Over at Larry Lessig’s blog, David Friedman has a really interesting comment about libertarian attitudes toward patent and copyright law (I’m going to relax my usual rule about the phrase “IP” because of the way Friedman and Lessig have framed it):
You write: ” There is a divide in the libertarian camp about IP extremism.”
I think that understates the case. There has long been a divide among libertarians about IP itself. Some see it as the purest and most morally defensible form of property, on the grounds that it is produced by the human mind without using any unproduced resources, such as land, which one might have difficulty justifying the ownership of. Others see it as a clear violation of rights, on the grounds that if something such as a book belongs to me, I have the right to do with it as I will.
This is an accurate summary of the state of play among philosophically-minded libertarian generalists. Anybody’s who’s spent a lot of time in libertarian circles can almost recite the competing arguments in their sleep. Frankly, they start to seem kind of vacuous after a while.
This is most obvious in the anti-“IP” camp. If you believe that copyright and patent law are nothing but infringements on peoples’ natural rights, then you have a simple, compelling answer to every question in this area of law. You’re also going to be completely left out of the practical discussions of copyright and patent reform. Because if all copyright and patent monopolies are illegitimate, there’s no obvious way to tell which ones are the most illegitimate. Or to put it a different way, if you’re an “IP” abolitionist and you want to participate in contemporary policy debates, you need to have an additional set of principles that tells you which parts of the copyright and patent systems to reform first, and these principles are ultimately going to do more to drive your policy choices than the principled opposition to government monopolies in all of their forms. Continue reading →
The New York Timescasts its spotlight on the “Censored 11,” 11 racially-charged cartoons from the middle of the last century that have been unavailable to the public for decades. But despite repeated attempts to take them down, they keep popping up online. You can see some of them here, and the most notorious is “Coal Black and the De Sebben Dwarfs,” which as you can imagine from the title is pretty offensive:
Preventing people from watching them seems pretty silly to me. I wouldn’t want them on heavy rotation on the cartoon network, but people are entitled to know about their history, and I doubt letting people see them will cause anybody to be more racist. But this creates a dillema for Disney and Warner Brothers. If they release them in an official capacity, they’re opening themselves up to a lot of negative publicity and highlighting a part of their past they’re probably not too proud of. This wouldn’t be a problem if we didn’t grant copyrights for such absurd lengths of time. If we had the rules on the books at the time most of these videos were made–28 years, renewable once–then all films made before 1952 would now be in the public domain, which would encompass the vast majority of these cartoons. That would allow the studios to officially disavow any support for them while allowing people to view them.
It’s an interesting question whether putting these films on YouTube could constitute fair use. The fact that the entire work is being shown obviously strongly cuts against it with regard to the third factor. However, the second and fourth factors would cut strongly in favor of fair use—there is no commercial market, and the work is of particular historical importance. As to the first factor, one could argue that the cultural climate in 2008 is so different from the climate in 1935 that the act of showing it in 2008 has a fundamentally different “purpose and character” than when it was first shown, thereby rendering the simple act of showing the video, at least on a non-profit basis, transformative.
Yesterday bills were introduced in the House (PDF) and the Senate (PDF) addressing the orphan works copyright issue about which I’ve written many times before. Alex Curtis has a great write-up of the bills over at the Public Knowledge blog.
An orphan work is a work under copyright the owner of which cannot be located so that a potential re-user cannot ask for permission to use or license the work. If you can’t find the owner, even after an exhaustive search, and use a work anyway, you risk the possibility that the owner will later come forward, sue you, and claim statutory damages up to $150,000 per infringing use.
Both bills are largely based on the Copyright Office’s recommendations and not the unworkable Lessig proposal that had been previously introduced as the Public Domain Enhancement Act by Rep. Zoe Lofgren. The bills limit the remedies available to a copyright owner if an infringing party can show that they diligently searched for the owner before they used the work. (What constitutes a diligent search is specifically defined, which should address the concerns about the Smith bill expressed by visual and stock artists.)
Rather than statutory damages, the owner would simply be owed the reasonable compensation for the infringing use—that is, what the infringer would have paid for the use if they had been able to negotiate. I think this is a fine solution because it gives all copyright holders an incentive to keep their registrations current and their works marked to the best of their abilities (i.e. what old-time formalities used to accomplish). I’m also happy to see that injunction is also limited.
Like the Smith bill, both of these new bills direct the Copyright Office to complete a study and produce a report on copyright small claims. There are many instances of copyright infringement that are too small to be litigated in federal district court—like a website that uses my copyrighted photo they got off flickr. Professional photographers and other visual artists face this all the time and there should be a way to address their concerns. One idea is to create a copyright small claims court and it’s something I’d love to research and contribute to a Copyright Office proceeding. So if Congress has been thinking about this for a few years, what’s stopping the Copyright Office from taking on the project sua sponte?
Anyhow, stay tuned as these bills wind their way through committee and the IP maximalists are engaged.
A great post by Tom Lee. In a preceding post, he had pointed out (without getting into details) how easy it was to extract unencrypted MP3s from a couple of neat but legally-questionable music-sharing websites. He got some angry comments from folks who accused him of being a kill joy. He responds:
I don’t consider the current state of music sharing sites anything more than a temporary step in the music industry’s inevitable evolution. The point I want to make by all this is that the present state of affairs does not constitute a complete solution; we’re not done yet.
I don’t want to discount the well-made interface of Muxtape or the excellent aggregation and social features of the Hype Machine. They are both impressive sites and their creators deserve all the recognition they’ve received and more. But although these things add value, the essential underlying reason for these sites’ popularity is that they give music away for free.
Bret Swanson had a great post plugging Chris Anderson’s upcoming book Free, which I expect to be every bit as interesting as his first book. But he then concluded his post with what seems to me like a totally gratuitous swipe at Larry Lessig’s brilliant book, Free Culture, which he characterizes as “about the demonization of property and profits” and “imposing a radical new utopian and quasi-socialist agenda on our imperfect but highly productive and creative capitalist economy.”
This left me wondering if we’d read the same book. Lessig of course criticizes large companies who have lobbied for changes in copyright law that benefit themselves at the expense of consumers. But I would regard that as “criticizing rent-seeking,” not “demonizing profits.” When Cato attacks corporate welfare, nobody thinks that’s anti-capitalist.
And I have absolutely no idea what “radical new utopian and quasi-socialist agenda” Lessig is advocating, or upon whom Swanson thinks it would be “imposed.” The changes Lessig advocates would mostly undo the changes to copyright law that the content industries have pushed over the last three decades: longer terms, abandonment of formalities, anti-circumvention rights, harsher penalties, erosion of fair use. For the most part, Lessig’s “radical new utopian and quasi-socialist agenda” is also known as “American copyright law circa 1975.”
Now, Lessig certainly has some ideas I disagree with. Some of them might even be characterized as anti-property or anti-profit. But the ideas in Free Culture certainly aren’t among them. To the contrary, as the Wall Street Journal‘s review of Free Culturepointed out, the central theme of Free Culture is something conservatives normally celebrate: reducing the role of government and lawyers into Americans’ ordinary lives. Over the last quarter century, the regulatory regime that is copyright law has intruded on more and more aspects of our daily lives. While there may very well be good policy arguments for some of these changes, as Swanson’s own colleagues have forcefully argued. But there’s certainly nothing unlibertarian about worrying that increased government involvement in peoples’ lives will have negative consequences.
But don’t take my word for it. Listen to Milton Friedman, Kenneth Arrow, James Buchanan, Ronald Coase, and Thomas W. Hazlett, all of whom weighed in on Lessig’s side in the Eldred decision, a case Lessig discusses extensively in Free Culture. Listen to noted libertarian scholar Richard Epstein, who agrees with Lessig that copyright law has been applied too aggressively to documentary filmmakers. Free culture is about what its title suggests: freedom. One can (and Swanson’s colleagues have) make a coherent argument that the freedoms Lessig champions are less important than the need to create incentives for the production of creative works. But it’s inaccurate to describe a book about freedom as “utopian and quasi-socialist.”
Over at Ars, I have a new piece up that draws a (somewhat provocative, perhaps) parallel between today’s copyright debates and the property rights debates of the 18th and 19th centuries:
The American property system is based on the British common law system, but colonists quickly discovered that British property law was inadequate to the realities of the New World. In England, land was scarce and titles were well established. The American colonies, in contrast, had an abundance of land but poorly-defined boundaries and inadequate record-keeping. As a result, squatting became extremely common. Landless Americans would move to the frontier, clear some land, and begin building on it without first securing a property title.
This was illegal, and governments worked hard to prevent it. The resulting conflicts made today’s battles over file sharing look tame. In 1786, when Massachusetts tried to eject squatters in Maine (a Massachusetts territory at the time) the result was what one historian describes as “something like open warfare.” Squatters refused to pay for their land or vacate it, and the government tried to forcibly evict them. One sheriff was killed trying to evict a squatter, and juries refused to convict the accused murderer.
Copyright maximalists love to draw parallels between property rights and copyrights. But if we take that analogy seriously, I think it actually leads in some places that they aren’t going to like. Our property rights system was not created by Congressional (or state legislative) fiat. Property rights in land is an organic, bottom up exercize. The job of government isn’t to dictate what the property system should look like, but to formalize and reinforce the property arrangements people naturally agree to among themselves.
The fact that our current copyright system is widely ignored and evaded is a sign, I think, that Congress has done a poor job of aligning the copyright system with ordinary individuals’ sense of right and wrong. Just as squatters 200 years ago didn’t think it was right that they be booted off land they cleared and brought under cultivation in favor of an absentee landowner who had written a check to a distant federal government, so a lot of people feel it’s unfair to fine a woman hundreds of thousands of dollars to share a couple of CDs’ worth of music. You might believe (as do I) that file sharing is unethical, just as many people believed that squatting was unethical. But at some point, Congress has no choice but to recognize the realities on the ground, just as it did with real property in the 19th century.
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Tom Bell–who I regarded as the the equivalent of my Jedi master in the mid-90s–suggested in a post earlier today that:
“Copyright holders thus understandably fear that their customers have begun to treat expressive works like common property, free for all to use. That, the specter of copyism, does risk upsetting copyright policy, leading to a market failure in the production of expressive works. Even as we recognize that threat, however, we should also appreciate that technological advances have greatly reduced the costs of creating and distributing new works of authorship. Thanks to that deflation, we can increasingly count on authors who care little about the lucre of copyright — blockheads, as Samuel Johnson called them — to supply us with original expressive works.”
As his once lowly Padawan learner, I know to be cautious when questioning my old master’s wisdom. But I must humbly ask: How, dear master, does a video game this frickin cool and complex get created in a world devoid of serious copyright protections? It’s a question I have asked before here and I have never received an answer that satisfied my fear of losing some of the truly great content that gets created only because of the protections afforded by existing copyright standards.
I await your enlightenment, my master. Because I can’t imagine many “blockheads” providing us with expressive works like this without some sort of guarantee that their creative efforts will not be completely expropriated.
[More videos of “Star Wars: The Force Unleashed” can be found here.]
Technological advances, because they have radically lowered the costs of creating and distributing expressive works, have shaken the foundations of copyright policy. Once, those who held copyrights in sound recordings, movies, television shows, magazines, and the like could safely assume that the public would do little more than passively consume. Now, though, the masses have seized (peacefully acquired, really) the means of reproducing copyright works, making infringement cheap, easy, and, notwithstanding the law’s dictates, widespread. Copyright holders thus understandably fear that their customers have begun to treat expressive works like common property, free for all to use. That, the specter of copyism, does risk upsetting copyright policy, leading to a market failure in the production of expressive works. Even as we recognize that threat, however, we should also appreciate that technological advances have greatly reduced the costs of creating and distributing new works of authorship. Thanks to that deflation, we can increasingly count on authors who care little about the lucre of copyright – blockheads, as Samuel Johnson called them – to supply us with original expressive works. This paper describes the economic push and pull between distributed infringement and distributed authorship – between copyism and blockhead-created content, we might say – and how copyright policy should mediate those forces.
As a matter of policy, we should favor love. It generates many private and public benefits. Individuals or communities short of love suffer terribly. Those rich in it thrive.
Please allow me to offer one small step towards encouraging love: An uncopyrighted (and thus public domain) card. Folding it for your love will prove your devotion, as the folds present a nice little origami challenge. A personalized card beats a store-bought one by a mile, too. Add messages inside and out, lock the heart up, hand it over, and brace yourself for some lovin’.
Here are some details:
If I might geek out for a moment, I’d like to offer some pertinent observations about copyright law. That I’ve uncopyrighted Folding Heart Card by no means guarantees that those who copy it will escape all liability. I have placed in the public domain only mywork of authorship—the image and the folds portrayed above. Another might claim copyright privileges over the same work, or some part of it. I claim Folding Heart Card as an original, but I must also admit that, by definition, unconscious copying remains a risk. So while I encourage you to copy the work as you see fit, and thereby honor both my love and your own, you must assume full responsibility for the outcome. I think, on net, you’ll like the results.
Two sharply contrasting views dominate the debate over copyright policy. On the one hand—the left one, we might say—copyrights represent mere policy tools, no better in principle than any other legal mechanism and, indeed, more modern, rationally planned, and democratically chosen that anything the common law can offer. On the other hand—the right hand, we might say—copyrights represent property rights no less than real estate or moveable goods do. On that view, copyrights deserve strict enforcement and our solemn respect.
[My draft book, Intellectual Privilege: Copyright, Common Law, and the Common Good, presents] copyright policy on a third hand. So grasped, copyright represents nothing better than a clumsy attempt to correct an alleged market failure. Common law rights, implemented by technological advances, social networks, and growing wealth, increasingly suffice to stimulate the production of original expressive works. Increasingly, we find that we do not need copyright. To that extent, it does us little good and much harm to remain imprisoned within the confines of the Copyright Act. Even if they wanted to, federal lawmakers could not put copyright policy into a delicate balance; they face powerful incentives to not even try. Better we should cast aside copyright’s statutory privileges and rely on the common law to promote the public good.
Many people—well-informed, intelligent, and sincere people—will doubtless disagree with this third view of copyright policy. Many will have good reasons for doing so, too. Some, though, will have perhaps been mislead by their reliance on an older, less flexible understanding of copyright—what we might call a circuit-switched model. In fact, however, we can best understand copyright policy, and much else, by following the example set by packet-switched networks.
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Yesterday bills were introduced in the House (
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.