Fair Use and Copyright

[via Legal Theory Blog] Et Tu, Fair Use? The Triumph of Natural Law Copyright

Abstract:

Since its advent in 1841, the fair use doctrine has been hailed as a powerful check on the limited monopoly granted by copyright. Fair use, we are told, protects public access to the building blocks of creation and advances research and criticism. This Article challenges the conventional wisdom about fair use.

Far from protecting the public domain, the fair use doctrine has played a central role in the triumph of a natural law vision of copyright that privileges the inherent property interests of authors in the fruits of their labor over the utilitarian goal of progress in the arts. Thus, the fair use doctrine has actually enabled the expansion of the copyright monopoly well beyond its original bounds and has undermined the goals of the copyright system as envisioned by the Framers.

Specifically, this the Article first analyzes the anti-monopolistic impetus for federal copyright protection and reflects on the original understanding of copyright as epitomized by a series of early cases on the rights of translation and abridgement. The Article then examines the impact of the fair use doctrine on the copyright monopoly and progress in the arts. All told, the Article calls for a serious reassessment of the role of fair use in the infringement calculus, especially in an age where networked computers and malleable digital content has enabled new forms of artistic and post-modern experimentation.

IP Protection and Competition

From Wired: The Eagle Is Grounded: While America works to protect intellectual property, everyone else is innovating. A very clear articulation of the threat that the current trends in US IP thinking represents to many of our industries.

n the face of new technologies and competition, the US is toughening patent and copyright protections. It’s leaning on other countries – and its own citizens – to play by ever tighter rules. But if it’s not careful, the US will drive its intellectual property offshore into a shadow world that, like shipping, is replete with piracy and rogue states.

[…] This conflict sets the stage for a trade war on an unprecedented scale. Last fall’s World Trade Organization talks at Cancún failed in part because poor countries walked out in protest over US and EU intransigence on agriculture and drug patent issues. That’s just a sign of the strife ahead; those poorer nations could become the next flags of convenience for a more liberal conception of intellectual property.

There’s still time to avoid the shipping industry’s fate: American IP owners can stop demanding maximum and extreme protections. The US Patent and Trademark Office can stop taking a head-in-the-sand approach – last summer it strong-armed the World Intellectual Property Organization into canceling a discussion on open source projects – and instead use the WIPO to forge a global policy that works for all nations.

By taking a flexible approach to IP, companies could capitalize on the next wave of innovation rather than shirk from it. But wait too long and this ship will have sailed.

Hear, hear!!

You need to read Cory Doctorow on the market and DRM — NOW: Protect your investment: buy open

There’s no excerpting it, but here’s something that I hope will entice you to go read the whole thing:

And this is the problem with Scoble’s reasoning. We have a world today where we can buy CDs, we can download DRM-music, we can download non-DRM music from legit services, we can download “pirate” music from various services, and we can sometimes defeat DRM using off-the-shelf apps for Linux (which has a CD recovery tool that handily defeats CD DRM), the Mac (with tools like AudioHijack that make it easy to convert DRM music to MP3s or other open formats) and Windows (I assume, since I don’t use Windows, but as Scoble points out, there’s lots of Windows software out there.).

In this world where we have consumer choices to make, Scoble argues that our best buy is to pick the lock-in company that will have the largest number of licensees.

That’s just about the worst choice you can make.

Some More Comments on Declan’s Look At Dean

As followup to this morning’s posting, see Donna’s and especially Larry’s comments.

Ed Felten has even more to say, even if he doesn’t want to get political, and jumps directly into an explanation of why "technology & policy" is such a crucial perspective to develop: Dean’s Smart-Card Speech

The fact is that there is a deep disconnect between the different sections of Dean’s speech. It’s hard to reconcile the privacy-is-paramount part of the speech with the smartcards-everywhere part. At least, it’s hard to reconcile them if you really understand the technology. Dean makes a compelling argument that computer security is important, and he makes an equally compelling argument in favor of preserving privacy. But how can we have both? Enter the smartcard as deus ex machina. It sounds good, but unfortunately it’s not a technically sound argument.

Now, nobody expects state governors to understand technology well enough to spot the technical flaws in Dean’s speech. Probably, nobody advising Dean at the time had the knowledge to notice the problem. That’s not good; but it hardly makes Dean unique.

Something Funny From Findlaw

Not funny "ha-ha;" funny odd. Today’s Entertainment Law summary from FindLaw included a reference to this somewhat old Marci Hamilton column: Why Suing College Students for Illegal Music Downloading Is the Right Thing To Do.

What makes it funny is to read it in parallel with the BusinessWeek article cited below (BW’s Take on the RIAA’s Latest). Of course, Marci wrote the column six months ago, and it may still be that, as she puts it:

Some have criticized the RIAA and others in the music industry for going after students. But I will argue that it is entirely right – both legally and morally – for them to do so.

It’s just that, as BusinessWeek suggests, it’s not working out to be the most effective strategy.

Blogging, Politics and the "Echo Chamber"

Ernest comments on Jack Balkin’s discussion of blogging, politics, etc. in Balkin on Sunstein, Blogging and Democracy.

I read Jack’s piece yesterday and saw it as a counterpoint to the discussion in the NYTimes on Sunday, as well as the Findlaw commentary of last week, both linked through this entry: Some Provocative Questions

Ernest agrees with Prof. Balkin’s optimism, and I agree that there are many reasons to hope for the best. But I do understand the notion of the "echo chamber" cited in the NYTimes article, and I would argue that there may very well be a need for something to keep from engendering the kind of isolation that can be experienced on the net.

I have some more that I want to say about this, but I am late for a meeting — let’s just say that there’s probably a need to distinguish between those who impart meaning through argument/conversation and those who do so through speech-making. While the Internet tools support both, I would guess that one leads to insularity and one to less of a conversational monoculture……..