Kozinski on Copyright

by on June 18, 2008 · 9 comments

I agree with Jim that the media’s treatment of Judge Kozinski has been outrageous. While reading up on the controversy, I was interested to come across this interview with Reason magazine. Here are his very sensible thoughts on copyright:

Reason: Do you see any big threats to free speech out there today?

Kozinski: There are always threats to free speech. Government doesn’t like to be criticized. Owners of copyrights and other intellectual property rights are very grabby. They think they own everything, or they think they invented everything. And the big problem is drawing the line between what’s protected by copyright and what’s in the public domain.

Nobody writes anything from scratch. We all build on the past from a shared public domain of ideas. We use copyrighted ideas to communicate with each other. For instance, when you say someone has a Barbie personality, it describes something without having to go into a thousand details. But Mattel, the inventor of Barbie, hates it. People who own those trademarks and copyrights want to control the way people communicate, and they have the ear of Congress right now. Congress just extended copyright terms again [in 1998].

Reason: So have we tipped the balance too much on the side of inventors as opposed to society’s interest in accessing their ideas when it comes to intellectual property rights?

Kozinski: The problem is that some people think of copyrights as an extension of property rights. And that’s OK. But maintaining a public domain makes property more valuable. A lot of things that copyright owners complain about are things that are actually good for them. Movie studios were really worried about Betamax. It seems quaint now, but they almost killed the video store business. It’s now a big source of revenue for them.

As a friend points out, he’s not a perfect libertarian by any means, taking the wrong side on the Kelo decision, for example. But he’s certainly one of the most libertarian (and pro-free-speech) judges in the federal judiciary.

  • http://blog.actonline.org Mark Blafkin

    I think it is easy to agree with Lessig et al on this, but I am puzzled by Kozinski’s suggestion that:

    for instance, when you say someone has a Barbie personality, it describes something without having to go into a thousand details. But Mattel, the inventor of Barbie, hates it. People who own those trademarks and copyrights want to control the way people communicate, and they have the ear of Congress right now.

    I’m not a lawyer nor a judge, but my understanding is that company’s MUST complain and take legal action if people start using their trademarked brands as verbs or as a non-proper noun. If they don’t, they can lose their trademark on the term and all of a sudden Hasbro can start shipping “Barbie” dolls. It often seems silly or mean-spirited when Google sends it lawyers to stop “Google” from being used as a verb in a dictionary, but it is side effect of trademark law – not an attempt to “control the way people communicate.”
    If there are any trademark attorneys in the audience, please let me know if my understanding is correct.

  • http://blog.actonline.org Mark Blafkin

    I think it is easy to agree with Lessig et al on this, but I am puzzled by Kozinski’s suggestion that:

    for instance, when you say someone has a Barbie personality, it describes something without having to go into a thousand details. But Mattel, the inventor of Barbie, hates it. People who own those trademarks and copyrights want to control the way people communicate, and they have the ear of Congress right now.

    I’m not a lawyer nor a judge, but my understanding is that company’s MUST complain and take legal action if people start using their trademarked brands as verbs or as a non-proper noun. If they don’t, they can lose their trademark on the term and all of a sudden Hasbro can start shipping “Barbie” dolls. It often seems silly or mean-spirited when Google sends it lawyers to stop “Google” from being used as a verb in a dictionary, but it is side effect of trademark law – not an attempt to “control the way people communicate.”
    If there are any trademark attorneys in the audience, please let me know if my understanding is correct.

  • Jim Harper

    I’m a judge, Mark, so I’ll handle this. (Not really.)

    Trademark law is a law to control the way people communicate. Specifically, it’s intended to prevent people from using certain words and phrases (“trademarks”) to defraud others about (or even misconstrue) the source or origin of goods and services. (Same goes for distinctive designs, trade dress, etc.)

    In a way, Kozinski is stating a tautology. Copyrights and trademarks are all about controlling communication and information. He must be lamenting the overuse of these laws, such as when a company tries to prevent competitors from using its name in advertisements (or to direct the placement of advertisements, as on Google), and when AP tries to restrict quotation from their stories beyond what copyright’s fair use doctrine allows them.

    (n.b. In the text you quoted, he’s collapsing copyright and trademark a little bit casually. “Barbie” is a trademark of Mattel, which almost certainly does not hold a copyright in that term.)

  • Jim Harper

    I’m a judge, Mark, so I’ll handle this. (Not really.)

    Trademark law is a law to control the way people communicate. Specifically, it’s intended to prevent people from using certain words and phrases (“trademarks”) to defraud others about (or even misconstrue) the source or origin of goods and services. (Same goes for distinctive designs, trade dress, etc.)

    In a way, Kozinski is stating a tautology. Copyrights and trademarks are all about controlling communication and information. He must be lamenting the overuse of these laws, such as when a company tries to prevent competitors from using its name in advertisements (or to direct the placement of advertisements, as on Google), and when AP tries to restrict quotation from their stories beyond what copyright’s fair use doctrine allows them.

    (n.b. In the text you quoted, he’s collapsing copyright and trademark a little bit casually. “Barbie” is a trademark of Mattel, which almost certainly does not hold a copyright in that term.)

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