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Copyright

Legal Internalism In Modern Histories of Copyright

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Legal internalism refers to the internal point of view that professional participants in a legal practice develop toward it. It represents a behavioral phenomenon wherein such participants treat the domain of law (or a subset of it) as normative, epistemologically self-contained, and logically coherent on its own terms regardless of whether the law actually embodies those characteristics. Thus understood, legal internalism remains an important characteristic of all modern legal systems. In this Review, we examine three recent interdisciplinary histories of copyright law to showcase the working of legal internalism. We argue that while their interdisciplinary emphasis adds to the conversation about copyright, it also overlooks the centrality of legal internalism in the evolution of copyright, a domain that has always been understood as a creation of the law. The Review unpacks the core tenets of legal internalism, examines how it operates as an important variable of legal change, contrasts it with the idea of legal consciousness, and shows how legal internalism directs and regulates the entry of nonlegal considerations into different areas of law.

Introduction

Ever since its origins, copyright has been characterized by a deep disagreement over its underlying justification. While some see the institution as driven by a model of market-based economic incentives, others relate it to notions of authorial labor and desert, and yet others see it as a form of industrial policy and rent-seeking by the content industry. And despite copyright (or something resembling it) having been in existence for multiple centuries, this disagreement is about as trenchant today as it was at copyright’s very inception. Described by scholars as the “copyright wars,”1×1. Baldwin, supra note 1; Blayne Haggart, Copyfight: The Global Politics of Digital Copyright Reform 242 (2014); William Patry, Moral Panics and the Copyright Wars (2009); see also Adrian Johns, Piracy: The Intellectual Property Wars from Gutenberg to Gates (2009). the disagreement might even be said to be more obvious and consequential now than it ever was in the past.

While the disagreement itself is multilayered and has many nuances, an important strand within it pertains to the reasons why copyright was brought into existence as such and constructed in the image of property rights, an imagery that has exerted an indelible influence on the evolution and trajectory of the institution ever since.2×2. See Ronan Deazley, On the Origin of the Right to Copy: Charting the Movement of Copyright Law in Eighteenth Century Britain (1695–1775), at 149–50 (2004); Rose, supra note 1, at 5–8. Attempting to resolve that strand of dispute, scholars and advocates have long relied on (and weaponized) the history of copyright’s origins and evolution in an effort to generate normative claims about the institution in its present form.3×3. See Barbara Lauriat, Copyright History in the Advocate’s Arsenal, in Research Handbook on the History of Copyright Law 7, 7–8 (Isabella Alexander & H. Tomás Gómez-Arostegui eds., 2016). For an argument that one prominent recent work of copyright history engaged in such weaponization, see Jane C. Ginsburg, Business of Their Lives, Times Literary Supplement, June 5, 2015, reviewing Baldwin, supra note 1, and noting that its approach “betrays its bias.” In the process, the historical study of copyright has remained an established subfield within the world of copyright scholarship.4×4. Isabella Alexander & H. Tomás Gómez-Arostegui, Introduction, to Research Handbook on the History of Copyright Law, supra note 5, at 1 (“[C]opyright history is clearly a discrete and popular field of academic inquiry . . . .” ); Martin Kretschmer, Lionel Bently & Ronan Deazley, Introduction. The History of Copyright History: Notes from an Emerging Discipline, in Privilege and Property: Essays on the History of Copyright 1, 1–2 (Ronan Deazley, Martin Kretschmer & Lionel Bently eds., 2010).

Copyright scholarship itself has however undergone an important transformation over the course of the last century. As legal scholarship has become more overtly interdisciplinary, copyright scholarship too has seen itself overrun by insights from the fields of economics,5×5. See, e.g., Richard Watt, Copyright and Economic Theory: Friends or Foes? (2000); Christopher Buccafusco & Christopher Jon Sprigman, The Creativity Effect, 78 U. Chi. L. Rev. 31 (2011); William M. Landes & Richard A. Posner, An Economic Analysis of Copyright Law, 18 J. Legal Stud. 325 (1989); Christopher S. Yoo, Copyright and Public Good Economics: A Misunderstood Relation, 155 U. Pa. L. Rev. 635 (2007). philosophy,6×6. See, e.g., Abraham Drassinower, What’s Wrong with Copying? (2015); Anne Barron, Kant, Copyright and Communicative Freedom, 31 Law & Phil. 1 (2012); Kathy Bowrey, The Outer Limits of Copyright Law — Where Law Meets Philosophy and Culture, 12 Law & Critique 75 (2001); Jon M. Garon, Normative Copyright: A Conceptual Framework for Copyright Philosophy and Ethics, 88 Cornell L. Rev. 1278 (2003). political science,7×7. See, e.g., Barron, supra note 8. literary theory,8×8. See, e.g., Zahr K. Said, A Transactional Theory of the Reader in Copyright Law, 102 Iowa L. Rev. 605 (2017). sociology,9×9. See, e.g., Laura A. Heymann, Reasonable Appropriation and Reader Response, 9 U.C. Irvine L. Rev. 343 (2018). and psychology.10×10. See, e.g., Shyamkrishna Balganesh, Irina D. Manta & Tess Wilkinson-Ryan, Judging Similarity, 100 Iowa L. Rev. 267 (2014). To be sure, this overt interdisciplinarity has undoubtedly enriched copyright thinking and theorizing. It has forced copyright scholarship to look beyond the simple doctrinal analysis of the law and examine the broader implications of authorship and the regulation of creativity. At the same time, though, the interdisciplinary turn has caused the legal origins of copyright to recede into the background in the scholarly discussion of the institution.11×11. For a fuller elaboration of this point, see Shyamkrishna Balganesh, The Obligatory Structure of Copyright Law: Unbundling the Wrong of Copying, 125 Harv. L. Rev. 1664 (2012). The notion of “legal origins” is hardly some abstract metaphysical idea. Instead, it is simply a recognition that copyright is a system of rights rooted in the normative structure of the law.12×12. Id. at 1671. Copyright has always been a creation of the law, which presupposes the analytical priority of the law and legal institutions. All too often, modern interdisciplinary copyright scholarship loses sight of this reality and treats copyright’s legal roots as entirely contingent elements.

The historical study of copyright has embraced the interdisciplinary turn in copyright scholarship in no small measure. Whereas the leading histories of copyright from the last century were authored by law professors who framed their narratives through legal developments in the field,13×13. See Benjamin Kaplan, An Unhurried View of Copyright (1967); Lyman Ray Patterson, Copyright in Historical Perspective (1968). the most prominent recent histories of copyright readily adopt more nuanced interdisciplinary narratives to explain the origins and evolution of copyright.14×14. See, e.g., Baldwin, supra note 1; Ronan Deazley, Rethinking Copyright: History, Theory, Language (2006); Rose, supra note 1; Martha Woodmansee, The Author, Art, and the Market: Rereading the History of Aesthetics (1994). In so doing, they reveal the inadequacies of a narrow focus on legal developments in the field, and they highlight how many of these developments were intricately tied to important social, economic, cultural, political, and technological currents of the time. Undoubtedly, the most enduring contribution of the interdisciplinary turn in copyright history has been its revelation that the institution of copyright has always had broader implications for society, culture, and public welfare than the implications that a narrow legal focus would suggest.

In this Review, we examine three recent histories of copyright, each of which adopts a different narrative methodology. In Who Owns the News? A History of Copyright, Professor Will Slauter attempts to tell the story of how news — principally factual information — sought protection through copyright since the earliest days of Anglo-American copyright law. Slauter frames his historical narrative as a political economy account of news publishing and its intersection with similar forces that have influenced the overall direction of copyright reform (p. 5). He thus looks to the role of special interest groups, conglomerates, influence merchants, lawmakers, and lawyers in the development of the system.

Pirates and Publishers: A Social History of Copyright in Modern China presents itself as developing a “new conceptual framework” to examine the social and cultural history of copyright in China (p. 4). In the book, Professor Fei-Hsien Wang sets out to dispel the idea that copyright was an altogether artificial construct that was transplanted to China and therefore never well received (p. 7). Instead of looking to formal sources of law, Wang examines the interactions among authors, publishers, and copiers between 1890 and 1950 to show how these actors developed their own mechanisms of exclusivity and control that paralleled the working of formal copyright law (p. 4), even if they operated entirely in the “shadow of the state” (and therefore the law) (p. 20).

Lastly, in Authors and Apparatus: A Media History of Copyright, Professor Monika Dommann adopts a novel interdisciplinary approach to the history of copyright that attempts to meld the history of communications media with the history of legal norms surrounding such media (pp. 7–8). Dommann’s account picks discrete developments in the history of technology to assess the evolution of copyright rules against norms surrounding technology. She does so comparatively, focusing on the evolution of the European (primarily German) and U.S. copyright systems.

Each of these narratives offers a fresh and unique perspective on the evolution of copyright over time, showcasing the wide range of influences on the institution during its lifespan. They each also highlight the points of convergence and divergence in the domestic development of copyright by individual nations, and the myriad sociocultural contingencies that generated vastly different approaches to identical questions in different countries. And, when taken together, they produce an exceptionally rich cross-methodological account of copyright’s history, since their individual narratives complement each other.

All the same, they are each also profoundly incomplete in one crucial respect. Just as the interdisciplinary turn in copyright scholarship has come to underplay the legal origins of the institution, historical accounts of copyright that are steeped in interdisciplinary insights neglect the influence of what we herein describe as legal internalism on the structure and evolution of copyright. Put simply, legal internalism refers to the internal point of view that regular participants in a legal practice usually develop toward it that sees it as normative, epistemologically self-contained, and logically coherent. Very importantly, legal internalism represents a behavioral and social phenomenon rather than a theoretical construct, which renders it distinct from abstract claims about the autonomy of the law.15×15. See Ernest J. Weinrib, Legal Formalism: On the Immanent Rationality of Law, 97 Yale L.J. 949, 953–57 (1988). For an extension to copyright law, see Shyamkrishna Balganesh, The Immanent Rationality of Copyright Law, 115 Mich. L. Rev. 1047, 1061–68 (2017) (reviewing Drassinower, supra note 8). Translated to the evolution of copyright, legal internalism suggests that the direction, speed, and form of change in copyright law depends on the reality of copyright as a legal creation with its terms and scope delineated by legal rules.

Recognizing a role for legal internalism is far from denying the influence of other factors on the historical evolution of copyright. Yet legal internalism is distinct from other variables insofar as it posits a particular mindset seen among the principal agents of change within the institution. Legal internalism reflects the existence of a two-way relationship between law and social contingency, emphasizing that law is itself necessarily constitutive of consciousness.16×16. The seminal account of this interaction is Robert W. Gordon, Critical Legal Histories, 36 Stan. L. Rev. 57, 109–13 (1984). For a fuller elaboration and retrospective assessment of its impact, see Susanna L. Blumenthal, Of Mandarins, Legal Consciousness, and the Cultural Turn in U.S. Legal History: Robert W. Gordon. 1984. Critical Legal Histories. Stanford Law Review 36:57–125, 37 Law & Soc. Inquiry 167 (2012). Professor Robert Gordon, who famously developed the connection between law and consciousness, argued that the role of the law in this mechanism is less through its threat of coercion but instead through its persuasive imagery, where law suggests that “the world described in its images and categories is the only attainable world in which a sane person would want to live.”17×17. Gordon, supra note 18, at 109. Legal internalism, which we argue is a behavioral formalization of Gordon’s core theoretical insight, therefore posits that the entrenchment of an identifiable set of concepts, principles, and analytical ideas for an institution within the law plays a crucial role in steering its evolution. In other words, the reality of copyright having a formal legal origin and a commitment to the idea of exclusive rights played no small role in the pattern of change seen in its development.

Legal internalism thus defined does not fully exist on the same analytical plane as the other socioeconomic or political factors identified in the three books. It refers more to the mental processes and logic through which legal actors internalize external factors into their perception of the law than it does to the substantive outcomes of such internalization. In other words, it refers to a set of “procedural” intellectual commitments rather than to a set of substantive values. From this perspective, there is very little substantive incompatibility between a legally internalist account of copyright and the historical accounts offered by each of the books. Nonetheless, adding this “procedural” dimension presents much of that material in a qualitatively distinct light. The same substantive socioeconomic and political forces appear and function very differently when filtered through an internalist view, rather than operating directly on legal institutions.

As we explicate more fully in what follows, legal internalism is also very distinct from both simplistic claims about the autonomy of law and a myopic focus on sources described in some formal sense as “law.” Some historians of copyright have defended the interdisciplinary turn in the field as a move away from the “orthodox method” of looking exclusively (or primarily) to legal sources and methods for historical analysis.18×18. Kretschmer et al., supra note 6, at 6. In so doing, they urge that “[c]opyright history is not just another branch of positive law.”19×19. Id. Internalism does not demand limiting the sources of historical analysis; nor does it require adopting a narrow conception of law. Instead it merely posits that the framing of copyright as a legal institution carries intellectual significance, one that interacts with other influences on the development of copyright to cast them in new light and accord them relevance. While internalism does not suggest that copyright history is a matter of positive law, it nevertheless emphasizes that the law — understood as the framework of normativity underlying the institution — remains a reference point for understanding what copyright is, even when one’s specific focus is on “customs” or “social norms.”

In this Review, we develop a new behavioral theory of legal internalism and explore its potential explanatory power in the historical narrative of copyright through the three books previously mentioned. We emphasize the central role that the cognitive tendencies and behavioral incentives of legal actors play in promoting legal internalism, thereby arguing for internalism as a likely determinant of legal change across highly diverse institutional, sociopolitical, and cultural terrain. To varying degrees, each of the books neglects the explanatory potential of legal internalism in its overall narrative and in the process disengages copyright from its legal roots. We show that the inclusion of legal internalism as an explanatory variable in the narrative need not be to the exclusion of other influences, but that it can instead enrich the account in important ways.

Part I begins with a brief summary of each of the books chosen, focusing on how their historical narratives deal with the role of law and legal institutions in explaining the evolution of copyright. It unpacks the structure of each narrative individually, and then shows how in attempting to underplay the role of law in the narrative, the books each embrace a vision of causality in the development of copyright. Part II moves to what we argue is the missing component of the narratives: legal internalism. This Part describes the basic idea behind legal internalism as a behavioral phenomenon in the evolution of law and then disaggregates it into its central components. Part III then returns to the three books to show how interjecting a greater emphasis on legal internalism into the narrative would enrich their explanations, without detracting from their chosen methodologies.


* Professor of Law, Columbia Law School.
** Professor of Law, Yale Law School. Our thanks to Jane Ginsburg, Tomás Gómez-Arostegui, Sophia Lee, Gideon Parchomovsky, David Pozen, Stephen Sachs, and participants at the Penn Law Faculty Workshop, Chicago-Kent Law Faculty Workshop, and Notre Dame Private Law Theory Workshop, for helpful comments and suggestions.