Copyright

Paul Heald on the public domain

by on April 23, 2013 · 0 comments

Paul J. Heald, professor of law at the University of Illinois Urbana-Champaign, discusses his new paper “Do Bad Things Happen When Works Enter the Public Domain? Empirical Tests of Copyright Term Extension.”

The international debate over copyright term extension for existing works turns on the validity of three empirical assertions about what happens to works when they fall into the public domain. Heald discusses a study he carried out with Christopher Buccafusco that found that all three assertions are suspect. In the study, they show that audio books made from public domain bestsellers are significantly more available than those made from copyrighted bestsellers. They also demonstrate that recordings of public domain and copyrighted books are of equal quality.

Since copyrighted works will once again begin to fall into the public domain starting in 2018, Heald says, it’s likely that content owners will ask Congress for yet another term extension. He argues that his empirical findings suggest it should not be granted.

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Joshua Gans on the economics of information

by on April 2, 2013 · 0 comments

Joshua Gans, professor of Strategic Management at the University of Toronto’s Rotman School of Management and author of the new book Information Wants to be Shared, discusses modern media economics, including how books, movies, music, and news will be supported in the future.

Gans argues that sharing enhances most information’s value. He also explains that the business models of traditional media companies, gatekeepers who have relied on scarcity and control, have collapsed in the face of new technologies. Equally important, he argues that sharing can revive moribund, threatened industries even as he examines platforms that have, almost accidentally, thrived in this new environment.

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Sean Flaim on the private enforcement of copyrights

by on March 26, 2013 · 2 comments

Sean Flaim, an attorney focusing on antitrust, intellectual property, cyberlaw, and privacy, discusses his new paper “Copyright Conspiracy: How the New Copyright Alert System May Violate the Sherman Act,” recently published in the New York University Journal of Intellectual Property and Entertainment Law.

Flaim describes content owners early attempts to enforce copyright through lawsuit as a “public relations nightmare” that humanized piracy and created outrage over large fines imposed on casual downloaders. According to Flaim, the Copyright Alert System is a more nuanced approach by the content industry to crack down on copyright infringement online, which arose in response to a government failure to update copyright law to reflect the nature of modern information exchange.

Flaim explains the six stages of the Copyright Alert System in action, noting his own suspicions about the program’s states intent as a education tool for repeat violators of copyright law online. In addition to antitrust concerns, Flaim worries that appropriate cost-benefit analysis has not been applied to this private regulation system, and, ultimately, that private companies are being granted a government-like power to punish individuals for breaking the law.

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It’s All About the Authors

by on March 19, 2013 · 0 comments

In anticipation of a hearing in the House Judiciary Committee Wednesday afternoon, Sandra Aistars, executive director of the Copyright Alliance, writes in The Hill about the principles that should guide copyright reform, calling for debate “based in reality rather than rhetoric.”

Chief among these principles is that protecting authors is in the public interest. Ensuring that all creators retain the freedom of choice in determining how their creative work is used, disseminated and monetized is vital to protecting freedom of expression.

Arguing for authors in terms of freedom of choice and expression is good rhetoric, but it’s quite unlike what I expect you’ll hear during Cato’s noon Wednesday forum on copyright and the book Laws of Creation: Property Rights in the World of Ideas.

Authors Ron Cass and Keith Hylton methodically go through each intellectual property doctrine and explore its economic function, giving few words to authors’ “choice” or their “freedom of expression.” They certainly don’t denigrate authors or their role, but Cass and Hylton don’t vaunt them the way Aistars does either.

Recent events in the copyright area are providing much grist for the discussion. You can still register for the book forum, treating it as a warm-up for Wednesday afternoon’s hearing, if your freedom of choice and expression so dictate.

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Laws of Creation at Cato Wednesday

by on March 17, 2013 · 0 comments

Register here now for next Wednesday’s Cato book forum on Laws of Creation: Property Rights in the World of Ideas.

In the book, Ronald A. Cass and Keith Hylton reject the idea that changing technology undermines the case for intellectual property rights. They argue that making the work of inventors and creators free would be a costly mistake.

That cuts against the bulk of academic opinion today, which is critical of the broad scope and length of intellectual property protections today. The book has qualities that many libertarians will enjoy because it starts with first principles: the theoretical underpinnings and practical benefits of property rights.

By no means does the book answer all the questions, and we’ll have TLF’s own Jerry Brito, the editor of Copyright Unbalanced, on hand to provide commentary.

That’s Wednesday (3/20) at noon in the Cato Institute’s F.A. Hayek auditorium. There’s no such thing as a free lunch, but the sandwiches provided afterwards come at the low cost of learning more dimensions of the intellectual property debate. Register now!

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3 Cell Phone Unlocking Bills Introduced—What Would They Accomplish?

by on March 16, 2013 · 0 comments

In the past couple weeks, three bills addressing the legality of cell phone unlocking have been introduced in the Senate:

  • Sens. Leahy, Grassley, Franken, and Hatch’s “Unlocking Consumer Choice and Wireless Competition Act” (S.517)
  • Sen. Ron Wyden’s “Wireless Device Independence Act” (S.467)
  • Sen. Amy Klobuchar’s “Wireless Consumer Choice Act” (S.481)

This essay will explain how these bills would affect users’ ability to lawfully unlock their cell phones.

Background

If you buy a new cell phone from a U.S. wireless carrier and sign a multi-year service contract, chances are your phone is “locked” to your carrier. This means if you want to switch carriers, you’ll first need to unlock your phone. Your original carrier may well be happy to lend you a helping hand—but, if not, unlocking your phone may violate federal law.4s-unlock

The last few months have seen an explosion of public outcry over this issue, with a recent White House “We the People” petition calling for the legalization of cell phone unlocking garnering over 114,000 signatures—and a favorable response from the Obama administration. The controversy was sparked in October 2012, when a governmental ruling (PDF) announced that unlocking cell phones purchased after January 26, 2013 would violate a 1998 federal law known as the Digital Millennium Copyright Act (the “DMCA”).

Under this law’s “anti-circumvention” provisions (17 U.S.C. §§ 1201-05), it is generally illegal to “circumvent a technological measure” that protects a copyrighted work. Violators are subject to civil penalties and, in serious cases, criminal prosecution.

However, the law includes an escape valve: it empowers the Librarian of Congress, in consultation with the Register of Copyrights, to periodically determine if any users’ “ability to make noninfringing uses . . . of a particular class of copyrighted works” is adversely affected by the DMCA’s prohibition of tools that circumvent access controls. Based on these determinations, the Librarian may promulgate rules exempting categories of circumvention tools from the DMCA’s ban.

One such exemption, originally granted in 2006 and renewed in 2010, permits users to unlock their cell phones without their carrier’s permission. (You may be wondering why phone unlocking is considered an access control circumvention—it’s because unlocking requires the circumvention of limits on user access to a mobile phone’s bootloader or operating system, both of which are usually copyrighted.)

But late last year (2012), when the phone unlocking exemption came up for its triennial review, the landscape had evolved regarding a crucial legal question: do cell phone owners own a copy of the operating system software installed on their phone, or are they merely licensees of the software?

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So far, cellphone unlocking bills do little to nothing to fix the real problem of anti-circumvention restrictions

by on March 12, 2013 · 4 comments

Since we last visited the cellphone unlocking question, three bills have been introduced in Congress that address the issue. My sources tell me that forthcoming shortly here on the TLF will be a Ryan Radia patented Radianalysis™ of the bills. While that’s still cooking, though, I wanted to give you my quick impressions.

The bills range from “meh” to crafty.

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Marvin Ammori on Internet freedom

by on March 12, 2013 · 1 comment

Marvin Ammori, a fellow at the New American Foundation and author of the new book On Internet Freedom explains his view of how the First Amendment applies the Internet through the lens of constitutional law and real world case studies.

According to Ammori, Internet freedom is a foundational issue for democracy, equivalent to the right to vote or freedom of speech. In fact, he says, the First Amendment can be used as a design principle for how we think about the challenges we face as Internet technology increasingly becomes a part of our lives.

Ammori’s belief in a positive right to speech—that everyone should have access to the most important speech tools in society and be able to speak with and listen to any other speaker without having to seek permission— translates to a belief that Internet should be made available for everybody, without restrictions aside from those placed on offlinet speech.

Ammori goes on to explain why he thinks SOPA threatened to infringe upon free speech while net neutrality protects it, suggesting that allowing ISPs to control bandwidth usage is tantamount to forcing internet users to become passive consumers of information, rather than creators and content-spreaders.

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It’s time to end compulsory licensing for digital music

by on March 8, 2013 · 4 comments

Last week, Pandora CEO Tim Westergren was at the Heritage Foundation, “trying to rally the conservative troops,” according to Politico. The company is pushing the Internet Radio Fairness Act, which would let government bureaucrats set the rates for the music it uses one way. Arguing for another (more expensive) way on Wednesday, was RIAA president Cary Sherman who, again according to Politico, was “ranting against the Internet Radio Fairness Act and condemning Pandora for its efforts to change the standard royalty rate.”

Essentially, they are negotiating through Congress; each side wanting to use the government to gore the other’s ox. In a new article at Reason.com, I make the case that the principled free market approach would be to get rid of compulsory licenses and allow the two sides to negotiate with each other. As I point out, this is yet another opportunity for the G.O.P. to take on copyright cronyism:

If a federal policy strips owners of their rights to dispose of their property as they see fit, institutes price-fixing by unelected bureaucrats, and in the process picks an industry’s winners and losers, you’d expect Republicans in Congress to be against it. But when it comes to copyright, all bets are off. …

If Republicans really care about copyright as a property right, they should treat it as property and allow copyright holders to decide to whom they will license their music. That would mean prices negotiated in a free market, not fixed by apparatchiks, and an end to politically determined winners and losers.

Read the whole thing here.

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The right and the wrong way to think about cellphone unlocking and DMCA anti-cirumvention

by on March 6, 2013 · 0 comments

In a recent blog post Scott Cleland endorses the Administration’s stance that the DMCA should be reformed to accommodate, as he puts it, “pro-competitive exceptions that consumers who have fully paid for the phone and fulfilled their legal and contractual obligations, of course should be able to use it with other carriers.” As he deftly explains,

In a nutshell, if one has honored one’s legal obligations to others, one should be free to unlock their phone/property because they indeed own the lock and the key. However if one has not honored one’s full-payment and legal obligations to others, one may have the phone in one’s possession, but one does not legally own the key to unlocking all the commercial value in the mobile device. Most everyone understands legally and morally that there is a huge difference between legally acquiring the key to unlock something of value and breaking into property without permission. The core cleave of this cellphone issue is just that simple.

I couldn’t have put it better myself. There is a key distinction to be drawn between two very different conceptions of “cellphone unlocking.”

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