A Response to Leibowitz and Margolis

As I mentioned, the Leibowitz and Margolis paper is making the rounds again. Politech has a posting of a response by Milton Meuller of Syracuse University (also here).

Shakespeare’s works are valuable centuries after they were written. Does that mean that without a 500-year monopoly, they would never have been written? Was an extended copyright term necessary to induce him to write them? Obviously not, because there was no copyright at the time.

With this rhetorical question in mind, one can see that Liebowitz and Margolis have confused two very distinct issues:

  1. what economic incentives are required to _motivate_ and/or _reward_ creators of IP;
  2. How long is a given copyrighted work economically valuable?

The fact that a copyrighted work is valuable in perpetuity does not mean that one has a right to a perpetual government-enforced monopoly over copying it. The governmental legal protection comes with a (fair) price: the protection expires after a reasonable term.

By confusing these two things, L&M are rationalizing rent-seeking by publishers. Longer terms do nothing to reward creators or stimulate more or better IP creation. This is proven by their own argument. Yes, in fact a very small amount of the IP products (say, 2%) account for (say, 90%) of the economic value. What they forgot is that no one knows which 2% of the works is going to be so valuable! Which means *all* of the IP that we have would be created regardless of whether the protection term was extended or not. One simply does not know which products have the long-lived value ex ante, only ex post. So it is only publishers seeking rents on existing valuable products, not creators seeking rewards or stimulants for creativity, who are interested in term extensions.

A 321 Studios Countermove

321 Studios Forges Ahead

The maker of DVD-duplication software ruled in violation of copyright law is nevertheless pledging to keep selling it — but without a built-in tool for descrambling movies.

In order for the popular DVD Copy Plus and DVD X Copy programs to successfully make copies of DVDs, users will now need to obtain a separate descrambler that is widely available on the Internet, said Robert Moore, founder and president of 321 Studios.

Moore said 321 would fully comply while it appeals the ruling. Retailers are also encouraged to return unsold copies to the company, he said, though the judge did not specifically order that.

Russell Frackman, a lawyer for the movie studios that brought the lawsuit, questioned whether 321’s response was consistent with the spirit of Illston’s order.

“You can’t sell the product with a wink and a nod and then tell your users, ‘What you need to do is get the ripper (descrambling) component … from another source,'” Frackman said. “The law generally does not permit one to do indirectly what they can’t do directly.”

[…] Jack Valenti, head of the Motion Picture Association of America, has suggested that consumers have no legitimate need for such software, telling The Associated Press in November, “If you buy a DVD you have a copy. If you want a backup copy you buy another one.”

Some More on 321

Denise Howell points to a few more resources on the 321 Studios decision:

Update: Donna’s first posting: 321 Steps In Eldred Mess

I’m assuming that the silence on others’ part means that they’re getting a chance to go over the opinion in detail — something that I’m hoping I get to after (1) grading a few more papers and (2) going to the gym!

Worth A Read

Even if it is off-topic: Scot Rosenberg’s look at The Wall Street Journal‘s rather inconsistent editorial policy (on one level anyway — perfectly consistent from the "four legs good, two legs bad" perspective). Don’t discuss Bush’s lies — you might be helping a terrorist!.

Beyond this, there’s a wider reason Democrats have lost any shyness about calling Bush a liar. We say it because we are daily astounded by the sheer volume of falsehood the Bush White House pumps into the polis in the course of its daily operations. For the Bush administration, lying (sugarcoat the phrase if you like and call it “distorting the facts” or “misrepresenting the truth,” the point is the same) is a fundamental coping strategy.

This administration didn’t only lie about Iraq’s WMDs: It lies about nearly everything. It lies about the economy. Its deceptive presentation of economic statistics has made it an utter laughing stock among those people who actually understand such statistics. It lies about hard facts (its own budget numbers). It lies about symbols (denying responsibility for the “Mission Accomplished” banner). It has even figured out ways to lie about scientific research, a realm that should be relatively impervious to subjective manipulation.

Everywhere you look, this presidency is draped in curtains of lies. And we’re supposed to protect the nation by not pointing them out? Sorry. The very dangers Henninger invokes to shush complaints instead add urgency to the alarms we must raise. A deceptive government isn’t ever desirable; “at a dangerous moment,” it’s not just bad, it’s hazardous.

MediaChest and Community

Cory Doctorow points to the BoingBoing group on MediaChest. An interesting concept — online facilitation of fair use:

Mediachest.com is a free service that allows you to keep track of your DVD, CD, book, and game collections. Mediachest is not just about keeping track of your own collection, it also helps you keep track of your friend’s collections as well. This is the group page for BoingBoing. Here you can find out what members of BoingBoing own. You can also see statistics about all of the items owned by members of BoingBoing, such as which DVD has the highest rating, or what game has the most owners.

kuro5hin’s Take On the 321 Studios Decision

Court once again muddles over key question in DMCA case

“The anti-circumvention provisions of the Digital Millennium Copyright Act (DMCA) creates three new intellectual property rights that plainly fail to satisfy three constitutional requirements under Article I, Section 8, Clause 8.”

That was the Copyright Law Professors’ argument in 321 Studios v. MGM Studios. The professors presented this argument in two other cases, and both times, the court failed to fully address the issue. On February 19, Justice Susan Illston once again skimmed over the issue.

From The Register

They finally get around to writing about the 321 Studios decision, Judge bans DVD X Copy software, with this bit of information about lawsuits pending elsewhere:

Meanwhile, 321 is the subject of legal action launched by Warner Home Video in the UK, alleging infringement of the European Union Copyright Directive – Europe’s answer to the DMCA – and of the UK Copyright, Designs and Patents Act of 1988.

The Register also notes some activity in the KaZaA trial in Australia: Kazaa trial judge delays hearing

Standards, Proprietary Software and the UN

The NYTimes is pointing to a fight over ebXML between proprietary software firms (Microsoft and IBM) and those who think the UN should be prepared to consider some open standards: Microsoft Creates a Stir in Its Work With the U.N. (Slashdot commentary: Is Microsoft Paying To Influence UN Standards?)

Several software industry executives and technologists contend that Microsoft has been moving behind the scenes to undercut support for a set of business-to-business electronic transaction standards jointly developed by the United Nations and an industry-sponsored international standards group.

Microsoft and senior United Nations officials said that the accusation was false and that the company’s contributions were relatively modest, complied with United Nations guidelines, and did not unduly influence decision making.

Microsoft and I.B.M. have been trying to gain backing for a competing approach to writing Internet software, which the two companies argue would be a better, more general solution for business-to-business computer communications than the original United Nations-developed standard, known as “electronic business using extensible markup language,” or ebXML in the trade.

[…] Supporters of the business collaboration framework say that it can be used with a variety of software technologies, including ebXML. Critics respond that the Web services around which the framework has been designed are proprietary Microsoft and I.B.M. technologies rather than open standards.

See this related Slashdot discussion from last week on another UN battleground between free/open source and proprietary software efforts: U.S. Representatives Torpedo UN Information Summit