HLS Private Law Workshop: Shyamkrishna Balganesh, Copyright as Legal Process

Post by Patrick Goold

2017 marks the bicentennial of Harvard Law School. It is fitting, therefore, that the first Private Law Workshop of the semester focused on intellectual legal history and, in part, the influence of some of Harvard’s most prominent law professors. Shyamkrishna Balganesh presented his work-in-progress Copyright as Legal Process. In it, Balganesh argues that copyright underwent a “quiet metamorphosis” in the twentieth century. Under the influence of the Legal Process School of jurisprudence, copyright evolved from private law to public law. What’s more, this evolution has entailed a fundamental transformation in the conception of law at the heart of modern copyright.

From 1870 to 1950, copyright law was, according to Balganesh, normatively and structurally part of American private law. The “private law conception” of copyright crystalized during the age of Legal Formalism (or Classical Legal Thought), and was characterized by a focus on the horizontal legal relationship between the copyright owner and the copyist. The owner’s copyright was, axiomatically, an individual right; users of the protected work were duty-bound not to copy; he who copied the work wronged the owner. This right-duty relationship was largely self-justifying. Courts rarely discussed the “purpose” of copyright law; on the occasions they did, they claimed copyright’s purpose was to uphold a right-duty relationship, and that any broader social goals were merely a welcome by-product. Furthermore, the private law conception involved a particular understanding of judicial reasoning. When adjudicating copyright disputes, courts rarely appealed to policy, nor paid particular deference to the wording or history of the Copyright Act 1909. Instead, courts tended to search for established “copyright principles” (such as the idea-expression dichotomy, or the nature of authorship) and reasoned therefrom.

Perhaps surprisingly, the private law conception of copyright – according to Balganesh –  was largely maintained through the Legal Realist period. While the Realists claimed legal doctrine was indeterminate and thus were skeptical that judicial reasoning could be objective, they nevertheless valorized the judiciary (and notably a number of high-profile Realists served on the bench). Realism emphasized judicial creativity in solving cases, while simultaneously placing little faith in statutory interpretation. As a result, when adjudicating copyright disputes, courts continued to show Congress little deference, but instead trusted judicial craftsmanship to resolve the particularized problems that arose.

But during the Twentieth century, American legal thought changed with the rise of the Legal Process School of jurisprudence. Developed primarily by Lon Fuller, Henry Hart and Albert Sacks, Legal Process theory encapsulates a number of basic precepts. First, law is conceived as an instrument for achieving social goals. Second, what the law is on a given issue depends on which institution has law-making authority (a concept known as “institutional settlement”). In particular, Congress not only sets the black letter rules of statutes, but has peremptory authority for defining a statute’s overall purpose or “policy.” Courts meanwhile are not meant to second-guess Congress on these matters, but to elaborate the scheme that the legislature has put in place (through a process of “reasoned elaboration”). Finally, the Legal Process theory legitimizes the rule-making authority of experts and administrative agencies. In addition, Balganesh highlights a previously little recognized fact: the tenets of Legal Process contributed to the withering of private law and the decay of the private-public distinction. Under the influence of Legal Process, some of the most basic tort, property, or contractual cases are now routinely concerned with administrative rules, collectivist public goals, and agency deference.

During the 1950s and the 1960s, the heyday of Legal Process, the federal copyright statute was revised. Balganesh argues that the resulting Copyright Act 1976 shows the undeniable imprint of Legal Process thought. Since the mid-twentieth century, courts have come to speak in terms of “copyright policy.” The “purpose” of copyright law is couched in avowedly utilitarian terms: to maximize social welfare by ensuring the greatest number of creative works produced at the lowest social cost. Whereas the private law conception saw the purpose of copyright as benefiting the individual author, with social goals being a welcome by-product, the Legal Process influence has flipped these purposes around. Today, the sole purpose of copyright is to maximize social welfare, while any individual benefit accruing to the owner is a necessary evil, tolerated so long as it contributes to the utilitarian policy. Equally flipped are the role of principle and policy. Whereas courts previously adjudicated through reasoning from principle, today courts must justify their decisions by reference to the external policy goal. This judicial attitude flows largely from the institutional roles which have emerged since the mid-twentieth century. As a statutory area of law, it is Congress who has the peremptory authority to set the law’s policy, and courts have shown noticeable deference to Congressional decisions (see e.g. Eldred v. Ashcroft). Furthermore this deference extends not just to Congress, but also the Copyright Office, whose rule-making authority continues to grow.

But perhaps the most striking change has been to the concept of copyright law. Not only is copyright now public law, but it is a type of “law” not characterized by socially constructed rules, but by a process. Copyright is today better understood as a system, involving multiple institutions, directed towards the goal of managing society’s creative expression. Copyright lawyers would do well, Balganesh says, to embrace this new hybrid private-public process reality. At minimum, this should involve agreeing on norms for institutional settlement, and reflecting upon the court’s role as a reasoned elaborator of the copyright scheme.

As a copyright lawyer, I find this historical story fascinating. And as with any fascinating thesis, the paper generates a multitude of questions, some of which I’ll note here. First, how does the twentieth century transformation relate to the “literary property” debates of the eighteenth and nineteenth centuries? During these centuries, the British House of Lords and the US Supreme Court decided, in a series of infamous cases, that after a work is published, any copyright protection is purely statutory, and there is no “common law” copyright remaining. Now, on one level, these decisions simply hold that the source of copyright is statutory and not common law. Accordingly, the ratio decidendi are not explicitly about the purpose of copyright, the role of the administrative state, or the nature of judicial reasoning in copyright. However, the cases certainly had a public law flavor. The courts equated common law copyright with a natural right: by holding that common law copyright extinguished at publication, they held that the any natural individual right was extinguished upon publication, and that extinguishing this right was necessary for the public purpose of preventing monopoly. Furthermore, these cases could be read as holding that courts should defer to statute when deciding copyright cases, as opposed to adopting common law reasoning. I wonder, therefore, whether these cases were conveniently ignored during the Formalist epoch, or whether they were accounted for in a particularly interesting and nuanced way.

Secondly, I wonder why Legal Interpretivism, as primarily expounded by Ronald Dworkin, has had little impact on copyright law. While adopting many of the Legal Process ideas, Dworkin departed from the school in a number of significant ways. Perhaps most important is Dworkin’s view of “purpose” in law. Like the Legal Process School, Dworkin argued that law is a purposive activity: he agreed that legal rules have purpose and must be interpreted in the light of those purposes. However, the “purpose” of a legal rule is not necessarily that which was intended by the court or legislative body that created the rule in the first instance. Instead, the interpreter to some degree imposes purpose upon a legal rule (and hence legal interpretation has a creative or constructive quality). When interpreting legal rules, lawyers try to find the most normatively attractive purposes the law could serve, and then interpret the rule to further those purposes (and thereby present the law in its “best light.”) Furthermore, because Dworkin views legal interpretation as the very core of law’s nature, his theory is explicitly juricentric and affirms the court’s role – indeed, he famously illustrated his theory of legal interpretation through the use of the fictitious Judge Hercules! It strikes me that if these Interpretivist views had greater traction in copyright (as they have in certain areas of public law such as constitutional law), then the law today would look quite different today. Arguably there would be less deference to Congress and the Copyright Office, and a greater attempt to construct copyright law in a more normatively attractive way. And, given how empirically questionable the economic-utilitarian justifications for copyright are, arguably courts would have fashioned a new, more normatively defensible version of copyright’s “purpose.”

And finally, one cannot help but note the profound irony in copyright’s process turn. Since the mid-twentieth century, copyright’s scope and duration have expanded dramatically. It is highly questionable whether such expansions promote social-wide goals (see for example a brief filed by five Nobel Prize winning economists arguing that the Copyright Term Extension Act makes little economic sense). At the point in history when copyright’s public goals have taken center-stage, arguably lawmakers have amended statute law so that it departs from rather than achieves the goal the law purports to serve.  How should a judge influenced by the Legal Process movement approach a statute of this sort?