Something to read tomorrow

I’ve got to go to bed, but this LawMeme piece points to something that’s bound to generate some discussion: Is Copyright Property? A Comment on Richard Epstein’s Liberty vs. Property


This short essay is derived from commentary on Richard Epstein’s article, Liberty vs. Property, which were delivered at the 2003 conference on Promoting Markets in Creativity: Copyright in the Internet Age, co-sponsored by The Progress & Freedom Foundation and the George Mason University’s Tech Center. The essay suggests that the opponents of Epstein’s position that copyright entitlements are derived from similar policy concerns as tangible property rights would reject his thesis at the conceptual level, maintaining that copyright is not property, especially in the context of digital media. By assuming their rallying cry that “copyright is policy, not property,” this essay reveals that opponents of digital copyright are caught in a dilemma of their own making. In one sense, their claim that “copyright is policy, not property,” is an uninformative truism about all legal entitlements, and in another sense, represents a fundamental misconception of the history and concept of copyright. The concept and historical development of copyright are more substantial than its representation today as merely a monopoly privilege issued to authors according to the government’s utility calculus. The essay concludes with the observation that those who wish to see copyright eliminated or largely restricted in digital media are in fact driven by an impoverished concept of property that has dominated twentieth-century discourse on property generally. As a doctrine in transition – we are still in the midst of the digital revolution-copyright may be criticized for various fits and starts in its application to new areas, but the transition itself does not change copyright’s status as a property entitlement.

Interesting Slate Essay

See You on the Darknet touches on a number of current topics online, with the following conclusion:

Wondering how the security vs. privacy struggle might play out, I e-mailed Steven Levy, the respected tech journalist who penned the Newsweek article. “I’m currently at CES,” he replied, “which is shaping up as a celebration of the stuff that gives Hollywood chills—distribution, ripping, burning, of all sorts of content (for personal use, of course).” Exhibitors avoided discussing security systems that might get in the way of all that fun, Levy noted. “If it’s onerous out of the box”—i.e., if it requires a digital driver’s license that keeps users from enjoying the full benefits of the darknet—”people won’t use it, and won’t want to buy computers that have it.”

[John] Walker’s manifesto [The Digital Imprimatur] spells out the ugly truth: As the Net gets more powerful, other powers will feel increasingly threatened by it and try to take it under control. But to do so, they’ll need the complicity of those who build the hardware and software. If the Consumer Electronics Show is any clue, the gadget makers have figured out that if the powers that be get their digital imprimatur and their secure Internet, the real money will be in darknets.

Fair Use and Copyright

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


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.