Keeping politicians' hands off the Net & everything else related to technology
Nate Anderson has an Arsticle on the major new copyright bill introduced yesterday.
H.R. 4279 is the bill, named the Prioritizing Resources and Organization for Intellectual Property Act of 2007 by its sponsors. “PRO-IP,” get it?
As I write this, voting, commenting, and wiki edits on WashingtonWatch.com have barely begun. The current vote can be seen below, and your opinion can be registered by clicking the appropriate place:
For those TLF readers living in the Washington, DC area and interested in copyright policy, there’s a symposium this upcoming Monday at GWU on the relationship between universities and copyright law. Entitled “Copyright and the University: An Academic Symposium” and sponsored by the Copyright Alliance, the cast of speakers include Marybeth Peters, Director, U.S Copyright Office, Peter Jaszi, Professor, Washington College of Law, American University, and economist Michael Einhorn, among others. Could be interesting, and it’s free.
Dear Reader,
Hello from 2027! The future has been going great. I really enjoy it, and I think you’ll like it here, too.
Things have improved a lot since 2007. We’ve generally grown more healthy, wealthy, free, and (I daresay) happy. There remain rough spots, of course: Climate regulation, zombie flu, the still-unfinished meteorite prevention belt . . . and the future didn’t work out too well for everyone. Some wonderful people didn’t make it, sad to say, while others remain in suspension. As they say in aircar ads, “your mileage may vary. ” All in all, though, the future remains very bright.
I remember back when I lived in 2007. I looked forward to the future, and foresaw pretty good stuff. That prediction turned out ok, but I have to admit that I missed a lot of details! Who would have guessed the 2015 Constitutional Convention? That one really caught me by surprise.
From Music Row Law, a review of two studies now supporting the view that P2P downloading actually increases sales of physical media; the downturn in CD sales through music stores is thus a result of other factors (such as the rise of Walmart).
I remain skeptical. In analyzing this data, assumptions are key. Many other studies show harm.
The earlier study, by Strumpf, professor of business economics at the University of Kansas Business School and Felix Oberholzer, seemed to operate on some peculiar assumptions (one being that downloads of popular tunes have the same impact on sales as downloads of more obscure ones). However, their data is not available for re-analysis.
Stan Leibowitz has a concise critique of the Canadian study as well as a paper in the Journal of Law & Econ. His use of data is extremely careful.
Among other things, he concludes:
All the papers that I have seen by other economists, except for one notable exception, find some degree of harm (to record producers) caused by file-sharing. These include papers by Blackburn, Hong, Michel, Peitz and Waelbroeck, Rob and Waldfogel and Zentner. The lone exception, but the most heavily publicized, is a paper by Oberholzer-Gee and Strumpf, which I believe is littered with errors and disingenuousness as discussed in greater detail below.
His critique of the Canadian study notes:
Lauren Weinstein has a good run-down and warning about a thing called Automated Content Access Protocol and why it might not be a good idea. Indeed, it might be better titled the Automated Content Restriction/Access Protocol. Do the acronym yourselves.
Copyright law regulates expression. Through it, copyright holders win the privilege of invoking state power to control how and what we communicate. The Copyright Act limits our freedom to reproduce, rework, publicly distribute, publicly perform, or publicly display protected works of authorship. In many cases, even when the Act does not utterly prohibit an expression, the Copyright Office sets its price. Copyright flows top-down, out of Washington, D.C., in detailed and non-negotiable terms.
Common law operates on very different principles. It grows bottom up, out of the decisions of manifold state courts, without relying on federal lawmakers, statutes, or administrative agencies. It follows a few simple principles, leaving details to particular cases, customary practices, and mutual consent. Common law thus offers a deregulatory alternative to copyright.
Techdirt points to this story on a Chinese programmer who’s been arrested for developing an add-on to instant messaging software. I should state my biases up front: if using unauthorized software is a crime, they should come and get me, because I use Adium (and before that Fire and Gerry’s ICQ) for my instant messaging needs. It sounds like this guy’s product is the Chinese version of Adium, which means that in this respect China’s copyright laws are even more screwed up the those in the United States.
I am, however, a little bit puzzled about the exact detail of what he did and what laws he’s accused of breaking. From the article:
China has the world’s second-biggest Internet market after the U.S., with more than 160 million users, and it is a thriving market for such add-ons. Coral QQ has about 40.6 million users, according to Chinese computer-science publication Pchome.
Tencent first complained to Mr. Chen in late 2002, saying Coral QQ violated its copyright and warning him to stop distributing it. He did. Mr. Chen then devised a noninvasive “patch” on the program — a separate piece of software — that would run concurrently with QQ on a user’s computer and modify it as the two went humming along. In 2003, he resumed offering Coral QQ.
In 2006, as it became increasingly apparent that Coral QQ was only growing in popularity, Tencent filed a 500,000 yuan ($68,000) lawsuit alleging copyright infringement against Mr. Chen and won a judgment for 100,000 yuan, which Mr. Chen paid. In early August, Tencent complained to the police in Shenzhen, where it has its headquarters, and on Aug. 16 Mr. Chen was detained. Tencent said Mr. Chen was “making illegal profits and infringing on Tencent’s copyright.”
I’m not sure I’m reading this right, but it sounds like at one point he was distributing a modified version of the QQ client. That’s a plain case of copyright infringement and so Tencent was well within their rights to object to that. However, it sounds like more recently he’s been writing independently-created code that modifies the QQ application. While the exact legal arguments would depend on the details of what it’s doing, this would generally not be considered copyright infringement in the United States.
The Sklyarov arrest did a great deal of good in terms of highlighting the problems with the DMCA and galvanizing the geek community. I engaged in my first anti-DMCA activism the week after his arrest, when I attended a protest at the Minneapolis courthouse. If Shoufu’s actions are indeed as innocuous as Sklyarov’s were, this arrest should increase awareness in China of the threats that overly-restrictive copyright law can pose to programmers’ freedom.
I found here a peculiar set of arguments, directed against Solveig the Social Calculator, Solveig the Rampant Utilitarian, Solveig the Anti-Individualist. Who is this Solveig person? Oh, wait, it’s me. I have to wonder if this critique is by the same character who has been going around posting on blogs that I am a defender of Scientology and an erotic model. No, these posts aren’t anonymous.
1) The classical liberal recipe for freedom incorporates the principle that one’s freedom stops where it runs into another’s rights. We may disagree about what those rights ought to look like–and history shows that those rights are likely to change somewhat over time–but if my
package differs somewhat from someone else’s, well, sorry, the argument that this makes me a “regulator” is no more to the point than the argument that the someone else is an “anarchist.” Very silly rhetorical flourishes that fail to join the main issue: what should the rights be?
2) There are perfectly respectable utilitarian arguments for free markets and property. This is not a grand venture into social calculus, it’s common sense. How long would freedom, property, and contract be defensible as institutions if there were a better way to raise standards of living, to get more clean water to more people, to generate wealth so that cleft palate babies can have surgery instead of being left in orphanages, so that a musician from Ghana can quit his day job waiting tables and do what he really loves and others can listen to him? No, I do not know what the socially optimal level of created works to be produced is, or grain, or houses. On the whole, people would rather have ground rules that support the creation of such things. If one is going to up-end those ground rules, one’s case against them had better be pretty strong.
3) Concern for enforcement is not an endorsement of “regulation.” Not even arguably. A defense of freedom includes supporting the fair enforcement of contracts, property rights, voting rights, or any other right that has a proper place in an advanced civilization. Again, we may disagree about what those rights are, but that has nothing to do with enforcement. Now, to the details: Is my view that copyright penalties should be lighter “regulatory”? Is the view that it is unfair to single out a few random individuals and let the majority of infringers’ off, and that this is ineffective for deterrence, “regulatory”? No. Not even close.
In short, teach your grandmother to suck eggs. There are arguments to be made here along these general lines about copyright and regulation that would need to be considered more carefully (see Tom Palmer, Tom Bell, Jerry Brito, etc.) … but you ain’t makin’ ’em yet. If there were a fundamental, easy-to-spot disconnect between classical liberal fundamentals and my views on IP, I’d have noticed some time in the last twenty years. The more subtle tensions I’m way ahead of you on. (For the love of pete, I’m on the record on what I think on all these things–enforcement, and how strict, and copyright as regulation, and so on–you don’t need to make up what you think my position is and then critique the lame result).
termchart.gif)
The term of copyright has steadily expanded under U.S. law. The first federal copyright legislation, the 1790 Copyright Act, set the maximum term at fourteen years plus a renewal term (subject to certain conditions) of fourteen years. The 1831 Copyright Act doubled the initial term and retained the conditional renewal term, allowing a total of up to forty-two years of protection. Lawmakers doubled the renewal term in 1909, letting copyrights run for up to fifty-six years. The 1976 Copyright Act changed the measure of the default copyright term to life of the author plus fifty years. Recent amendments to the Copyright Act expanded the term yet again, letting it run for the life of the author plus seventy years.
The table above illustrates the growth of the general U.S. copyright term over time, including the retroactive effects of various statutory extensions. Note the overhanging ledges. The 1962-74 Acts, the 1976 Act, and the Sonny Bono Act reached backwards in time, extending the copyright term even for works that had already been created. The Supreme Court has held that legislative trick constitutional, notwithstanding copyright policy’s implied aim of stimulating new authorship—not simply rewarding extant authors.
[NB: The above text comes from part of my draft book, Intellectual Privilege: Copyright, Common Law, and the Common Good. Specifically, it comes from Part I, Chapter 3.A.1: Copyright Imbalance: Duration of Copyright. You can find a complete draft of the full chapter, together with footnotes, here [PDF]. I welcome your comments.]
[Crossposted to Intellectual Privilege and Agoraphilia]
Larry Lessig recently emailed several helpful tips for my book-in-progress, Intellectual Privilege: Copyright, Common Law, and the Common Good. He suggested, for instance, that I post on the book’s home page a brief summary of its theme. I came up with this:
Two views monopolize the ongoing debate over copyright policy. One view denigrates all restraints on copyrighted information, whether they arise from statutory law, common law, or technological tools. The other view equates copyrights to tangible property, concluding that they merit a broad panoply of legal protections. Left-wingers tend to favor the former position; right-wingers the latter.
I here offer a third view of copyright. I largely agree with my friends on the left that copyright represents not so much a form of property as it does a policy device designed to “promote the Progress of Science and useful Arts” (as the Constitution puts it). I thus call copyright a form of intellectual privilege.
Like my friends on the right, however, I hold our common law rights in very high regard. Hence my complaint against copyright: it violates the rights we would otherwise enjoy at common law to peaceably enjoy the free use our throats, pens, and presses. That is not to say that copyright is per se unjustified. We can excuse facial violations of our common law rights, such as the takings effectuated by taxation or the restraints imposed by antitrust law, as the costs of obtaining a greater good. But it does mean that copyright qualifies, at best, as a necessary evil.
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.
