Recently in Copyright Category
A couple of recent book reviews by respected authors make some interesting and uncommon points in the "information wants to be free" debate that has long circulated in cyberspace. The first is from Malcolm Gladwell, who discusses Chris Anderson's new book, "Free: The Future of a Radical Price" in a July New Yorker review. The second is a more recent New York Times review by John Tierney that considers Jaron Lanier's book, "You are Not a Gadget." The book Gladwell reviews argues against constraints on information (like copyrights) while Tierney is reviewing a book that suggests free information has damaged creativity. But I think the reviews themselves are more interesting than the books due to their succinct articulation and pointed analysis of some important counterarguments to the free information mindset.
Gladwell confronts the position that the march to free information is inevitable. He notes that free is a market price like any other, and suggests that, although open access can work in some cases, it is a failure in others. He cites YouTube, which despite its popularity and cultural significance has to date failed to make a profit (it actually loses a significant amount of money). Gladwell also notes that many kinds of information have actually run in the opposite direction of free (the Wall Street Journal's paid premium content, cable television subscriptions, iTunes, etc.). Some information may want to be free, but other information -- that which benefits from a substantial investment or relies on significant infrastructure -- may be optimally available at a cost.
Tierney's discussion is equally intriguing. He provides a skeptical assessment of Lanier's argument that culture began to die when the web's "gift culture" began to take over. Lanier blames software design and network economics, but Tierney is more accepting of the idea that a sharing mentality permeates certain information fields and has undermined the marketplace. Regardless, he highlights Lanier's belief that creative people have now been relegated to scavenging from the past because future efforts cannot be supported in the free-open-culture environment.
There is much that can be reasonably disputed in both writings. But they do articulate a rationale for opposing free information ideology that goes beyond preserving outdated business models or simply equating sharing with theft.
Gladwell confronts the position that the march to free information is inevitable. He notes that free is a market price like any other, and suggests that, although open access can work in some cases, it is a failure in others. He cites YouTube, which despite its popularity and cultural significance has to date failed to make a profit (it actually loses a significant amount of money). Gladwell also notes that many kinds of information have actually run in the opposite direction of free (the Wall Street Journal's paid premium content, cable television subscriptions, iTunes, etc.). Some information may want to be free, but other information -- that which benefits from a substantial investment or relies on significant infrastructure -- may be optimally available at a cost.
Tierney's discussion is equally intriguing. He provides a skeptical assessment of Lanier's argument that culture began to die when the web's "gift culture" began to take over. Lanier blames software design and network economics, but Tierney is more accepting of the idea that a sharing mentality permeates certain information fields and has undermined the marketplace. Regardless, he highlights Lanier's belief that creative people have now been relegated to scavenging from the past because future efforts cannot be supported in the free-open-culture environment.
There is much that can be reasonably disputed in both writings. But they do articulate a rationale for opposing free information ideology that goes beyond preserving outdated business models or simply equating sharing with theft.
An interesting case is currently being heard before the U.S. Supreme Court (see NPR. WAPO) It involves Florida landowners who are upset because they believe that the state is taking away their property without compensation. The landowners posses beachfront property which has been extended by state funded sand filling to combat erosion. This creates new beach at the edge of the ocean, and the State of Florida now claims that this new beach is publicly owned. Landowners now fear that their previously private beachfront property could be opened to the public as a result (and they no longer technically own beachfront property -- it's now land with a beach view).
Why am I interested in a Florida property law case? The issue before the Supreme Court is whether an earlier Florida state court decision that the new beach is publicly owned has resulted in an unconstitutional taking of property (eminent domain). Interestingly, the question of whether a court decision -- as opposed to a legislative or executive act -- can result in a property taking is somewhat unclear, and the issue is very important for all types of property, including intellectual property.
I wrote about this issue in the context of intellectual property in an article published a few years ago and noted the dichotomy in the treatment of legislative/executive versus judicial "takings." Essentially, I concluded that judicial takings should have more restraints unless compensation is to be awarded to property owners. I argued that there should be a greater similarity between the limits on courts and other government entities because the impact is so similar.
My argument in the context of intellectual property was somewhat undercut by a Federal Circuit Court of Appeals decision (US v. Zoltek) that determined that US government infringement of patents could not be pursued as a straight eminent domain case. While I believe this decision is based on some poorly reasoned and very old Supreme Court precedent, it is the law, and it may mean that my notion of judicial IP "takings" is never addressed. Some would argue that this is a good thing, as it would otherwise limit the judiciary's ability to make retroactive decisions that rewrite IP rules. But I continue to wonder if complete judicial freedom in this regard is good policy. And I suspect I am joined by the owners of patents that may be eliminated by a narrow decision in the pending In re Bilski case.
Why am I interested in a Florida property law case? The issue before the Supreme Court is whether an earlier Florida state court decision that the new beach is publicly owned has resulted in an unconstitutional taking of property (eminent domain). Interestingly, the question of whether a court decision -- as opposed to a legislative or executive act -- can result in a property taking is somewhat unclear, and the issue is very important for all types of property, including intellectual property.
I wrote about this issue in the context of intellectual property in an article published a few years ago and noted the dichotomy in the treatment of legislative/executive versus judicial "takings." Essentially, I concluded that judicial takings should have more restraints unless compensation is to be awarded to property owners. I argued that there should be a greater similarity between the limits on courts and other government entities because the impact is so similar.
My argument in the context of intellectual property was somewhat undercut by a Federal Circuit Court of Appeals decision (US v. Zoltek) that determined that US government infringement of patents could not be pursued as a straight eminent domain case. While I believe this decision is based on some poorly reasoned and very old Supreme Court precedent, it is the law, and it may mean that my notion of judicial IP "takings" is never addressed. Some would argue that this is a good thing, as it would otherwise limit the judiciary's ability to make retroactive decisions that rewrite IP rules. But I continue to wonder if complete judicial freedom in this regard is good policy. And I suspect I am joined by the owners of patents that may be eliminated by a narrow decision in the pending In re Bilski case.
Earlier this semester, I had the privilege of hearing a presentation at the uOttawa law school by the well-known author and "copyleft" advocate Cory Doctorow. The topic of the discussion concerned information dissemination and the role of copyright.
Throughout much of his talk, Cory assailed digital rights management (DRM) technology as creating unnecessary barriers to accessing information. In addition to being generally ineffective against all but the honest, circumventing DRM can lead to serious liability in the U.S. under the Digital Millennium Copyright Act (analogous provisions are, interestingly, still under consideration in Canada). Cory's examples made a lot of sense, and he was able to communicate a very effective case for the over-extension of copyright power through DRM. It's easy to conclude that a DRM-free world would the optimum state, and any legal regime that seeks to preserve DRM it is merely a means of holding onto outdated business models. But this may be taking Doctorow's point too far. I wondered: can one make a positive case for DRM that can be reconciled with the recent, negative experiences?
I believe that the key to making a positive case for DRM (as for copyright power in general) is to imagine cases where more information is shared or accessible than in its absence. But how can a means for locking up information lead to greater access? When that information would not be shared in a particular format without content protection. For example, if you wanted a particular textbook in electronic format for increased ease in transport and searching, and a publisher was only willing to make it available if it included DRM, wouldn't having the textbook with DRM be better than only having a paper copy? In that scenario, the use of DRM increases the availability of information.
That said, it's important to note that articulating a case for DRM is not necessarily an argument that current policies and rules, such as the DMCA, are necessary. While some DRM may arguably be a net positive, a separate legal regime to protect the measures might leave us worse off.
At any rate, what about the point that DRM often protects industries that are relying on outdated business models? Even if you agree that DRM can enable more information dissemination from otherwise reluctant industries, perhaps such industries would be better left to disappear. I think it depends on the industry. One can make a case that moving music away from large labels may be a positive, given the fact that the investment necessary to create music is now so low given technologies like Apple's Garage Band. On the other hand, one could argue that there is no substitute for the large investment that global newspaper reporting entails, and there is not likely to be an equivalent alternative that will arise from a dispersed, blog-like environment. It seems that the benefit of DRM is a question without a single, obvious conclusion.
Throughout much of his talk, Cory assailed digital rights management (DRM) technology as creating unnecessary barriers to accessing information. In addition to being generally ineffective against all but the honest, circumventing DRM can lead to serious liability in the U.S. under the Digital Millennium Copyright Act (analogous provisions are, interestingly, still under consideration in Canada). Cory's examples made a lot of sense, and he was able to communicate a very effective case for the over-extension of copyright power through DRM. It's easy to conclude that a DRM-free world would the optimum state, and any legal regime that seeks to preserve DRM it is merely a means of holding onto outdated business models. But this may be taking Doctorow's point too far. I wondered: can one make a positive case for DRM that can be reconciled with the recent, negative experiences?
I believe that the key to making a positive case for DRM (as for copyright power in general) is to imagine cases where more information is shared or accessible than in its absence. But how can a means for locking up information lead to greater access? When that information would not be shared in a particular format without content protection. For example, if you wanted a particular textbook in electronic format for increased ease in transport and searching, and a publisher was only willing to make it available if it included DRM, wouldn't having the textbook with DRM be better than only having a paper copy? In that scenario, the use of DRM increases the availability of information.
That said, it's important to note that articulating a case for DRM is not necessarily an argument that current policies and rules, such as the DMCA, are necessary. While some DRM may arguably be a net positive, a separate legal regime to protect the measures might leave us worse off.
At any rate, what about the point that DRM often protects industries that are relying on outdated business models? Even if you agree that DRM can enable more information dissemination from otherwise reluctant industries, perhaps such industries would be better left to disappear. I think it depends on the industry. One can make a case that moving music away from large labels may be a positive, given the fact that the investment necessary to create music is now so low given technologies like Apple's Garage Band. On the other hand, one could argue that there is no substitute for the large investment that global newspaper reporting entails, and there is not likely to be an equivalent alternative that will arise from a dispersed, blog-like environment. It seems that the benefit of DRM is a question without a single, obvious conclusion.
Once again, the NFL has asserted its copyright ownership rights against houses of worship. It has been reported (WaPo, WSJ) that several churches hoping to attract new members on Super Bowl Sunday by showing the game on a large-screen television were ordered to cease and desist. Although it is actually permissible for non-food and drinking establishments to display televised broadcasts, the screen size is limited to 55 inches or less. To get an idea of how unbelievably specific and detailed this section of the Copyright Act is, you should read 17 U.S.C. 110(5)(B) (e.g., yes, it's actually 55 inches, not 50, not 60). While religious performances of some works are exempted (e.g., 110(3)), the Super Bowl does not appear to be covered. So the NFL has taken action.
Why does the NFL parse these obscure rules to assert copyright ownership against religious establishments? One would have to ask the League's attorneys to be sure. But it seems to follow a pattern of copyright owners strongly enforcing rights whenever possible, even against those who seem to cause little harm (consider the famous ASCAP-girl scout dispute). One reason might be to ensure that the public does not presume such uses are merely so-called "fair uses" -- a perception that could lead a court to actully make such a ruling in the future. Another may be to preserve licensing opportunities, perhaps through emergent electronic means. In any case, copyright owners tread a thin line in enforcing rights that may lead to a public backlash.
Why does the NFL parse these obscure rules to assert copyright ownership against religious establishments? One would have to ask the League's attorneys to be sure. But it seems to follow a pattern of copyright owners strongly enforcing rights whenever possible, even against those who seem to cause little harm (consider the famous ASCAP-girl scout dispute). One reason might be to ensure that the public does not presume such uses are merely so-called "fair uses" -- a perception that could lead a court to actully make such a ruling in the future. Another may be to preserve licensing opportunities, perhaps through emergent electronic means. In any case, copyright owners tread a thin line in enforcing rights that may lead to a public backlash.
In early January, a video of Tom Cruise discussing his devotion to Scientology appeared on several Internet sites, including Gawker and YouTube. According to news sources (NYT, WaPo), the Church of Scientology requested that the sites remove the video, claiming copyright ownership. Gawker refused, arguing that fair use principles protected it from liability. This case is certainly interesting from a copyright perspective because it would seem to represent an instance when the first fair use factor (the purpose and character of the use) is more important to the analysis than the more commonly considered fourth factor (the effect of the use on the potential market).
More broadly, it suggests that copyright is a bad fit for maintaining secrecy. As evidenced by the earlier Diebold dispute involving the dissemination of company documents describing voting machine problems, fair use principles often preclude copyright liability in these instances. One could argue that this is as it should be. Copyright has a specific incentive goal: to encourage the production and dissemination of creative works without fear that free riding will erode profits. Control simply to maintain secrecy -- particularly when market effects are not apparent -- is contrary to this goal.
More broadly, it suggests that copyright is a bad fit for maintaining secrecy. As evidenced by the earlier Diebold dispute involving the dissemination of company documents describing voting machine problems, fair use principles often preclude copyright liability in these instances. One could argue that this is as it should be. Copyright has a specific incentive goal: to encourage the production and dissemination of creative works without fear that free riding will erode profits. Control simply to maintain secrecy -- particularly when market effects are not apparent -- is contrary to this goal.
About the Author
Dan Cahoy is Associate Professor of Business Law at Penn State's Smeal College of Business and Affiliate Professor of Law at the Dickinson School of Law . He is also a registered patent attorney. For more information, take a look at Dan's CV, Web bio or Research Page.
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