I’ve been thinking about the best way to respond to the news of Jim DeLong’s apparent semi-retirement from the public policy world. For the last decade, DeLong has been the most prolific, and perhaps the most influential, libertarian thinker on patent and copyright issues. He has probably done more than any other person in the libertarian think tank world to promote the view that patents and copyrights are no different than any other kind of property right, and that libertarians should therefore almost always come down in favor of broadening the scope and duration of copyright and patent rights, for stiffening the penalties for violating these laws, and for enacting new regulations of third parties to make it easier for copyright holders to enforce their rights.
I’ve criticized DeLong’swritings repeatedly on this blog, so I won’t re-hash those arguments. But I am disappointed that (with one exception I can recall) DeLong never engaged any of my criticisms. Perhaps he was offended by the derisive tone some of my posts took. Maybe my work just never made it onto his radar screen. In any event, I think it’s sad that a significant opportunity for substantive engagement on these issues was missed. DeLong often seemed to be arguing with caricatures of his ideological opponents, ignoring the more nuanced substantive work he could have found if he’d looked for it. I was particularly disappointed that he never took the time to offer a substantive critique of my DMCA paper, one work of mine that I know he did read. I doubt he would have been able to change my mind (or vice versa), but I bet I would have learned a few things from his criticisms.
One place I do have to give DeLong credit is his amicus brief (with TLF contributor Solveig Singleton) in the Teleflex case. This was probably the most important patent case in the last quarter-century, and in my view he came down on the right side of it, recognizing that the patent system becomes an obstacle to progress if patents are granted too liberally.
In recent years there has been a trend toward the use of trade agreements as a means of bullying smaller nations into adopting copyright and patent policies favored by domestic special interest groups in the United States. Over at the EFF blog, Gwen Hinze has the goods:
In exchange for the promise of increased access to U.S. agricultural and textile markets, , U.S. trading partners are being required to rewrite their IP laws. For instance, the last nine U.S. free trade agreements signed since 2002 have required trading partners to adopt the U.S./ EU copyright term of life of the creator plus 70 years, create laws banning the circumvention of DRM (or technological protection measures) modeled very precisely on the controversial DMCA, and to treat temporary reproductions of copyrighted works (such as in computer memory) as copyright infringement. The FTAs also require trading partners to broaden their patent laws. The Central American Free Trade Agreement also required extended protection of test data, seemingly directed at precluding registration of generic pharmaceuticals.
I agree with James Surowiecki that there’s a symmetry between the “intellectual property standards” in these recent trade agreements and the “labor and environmental standards” that left-wing groups have long demanded be appended to trade deals. Free traders have always argued, correctly, that labor and environmental laws have nothing to do with trade, and that decisions about such laws should be decided by the ordinary political process in each country, not by international pressure.
Precisely the same argument applies to copyright and patent issues. I think there are good policy arguments to oppose longer copyright terms and anti-circumvention rules on their merits. But even if you think those are good policy, they certainly don’t belong in trade negotiations. Trade negotiations should be focusing on trade barriers. Failing to protect the copyright on Mickey Mouse until 2019, or permitting the sale of DVD players that will fast forward through commercials, is not a trade barrier.
We free traders should be just as outraged about these demands as we would be if a Democratic administration demanded changes to other countries’ labor or environmental laws in exchange for a trade agreement. The president and the USTR have only so much political capital in these negotiations. Had they not included the copyright and patent provisions among their demands, they most likely would have been able to obtain larger reductions in genuine trade barriers.
This site tracks the value of some “black market” goods from pirated movies to body parts and human trafficking. Missing: Murder for Hire, though Kidnapping is represented.
One ought to distinguish at least two types of markets represented here; a) those in which the goods being sold do indeed “belong” to the seller who wishes them to “belong” to the buyer. Markets for illegal drugs for example. “Belong” is in quotes because from a legal standpoint there are no “property rights,” rather, the rights are those that would exist at law just as with any other planted produce or chemical stew if it were not for regulatory bans. Then there is b) the rights in question have been wrested away unlawfully from a third person and appropriated by the seller, who then transfers them to the buyer. Human trafficking, for example, and piracy.
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Randy Barnett mocks George Lucas for his walled garden approach to mash-ups:
According the Wall Street Journal this morning, the fan-created videos will run along with commercials “with Lucasfilm and Eyespot splitting the proceeds.” Asked about why Lucasfilm will allow this use of their images, a spokesman said, “If someone wants to commercialize it, that’s where we’ve drawn the line.” So it’s OK for Lucasfilm to commercialize the creative efforts of Star Wars ™fans, but not the other way around.
But the laugh is really going to be on Lucasfilm because, as we all know, people won’t invest scarce time producing creative works that others want to watch without the financial incentives provided by intellectual “property” rights granted for “limited times” (i.e. in perpetuity). So it is safe to predict that no one will contribute any mashups to the new Starwars.com website. Boy, will that be embarrassing for them!
Randy Picker has been doing an excellent series of posts on the evolution of copying technologies. Today’s installment is particularly good:
In the monk era—the pre-printing press era—all copying was done by hand. These were manuscripts copied one-by-one in the scriptorium. There weren’t strong advantages—economies of scale if we are going to be economists—in producing second copies. All copies were expensive and the author/publisher, having produced one copy of the work, was no better situated to make another copy of the work than would be any holder of the work. To be sure, the technology of copying—the ability to read and write—may not have been widely distributed, so this was a key way in which copies were controlled, but presumably only the literate were much interested in copies anyhow, and for the literate, the costs of producing the second copy were high but roughly identical to the costs of the author.
The printing press changed all of that. The printing press obviously lowered printing costs generally, but note what it did for second-copy costs. Those costs dropped dramatically for publishers but changed very little for someone in possession of a physical copy of the book. Before, in the handcrafted era of the monks, publishers and copy holders faced the same, very high, second-copy costs. In the Gutenberg era, the author/publisher was much better situated than a copy recipient to produce another copy. That cost advantage served as an important way in which the effective rights of the author/publisher to control copies were made meaningful. This is not to say that we didn’t have piracy, but it was of a different sort, say a printer running a secret print runs for a pirate.
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Yglesias notes the heated battle in the 1960s over jukebox piracy. According to his commenters, Congress eventually closed the jukebox loophole so that music publishers would be fairly compensated.
Tech Policy Weekly from the Technology Liberation Front is a weekly podcast about technology policy from TLF’s learned band of contributors. The shows’s panelists this week are Jerry Brito, Tim Lee, Mark Blafkin of the Association for Competitive Technology, and Ryan Paul of Ars Technica. Topics include,
- Microsoft claims free software is infringing its patents
- the FTC blasts state regulation of online real estate services, and
- Google prevails over Perfect 10 in an important copyright case
There are several ways to listen to the TLF Podcast. You can press play on the player below to listen right now, or download the MP3 file. You can also subscribe to the podcast by clicking on the button for your preferred service. And do us a favor, Digg this podcast!
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Over at Ars, I analyze yesterday’s Perfect 10 decision:
Perfect 10 attempted to distinguish its service from the Kelly precedent in two ways. First, although Google doesn’t typically display advertising on image search result pages, some of the sites containing infringing images participate in Google’s AdSense program. Second, Perfect 10 had licensed its images for sale in thumbnail form to cell phone users, and the company argued that the thumbnails in Google’s search results undermined the market for cell-phone thumbnails. The district court sided with Perfect 10 in 2004, and Google appealed the decision.
Writing for the Ninth Circuit Court of Appeals, judge Sandra Ikuta firmly rejected both of those arguments. She noted that there was no evidence that any mobile phone users had actually used Google’s image search engine to download Perfect 10’s images. And while she acknowledged that Google did generate a small amount of revenue from infringing websites that participated in the AdSense program, she ruled that “the transformative nature of Google’s use is more significant than any incidental superseding use or the minor commercial aspects of Google’s search engine and website.”
Perfect 10 seems to have taken a “kitchen sink” approach in its attack on Google, and the as a result the decision is kind of sprawling, touching on a variety of theories for both direct and indirect liability. As far as I can see, almost all of them worked out in a pro-Google (and in my view, a pro-innovation) direction. The possible trouble spot is the Napster issue, where the Ninth Circuit sent the case back to the district court for further consideration. But as long as Google can make a plausible case that they can’t be expected to police each of the billions of websites they link to, they should be fine.
Good news from the Ninth Circuit, which overturned Google’s loss in last year’s Perfect 10 decision. Here’s what I said about the case back when it was decided:
Google Image Search is a search engine for images. It does not serve ads. AdSense is a third-party ad program whereby any website on the Internet can allow Google to place ads on their site in exchange for a cut of the revenues. The relationship between these programs is… well, there isn’t really a relationship, except they’re both Google products. Sometimes users find infringing pages using Google Image Search that have AdSense ads on them. The court decided this was evidence that Google Image Search was profiting off of infringement.
But that’s ridiculous. Google Image Search doesn’t give any particular preference to web sites that serve up AdSense ads. And AdSense serves up ads regardless of what search engine brought the user to the site. If Google cancelled Google Image Search altogether, there’s little reason to think AdSense would suffer financially—users would likely find the same pages using other search engines.
If this standard is to be taken seriously, search engine companies are going to have to divest themselves of all other online services that might involve infringing copyrights. Yahoo! will have to sell off GeoCities. Microsoft will have to stop selling IIS, its web server.
But Mike at Techdirt warns that the case might not be over:
However, the court ruled that because some of the sites also included Google AdSense ads, Google was directly profiting. Of course, that seems like a totally different issue, so the entire decision was something of a mixed bag, at times saying that thumbnails by themselves aren’t infringing, but there were cases where they were. The latest is that an Appeals Court has overturned the lower court ruling, saying (again) that thumbnails are fair use… but still opening up potential liability if Google could have done a better job to “prevent future damages.” That seems to leave the whole thing wide open for the lower court (which the case is being sent back to) to screw up all over again. So, despite what the headlines might read, this case is far from over.
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