Internet copyright debates of the 1990s. The duration and breadth of copyright have been extended to economically dubious and arguably unconstitutional lengths. At each new incursion into the intellectual commons, substantially the same dual-pronged justification has been brought to bear, combining a one-sided emphasis on certain “natural” rights with a rudimentary and poorly documented account of the “tragedy of the commons.” This unmooring of copyright from the historical limits on its scope and duration threatens to chill the flow of public domain material and transformative works onto the World Wide Web. The author argues that a searching First Amendment inquiry into the dubious origins of Blackstonian copyright, along with a more critical appraisal of its philosophical provenance, should precede implementation of “notice-and-take-down” schemes and other statutory, technological, and contractual restrictions on imitation and quotation in cyberspace and elsewhere. Absent such an inquiry, the redefinition of “piracy” to include evaluation, critique, parody, and even reproduction of public domain works will undo recent advances in the accessibility and heterogeneity of information.