A while back I spoke at a conference at UMDUC on the theme of "copyright utopias." Our panel covered the territory of licensing and the Commons as an approach to copyright nirvana. Elizabeth Winston spoke on the theme of a paper of hers, drawing attention to copyright licenses representing attempts to "contract out" of the copyright law. Another prof (whose name utterly escapes me at the moment, for which I apologize) described how Creative Commons licenses alter the copyright landscape by describing certain downstream uses, among other things. I gave a big picture talk explaining how

and why voluntary licensing benefits both the licensee and the licensor (like any trade); and how the default copyrights established by statute enable licensing.

A huge, glaring confrontation might very well have erupted, but did not, for we were among librarians, after all, and it was all terribly civil. But...

EW's thesis that one ought to be generally skeptical of licensing arrangements squarely conflicts with the view that one of the primary benefits of copyright law is to define rights that can then be traded for a price (which might include not just money, but promises to do or not to do certain things). Note: EW's panel presentation was not as skeptical of private licensing as her paper; I'm not sure why.

It also conflicts with the view that Creative Commons or other alternative licenses can "improve upon" the existing copyright regime. EW doesn't want it to. She seems to propose that licenses that augment existing rights should be allowed, whereas licenses that take away from existing rights (such as fair use) should not be. The problem is obvious... any license that alters rights takes away from one party and gives to the other--in exchange for something else. If one is being objective, one cannot speak of some licenses augmenting rights under the law and others taking away from it. Perhaps Congress in enacting the public law considered the only beneficial parts of the law to be rights established "for" consumers? Why did they then give content owners any rights at all? To injure the public? Surely not. Congress would have no business doing any such thing. A much more sensible view is that the statutory scheme as a whole benefits the public, by creating a market in content to enable trades that benefits both users and creators. Bottom line: if one takes the view that the copyright statutes ought to be unalterable by private arrangement, one must toss out the Creative Commons along with the most despised EULA.

So, ought we to do this? Certainly not. Start by rejecting the view that copyright statutes, like basic contract or property law, are in themselves some kind of trade. One misses the point of the statutory copyright scheme if one thinks of it as nothing more than a "deal" enacted by Congress in the course of a negotiation between interest groups. It might come about that way, but it must *also* be in the general public interest, or it cannot be justified. This requirement is satisfied by its setting ground rules that enable private trades and that fill gaps when private arrangements fall through. In short, it enables markets that raise standards of living for everybody. In the same way, the point of contract law is to enable sales of goods and contracts for services, and to fill gaps when the imagination of the contracting parties falls short. It is not about "buyers" versus "sellers."

Thinking about copyright law as a set of default rules that enable trades ties it to familiar arguments about the benefits of markets generally. Every trade makes both parties to the trade better off in their own estimation. Otherwise they would not have traded. Private trading doesn't present any particularly thorny valuation problems--because it defers to each individual's view of what a good is worth. Voluntary licensing follows this same pattern; compulsory licensing does not.

From this standpoint, the despised EULA and the enlightened EULA stand on equal footing. It makes no sense to think of some as being "beneficial" to downstream users and some not. A license that does not confer benefits on *both* parties will have no takers. What EULA critics seem to forget is that the terms of the license are fungible with the price. Other things being equal, a license that restricts fair use won't be priced the same way as a license that doesn't; unless users are truly indifferent, the license won't face the same supply/demand curve. And if users are indifferent, there's no reason to make a fuss.