The First Amendment as Sword

by publius

One silver lining of not having Internet access for three weeks is that I had more time to read. The best book I read was Lessig’s Free Culture, which shows -- in an accessible and compelling way -- why our copyright policies are so absurd.

Consider this blog for instance. Copyrights automatically apply to us the owners — we don’t have to do anything; we just have them. Our blog would also be considered a “joint work.” Accordingly, Obsidian Wings will remain copyrighted throughout the life of the last living author, plus 70 years. So assuming one of us lasts another 50 years or so, Obsidian Wings will enter the public domain around 2138. It’s absurd.

Anyway, Lessig (who has a new book coming out called Remix) had an interesting column in the WSJ this weekend on the continuing absurdity of our intellectual property laws. Specifically, he focused upon people’s growing ability to “remix” audio and video into new creative formats using modern technology (e.g., Girl Talk; amateur videos of children dancing to copyrighted background songs).

The upshot is that remixing is a potential source of tremendous creativity and even economic activity. We have a legion of amateur tech-savvy artists, armed with Macs and YouTube, ready to be unleashed. The problem, though, is that intellectual property law casts a shadow upon the whole thing — and potentially imposes severe penalties simply because of the Internet’s unique distribution characteristics (e.g., each page view/download is a distinct “copy”).

None of this is terribly new, but this passage in particular caught my eye:

If copyright regulation were limited to large film studios and record companies, its complexity and inefficiency would be unfortunate, though not terribly significant. But when copyright law purports to regulate everyone with a computer, there is a special obligation to make sure this regulation is clear. It is not clear now. Tax-code complexity regulating income is bad enough; tax-code complexity regulating speech is a First Amendment nightmare.

It makes me wonder whether copyright reformists should start focusing more attention on using the First Amendment as a sword to strike down excessively burdensome copyright regulations. Like Lessig himself, I’m skeptical that legislatures are ever going to act. The Democrats are pretty awful on this stuff. But the bigger problem is the lack of a powerful monied interest to provide the Madisonian cross-vector so to speak. Amateur remixers — and IP reformers more generally — simply lack the economic and lobbying muscle to make things happen on Capitol Hill.

For that reason, maybe it’s time to hit the courts as a long-term strategy — maybe begin with the most absurd regulation on the books. I'm not a fan of evading legislatures, but I think there's a legitimate constitutional argument here. At some point, it seems that copyright regulation simply goes too far in limiting new creative expression — at some point, the balancing test should tip the other way. Particularly in light of the unique and novel aspects that the Internet brings to these expressions.

In the weeks ahead, I’m going to be reading up more on the intersection of copyright and First Amendment doctrine. I understand of course that copyright protections are generally understood as specific carve-outs to broader First Amendment speech protections. And I also assume there's a fairly robust literature on this. If anyone has any thoughts or suggested reading, please share in the comments. But it’s something I will return to in the near future.

Comments

[UberMitch]

Copyright law is fucked up and congress is not going to do anything about it anytime soon. My snap reaction, without any depth of thought whatsoever (I love blog comments) is very skeptical towards first amendment challenges to copyright laws. This is because of the Copyright Clause itself: "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." U.S. Const. art I, sec. 8, cl. 8. Now granted, you could argue that, by being later in time, the first amendment restricted the copyright clause. But I don't see any judge buying that. The framers unambiguously gave the congress the power to regulate copyrights.

[publius]

agreed - the question is whether there are any set of circumstances in which copyright legislation violates the first amendment. if so, then you walk backwards and figure out where to draw that line.

for instance, "communists can't enjoy copyright protections" would presumably be a regulation too far

[Adam]

It's a nice thought, publius, but the "First Amendment exception" is frankly just far to entrenched in the caselaw to be budged anytime soon.

One place where there might be a little "give" is in the "antitrust" argument (which is not really an antitrust argument, but that's what it's been called) that some courts have been using to strike down companies that try to use the DMCA in combination with physical constraints to exclude competitors.

(Lexmark is a good place to start if you're interested in that doctrine -- the case where Lexmark was trying to stop people from refilling their printer cartridges by putting a cursory firmware lock on them and suing anybody who tried to "reverse engineer" their software.)

However, to be honest, I'm not sure that we've even hit the high-water-mark of IP regulation yet. Aside from the "antitrust" cases and the recent licensing case in WA, in most areas IP doctrine is still moving in the wrong direction.

And the legislative front is really no more promising -- even if the copyright terms got scaled back now, you're talking about potentially eliminating a lot of vested interests. ObWi and other currently-copyrighted works will be under copyright for a very long time -- and any attempt to reduce that term now would be met with a flurry of 5th Amendment suits. The best you can hope for there, really, is a reduction of the term of future copyrights, and frankly that doesn't help much.

[Turbulence]

Sure, the framers did indeed give Congress the power to regulate copyrights, but that power is justified only to the extent that doing so actually promote science and the useful arts. So it seems like one might argue that many aspects of modern copyright retard said progress. On the other hand, the Supreme Court heard some arguments like that in Eldred and decided 7-2 against sane copyright, so maybe this line of inquiry is a non-starter.

[Adam]

the question is whether there are any set of circumstances in which copyright legislation violates the first amendment.

But the answer to this question is a resounding "no." It's so resoundingly "no" that I can't even remember the cases in question because I've literally never seen the courts even hint in the other direction with the exception of one fair use case.

I think you could maybe make the argument that the contours of the markets and of distribution systems have changed since 1976, but the courts are not going to suddenly decide to strike down a 30+ year old law of that scope now. At the very most they might punt to Congress but... good luck with that.

[Warren Terra]

I have mixed feelings about the whole area, because I believe very strongly in respecting intellectual property, and I understand that restrictions on data sharing and exploitation can also provide the protections necessary to justify private investment in developing the data, or for that matter in supporting an artistic endeavor. But then you see things like the AP claiming there is no fair use of five-word phrases (which given the AP's output would basically declare them the owners of the English language), and it's clear that the tendency towards restriction has just gone too far. Mind you, individuals can do their part to push back, even in small ways: this blog could be placed under Creative Commons or Copyleft, and the comment box could include an appropriate disclaimer - though how that'd get to apply to the archive I have no idea.

[publius]

question adam -- what are the contours of revoking "vested" copyrights. i mean, can't congress just say tomorrow "all current copyrights are amended to X."

if congress's power is plenary as to the First Amendment, why wouldn't it be plenary in the other direction?

[Andrew]

Dean Baker has a podcast on Intellectual Property: Patents, Copyrights and Other Protectionist Barriers which I watched a year or two ago. I found it extremely informative.

The rest of the seminars are worth watching, as well, if you have the time and inclination.

[publius]

as for the whole entrenched excpetion, i'm sure you're right. however, one thing that reading up on the conservative legal movement taught me is to think big.

the tendency is to see the law "as is," in a positive sense. they are much better at seeing what "should" be and then taking steps to make that happen. what begins as radical ends as common sense for them (e.g, Lopez/Morrison)

[Turbulence]

I believe very strongly in respecting intellectual property

Why? Do you think that intellectual property is some sort of natural right? Do you think that people should be entitled to control how their ideas are used in the same way that they're entitled to control how their image is used?

I've always found IP law to be vaguely socialist. Consider for example patent law: if I have an idea, I must check with the central state registry for ideas to see if anyone else had it first or had some other idea that is remotely related to it first and if so, I am forbidden from using my idea to earn money (unless I can persuade the incumbent to give me a license, which they likely have no interest in doing). Does anyone else find that situation absurd?

[publius]

WT - I've been meaning to start that process here (the Creative Commons that is).

[Adam]

if congress's power is plenary as to the First Amendment, why wouldn't it be plenary in the other direction?

How is Congress' First Amendment power plenary? It seems to me that 1A is used to restrict Congressional action; it's not much of a positive basis for making law.

At best, there would have to be a balancing of two absolute Constitutional guarantees -- the near-absolute prohibition on infringement of 1st A. rights and the also-near-absolute infringement on unlawful takings under the 5th A. Copyrights are vested property, so Congress can't really "revoke" them without due process.

In actuality, it's not much of a balancing at all -- an infringer invoking a 1st Amendment defense is asking for a grant of protection of a non-vested interest against a vested right -- based on the voluntary act of the infringer. Like trespassing on land and then claiming title based on constructive use -- doesn't get you very far.

[Adam]

the tendency is to see the law "as is," in a positive sense. they are much better at seeing what "should" be and then taking steps to make that happen. what begins as radical ends as common sense for them (e.g, Lopez/Morrison)

It's an argument, but another lesson to draw from Lopez/Morrison in particular is that you have to find the cracks in existing doctrine before you can exploit them. It helps to have an agenda in mind, but those cases didn't attack existing Commerce Clause doctrine head on, because that would be foolish -- they finessed their way in through a back door.

Likewise, I don't think the First Amendment bulwark looks like an attractive target -- I agree with the argument, but that does me about as much good as Rehnquist agreeing with Lochner. There has to be a line of attack, not just an ideal or a goal -- the question is, what's the strategy? The antitrust/copyright misuse line of cases that I brought up above is one of the few promising lines of attack that I see. I really don't think the First Amendment argument gets us to where we want to be.

[publius]

sorry - i wasn't clear. i meant that congress can do whatever it wants with copyright (it has plenary power) without regard for the 1st amendment.

so, it seems like there's a plausible case that it goes the other way too. (or at least should). also, i know takings is different from a doctrinal perspective, but i wonder if congress could exercise some sort of eminent domain and pay copyright holders back

[ThatLeftTurnInABQ]

If we are talking about the impact of IP law on digital media specifically, isn't the scope of the controlling legal authority really global rather than bound to the US? Even if you are concerned only with English language content, what is to stop somebody from going offshore to get around the relevent US law (on the supply side that is, the demand side is a different problem) and what can authorities in the US do to stop this, short of installing something like the Great Firewall of China, or using RIAA style tactics to crack down on the demand side?

Are we looking in the wrong place here, or does the US have so much weight that whatever our legal system dictates is automatically the global standard?

I ask these questions from a standpoint of serious ignorance on this score - law isn't one of my areas of amateur expertise - so please tell me how I'm failling to understand the problem.

[publius]

this is just uninformed out-of-my-arse speculating. i am going to check out the law review literature

[Turbulence]

Even if you are concerned only with English language content, what is to stop somebody from going offshore to get around the relevent US law (on the supply side that is, the demand side is a different problem) and what can authorities in the US do to stop this, short of installing something like the Great Firewall of China, or using RIAA style tactics to crack down on the demand side?

Using something like the great firewall probably wouldn't work. You have to put your great firewall somewhere, and while you can probably get American ISPs to act as your copyright cop, you probably can't get similar enforcement in any country whose legal regime allows Americans to download copyrighted material easily. Americans can always employ encryption while requesting and receiving copyright materials and no firewall will be able to break commonly deployed encryption schemes. Banning encrypted traffic is tantamount to economic suicide and is likely practically impossible as well. A bigger problem is that copyright law has been internationalized, at least in theory if not always in practice. The Berne convention is real, and one should probably avoid pissing off WIPO.

Are we looking in the wrong place here, or does the US have so much weight that whatever our legal system dictates is automatically the global standard?

The relationship is complex. Copyright maximalization has been policy laundered to the point that international agreements make it difficult for us to significant reduce our laws in this area even though we happen to have a very strict copyright regime.

[Adam]

Are we looking in the wrong place here, or does the US have so much weight that whatever our legal system dictates is automatically the global standard?

No, we're pretty much bound by TRIPS and the Berne Convention. There are some areas of dispute (naming of wines based on region, unsurprisingly -- France hates that) but not a whole lot.

That said, there is some room for maneuver in the derivative-works arena, maybe some in fair use, and some collateral lines of attack too, e.g. in antitrust. The main problem to my mind is things like the DMCA, where we're really pushing the envelope.

It is not out of the realm of possibility to "expand" the realm of copyright protection to include remixers, and then defend them as our own copyright owners. But it requires redrawing the lines of the debate and also walking back a lot of the crap we're currently pushing. But if we could roll back the tide in the US we can do it elsewhere, too.

A significant threshold question is whether or not we can define/create a "market" for remix-type material that demarcates a line of defense, so to speak.

[Turbulence]

i wonder if congress could exercise some sort of eminent domain and pay copyright holders back

That sounds like a disaster. Since all utterances are copyright, there is nearly an infinite number of "things" for which Congress might have to reimburse. Almost all of those things have no market on which to trade and no sane way to value them. How do you determine the value of my college term papers? Or that novel my neighbor wrote but never could find a publisher for? Let's say I decide to game the system by whipping up a little AI program that strings together random words into chunks of vaguely coherent text: is the government going to reimburse me for a trillion nonsensical "works" that I claim to have produced? I can always claim that they make as much sense as the word salad that Palin regularly emits...

This actually seems like a more radical suggestion than more direct attempts at copyright law improvement.

[Warren Terra]

Turb, in my paean to IP I was thinking more of musicians and artists who get ripped off, but in response to your hypothetical, it's very important that an inventor have a way to protect their ability to profit from their invention, which they can't do if anyone can steal it: the two choices are thus a crippling level of secrecy accompanied by risk of theft, or disclosure with protection. Yes, it is true that if you independently come up with an idea and someone got there first you don't benefit, but if you are interested in a technology you can know to some degree what's already done, to go in new directions or for use as a starting point, and you know whom to contact in order to license technology. There's certainly a lot of abuse, but I think the theory is sound - more so than what existed before patent registration and protection, a situation which greatly limited progress.

[Adam]

i wonder if congress could exercise some sort of eminent domain and pay copyright holders back

The way to do this is to require regular registration with the Copyright Office in order to retain the right to obtain remedies -- just like the statute of limitations for real property. There's an orphan works bill on the Hill right now that works along these lines.

This would just be a mechanical change but would effectively reduce the copyright term for works that no one was going to use anyway if they don't renew them. Solves the problem Turb points out.

Not much you can do about the copyrights that were extended most recently, but those are actually expiring relatively soon anyway -- hence the need to extend them.

[Tony P.]

Publius,

Back in the glory days of usenet, I had an interesting conversation with David Friedman, economist son of economist Milton. I got his attention with this subject line:

Did anybody make a living as a writer before Gutenberg?

David's first reply was: "Aretino. But he was mostly paid not to write." Deliciously evocative of a great Marx Brothers bit. The substance of my question was (and is) this:

Before the printing press, the 1000th copy of a text used to cost the same as the 1st copy. There was no market mechanism to enforce copyright, and thus no point in having laws about it.

The printing press changed that. By dint of concentrating capital (setting up a press), you could cheaply manufacture physical objects called books. The economies of scale became such that if you wanted to acquire the "intellectual property" contained in, say, Dialogue Concerning Two New Sciences, the cheapest way to do so was to buy a copy from Galileo's publisher -- i.e. the capitalist who made the investment to build a press, set up the plates, and so on. Keeping his presses busy was how the capitalist made a profit. He became willing to pay writers for texts that would keep the presses as busy as possible. "Intellectual property" was raw material, like paper and ink.

Copyright served, in practice, to protect the publisher's capital investment. If some capitalist in the next county sets up his own press to manufacture copies of the same book you are manufacturing, that cuts into your business. So you get the King to forbid it. It's physically possible for the King to do so -- by sending his Sheriff to smash up the other guy's capital plant if need be. The convenient thing about concentrated capital is that it's all together in one place, handy for smashing.

Of course, you can also get the King to enforce your contract with your author: it's the author's "intellectual property", but you pay him for exclusive use of it, typically. The author agrees to that sort of contract because even writers have to eat. (Writers face an inherent tension between wanting to promulgate their ideas, and charging money for them.) But the basic thing that makes copyright simultaneously worthwhile and possible is the economy of scale in manufacturing.

With digital technology and broadband communication, we are almost exactly back to pre-Gutenberg economics: the 1000th (or 1 millionth) copy of a disembodied piece of intellectual property once again costs about the same as the 1st copy -- and this time the cost is nearly zero, to boot.

So, is it possible that we will shortly be back to a future where nobody can make a living as a writer -- not least because nobody can make a living as a publisher either?

--TP

[publius]

TP - you shoudl read some Lessig. he notes that the sort of practical considerations you reference should actually be thought of as a type of copyright "regulation." or at least he shows that you ahve to factor that stuff in thnking about it (and of course it can change).

and with that, to bed

by the way, girl talk is frickin awesome

[otmar]

One interesting tidbit:

Right now, there are international negotiations regarding copyright enforcement. See e.g. http://www.theregister.co.uk/2008/05/27/acta_leak/

This is mostly behind closed doors and over the last weeks there have been international protests to get that out in the open.

[Andrew]

If you want a brief outline of the Dean baker podcast I linked to above, the powerpoint presentation is there, as well.

He discuses some of the issues being bandied about here, although Baker's primary focus is Pharma.

I found most interesting the enormous economic inefficiency of the IP process. Capitialists often bemoan the deadweight loss of tariffs and the like, but between our native courts and international enforcement negotiations, IP laws wind up costing taxpayers an enormous amount of money.

He also posits that Section 8, Clause 8 means that patents and copyrights are a mechanism the government uses to advance a public goal – they are not part of the market; they are not a right.

[Turbulence]

it's very important that an inventor have a way to protect their ability to profit from their invention, which they can't do if anyone can steal it

I understand that many people believe this as a matter of faith, but with respect, I don't think you can justify this belief.

This belief seems to depend on a very particular theory of how inventions are made and while that theory was popular when the patent system was conceived, it seems ridiculous now. It is very difficult to make commercially successful inventions in many people without many many people having access to the inventory's "secret" knowledge. Eventually, those people are all going to leave and go work for different companies and that knowledge will travel with them. Beyond that, the notion of a single inventor toiling late into the night with his lone brilliance has proven to be ridiculous. People come up with the same ideas all the time; the problem isn't that new and interesting ideas are rare, but that such ideas are often highly dependent on the context of particular problems. Also, separating the wheat from the chaff often proves difficult and the patent system makes this problem harder: you don't need commercial success or a working implementation in order to get a patent.

the two choices are thus a crippling level of secrecy accompanied by risk of theft, or disclosure with protection.

I work in a technical field. I've read a few dozen patents in my field. They're garbage. Every single one. I have never learned anything that I either didn't already know or that wasn't trivially obvious from reading one. What is the point of building a massive and onerous legal system to force disclosure of obvious ideas? Was there some shortage of obvious idea?

More to the point, I've seen some really good ideas in my career and I've never seen any of them get patented.

Yes, it is true that if you independently come up with an idea and someone got there first you don't benefit, but if you are interested in a technology you can know to some degree what's already done, to go in new directions or for use as a starting point, and you know whom to contact in order to license technology.

It is often easier for incumbents to refuse to license to new entrants. After all, why should they give you a license at any price when they can simply eliminate competition? Of course the patent system is rife with patent trolls and other pathologies as well.

Note also that small actors cannot effectively sue giant patent holders anyway. If I invent and patent some awesome technology and IBM starts using it, I can't sue them. IBM will demand a license for basically nothing. If I try to sell products using my invention, IBM will sue me for patent infringment. They will win such suits since they have a number of really really basic patents to essentially cover all modern devices. For example, they have a patent on the process of displaying text on a bitmap display. That covers every computer, laptop, microwave oven, calculator, and alarm clock. Small companies can't go up against IBM (or peer organizations) and survive. And that's not a bizarre unexpected result of the system: it is exactly what you expect to happen when you monetize ideas with no verification of quality or utility while at the same time making what little verification you do sufficiently expensive that only larger entities can pay.

There's certainly a lot of abuse, but I think the theory is sound - more so than what existed before patent registration and protection, a situation which greatly limited progress.

I don't see any basis for making this historical comparison. Do you have any evidence that might justify it?

[Donald Clarke]

For an informed non-lawyer perspective on copyright, I suggest checking out Eric Flint. He is a science fiction writer who is deeply involved in Baen Books electronic publishing. They do DRM free electronic copies cheaply (or free) and are the most sucessful electronic publisher I know. He has a column in Baen's Universe that goes into these issues at length from the writer's and publisher's perspectives.

Their basic concept is that people do not. in general, like to steal. If a publisher makes an electronic version readiliy available (no DRM) and charges a reasonable (paperback or less) price for it, people will buy it, rather than try to get a pirated copy for less.

As Flint puts it...

Here are the facts. They are simple ones, because Jim Baen made them so:

1) All Baen titles that are produced in electronic format are made available to the public through Baen's Webscription service, cheaply and with no encryption. That policy stands in direct opposition to that of all other commercial publishers, who insist not only on encrypting their e-books but usually making them ridiculously expensive as well.

2) That policy has been maintained now for seven years, uninterrupted, since Webscriptions was launched in September of 1999. Month after month, year after year, Baen has sold e-books through Webscriptions using this simple formula: "We'll sell e-books cheaply and unencrypted."

3) Baen earns more income as a publisher and pays its authors more in the way of royalty payments from Webscriptions than any other outlet for electronic books. Typically, a popular Baen author—I'll use myself as the example—will receive royalties from electronic sales that are well into four figures. Granted, that's still a small percentage of my income as a writer, but that's a given since the electronic market is so small. The fact remains, however, that as a percentage of my income, the royalties from electronic sales of my books are higher—considerably higher—than the overall sales of all e-books represent as a percentage of the entire book market.

4) The difference between the level and amount of these royalties and those paid by other publishers, who are still addicted to DRM, is stark. Actually, "stark" is the polite way of putting it. The more accurate way of stating this reality is that the royalties paid by other publishers in the way of e-book sales are derisively low.

I will give you two examples:

In one royalty period, from a major publisher who was not Baen Books—that was Tor Books, generally considered the most important publisher in the field—David Drake once earned $36,000 in royalties for the paper edition of a popular title, Lord of the Isles. The electronic royalties from that same book, during that same period, came to $28.

That's right. Twenty-eight dollars. Less than one-tenth of one percent of his paper royalties—where a Baen title, typically, will pay electronic royalties that are somewhere in the range of five percent or more, measured against paper royalties.

Five percent is still small, of course. As I said, that simply reflects the small size of the e-book market. But five percent reflects market reality, where one-tenth of one percent reflects nothing more than the absurdity of DRM—even on the practical level of making money for publishers and authors.

http://baens-universe.com/articles/ed2

http://baens-universe.com/articles/The_Problem_is_Legal_Scarcity__not_Illegal_Greed

http://baens-universe.com/articles/McCauley_copyright

Donald Clarke

[Doctor Science]

The best and most succinct comment on copyright managment of the day is from xkcd, of course.

[Michael Cain]

I don't have my usual resources at my disposal today; which was the Court decision that basically said anything finite counts as "limited"? IIRC, there was also a strongly-worded dissent in which one of the justices said that was just stupid, as it allowed Congress to just say every 70 or so years, that the copyrights were extended for another 70 years and would never expire.

[Turbulence]

which was the Court decision that basically said anything finite counts as "limited"?

I think you mean Eldred:

However, the major argument for the act that carried over into the case was that the Constitution specified that Congress only needed to set time limits for copyright, the length of which was left to their discretion. Thus, as long as the limit is not "forever," any limit set by Congress can be deemed constitutional.

...

Justice Breyer dissented, arguing that the CTEA amounted to a grant of perpetual copyright that undermined public interests. While the constitution grants Congress power to extend copyright terms in order to "promote the progress of science and useful arts," CTEA granted precedent to continually renew copyright terms making them virtually perpetual.

[nous]

Just taught a writing class this summer using Free Culture as the jumping-off point for the student papers. The students all loved it and they came up with the best and most diverse set of research topics that I've seen for a freshman class. Some of them got stuck in either the techno-utopian, we-want-free-downloading cheerleading or in the standard RIAA boilerplate designed to protect a business model more than to protect the artists that produce the IP that the business profits from, but the majority of them advocated balanced and moderate protection for artists, designers, and engineers coupled with some sort of mechanism to get more IP works into the public domain faster.

If 20 college freshmen can sort through this in a matter of weeks it shouldn't be that hard for the rest of us. That it is so hard for our elected officials tells us something. Media concentration is a dangerous thing.

[Sebastian]

This belief seems to depend on a very particular theory of how inventions are made and while that theory was popular when the patent system was conceived, it seems ridiculous now. It is very difficult to make commercially successful inventions in many people without many many people having access to the inventory's "secret" knowledge. Eventually, those people are all going to leave and go work for different companies and that knowledge will travel with them. Beyond that, the notion of a single inventor toiling late into the night with his lone brilliance has proven to be ridiculous.

I'm not sure I understand what you are trying to say with the 'many people' and 'knowledge that will travel with them' and 'lone brilliance' thing. Patents can be and be and often are held by corporations who employ lots of different people to invent things. And the 'knowledge that will travel with them' thing is fine so long as there is a patent because patents don't need to be protected like trade secrets. It is in the trade secret supremacy world (i.e. the non-patent world) where companies have to be overly worried about their employees leaving.

[Turbulence]

I'm not sure I understand what you are trying to say with the 'many people' and 'knowledge that will travel with them' and 'lone brilliance' thing.

Apologies, I was not particularly clear. One of the original motivations for establishing the patent system was to prevent cases like Stradavarius. It was believed that the violins he built were uniquely superior but the knowledge used to make them so died with him since he was so terrified of competitors getting the secret that he never told anyone. My point was that in the modern age, this doesn't make sense. Economically significant inventions are not going to be produced by a single master craftsman; they're going to be manufactured in large quantities. In the course of such manufacturing, many people will develop some knowledge of the secret sauce so that even when the master dies, the knowledge will not be lost. This holds true whether we have a patent system or not: large scale production (or even development) requires that many people develop some knowledge, so the risks of amazing techniques being lost due to secrecy are much lower. In other words, ideas for industrial organization that make sense in an era of master craftsmen don't necessarily translate into an industrial economy.

The comparison I was trying to make was between our current industrial economy with a patent office and how freely patentable information would cycle through in a world where we abolished the patent office.

One thing that is probably obvious but might not be clear to everyone: I think patent law is only justified to the extent that it promotes science and the useful arts. If it doesn't effectively improve the free exchange of useful but previously unknown knowledge, then it can't be justified.

[Adam]

Turb, as I recall you're in the IT field, where it's true that patents don't seem to work all that well -- and there's empirical evidence backing that up. I think a more nuanced version of your criticism would say that the patent system is simply not one-size-fits-all -- not on the basis of technological complexity, but on economic conditions like nonrival goods.

Biotech, for example, seems very conducive to patents and there's a strong argument to be made that small biotech companies would get railroaded without those protections. (There may be a broader question of how to supply new cures to developing countries while protecting developer incentives, but at the very least it's not a straightforward question.)

I think that the basic criticism is best phrased as: we already have differing incentive structures for different flavors of IP (copyright for creative works, trademark for marketing, patent for inventions), and what's really creating problems is trying to shoehorn new, entirely different goods with different economic constraints (remixes, digital media, software) into old statutory incentive structures that weren't meant to accommodate them.

What's the objection to creating a new "flavor" of IP? Right now it seems like we're just breaking the old structures by trying to make them do things that they're not suited for. It doesn't mean they're useless; rather, they may be quite well-tailored, just for different applications. We don't have just one type of IP, and IP isn't treated like tangible property; why should we assume that copyright/patent/trademark can be retroactively applied to software, especially when the empirical evidence seems to now clearly indicate that it just doesn't work?

However, just as I don't think that the old statutory forms should be expanded to cover things that aren't amenable to the same incentives, I strongly protest blanket characterizations going the opposite direction -- i.e., that patents simply don't make sense anymore, etc. As Sebastian aptly points out, that's nonsense.

What would be more useful -- and which I don't think anyone has really managed adequately, though Lessig and others have given it a fair shot -- is to find a narrative for the "new" types of IP that can logically distinguish them. If we could do that, I think we could start with the task of carve-outs as publius suggests. Until then, we're fighting against institutional resistance that will make the job difficult if not impossible.

The publishers that pushed the Statute of Anne had to define a market to be protected before copyright could be created to protect it, and I think our task right now is similar.

"Remixing" is not a very useful narrative because it doesn't really suggest a viable market; iTunes is a good narrative because it at least suggests a way that markets can be harmonized with new media (DRM notwithstanding -- i.e., it's a far sight better than what the RIAA would prefer); open source is a very good narrative because it demonstrates unique economies of scale that simply don't jive with the IP regime. I think those are the places to start.

[publius]

adam - ever heard of a case called Golan out of the 10th Circuit. Apparently, it involved "restored works" and whether they can legally be removed from the public domain. (REstored works are, fwiu, foreign works that entered public domain b/c of formality problems but got re-copyrighted under NAFTA).

Anyway, in 2007, the 10th Circuit remanded, instrucing the district court to analyze First Amendment implications.

An opening, no?

[Adam]

publius -- Actually, I was just discussing that case in my Copyright class last week. The professor's take was (as I recall) that there's not much chance -- or that if there is, it'd be limited to the works that got taken back out of the PD. For obvious reasons that doesn't happen a whole lot -- in fact it's kind of astonishing that they got away with it at all. So it would be a pretty limited holding even if it happens.

The works covered are foreign works that entered the public domain because they weren't re-registered for their renewal terms -- as I recall the 1992 Act made all renewals automatic but only for domestic (U.S.) works; so some foreign works had entered the public domain and they went back and fixed the mistake. Didn't think it was NAFTA (usually is some sort of TRIPS or Berne Convention thing) but it was definitely pursuant to a treaty. And it does implicate our Berne obligations since we're supposed to give foreign works at least as much protection as domestic works.

At any rate, I don't see much of an opening -- our post-Eldred do-over case for this line of argument was Brewster v. Kahle, which tried to make the orphan works (works that weren't claimed) argument, but the Court struck it down basically by pointing to Eldred. Even if the foreign works screwup is scrutinized (and it's pretty ridiculous, no doubt) my intuition is that any holding would be limited to those works.

Bottom line is that Eldred's "parity" doctrine (that old works should have their terms extended along with new works) is one of the more odious parts of that already odious case, but it's simply not going to get overturned, and it functions as a trump card against those sorts of arguments.

[Adam]

Also, publius, if you're interested in the current-events/lay-of-the-land sort of thing, I think the place to focus your attention would be on the "orphan works" bill that recently got defeated. We lost this last round (Congress didn't have time with the recent crisis), but it comes up every term and I think it's got increasingly good chances of passing.

The bill basically does what I was discussing upthread -- works that aren't re-registered with the Copyright Office would pass into the public domain more quickly. This would be a huge deal if it got done, and it actually has a chance, since by its nature it targets material that (a) should be in the PD since no one's actively protecting it and (b) hasn't been monetized and thus doesn't seriously threaten the content industries.

Changing that default rule would go a long way towards fixing the copyright regime. There's much more to do across the board, obviously (useful article doctrine, design patents, venue problems for patents, etc.), but that would be a realistic and productive place to start.

[publius]

i know Public Knowledge has been writing a lot about orphan stuff. That -- along with white spaces and SMS stuff (did you see Vz's rate hike) -- are some of my medium-term projects.

i have a few practical questions. is there a typical date range for the orphans (e.g, 1930-50). And if the answer is yes, how would this practically affect (i.e., when would they enter PD). My understanding is that many works have been renewed automatically under the 92 act. plus, post-78 works aren't currently subject to renewals

anyway, i'm jsut trying to get a handle of the practical import -- i.e., how would this really work, when would it work, etc.

i'll pay you a virtual beer and some publius points

[Adam]

i know Public Knowledge has been writing a lot about orphan stuff.

Yeah, that's probably the place to go for info.

white spaces and SMS stuff (did you see Vz's rate hike)

White spaces and spectrum issues are where I think the action is.

I can't bring myself to even think about SMS issues. I just don't get why they haven't priced themselves out of the market yet -- I understand that there are weird regulatory and lock-in issues but it's just ridiculous how overpriced SMS is.

It's like an existential mockery of all rational principles of demand elasticity. I mean, if you look at the per-byte costs it's in a completely different universe from everything else even though it's no different from any other data service.

i have a few practical questions. is there a typical date range for the orphans (e.g, 1930-50). And if the answer is yes, how would this practically affect (i.e., when would they enter PD).

I was wrong, the bill doesn't change the renewal term, though it has a similar effect (maybe a better effect) -- if you conduct a good-faith search for the copyright owner you're immunized against someone coming out of the woodwork and suing you.

Fixing the renewal terms would be good, too, but frankly it's probably less likely to happen. Otherwise you're right about the renewal terms and such.

But the bottom line is that while we can't really do much about the Disney-copyright problem (i.e. the ollllld copyrights that keep getting renewed), there is a lot of room for maneuver on mechanical issues like formalities and enforcement, because (a) that doesn't threaten entrenched interests as much and because (b) those are enforcement/administrative grounds (Copyright Office / DOJ) that don't directly implicate the vested-rights problem.

[Adam]

Before bed, I had one last thought... I understand the desire to confront the content industry head-on on First Amendment issues and such, and also that anything else feels like a concession, but we have to remember that their dominance depends directly on that revenue base and the fact that there are no good alternatives.

While carving out small exceptions like the orphan works bill might not hurt the media interests directly (i.e., Mickey Mouse will remain copyrighted, etc.), new content is inherently desirable because it competes with their material -- e.g., some number of people will listen to Girl Talk rather than a Top 40 band if it's available and legal.

I think the real potency of the "free culture" position isn't in cannibalizing Big Media, though a lot of people characterize it that way ("information should be free, man!"). The whole fight-the-man, pro-piracy angle is romanticized nonsense, and it's a mistake. It's very noble and all, but it's a losing argument and it's not productive. Remixed, user-generated, independent, open-source content is valuable not because it appropriates protected content but because it competes with protected content for a finite amount of consumer attention.

The open-source movement has been an abysmal failure where it's tried to take Microsoft on directly by whining about their market dominance and how much Windows sucks, it's a closed platform, it's hard to develop on, blah blah. Linux isn't a big threat. Open source has been an incredible success where it just shut up and competed with Microsoft on the margins (Apache, Linux on servers, etc.) That's where it's hurt Microsoft's pocketbook, and that's what broke Microsoft's chokehold on the industry.

[publius]

adam - good stuff as usual. but isn't something like girl talk in a different position from say linux on servers? the latter isn't as derivative and doesn't rely so much on the undelrying work.

for instance, how can girl talk compete on the margins if its source material gets cut off

though maybe you're just saying hte narrative focus needs to be different among the Lessig Legions.

[Adam]

for instance, how can girl talk compete on the margins if its source material gets cut off

Well, it's not a perfect example b/c, Girl Talk really does "pirate," so the orphan works stuff doesn't necessarily help him, but he could have source material if we changed the derivative works rules, for example.

Or, if the "orphan works" rules were changed, then in theory there would be a lot more sample material out there for DJs just like there was in the 1980s and early 90s -- a lot of the good DJs back then would have been sued out of existence today if they'd tried to play samples off old vinyl records they found at garage sales.

The point I'm making is just that Girl Talk is really good and someone like him is going to come along and provide good music as long as there is *some* source material to work with and he's not constantly under the shadow of a lawsuit. (Another example might be DJ Danger Mouse.) And if someone like Girl Talk exists, that's a competitive alternative for crappy Top 40 Music.

[nous]

I think that any useful improvement on current copyright law *has* to adjust the renewal terms in ways that make sense for different media (not that I expect that any of these changes will be made). A number of my students took up a pro-ROM-hacking stance, pointing out that the vast majority of video games both do not become profitable franchises and are implemented on platforms with rapid obsolescence.

Side note...this creates a huge challenge for archivists and academic researchers who work with new media. The platform issues are huge. Emulations aren't perfect solutions, but they help to keep important new media works from disappearing along with people's Commodore 64s. The only alternative is to keep and maintain dozens of outdated systems.

Shorter renewal periods and easy renewal makes more sense for new media than a copyright system modeled on brick-and-mortar text publishing.

[Andrew]

With globalization in full swing, I'm not sure how much progress can be made for internet material can be made on the basis of the 1st Amendment:

"Google lost two copyright cases in Germany on Monday but the search company reportedly plans to appeal.

A German court ruled that Google violated the copyright of Michael Bernhard by displaying one of his photographs as a preview thumbnail, according to the Bloomberg news service.

Separately, a German court ruled in favor of Thomas Horn, who owns the copyright to some German comics that appeared in Google's search results.

In Bernhard's case, the court ruled "that it doesn't matter that thumbnails are much smaller than the original pictures and are displayed in a lower resolution," Bloomberg reported.

Google told the blog paidContent.org: "We believe that services like Google Image Search are entirely legal. Today's decision is very bad for Internet users in Germany.""

[AndyK]

>>Accordingly, Obsidian Wings will remain copyrighted throughout the life of the last living author, plus 70 years. So assuming one of us lasts another 50 years or so, Obsidian Wings will enter the public domain around 2138. It’s absurd.

Hah! Typical liberal-blog exaggeration!

Unless I've just slept through a decade, that should be 2128.

Phew. That's a relief.