Consistency Problems?

by on May 21, 2006 · 16 comments

Larry Lessig calls out those of us who support fair use (FU) but criticize network neutrality regulations (NN):

There is a consistency problem for those who embrace FU while arguing against “government regulation to support NN.” For FU and NN are both “government regulations”–each government defined limits on government granted property rights. In both cases, a government official (a court, or the FCC) is telling a property owner “this use of your property is opposed by the state.” And while there are important differences in the way FU and NN get administered, if anything, FU is more vague, more complex, more expensive, and more uncertain than the regulations being called for under NN.

Fair use is an affirmative defense against claims of copyright infringement. As such, it is only asserted in cases where an alleged infringer has already been dragged into court. There aren’t fair use bureaucrats roaming the country looking for publishers violating their customers’ fair use rights. Fair use simply carves out a sphere of autonomy around individuals and their personal lives. When fair use atrophies, the result is excessive legal meddling in the lives of ordinary people.

Where did I learn that? From Mr. Lessig. One of my favorite stories about copyright law run amok, which I originally encountered in Free Culture, is the story of Jon Else, a documentary filmmaker who happened to have 4 seconds of The Simpsons playing on a TV in the background of one of his shots. Fox threatened to sue him if he didn’t pay $10,000 for permission to include the clip. In response, Else digitally edited the clip out of the shot.

That’s clearly nuts. And it is, I think, a sign of excessive government regulation of the use of copyrighted works. True, Else would probably have won in court, but doing so would have cost thousands of dollars in legal fees, as well as likely holding up the release of his movie. A stronger fair use doctrine would have given Else the confidence that such a lawsuit would have been immediately thrown out of court.

The problem is that copyright law meddles too much in trivial cases like Mr. Else’s. A stronger fair use doctrine would have a deregulatory effect, reducing copyright’s scope and leaving a bit more of life outside the reach of lawyers and bureaucrats.

Those of us who support fair use and oppose neutrality regulation are being perfectly consistent: our primary concern is excessive state power over private activities. The courts telling Mr. Else he can’t have 4 seconds of The Simpsons playing in the background of his documentary would be unnecessary government meddling. In my opinion, so would the courts telling AT&T how to configure their routers. I don’t see a “consistency problem” here.

  • http://www.cato.org/people/harper.html Jim Harper

    Lessig is obviously conflating intellectual property and tangible property. One can’t tell whether it’s to expose the error of collapsing the two, or whether he too believes that intellectual and tangible property should be treated the same. Either way, it’s a confused argument that doesn’t help the discussion very much. The comments on his post expose the error pretty well.

  • http://www.cato.org/people/harper.html Jim Harper

    Lessig is obviously conflating intellectual property and tangible property. One can’t tell whether it’s to expose the error of collapsing the two, or whether he too believes that intellectual and tangible property should be treated the same. Either way, it’s a confused argument that doesn’t help the discussion very much. The comments on his post expose the error pretty well.

  • Steve R.

    I disagree with the statement: “excessive government regulation of the use of copyrighted works.” I fully agree with the statement “A stronger fair use doctrine would have a deregulatory effect, reducing copyright’s scope and leaving a bit more of life outside the reach of lawyers and bureaucrats.”

    The problem Mr. Else is experiencing is the threat of litigation by the content industry. To my knowledge, government regulations are not actually preventing him from doing anything. I will concede that the content industry has successfully lobbied our legislative process to obtain laws that unfortunately give them legal standing. This legal standing regretfully allows them to the use governmental regulations to intimidate Mr. Else.

    The belief of the content industry that they own everything for licensing has gone beyond bizarre. Please see “The Onion” spoof “iTunes To Sell You Your Home Videos For $1.99 Each”. http://www.theonion.com/content/node/47468

  • http://www.jerrybrito.com Jerry Brito

    Tim, You keep banging out the easy and fun posts before any of us can get to them first. Give us a chance, will you. ;o)

    Seriously, Jim is absolutely right. Lessig needs to check his first principles. Lessig says, “FU and NN are both ‘government regulations’ — each government defined limits on government granted property rights.” Intellectual property is a government-granted property right because without a grant from government you wouldn’t have any right to exclude me from using your ideas. On the other hand, rights over tangible property, such as network infrastructure, do not derive from the good grace of government. In fact, government exists (or should) to protect those private rights.

    So, there is nothing inconsistent about favoring limits to IP rights, but not to tangible property rights. That some believe that we enjoy property rights only because government allows us is telling of their first principles.

  • http://www.techliberation.com/ Tim

    I wrote this post before any of the responses had shown up on Lessig’s blog. Some of the comments nailed him a lot more effectively than I did. I think my favorite is this one from “three blind mice”:

    It seems to us that viewing fair use as a “state enforced limit on property rights” is the tiny, inverted image one gets from looking through the wrong end of the telescope.

  • http://www2.blogger.com/profile/14380731108416527657 Steve R.

    I disagree with the statement: “excessive government regulation of the use of copyrighted works.” I fully agree with the statement “A stronger fair use doctrine would have a deregulatory effect, reducing copyright’s scope and leaving a bit more of life outside the reach of lawyers and bureaucrats.”

    The problem Mr. Else is experiencing is the threat of litigation by the content industry. To my knowledge, government regulations are not actually preventing him from doing anything. I will concede that the content industry has successfully lobbied our legislative process to obtain laws that unfortunately give them legal standing. This legal standing regretfully allows them to the use governmental regulations to intimidate Mr. Else.

    The belief of the content industry that they own everything for licensing has gone beyond bizarre. Please see “The Onion” spoof “iTunes To Sell You Your Home Videos For $1.99 Each”. http://www.theonion.com/content/node/47468

  • http://jerrybrito.com Jerry Brito

    Tim, You keep banging out the easy and fun posts before any of us can get to them first. Give us a chance, will you. ;o)

    Seriously, Jim is absolutely right. Lessig needs to check his first principles. Lessig says, “FU and NN are both ‘government regulations’ — each government defined limits on government granted property rights.” Intellectual property is a government-granted property right because without a grant from government you wouldn’t have any right to exclude me from using your ideas. On the other hand, rights over tangible property, such as network infrastructure, do not derive from the good grace of government. In fact, government exists (or should) to protect those private rights.

    So, there is nothing inconsistent about favoring limits to IP rights, but not to tangible property rights. That some believe that we enjoy property rights only because government allows us is telling of their first principles.

  • http://www.techliberation.com/ Tim

    I wrote this post before any of the responses had shown up on Lessig’s blog. Some of the comments nailed him a lot more effectively than I did. I think my favorite is this one from “three blind mice”:

    It seems to us that viewing fair use as a “state enforced limit on property rights” is the tiny, inverted image one gets from looking through the wrong end of the telescope.

  • http://www.blindmindseye.com MikeT

    How about we just say “FU” to “NN” :)

  • http://www.blindmindseye.com MikeT

    How about we just say “FU” to “NN” :)

  • enigma_foundry

    There is a consistency problem for those who embrace FU while arguing against “government regulation to support NN.” For FU and NN are both “government regulations” Ã?¢â?‰? each government defined limits on government granted property rights.

    This contains a flawed premise–that copyright is property. Instead it is a time limited government monopoly (exclusive right) that restricts the first amendment freedom of speech. This is defined in the Constitution.

  • http://enigmafoundry.wordpress.com eee_eff

    There is a consistency problem for those who embrace FU while arguing against “government regulation to support NN.” For FU and NN are both “government regulations” Ã?¢â?‰? each government defined limits on government granted property rights.

    This contains a flawed premise–that copyright is property. Instead it is a time limited government monopoly (exclusive right) that restricts the first amendment freedom of speech. This is defined in the Constitution.

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