Copyright

Ending The War on File Sharing Doesn’t Mean the End of Copyright

by Tim Lee on June 11, 2008 · 9 comments

As I mentioned, Cato Unbound this month is focusing on the challenges technological changes are creating for copyright law. My first contribution to the discussion is now online. I find myself basically persuaded by Rasmus’s argument that the war on file sharing will fail for the same reason that the wars on drugs, gambling, prostitution, and other vices will fail. Personal copying is becoming too cheap and easy for the law to effectively control what goes on in the privacy of peoples homes.

It’s a conclusion I’ve reached with some reluctance. I’m personally not comfortable with peer-to-peer file sharing and if I thought there was a practical way to prevent it I’d probably be in favor of it. But it has become increasingly clear that stopping file sharing is futile, and the strategies used to curb file sharing have grown more and more illiberal. If we have to choose between file sharing or a police state, and I think we do, then I choose file sharing.

But it’s important that we don’t over-state the consequences of a de facto legalization of non-commercial file sharing:

It is often supposed that giving individuals more freedom to share copyrighted materials with one another will amount to the abolition of copyright. But this is far from true. The starkness with which the copyright debate is often framed reflects a misunderstanding of the function copyright served in the 20th century. Copyright is commonly conceived as a system of restrictions on the copying of creative works. But until recently, it would have been more accurate to describe copyright as governing the commercial exploitation of creative works. From this perspective, the inevitable legalization of non-commercial file sharing looks less like a radical departure from copyright’s past, and more like an incremental adjustment to technological change. It will require the rejection of some misguided policy developments of the last decade, to be sure, but in a sense it will simply restore the common-sense principles of 20th-century copyright law.

In my essay, I argue that copyright law will continue to be important for the music, movie, software, and other content industries. And I contend that there will still be plenty of opportunities for people to make a living producing creative works.

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File-sharing at Cato Unbound

by Tim Lee on June 10, 2008 · 13 comments

Every month, the Cato Institute has an online symposium on an important public policy issue. This month, the focus is on copyright law, and they’re kicking things off with a fascinating piece by copyright activist Rasmus Fleischer arguing that technological progress will make it impossible for the state to prevent people from sharing copyrighted works:

Record industry lobbyists smell the danger, and now they are urging governments to criminalize [stream ripping]. On their orders the so-called PERFORM Act (”Platform Equality and Remedies for Rights Holders in Music Act”) was introduced in the U.S. Senate last year. [4] The proposed law would force every Internet radio station to encrypt the transmission of file information, such as the name of the song. Yet anything visible on the screen can still be easily obtained by special software, encryption notwithstanding, and such restrictions would therefore be ridiculously easy to circumvent. Thus the PERFORM Act includes a follow-up clause banning the distribution of this class of software.

People with some programming skills, however, won’t need to do much more than combining a few readily available and otherwise perfectly legal code libraries to compile their own streamripping tool, one that would circumvent the PERFORM Act. For regulations like these to be effective, it is necessary also to censor the sharing of skills that potentially can be useful for coding illegal software. The circle of prohibition grows still larger: Acoustic fingerprinting technologies, which have nothing copyright-infringing to them, but which can be used for the same feared identification of individual tracks, must probably also be restricted.

This domino effect captures the essence of copyright maximalism: Every broken regulation brings a cry for at least one new regulation even more sweepingly worded than the last. Copyright law in the 21st century tends to be less concerned about concrete cases of infringement, and more about criminalizing entire technologies because of their potential uses. This development undermines the freedom of choice that Creative Commons licenses are meant to realize. It will also have seriously chilling effects on innovation, as the legal status of new technologies will always be uncertain under ever more invasive rules.

Tomorrow I’ll be offering my reaction to Rasmus’s essay. I don’t want to steal my own thunder, but in a nutshell, my take is that Rasmus is basically right to predict that copyright will grow increasingly difficult to enforce as technology continues to reduce the cost of storing and transmitting information. However, I think it’s a mistake to view this as the end of copyright. Even if the war on file sharing is hopeless, copyright can and should adapt to continue serving its essential function, which is not to stop all copying, but rather to reward the creation of creative works. Watch the site tomorrow to see my suggestions for how copyright law can adapt to the stresses placed on it by digital technologies.

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Yes, I’m Secretly 12 Years Old

by Tim Lee on June 4, 2008 · 5 comments

William Patry discusses an important copyright issue:

…there were lengthy pubic meetings at WIPO…

The jokes write themselves.

Seriously, though, this ACTA business is bad news, for all the reason Patry enumerates.

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The DMCA’s Safe Harbor Applies to Websites

by Tim Lee on June 2, 2008 · 16 comments

Don’t miss the discussion between Debbie Rose and TLF’s Cord Blomquist about the DMCA safe harbor. Despite her long experience with the DMCA, Debbie takes what strikes me as an implausible position:

While I could go on for pages about what is wrong with your post, I’ll confine my comments to this: the DMCA does NOT give websites hosting user-generated content a safe-harbor.

The safe-harbor provision is for service providers- in other words, the network operators or owners of the “pipes.” As I wrote in a post last March, , this provision was the result of a long and difficult negotiation. As one of the House Judiciary counsels involved in the negotiations, I can assure you that websites such as YouTube were NOT intended to be included in the safeharbor.

Cord does a good job of citing chapter and verse from the DMCA, so I won’t belabor that point further. However, let me observe that the position Debbie is staking out here doesn’t even seem to me to be coherent. The DMCA’s safe harbor relates to “storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider.” Now, strictly speaking, nothing “resides” in the Internet’s “pipes.” If this language was intended to be limited to network owners, rather than the operators of servers, you have two hard questions to answer: first, why does the language say “system or network” rather than simply “network?” And second, why does it require the service provider to “remove, or disable access to” the content rather than simply requiring that access be disabled? After all, you can only remove information from a server if you operate the server, and for the most part the servers tend to be operated by someone other than the network owner.

I suppose you could argue that this provision applies only to servers that are operated by ISPs. But that doesn’t make a lot of sense, for two reasons. First, there would be no principled reason to provide a different level of immunity to web hosting services that own their own pipes to the backbone than to web hosting services that rent their pipes from someone else. And more fundamentally, you have the question of defining who counts as an ISP. After all, every web hosting service of non-trivial size administers a network. Certainly Google administers a sizable network connecting all of its servers. So why wouldn’t Google be able to claim the safe harbor as an ISP?

Debbie’s argument also runs counter to common usage. A quick survey of the takedown notices at Chilling Effects makes it clear that there are a ton of people out there whose copyright lawyers regard websites like Digg, Google, Wikipedia, and Gawker as proper targets for a DMCA takedown notice. Now, I suppose it’s possible that all of these copyright lawyers are incompetent, and that they should have filed copyright infringement lawsuits instead. But I tend to doubt it. And at a minimum, if all of these copyright lawyers are confused about the DMCA, there’s a pretty good chance that the judge in the Viacom lawsuit will share their delusion.

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Imagine There’s No Fair Use

by Tim Lee on June 2, 2008 · 7 comments

Over at Ars, I’ve got a story up about a ruling on fair use in the ~~creationist~~ Intelligent Design movie Expelled:

$Imagine There\'s No Fair use$

The controversy centers around a segment about an hour into the film. Science advocate PZ Myers argues that greater science literacy would “lead to the erosion of religion,” and expresses the hope that religion would “slowly fade away.” The narrator, Ben Stein, asserts that Myers’ ideas aren’t original. Rather, he is “merely lifting a page out of John Lennon’s songbook.”

The viewer is then treated to a clip from John Lennon’s “Imagine,” with the lyrics “Nothing to kill or die for/And no religion too.” The music is accompanied by black-and-white footage “of a military parade, which gives way to a close up of Joseph Stalin waving.” Next, the film cuts to a guest who argues that there is a connection between “transcendental values” and “what human beings permit themselves to do one to the other.” Evidently, religion is the only thing standing between us and Stalinist dictatorship.

Judge Stein’s task wasn’t to critique the dubious logic of this segment, but to evaluate the narrower question of whether the film’s use of “Imagine” is fair under copyright law. He noted that the film was focused on a subject of public interest, and that the film was commenting on Lennon’s anti-religious message. The excerpting of copyrighted works for purpose of “comment and criticism” is explicitly protected by the Copyright Act, and Judge Stein ruled that this provision applied in this case.

It’s worth keeping in mind that no competent lawyer would have taken Ono’s case if we were talking about a quote from one of Lennon’s books rather than a clip from his song. But there’s no logical difference between the two. The music clip in this case is playing precisely the same role in this movie as a blockquote plays in the average blog post. Moreover, the dozen or so words of the “Imagine” quote is much shorter than most blockquotes. I conclude:

It is unfortunate that Lennon’s heirs sought to use copyright law to squelch criticism of Lennon’s lyrics. No matter how dishonest Stein and company’s arguments may be, they have the right to make them, and copyright must give way to the First Amendment. Ono’s aggressive tactics will give Stein and company an undeserved PR victory, allowing them to play the beleaguered underdogs fighting the “Darwinist” establishment. The way to counter Expelled is with logic and evidence, of which there’s an ample supply. Overzealous application of copyright law is counterproductive.

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Autodesk Smackdown

by Tim Lee on May 22, 2008 · 12 comments

I love understated sarcasm in judicial opinions. From yesterday’s Autodesk decision:

Not only has Autodesk failed to surmount the thorny issues of privity and mutual assent inherent in its contention that its License binds Mr. Vernor and his customers, it has ignored the terms of the License itself. The Autodesk License is expressly “nontransferable.” License: Grant of License. Autodesk does not explain how a nontransferable license can bind subsequent transferees.

This decision from a district judge is a victory for the First Sale Doctrine and common sense. But it highlights conflicting Ninth Circuit precedents, and explicitly chooses one in favor of the others, so the Ninth Circuit seems likely to step in and resolve the conflict.

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Lessig’s orphan works proposal still unworkable

by Jerry Brito on May 20, 2008 · 30 comments

Lawrence Lessig has an op-ed in the New York Times today calling the orphan works bill now before Congress “unfair and unwise.” He agrees that the orphan works problem is real and merits an immediate response, but finds fault with the bill because it is unfair to copyright holders who have relied on existing law and “because for all this unfairness, it simply wouldn’t do much good.” Lessig writes: “The uncertain standard of the bill doesn’t offer any efficient opportunity for libraries or archives to make older works available, because the cost of a ‘diligent effort’ is not going to be cheap.” Instead Lessig suggests an alternative reform:

Congress could easily address the problem of orphan works in a manner that is efficient and not unfair to current or foreign copyright owners. Following the model of patent law, Congress should require a copyright owner to register a work after an initial and generous term of automatic and full protection.

For 14 years, a copyright owner would need to do nothing to receive the full protection of copyright law. But after 14 years, to receive full protection, the owner would have to take the minimal step of registering the work with an approved, privately managed and competitive registry, and of paying the copyright office $1.

This rule would not apply to foreign works, because it is unfair and illegal to burden foreign rights-holders with these formalities. It would not apply, immediately at least, to work created between 1978 and today. And it would apply to photographs or other difficult-to-register works only when the technology exists to develop reliable and simple registration databases that would make searching for the copyright owners of visual works an easy task.

I’ve addressed his concerns about fairness and have critiqued his proposal before, but I’d like to restate the latter here now.

An orphan work is a work that one finds but has no idea who its owner is or even if it’s copyrighted. The uncertainty is crippling because if one uses it one runs the risk of being sued for stiff damages. Therefore works that would otherwise spawn new creation (and therefore promote the progress of science) go unused.

Let’s say I find a photograph in my school’s archive that I would like to reproduce in a book I’m writing. The photo has no marks on it and there’s no other information, a true orphan work. How would Lessig’s proposal apply?
Continue reading →

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Copyrights, Patents, and Trade

by Tim Lee on May 20, 2008 · 13 comments

Megan McArdle’s critique of Dean Baker’s post on free trade is mostly solid, but I think her reply on copyright and patent protections is a little bit off base:

Property rights are not inconsistent with free trade. I cannot justify selling stolen televisions on the grounds that this is just the working of the free market. The US thinks, with good reason, that intellectual property protections benefit everyone in the country over the long run. Thus, it enforces them by preventing other industries from selling property here that has, legally, been stolen.

How is this different from labor and environmental standards, liberals will ask. Well, we have copyright and patents because otherwise, you have goods with an enormous positive externality, but virtually no positive internality. Companies that use patented ideas without paying for them are creating a big negative externality–reduced incentive to innovate–while internalizing all the benefit from doing so. This is one of those situations where we look for some sort of legal arrangement, which we might call, oh, “intellectual property law”, to keep those skewed incentives from making us all ultimately worse off.

In the case of labor and environmental standards, whatever negatives there are are largely internalized to the countries. The awfulness of low wages and environmental standards is presumably even more awful if you are already extremely poor with limited recourse to a safety net. You’re unlikely to end up with an inefficient outcome.

There are a number of problems with this argument:

It’s inaccurate, or at least begging the question, to say that a company that infringes a patent is “creating a big negative externality.” Such a company is certainly failing to create an incentive for future patenting, but this is only a negative externality if we assume as our baseline a world in which all infringers obtain licenses and all patent royalties create incentives for innovation. In the real world, neither of these conditions hold. For example, when an extremely poor nation allows local pharmaceutical companies to produce patented drugs for the local market, it is not necessarily the case that the patent holder is thereby deprived of significant income. Most of the people who buy such patent-infringing drugs would not have been able to afford the drugs at anything close to full price.

Continue reading →

13 comments

The Pirate’s Dilemma

by Tim Lee on May 16, 2008 · 6 comments

Nate Anderson at Ars has a great write-up of The Pirate’s Dillemma, which points out that American history is replete with piracy:

Now, some acts of piracy are “quite simply theft,” but others are more complicated than that. American cinema and cable television were founded as outlaw institutions (there’s a reason that Hollywood flourished as far away from DC and New York as it was possible to get). Piracy, in Mason’s view, is actually an American institution that the Founders would have been proud of. “During the nineteenth century Industrial Revolution, the Founding Fathers pursued a policy of counterfeiting European inventions, ignoring global patents, and stealing intellectual property wholesale.”

The situation lasted for so long that Dickens was still complaining about it when he toured the US and found pirated editions of his books everywhere. Americans were so known for piracy that they were eventually branded Yankees, from the Dutch “Janke,” slang for a pirate.

However, Nate argues that there are some problems with the argument. In particular, it lumps together actual piracy with peer production efforts like blogs and free software. Certainly the latter are worth celebrating, but that doesn’t necessarily tell us anything in particular about the merits of the former. You can get the book here.

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Shape of Libertarian IP Debate: Moebius Strip

by Solveig Singleton on May 5, 2008 · 18 comments

TimLee noted below some of the divisions of the libertarian IP debate into rights advocates and utilitarians.

The utilitarian/individual rights dichotomy is fascinating, but seems to me one can only push it so far before it collapses (I think it was Hayek who explores this collapse in more depth, too lazy to look it up right now). That’s because

a) classical liberal versions of utilitarianism tend not to discount the experience of single individuals as heavily as do more Benthamite utilitarians or law-and-econ game theorists (two examples, they rank consensual transactions highly, and Austrian-influenced thinkers would warn one to avoid of interpersonal utility comparisons);

and b) at bottom, no one is likely to give a fig for a set of individual rights that on the whole tend to lower standards of living, such that more babies with cleft palates are allowed to die, and so on. [UPDATE: hmmm, I think that is overstating the case more than a little, people do tend to have a good bit of empathy for one another, but the general point is just that, the case for individual rights had better not run *against* raising standards of living as a general matter, or it will lose].

One of the strengths of classical liberalism has always been the twining together of concern about the growth of wealth and the shrinking of poverty with concern about rights—challenges to the Corn Laws, challenges to Jim Crow laws, and so on. The fact that the two twine together is not a coincidence. It is because *if* individuals have certain rights, natural or otherwise, it is because of some key features of human beings and human life in communities, which includes economic life. At bottom, the philosophical roots of both economic thinking and rights thinking will be closely related (e.g. Locke).

The reason that IP policy debates tend to run utilitarian is not just a result of the personal mindsets of the participants, either. One is dealing with tricky stuff. Many libertarian issues are “easy,” not in the sense of being “easy” as a political matter or of getting past people’s preconceptions, but in the sense that they do not require us to revisit the basics. Few of the arguments about free trade, price controls, education, social security, indecency, health markets, tax policy, involve reconceiving of the boundary lines of contract and property that constitute markets *and* that define individual rights within those markets. IP arguments—rather like arguments about abortion–do involve arguing about where those boundaries go. What kind of rights can one have in information? Where should the boundaries be exactly? How far can the analogy to property be carried? When one is arguing about the details of where the boundaries of rights should be, well, it is tricky to make arguments from individual rights because such arguments will tend to beg the question.* One generally cannot assume the boundaries in dispute.

Because the boundaries are in dispute, furthermore, this shifts one to thinking about what those boundaries could be at some point in the future, especially, in the very long run. Then, Rawlsian veil stuff happens. Individuals tend to fade out of this picture—they themselves no longer are clear where their own interest lies, and must think about rules in the abstract. (“Constitution interest” as opposed to “action interest”). Will they be producers or consumers? Buyers or Sellers? Minority or majority? Where will the technology go? The best consensus at that point will form around rules that seem to give everyone a fair shot (more Hayek). If that shifts the boundaries of rights, that’s okay—so long as it is not retroactive, and within bounds (and one can argue about where those bounds are, too, on and on , blah blah blah).

Another thought. Some of the IP debate seems to be about individual rights, but it is really about individual interests—long or short run. Many advocacy groups are strong on *short-run individual interests* in access, low-cost, and so on, and individual rights become a vehicle for advancing that (I wonder if underlying some of this is that there are a lot of Act Utilitarians, as opposed to Rule utilitarians, kicking around here). Many tech companies are oriented to serving those interests. That’s fine. But if rights only track short-run interests, we’ve got a crummy theory of rights.

Stopping now.

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