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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The Washington Post has a story today on the slow pace of progress in airport security technology. We would see faster development of better, more consumer-friendly security technology if the airlines were entirely responsible for it. Here’s a glimpse of what I said about this in an written debate hosted by Reason magazine a few years ago:
Airlines should be given clear responsibility for their own security and clear liability should they fail. Under these conditions, airlines would provide security, along with the best mix of privacy, savings, and convenience, in the best possible way. Because of federal involvement, air transportation is likely less safe today than it would be if responsibility were unequivocally with the airlines.
I’ve covered this before as part of my ongoing media DE-consolidiation series, which aims to show how media markets are far more dynamic that critics care to admit, but Time Warner has finally made the split off of its AOL division official. Again, to appreciate the significance of this shakeup, one must recall that when this marriage was struck back in 2000, media critics where in full-blown Chicken Little mode over the deal. Critics claimed the AOL-Time Warner deal represented “Big Brother,” “the end of the independent press,” and a harbinger of a “new totalitarianism.”
It was all complete nonsense, of course, but it was all too typical of the sort of irrational emotionalism that characterizes debates over media policy in this country. I’ve been doing my best to deflate some of that hot air with my ongoing “Media Metrics” series of essays, which illustrate exactly how much better off citizens are today than ever before in terms of the media options at their disposal. [1, 2, 3, 4, 5] And this ongoing “Media DE-Consolidation series” has shown that there are just as many major media marketplace crack-ups as their are build-ups. It’s a very dynamic marketplace regardless of what the critics say.
Whatever one thinks of the merits of the Microsoft-Yahoo merger and Google’s immediate and vociferous opposition to it, Ed Felten is 100% right when he says of Google’s actions:
“Complaining has downsides for Google too — a government skeptical of acquisitions by dominant high-tech companies could easily boomerang and cause Google its own antitrust headaches down the road.”
That’s a drum we beat a lot around here at the TLF, but no one in the corporate world seems to listen. On the days their own butts are on the line, they tell us the antitrust authorities are villainous scum that must be defeated at all cost! The next day–when their competitors are in the crosshairs–the antitrust officials are regarded as benevolent knights possessing Solomonic wisdom, and we’re told that we should trust them to guide us to an economic promised land called “perfect competition.”
It’s all a big political game that does nothing more that make a lot of lawyers and consultants very rich.
Though not yet complete, the 110th session of Congress has already witnessed an explosion of legislative proposals dealing with online child safety, or which seek to regulate media content or Internet communications in some fashion. More than 30 of these legislative proposals are cataloged in a new joint legislative index that was released today by the Center for Democracy and Technology (CDT) and the Progress & Freedom Foundation (PFF).
John Morris, Senior Counsel at CDT, and I compiled this index to help ourselves and others keep track of the growing volume of legislative activity on these fronts. Each bill is indexed according to title and topic, the chamber in which it was introduced, and the agency or organization that the measure affects or empowers. The entry for each bill includes: a concise summary of the legislative proposal, a link to the legislation, and links to relevant analysis by CDT or PFF. The compendium will be placed on both the CDT and PFF websites and updated as needed. The index will hopefully make it easier for the public and the press to analyze ongoing legislative developments pertaining to online child safety or free speech.
Although an exact count of related legislative activity in previous sessions of Congress is not available, there is little doubt that lawmakers have been more active on this front during this session of Congress than ever before. That, in and of itself, is probably cause for some concern since it means the Internet, media operators, and other speakers run the risk of being subjected to greater regulatory burdens.
In addition our joint index, John and I have also separately released papers today outlining what we each felt were some of the most problematic bills introduced so far in this session. John’s report is here, my paper is here. After the fold, I will summarize some of the bills I am concerned about.
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Apropos (or not) of Tim’s post, take a look at this bill.
Copyright law is a political football. Rent-seekers on both sides would pick it up and run with it.
Really, most of my posts about fair use are excuses to post funny videos:
http://www.youtube.com/v/K2triiYXSY8&rel=1&border=1
Is this fair use? My feeling is that a straight-forward reading of the four factors would probably suggest a “no” answer, but a sympathetic judge might find it to be sufficiently creative as to be transformative. Certainly, this clip doesn’t reduce demand for the work it’s based on.
I found this article by Ernesto over at TorrentFreak (“Decluttering The Tubes, Solutions to the BitTorrent “Problem”?“) to be very interesting and open-minded, but his readers are really taking him to task for it. In the piece, Ernesto outlines the upsides and downsides of 6 possible ISP responses to the “BitTorrent Problem,” which has been in the news a great deal lately. (These models were apparently suggested to Ernesto by Art Reisman, who is chief technical officer at APConnections):
1) Ask for voluntary cooperation.
2) Keep connections within the providers network.
3) Usage based quotas.
4) Limit the total connections allowed at one time per user.
5) Build out networks to handle the increased load and pass the cost onto the consumer.
6) Cancel the service of users who abuse their privileges. There have been reports of providers doing this already.
[Again, see full article for explanation of strengths and weaknesses of each.]
I think many of these solutions sound quite constructive and could possibly be used in some combination to alleviate network congestions problems. But the reader response over at TorrentFreak, which obvious skews towards the heavy BitTorrent user, is perhaps all too predictable: Just give us more capacity!
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Quote of the Day:
Charles Francis Adams, Jr., then director, and soon to become president of the Union Pacific… revealed to Long on March 1 why railroads were soon [in 1884] to bring all their weight behind the commission form of regulation. Indeed, he suggested the whole course of subsequent big business attitudes toward federal regulation: “If you only get an efficient Board of Commissioners, they could work out of it whatever was necessary. No matter what sort of bill you have, everything depends upon the men who, so to speak, are inside of it, and who are to make it work. In the hands of the right men, any bill would produce the desired results.”
Three years later, Congress created the Interstate Commerce Commission, which just as Adams had hoped, gradually transformed the railroad industry into a government-run cartel, reversing the rapidly-falling rates of the pre-regulation period.
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.