Derek Channels Litman

Derek Slater asks Jessica Litman’s Digital Copyright question, asking how to go about Designing Litman’s Lawyer Into the Legislative Process

It’s a good question, and I suggest Prof. Litman’s book to interested readers, but I would argue, as she does, that there already is a governmental agency charged with that task — the United States Congress. After all, they are our elected representatives, right? In a representative democracy, is not their role to represent the public’s interests?

If the Congress thinks it’s competent to decide whether to bomb Baghdad or not, I would think that they should be able to grapple with the complexities of copyright legislation. The fact that our Congress lets Jack Valenti and others of his ilk negotiate over the future of the public domain is disgusting.

As Litman points out, maybe Congress had a legitimate reason for leaving the development of copyright legislation in the hands of the publishing industry when they were so few. But technology has made publishers of us all, and Congress needs to take care of us, too. That may mean that we need an agency to explain things to or monitor thing for the Congress (like OMB does) — maybe it’s a new mission for the Library of Congress? But I want my elected representatives to get back into the fray — and we should be holding them accountable.

An eloquent alternative to Mr. DeLong

From the testimony of Jonathan D. Moreno

These factors do not justify theft, but file-sharing is not simply an attack on the concept of private property. It is a demand for access to a highly valued social commodity, a demand triggered and facilitated by technology. A new interpretation of the social contract is emerging, and industry and the law must take note.

If file-sharing is the wave of the future, as many believe it is, then adversarial approaches should not be the first, and certainly not the only response. Though aggressive prosecution may result in a short-term deterrent, in the long run it cannot stem the cultural tide.

In the short run, the industry should expand its effort to acquaint us with its moral strangers, the hard working men and women behind the scenes. Taking a longer view, the music industry must adapt its business model to the new culture. It must explore measures to renew consumers’ sense that they are being dealt with fairly. Devising alternative pricing structures through the Web, developing technologies that allow for appropriate personal use, and building more value into the product are among the constructive approaches that should be at least as aggressively pursued as legal remedies.

In their wisdom, the framers of the constitution specified that inventors should have rights over their products “for limited times.” They were concerned to balance the right to property with the need for civil society to flourish through the vibrant exchange of ideas. Artistic media are especially important for social flourishing because they create the common coin of human experience. In this field, civil society itself is changing, and the music industry must change with it. Measures to protect the legitimate interests of artists and the industry should be as creatively and sensitively crafted as the artistry itself.

Worse, We Have James DeLong’s Testimony

This one (in PDF form only) can really get you going, though: James DeLong’s Testimony.

The same logic applies to intellectual creations. The argument that these are somehow different and thus should be subject to different rules rests upon misinterpretations of economic principles concerning marginal cost pricing and upon such economic concepts as non-rivalry and exhaustion. [1] These concepts are indeed important, but they do not undercut the elementary truth that products of the intellect, like physical goods, are best produced by market incentives, and that propositions that are absurd on their face when applied to groceries do not become sensible when applied to the world of creativity.

[…] It is very important that DRM not be undermined by abstractions about “fair use.” If DRM allows producers of IP to tailor their offerings to the desires of consumers, we will all be better off. Let a hundred business models bloom.

[…] Intellectual property is encompassed by the Constitutional protections of property, and by these principles. [5] And as a higher proportion of society’s collective effort is devoted to the production of information goods rather than physical goods, the need to defend the rights of creators, and their support network of employers and financiers, grows apace.

Then, he closes with a quote from Eldred v. Ashcroft. As Charlie Brown would say, "my stomach hurts."

Lorraine Sullivan’s Testimony

Referenced yesterday: Statement of Lorriane Sullivan. What’s so sad is that the argument presented in her testimony is that "no one told me it was wrong, so I shouldn’t be held accountable" receives such currency. I’m sure she’s had a terrible time, but this testimony only serves the interests of her opponents.

I willingly told him I had gotten rid of Kazaa and all my files as soon as I contacted Time Warner about the letter of subpoena. I asked him why I was being targeted when Kazaa did not have any disclaimer on their website informing me of the logistics of copy right infringement and not only defaulted to sharing files automatically but also was booted up any time my computer was on because I had a cable modem hooked up. He said he could not discuss that with me since the RIAA were considering or already had entered into litigation with Kazaa. I said that I had read reports that I would be held accountable for $150,000 per song in my “shared folder”. He said the charges could range between $750 per song and $150,000. I was pretty emotional by this point and he told me that the goal of the RIAA was “Not to ruin your life and make you bankrupt”. I replied that actually it felt like that. I told him it was pretty stressful to hear the news from reporters on my answering machine. He then explained reporters had gotten my personal information from waiting around at the courthouse and looking up the names on file.

[…] I asked what a settlement consisted of. She asked if I was interested in settling and I said I was interested in knowing how it worked. She told me that would get papers to sign basically admitting to guilt. Then there would be a mutually agreed upon monetary settlement. I asked what the exact number would be. She told me between three and four thousand. She then said I had probably heard about the 12-year-old who had settled for $2,000 and informed me that that particular case had been a “special case” since Brianna’s mother was on public assistance. This particularly upset me because I thought, “Since I worked hard for so many years and waited until my mid-twenties to go to school and am not on public assistance my case is different?” I couldn’t understand that implication that our cases were so different and was even more emotionally upset at this point. I then asked if the settlement had to be paid in one lump sum. Pat said yes, it did and that they had considered accepting it incrementally but with so many cases it wouldn’t be feasible. I cried at this point and told her that all I had was $1500 in my savings account.

[…] The financial punishment and personal stress I’ve suffered seem a heavy price to pay to far what I’ve been accused of. I’ve settled my lawsuit, gained a whole education of what is really at stake here and my main concern now is that this stop happening to other people. It’s not fair to others like me who weren’t duly warned nor had any idea what others were doing on their computers. We need to change this system without creating any new victims. I hope that change starts here.

Slashdot on the Clean Slate Statistics

Few Takers For RIAA’s “Clean Slate”

Re:This surprises me (Score:5, Insightful)

by B.D.Mills (18626) on Monday September 29, @09:24PM (#7090799)

There’s a sucker born every minute. Spammers make a “living” the same way. Spammers spam to millions, and make all their profit on the miniscule percentage that respond to the offer. The RIAA is doing much the same thing – making a dubious offer to the gullible – and it’s not really surprising that the response rates are similar to the response rates for spam.

I would love to get hold of the list of people that have responded to the RIAA’s offer. I have a bridge in Brooklyn that I want to sell cheap.

Declan on the ACLU’s move

ACLU takes aim at record labels — and outlines some of the new arguments being tried

In a move that could complicate the RIAA’s pursuit of peer-to-peer pirates, the American Civil Liberties Union said Monday it had filed court documents accusing the trade association of illegally using thousands of subpoenas to unmask alleged copyright infringers.

The recording industry’s subpoenas, filed under the Digital Millennium Copyright Act (DMCA), violated due process and constitutional rights shielding Internet users’ anonymity, the ACLU claims.

[…] “The consequences from this lack of procedural protections are far from trivial,” the ACLU said in court papers. “In addition to being deprived of one’s constitutional rights, there is nothing to stop a vindictive business or individual from claiming copyright to acquire the identity of critics.”

David Plotkin, a Boston attorney who filed the motion alongside the ACLU, said in e-mail that “the statute only allows for a subpoena when the copyrighted material at issue is stored on the ISP’s system, but not, as in the case of Boston College and almost all other ISPs, when the material is stored on internet user’s personal computer.”

It’s now complete

I noted yesterday that this NYTimes article, while provocative, was incomplete as posted. The complete version is now up: Guarding Privacy vs. Enforcing Copyrights [pdf]

The rights to protect privacy and to protect intellectual property started from very different doctrines, said Mike Godwin, a lawyer with Public Knowledge, a group that focuses on the many battlegrounds of the copyright wars. Copyright and patent rights, Mr. Godwin said, were enshrined in the Constitution, with provisions to ensure that the creators were paid for the fruits of their ideas and that the public had access to those ideas — a very delicate balancing act that is at the heart of a healthy marketplace of ideas. A constitutional right of privacy was divined only later, beginning with the theories of Louis D. Brandeis, who became a Supreme Court justice, and was drawn from ”penumbral” rights of freedom of speech and the feeling of security in one’s home, he said.

Privacy rights and intellectual property rights are also treated differently under the law, Mr. Godwin said. Copyrights protect only the specific expression of an idea or information, as in a song or a book. But in the right to privacy, the information itself — a Social Security number, the medications you buy — must be protected. ”That’s a very rare and fundamentally different right,” he said. ”These are two different bodies of law — the legal theories are different,” and different things are protected.

That argument appeals to Jessica Litman, a professor at the Wayne State University law school in Detroit. She suggests that the comparison between privacy rights and property rights is the sort of thing that sounds good if you say it fast, but that breaks down under close scrutiny.

Ms. Litman looked askance at advocates who, during the 1990’s, in an attempt to get lawmakers to pay more attention to privacy, began talking about private information as a form of personal property. ”I am one of the people who, back then, said, ‘This is a terrible idea,”’ she said. Property law is largely intended, she said, to make it possible to sell property, not to keep it secure. The property framework does fit intellectual property, she said, because those rights help artists and their representatives ”trade their art for money.”