Keeping politicians' hands off the Net & everything else related to technology
Courts and commentators often claim that copyright policy strikes a delicate balance between public and private interests. I see copyright policy in a different pose, however. I see it wobbling precariously, tipping over, and falling into statutory failure. What has put copyright on such unsure footing? The brutish prodding of special interests. Rather than “delicately balanced,” then, I describe copyright policy as “indelicately imbalanced.”
For better or (more likely) worse, copyright now automatically encumbers every new fixed work of authorship. Copyright kicks in as soon as anyone writes an essay, doodles a sketch, or bangs out an email. A copyright’s holder need not register the work or put notices on copies of it to qualify for copyright protection.
If you want to play it safe, you should thus probably assume that some sort of copyright claim binds every fixed work. Even very old works often come with modern copyright strings attached. Consider, for instance, John Stuart Mill’s classic work, On Liberty. Though the book originally issued in 1859, and has long since fallen into the public domain, my library’s copy includes a notice reading, “Copyright 1978 by Hackett Publishing Company, Inc.” Presumably, that copyright covers only the editor’s introduction and selected bibliography. Yet Hackett’s overbroad notice doubtless discourages some people—especially those who know little about copyright law—from reproducing even the free parts of On Liberty.
In that and other ways, copyright policy currently fails to admit to its limitations. Cautiously presuming that copyright covers every fixed work, and duped by inflated copyright notices, we fail to fully enjoy our rights to the public domain. We should aspire to a more open copyright system, one that encourages both the creation of new works and the liberation of extant ones. For that, we need a way to signal, clearly and reliably, when a work has escaped the bounds of copyright. We need, in other works, an uncopyright notice.
Good. Musician makes good. There’s an interesting article with some ideas in Spin magazine–though no clear direction emerges. Potentially useful for new artists, not so much for encouraging the re-release of Led Zeppelin (soon to be on iTunes) or old blues. If the thought of entanglement of music in a web of marketing schemes is not entirely appealing, but, well, that’s not a policy concern. What becomes of artists from unsophisticated backgrounds in this might well be… professional sports all over again?
On the prospects for live music, from Richard Morrison. (And I confess another non-policy consideration, I detest live music–one sacrifices consistent sound quality to leave the privacy of one’s home to sit or stand in crowds flaunting their absurd subcultures–but I will make grudging exceptions for metal concerts, classical guitar, and live jazz). But this, too, has its limits as a business model.
Also less encouraging is Radiohead’s experiment in whatever-it’s-worth pricing, with many electing a price of zero; the link is to Bill Rosenblatt’s report. Barry Shrum offers his perspective.
In the end, it will all get worked out. But there is no end in sight for the usefulness of copyright and technology as a tool for defining obligations in new relationships of goods, services, and persons, or as a substitutes for traditional enforcement. Continued competition of free goods with paid goods would reduce anxiety about whether producers are sensitive to consumer demand for flexible and friendly protection technology.
Two distressing trends in the overall debate, though, might well be with us forever. One is the tendency of some to see the glass of new technology as almost entirely empty, the other to see it as almost entirely full. But where old boundaries don’t hold up, new lines will be found and somehow enforced; markets go on. And where the status quo gives way, one ends up with not an end to the limitations on human endeavor peculiar to one set of economic circumstances, but a whole new set of limitation peculiar to the next. On the whole, people don’t do well without lines drawn in the sand, and will draw new ones when the last set is erased.
Larry Lessig has a good talk about free culture. There’s nothing in there that won’t be familiar to people who’ve read Lessig’s book, but it does a good job of briefly and succinctly laying out his basic argument.
One thing that’s worth mentioning, though. Lessig’s telling of the Causby decision is a little misleading. Yes, Justice Douglas rejected Blackstone’s notion that, in general, property rights reach to the heavens. But the Causby’s still won. What Lessig doesn’t mention is that the airplanes in question weren’t just flying over the Causby’s land. Their land was adjacent to a military base and the airplanes were at extremely low altitude when they crossed the Causby’s land, creating deafening noise.
I don’t really understand why Lessig gives the misleading impression that the Causbys lost the case. Yes, it complicates the story a little bit, but I think it would be perfectly possible to tell the story accurately and still preserve his basic, entirely valid, and quite powerful point about the importance of common sense in the law.
I used Lessig’s story myself a couple of years ago. Unfortunately I didn’t do my due diligence of reading the original case and so I wound up giving the same misleading impression Lessig did. Were I writing that article today, I definitely would have framed it differently. The full story is plenty powerful; there’s no need to oversimplify it.
Bill Rosenblatt reports on EFF’s and other’s support for fair use in filtering. My take: A constructive step. It remains to be seen whether an objective “fair use” standard can be developed; and then again, whether it can be technologically implemented; if not, the answer will be a combination of process for “appeals” and simple licensing mechanisms.
In particular, this is a welcome departure from the “filtering is useless” stance. Certainly, filtering can be defeated. But ultimately something posted for public consumption must be in the clear. And not everyone will encrypt, especially if they are unaware that they are infringing. By and large, it ought to be possible to get copyright filtering for entire works to work at least as well as spam filtering–that is, not perfectly, but enough to get a handle on the problem.
The New York Times reports on Attributor, a company tackling the broad re-use of copyrighted material online:
The company has developed software that identifies an electronic “fingerprint” for a particular piece of material — an article, a picture, a video. Then it hunts down any place across the Web where a significant chunk of that work has been copied, with or without permission.
When the use is unauthorized, Attributor’s software can automatically send a message to the site’s operators, demanding a link back to the original publisher’s site, a share of revenue from any ads on the page, or a halt to the copying.
No word on whether the software also calculates whether unauthorized uses it finds are nevertheless fair uses. That aside, this sort of searching technology should help placate the fears of content owners over the sort of orphan works legislation I’ve proposed.
Public Knowledge has proposed some copyright reform principles. I agree with one of them. As for the rest… the “expansion” of copyright law that the proposed reforms are supposed to redress has come about in a context in which traditional enforcement mechanisms for copyright have become almost impossible to use. Given this problem, it is hard to see how the “expansion” as creating an imbalance–rather, it is a result of an imbalance created by technology. Unless one addresses the enforcement problem, one is not really addressing the “expansion” problem.
I do agree that music licensing needs work (proposal 4).
Re 1) Expanding fair use to include personal use etc. would create an exemption that would swallow almost all of copyright law.
Re 2) Why undermine the growth in licensing services since Sony was clarified and updated in Grokster? That is what a codification of the vast oversimplication of letting all and any “substantial non-infringing uses” behind a protective wall would do. If one is fond of the Sony case, one had better read the whole thing–and be aware of what it doesn’t hold, and it’s qualifications. If the law doesn’t keep up with technology, well, it can’t maintain balance very well.
Re 3) How about comparable penalties for overstating the rights of fair use? Or their importance? Or their role in the economy?
Re 5) Presumably consumers would get notice of contractual limits if they read the contracts… This no more needs to be legislated than any other aspect of the terms of sale. I do expect that market forces will continue to lead to improvements–there is room for those. In the end, though, what gets put front and center on the packaging ought to be determined by demand. Wrapping the entire package in fine print about what the technology can and can’t do (you can’t play it backwards like a movie reel… etc. etc.) is not likely to help anyone. It won’t get read.
John McCain cuts an ad:
Fox News sends him a nastygram
Here’s a way Hillary Clinton can earn some geek brownie points at effectively no cost:
As the networks who have promised to (effectively) deliver free presidential debates have shown (CNN, NBC, ABC), even when free, it is still worth it enough to at least some. And in a world with YouTubes and p2p technologies, some networks are plainly enough. If Fox demands control, presidential debates don’t need Fox. It is time that the presidential candidates from both parties stand with Senator McCain and defend his right to use this clip to advance his presidential campaign. Not because it is “fair use” (whether or not it is), but because presidential debates are precisely the sort of things that ought to be free of the insanely complex regulation of speech we call copyright law. Indeed, as the target of the attack, and as one who has been totally AWOL on this issue from the start, it would be most appropriate if this demand were to begin with Senator Clinton. Let her defend her colleague’s right to criticize her, by demanding that her party at least condition any presidential debate upon the freedom of candidates and citizens to speak.
On the other hand, it’s hard to imagine a more favorable test case for fair use of video, so I’m sort of hoping neither party backs down and we get a solid ruling that making short clips of prominent public policy discussions is a fair use.
Tomorrow I’m slated to present my draft paper, Copyright as Intellectual Property Privilege, at Creators vs. Consumers: The Rhetoric, Reality, and Reformation of Intellectual Property Law and Policy, a symposium hosted by the Syracuse Law Review and The Institute for the Study of the Judiciary, Politics, and the Media at Syracuse University. The folks running the show say that they’ll make a webcast available here. I’m up at 1:45 p.m. Eastern, if that sort of thing interests you. Prefer something a little less multimedia? Here, you can check out the PowerPoint I’ll present.
[Crossposted to Agoraphilia and Intellectual Privilege.]
I’d like to invite TLF readers to a lunch panel discussion next Tuesday at noon on copyright law and space shifting – and for the geek in you, live demonstrations of the Slingbox, Apple TV, and a Windows Media Center tied to the XBox 360.
Space shifting
includes such activities as copying music from a CD to an MP3 file for use on a
portable player or watching your local television broadcast on a computer
located outside your home. Essentially it’s using digital content on a device other than
the one for which it was originally intended. We’ll discuss space
shifting, its legal implications (including how/if litigation between wary parties can be avoided) and suggestions for continued success in
bringing consumers cool stuff.
The
lunch discussion will feature Morgan Reed and Debbie Rose of ACT (Debbie was on last week’s TLF podcast about file sharing), Gigi
Sohn of Public Knowledge, and Patrick Ross of the Copyright Alliance.
Details: 12:00 noon, Tuesday, October 23,
2007, B340 House Rayburn. email or RSVP to
mmoskal at actonline dot org
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.
