DRM: Locke's Labor Theory

In the last DRM article, I discussed Incentive Theory as it applies to the debate over DRM.  In this article, I will focus on Locke's Labor Theory and DRM. 

Originally applied to real property, Locke’s theory of labor has since gained a strong foothold in intellectual property, especially copyright law, and especially in Europe. 

The Labor Theory consists of 3 general principles and 2 caveats. 

The 3 principles are:

1. an individual owns his body;
2. an individual owns his labor; and
3. an individual owns the fruits of his labor. 

The first two principles combine to produce the third. 

Locke believed that people have a natural ownership right in their bodies, and by extension in the labor of their bodies to create or produce.   As applied to copyright, this means that people have natural ownership rights in their creative works.

This right cannot be outweighed by competing interests in restricting that right, even if doing so would create utilitarian benefits for society as a whole, because it is a fundamental human right. 

As such, in Lockean Labor Theory copyright is intrinsically valuable, not functioning as a means to an end but valuable in and of itself.

Note:  This stands in direct contrast to the Incentive Theory, which sees copyright as instrumental (a means to an end) and recognizes the delicate balance between the rights of the content owner and the user's interest in access. 

When a person mixes his labor with something he finds in the “commons” (whether a field of crops or ideas), he acquires a property interest in the fruits of his labor as well, giving him a right to possess those fruits and exclude others from using them.

The bottom line:

Locke's Labor Theory says that if you take ideas from the public domain and mix them with your own ideas to create something creative, tangible and original - you have exclusive rights to that creative work.

2 caveats limit the application of Locke’s Labor theory.  These may be seen as parallel to the balanced interests under Incentive Theory - owner control vs. user access.

The first is dubbed the Lockean Proviso, which states that in claiming the fruits of one’s labor, one must leave as much and as good in the commons for others. 

If asserting an exclusive ownership right over the fruits of one’s labor mixed with commons’ material results in the quantitative (“as much”) or qualitative (“as good”) depletion of the commons, the labor right cannot be claimed. 

This simply means that one may not raid the world of all its resources, even if one mixes his labor with them.

The second caveat, the Lockean Non-Waste Principle, works in close conjunction with the Lockean Proviso and might also be called the Anti-Hoarding Principle. 

It prohibits the “accumulation of so much property that some is destroyed without being used.”   

As two sides of the same coin, the Proviso attempts to prevent individuals from taking too much from the public commons, and the Non-Waste Principle attempts to prevent individuals from keeping too much for themselves.

An example of the application of Lockean Labor rhetoric is found in the European concept of "moral rights." 

Moral rights are the fundamental rights an author has in their creative works.  Moral rights cannot be transferred or sold off - they stay with the original author no matter if the author ends up selling his copyrights to someone else.

This way, if an author has moral rights in a work, that author will always have some rights in the work, no matter who owns the copyright.

 

Generally speaking, the U.S. does not have moral rights laws. 

However, U.S. perspective on copyrights is deeply influenced by the notion that authors have earned some rights in their creative works by virtue of the labor they expend to create those works. 

By definition, in the U.S. copyright owners are those who have expended creative effort to produce original works that they have fixed in tangible mediums.   

Through Locke’s eyes, these are individuals who have mixed their labor with ideas in the public domain. 

Giving these individuals exclusive control over the fruits of their labor (the copyrighted work) is not only necessary as an Incentive (see Incentive Theory) – it is a moral imperative dictated by notions of intrinsic and fundamental fairness and human rights.

Additionally, under U.S. copyright law - ideas, concepts, theories and facts are not copyrightable.  This is a perfect example of the Lockean Proviso applied to copyright law. 

Uncopyrightable material must be left in the public domain for others to mix their labor with, ensuring that “as much and as good” remains available for future creators.

Another example of the Lockean Proviso in U.S. copyright law is the Fair Use Doctrine. 

Fair Use (attempts to) guarantee(s) that even where someone has mixed his labor with the commons, the fruits of that labor are not entirely off limits to others.   

This is a way to adjust the ever-present balance of owner control and user access --> the user appropriates the content he wishes to use, the owner files an infringement claim, and the user may file a fair use defense.         

Lockean Labor Theory & DRM

DRM detractors argue that DRM turns traditional notions of Fair Use upside down. 

To the extent that DRM prohibits copying through instructions embedded in the content, a user wishing to copy the content for a fair use (i.e., for comment, criticism or parody) must FIRST seek permission of the copyright owner, regardless of whether the user has already legally purchased the content.

This means that what was once a use defended after-the-fact is now a use requiring permission before-the-fact.

Thus, through a Lockean lens - copyright owners using DRM are not leaving "as much and as good" in the public domain for the rest of society to use.  This violates the LOCKEAN PROVISO.

DRM advocates argue, however, that copyright offers relatively thin protection - as it does not protect any of the concepts, ideas, theories or facts on which a creative work is based.  It only protects a single tangible expression. 

Thus, what copyright does protect should be firmly in the hands of its owners.  And why shouldn't it be?  The person who created the work earned rights to that work due to the LABOR expended in creating it.

The counter argument to this last point is that many copyright owners did not expend any labor in the creation of the works they own. 

The authors of those works expended the labor, and a record label, book publisher, film company, etc. bought the copyrights to the work.  And without labor, there is no fundamental right in the work.

On the other hand, large companies that own major catalogs of copyrighted content expend vast sums of money to foster the creation of the works and to protect those works. 

If money spent is viewed as an extension of labor expended, copyright owners who did not actually create the works they own have just as fundamental a right to those works as the author that created the works - in the eyes of John Locke.

Lockean rhetoric can also be applied to derivative works. 

Derivative works are those works that are directly derived from another published copyrighted work.  They are copyrightable, but only to the extent of their new material, and the right to create a derivative work (or to permit someone else to make a derivative work) belongs exclusively to the owner of the copyright.

The Lockean perspective of property rights explains this by noting that derivative works are the result of a creator mixing his labor, not with an item in the commons, but with the property of another. 

Allowing a second creator to appropriate the work of an initial creator without permission, even if such an appropriation would benefit society as a whole, violates the principle of Labor theory that the initial creator has a fundamental, exclusive property right in his work.

However, this must be balanced against the Lockean Non-Waste (Anti-Hoarding) Principle. 

A copyright owner sequestering his works behind legal and technical walls of control while simultaneously failing to realize the value of those copyrights themselves acts as a “dog in the manger”, squandering the hoarded works to the detriment of society and other creators. 

Practiced by individual copyright owners on a large scale, the result is a situation where owners’ exclusionary rights block users from accessing otherwise under-utilized (wasted) copyrights. 

DRM detractors argue that this problem is only accentuated in the context of digital content. 

Digital content enhances a user’s ability to mash-up creative works  and thus participate in a creative democracy where users suffuse old works with fresh meanings. 

DRM that locks up content so that a user can only watch the movie or listen to the music (as opposed to mashing up the movie with the music in a derivative work) creates spectators out of would-be creative contributors.  This violates the Lockean Non-Waste Principle.

DRM proponents, on the other hand, argue that copyright owners have a fundamental property right in their content.  They make the choice about whether to make that content available to the public, and on what terms.  Just like a car rental company decides on what terms to let you rent their car.

The counter argument is that if you don't like Avis' terms for renting their Ford Escort, you can go to a different company and rent the same model of car.  In the digital entertainment industry, if you don't like Sony's terms for buying one of their artist's albums - there is no other legal way of getting it.

More fundamental though is the notion that as creative content goes digital, we are moving towards a rental/licensing marketplace instead of an ownership marketplace.  Both DRM proponents and DRM detractors would likely agree with this; they would only disagree as to the benefits of this.

Through the Lockean lens, DRM proponents would argue that renting & licensing their creative works is the perfect compromise between the Labor Theory and the Non-Waste Principal.  It allows them to maintain control over their works (in which they have a fundamental right) without hoarding.

DRM detractors would counter, however, that taking ideas from the public domain, copyrighting them & then renting them back to the public is troublesome because it ultimately depletes the public domain, in violation of the Lockean Proviso.

The next article will focus on Economic Theory as it applies to DRM.

by Howie Cockrill, Esq.

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