For markets, for fair use

In an op-ed in The American today (and also in comments to National Journal on the reintroduction of the Boucher fair use bill), PFF’s Patrick Ross writes that those of us who advocate reversing the DMCA and strengthening fair use rights have little faith in markets. According to him, curtailing the DMCA means government intervention in emerging markets.

What arguments like Patrick’s ignore is that copyright is unlike other property rights, copyright is a different animal. This is evident in the fact that the power to create copyright is one of the enumerated powers of Congress laid out in the Constitution. Copyright would not exist but for the grace of Congress. If Congress decides to create copyrights, it has complete discretion (within constitutional bounds) to set the outlines of copyright. Congress can decide, among many other parameters, that copyright is for only one year or for 100 or for any length of time in between. Therefore, whatever market in copyrighted works emerges once Congress has created copyright, it must conform to the shape of the copyright Congress created.

Patrick writes:

It’s easy to forget that when we purchase digital content, we are in fact purchasing a set of rights to that content, rights shaped by current technologies, as well as the expectations of both creators and consumers. When those rights are sold to us, there are some uses that the creator does not authorize. As we discover new ways of using content, those uses begin with the creator, who can then decide the terms on which he wants to sell them.

As I have shown, though, the shape of these rights are not just set by contract, but by Congress as well. (The reason why is a bit beyond the scope of this blog post, but suffice it to say it’s because ideas, unlike tangible property, are not scarce, and copyright is less property right than government grant.) Patrick continues:

I can see why a consumer, having paid for a song or a movie once, wouldn’t want to pay for it a second or third time in order to use it on another platform. However, when the market offers sets of flexible rights, consumers will be able to buy only the rights they want. If you want to listen to music only on your home stereo, say, but not in your car, then in the future you may be able to pay less–you won’t have to buy (and then not use) the right to listen in your car, as you do today.

What Patrick is arguing against here is a notional fair use right to format-shift or place-shift. I wonder if he’s also against a right to time shift since you could contractually limit consumers to only watch your content from noon to one on Tuesdays.

Patrick writes that “Congress should only alter the state of a market when there is a sign of market failure.” Quite true. However, another legitimate rationale for Congressional intervention is government failure. First carved out by common law courts and later codified by Congress, fair use is one of the outlines of copyright. To the extent one has to circumvent an anti-copying measure in order to make fair use of a work, the DMCA has hobbled fair use (and, some free-marketers would say, replace it with rent-seeking and barriers to competition). Repealing the DMCA will affect markets for copyrighted works just as its enactment did. This is because, in effect, Congress shapes the market. It is within its constitutional power to do so. Those of us who favor a less-restrictive interpretation of fair use are in fact seeking more vibrant markets in culture.

UPDATE: Patrick wrote me earlier today with his thoughts on my post and he then posted his comments to IPCentral, which you can see here. Here are my final thoughts.

Hi Patrick,

Thanks for your kind response. First, I’m glad you posted your response online. It’s good and everyone should see it. Second, I think you’re right that ultimately we just have different starting points, different axioms regarding the nature of copyright, so we arrive at different conclusions. Although I disagree with you, I admire that you are certainly consistent.

You ask, “[D]o I have a ‘right’ to time-shift?” and I think that highlights what the difference is between our positions. I think you have a right to time-shift if Congress’s copyright says you do. Courts have found that there is such a right, so yes, I do think you have that right. The question, then, is should one have that right? That, to me, is a policy question that must be answered in light of the constitutional purpose of copyright. The purpose of copyright (and its inclusion in the Constitution, to me, is a limitation on Congress’s power) is to promote to progress of science. It is not to compensate creators; that is a secondary purpose of copyright. I believe, as an empirical matter that we can discuss some other time, that the progress of science is better served by liberal fair use, and any rights that creators may be given by Congress are secondary to serving the constitutional purpose of copyright.

Anyhow, keep up the good work. Good ideas come out of friendly, respectful, and vigorous debate, and I enjoy sparring with you!

All the best,
Jerry

SHARE: