Don’t miss the comments to this post, wherein Joe Gratz, who unlike me is an actual lawyer, sets me straight on the Golan decision and the relationship between copyright and the First Amendment. It’s awesome having smart and knowledgeable readers.
Here’s another thing I disagreed with in this week’s podcast, from Solveig:
I think fair use often gets used very broadly as a generic term for any kind of limitation or exception to copyright law. But properly understood, the argument that fair use can evolve away and needs to change over time is really a pretty narrow one. It doesn’t mean that there shouldn’t be outer limits to copyright or that there can’t be exceptions to copyright. It just means that they don’t necessarily need to take the form of fair use. For example, there’s a hugely important outer limit that you can’t copyright ideas or facts. That’s not fair use, that’s just: copyright law doesn’t go there. Transformative use, another one. That’s not fair use, that’s transformative use.
Is that sentence right? My understanding is that the concept of “transformative use” comes from the 1994 Campbell decision, which concerned the fair use of parody. In particular, Justice Souter wrote that whether or not a work was transformative lay at the heart of determining “the purpose and character of the use,” the first and most important of the four fair use factors. For example, Judge Nelson quotes the Campbell decision in holding that displaying thumbnails in a search engine is a transformative use, and therefore fair.
Well I apologize if I’m starting to sound like a broken record by asking this question yet again, but what would be wrong with metered pricing for broadband pipes? I have asked that question several times before, most recently in my post earlier this week on wi-fi piggybacking. I pose it again today in light of another article about a handful of customers apparently having their broadband connection cut-off because of excessive downloading.
According to a front-page article in today’s Washington Post entitled “Shutting Down Big Downloaders“:
As Internet service providers try to keep up with the demand for increasingly sophisticated online entertainment such as high-definition movies, streaming TV shows and interactive games, such caps could become more common, some analysts said. It’s unclear how many customers have lost Internet service because of overuse. So far, only Comcast customers have reported being affected. Comcast said only a small fraction of its customers use enough bandwidth to warrant pulling the plug on their service.
Regular TLF readers won’t be shocked to learn that I had some strong disagreements with the opinions expressed in this week’s podcast: (Update: This quote is Bill Rosenblatt of DRM Watch)
The problem with fair use is that you need a court to decide it. The whole idea of these digital content technologies is to make things happen immediately. Whenever you are in a situation where you have to revert to the legal system to figure out if you can or cannot do something, you lose. Because the legal system is very slow-moving and clunky and inefficient mechanism compared to technology. So everyone loves the fact that digital media can be distributed instantaneously and very very cheaply. But when there are deliberations about what’s kosher and not kosher, you’re often in the realm of deciding on fair use… You’re talking about what’s been called cut and paste culture, basically, which is a very controversial topic. You know, I’m not going to venture an opinion on whether that’s good or bad. I have no opinion about that. But there’s no reason why fair use has to be the mechanism that decides that or not. My feeling, which is an unconventional opinion and probably one that no lawyer would ever share is that fair use, in order to be made to work at all, needs to be expressed in ways that technology can accommodate.
The hidden premise here, which I think should be rejected outright, is the notion that our digital devices should, by default, disallow any uses of content that haven’t been explicitly approved beforehand by the copyright holder or a court. If that’s our operating assumption, then it’s absolutely true that fair use becomes cumbersome because it’s obviously not feasible to go to court every time I want to take a 5-second snippet from an iTunes song.
Threat level reports that the Election Assistance Commission will soon be collecting comments on the latest draft of new e-voting security guidelines.
At Burning Man last week, I came across a young fellow whose backpack had been stolen – with it, his ID, car keys, and credit cards. Among his stresses was getting on a plane to return home without ID. I explained to him that the TSA doesn’t require you to show ID, they just pretend to require it, and I told him about the Great No-ID Airport Challenge. Even the local sheriff who took the report on the theft didn’t know what the TSA’s rules were.
Happily, Chris Soghoian has been bird-dogging the no-ID issue through the auspices of Senator John Warner’s office. He has finally received written confirmation from the Transportation Security Administration that people are not required to show ID at the airport. (His discussion here.)
I also explained to the stressed young man that merchants and his credit card association would absorb the liability for wrongful use of his credit cards. His remaining problem was conjuring car keys from Reno out to the Black Rock Desert. Now that’s a tough one.
Clay Shirky is one of my favorite commentators about the economic and social changes that the Internet is bringing to the media world. Last year I linked to his fantastic essays on the folly of micropayments. Last month, Shirky wrote this excellent post about what’s wrong with the Nick Carr brand of Internet old-fogeyism:
Prior to unlimited perfect copyability, media was defined by profound physical and economic constraints, and now it’s not. Fewer constraints and better matching of supply and demand are good for business, because business is not concerned with historical continuity. Fewer constraints and better matching of supply and demand are bad for current culture, because culture continually mistakes current exigencies for eternal verities. This isn’t just Carr of course. As people come to realize that freedom destroys old forms just as surely as it creates new ones, the lament for the long-lost present is going up everywhere. As another example, Sven Birkerts, the literary critic, has a post in the Boston Globe, Lost in the blogosphere, that is almost indescribably self-involved. His two complaints are that newspapers are reducing the space allotted to literary criticism, and too many people on the Web are writing about books. In other words, literary criticism, as practiced during Birkerts’ lifetime, was just right, and having either fewer or more writers are both lamentable situations. In order that the “Life was better when I was younger” flavor of his complaint not become too obvious, Birkerts frames the changing landscape not as a personal annoyance but as A Threat To Culture Itself. As he puts it “…what we have been calling “culture” at least since the Enlightenment — is the emergent maturity that constrains unbounded freedom in the interest of mattering.”
Tyler Cowen’s New York Times piece on health care reform.
Which brings me to the topic of Deer Hunting With Jesus, which in its later chapters touches on the troubles of the health care system. This book has gotten a good bit of attention in liberal circles.
I think the Golan decision is a good thing from a policy perspective, given how hard the copyright cartel has worked to keep anything from ever falling into the public domain. However, I share Joe’s puzzlement about exactly how the First Amendment is relevant:
The Tenth Circuit remanded the case to the district court. Its instructions on remand are a little curious. It asks the district court to determine whether the URAA is a content-based or a content-neutral restriction on speech. I’m not sure why, for two reasons. First, whether a law is content-based or content-neutral ought to be a pure question of law; there aren’t any facts to find, so I’m not sure why the district court gets first crack. Second, I can’t imagine a way to find that any copyright law is content-neutral. If I stand on a soapbox in the middle of town and recite a certain poem that begins “Shall I compare thee to a summer’s day?,” the law does not punish me. If I stand on the same soapbox and recite — at the same volume, in the same tone of voice — a different poem that begins “Oh baby baby, how was I supposed to know?,” the law punishes me. That’s the very definition of a content-based restriction. We’ll see what the district court does.
It seems to me that if the courts find a particular grant of copyright exceeds Congress’s power under the Progress Clause, that, in and of itself, should be sufficient to declare the law in question unconstitutional. Otherwise, why would the framers have gone to the trouble of specifying the precise limits of Congress’s powers to grant patents and copyrights?
Perhaps the legal theory here is that Congress has the power to do whatever it likes unless it runs afoul of a right enumerated in the Bill of Rights, but that, if a Congressional action falls within the scope of the Progress Clause, then it’s constitutional even if it runs afoul of the Bill of Rights. That seems bass-ackwards to me, but of course, I was equally perplexed when the Supreme Court decided that growing pot in your backyard for personal use is “interstate commerce.”
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