Sure, you can hold a video camera up to the TV and make a poor-quality duplicate of a DVD. Or, with an eBook, write out a copy longhand. To the judges, that would satisfy fair use: There’s no constitutional guarantee, they said, to make perfect duplicate copies. Such a narrow view, while pleasing copyright holders, denies consumers huge benefits of digital technologies. Movie studies and recording companies can write software protections that permit personal copies and other fair uses; they simply choose not to, and Congress, by banning circumvention technologies, has let them get away with it.
March 1, 2004
Larry Lessig’s Eldred Post Mortem [6:05 pm]
[Via Ernest] How I Lost The Big One from Legal Affairs. A look at a painful learning process, one that I hope he will stop flagellating himself about now that he has undertaken this very public one — albeit mixed with what I sense is the smoke from a burning bridge.
The mistake was made early, though it became obvious only at the very end. Our case had been supported from the very beginning by an extraordinary lawyer, Geoffrey Stewart, and by the law firm he had moved to, Jones, Day, Reavis & Pogue. There were three key lawyers on the case from Jones Day. Stewart was the first; then, Dan Bromberg and Don Ayer became quite involved. Bromberg and Ayer had a common view about how this case would be won: We would only win, they repeatedly told me, if we could make the issue seem “important” to the Supreme Court. It had to seem as if dramatic harm were being done to free speech and free culture; otherwise, the justices would never vote against “the most powerful media companies in the world.”
I hate this view of the law. Of course I thought the Sonny Bono Act was a dramatic harm to free speech and free culture. But I was not persuaded that we had to sell our case like soap. In any event, I thought, the court must already see the danger and the harm caused by this sort of law. Why else would the justices have granted review?
[...] My anger with the conservatives quickly yielded to anger with myself. For I had let a view of the law that I liked interfere with my view of the law as it is.
Most lawyers and law professors have little patience for idealism about courts in general and this Supreme Court in particular. Most have a much more pragmatic view. As I read back over the transcript from that argument in October, I can see a hundred places where the answers could have taken the conversation in different directions, where the truth about the harm that this unchecked power will cause could have been made clear to this court. Kennedy in good faith wanted to be shown. I, idiotically, corrected his question. Souter in good faith wanted to be shown the First Amendment harms. I, like a math teacher, reframed the question to make the logical point. I had shown them how they could strike down this law of Congress if they wanted to. There were a hundred places where I could have helped them want to, yet my stubbornness, my refusal to give in, stopped me. I have stood before hundreds of audiences trying to persuade; I have used passion in that effort to persuade; but I refused to stand before this audience and try to persuade with the passion I had used elsewhere. It was not the basis on which a court should decide the issue.
Update: See Ernie’s comments
Dave Winer Nails It [2:59 pm]
Yeah, you kill all the competition and then the talent pool dries up. People were choosing computer science as a career because they hoped to be the next Bill Gates, not because they wanted to work for Bill Gates.
Ernest Miller goes into great depth discussing the Berkshire Information Systems case cited earlier last week — Confusing DMCA “Database” Decision Not About Databases.
As Ernest digs into the case, he gets into a set of issues that were at the heart of my response to the current H2O cycle of questions for the history of intellectual property discussion — the role of technology in defining the notion of “access” and the difficulty in reconciling this role within the general notion of IP protection.
Worth reading carefully.
Alan Greenspan on Related Topics [11:29 am]
Greenspan said another problem was that new ideas, which he called the “building blocks of intellectual property,” almost always build on old ideas in ways that are difficult or impossible to trace.
To try and maximize economic growth, Greenspan said it was important to strike the right balance in the protection of intellectual property rights.
“Are the protections sufficiently broad to encourage innovation but not so broad as to shut down follow-on innovation?” he asked. “Are such protections so vague that they produce uncertainties that raise risk premiums and the cost of capital?”
[...] He said it was also important for economists to study how the development of ideas affects economic growth but cautioned that research in this area would not be easy.
Even a seemingly straightforward issue such as examining how the length of a patent, Greenspan said, might effect economic growth posed “formidable challenges.”
But he urged economists to press forward with such research.
“We must begin the important work of developing a framework capable of analyzing the growth of an economy increasingly dominated by conceptual product,” he said.
Report Raises Questions About Fighting Online Piracy [via Slashdot] A discussion of the threat of too stringent IP protection.
Record companies and movie and television studios have fought copyright infringement on many fronts, hoping to find ways to prevent their products from being distributed free on the Internet. But critics warn that many of the new restrictions that the entertainment industry proposes - like enforcing technological requirements for digital television programming that would prevent it from being transmitted online - would upset the balance between the rights of the content creators and the rights of the public.
“We are sympathetic to the problems confronting the content distribution industry,” said the report, “Promoting Innovation and Economic Growth: The Special Problem of Digital Intellectual Property.” “But these problems - perfect copies of high-value digital works being transmitted instantly around the world at almost no cost - require clear, concentrated thinking, rather than quick legislative or regulatory action.”
From the CED report’s introduction:
The social value of a public domain, the balance between imitators and innovators, and the historic deference given to the rights of first sale and fair use are of great importance when considering what to do about digital piracy. There can be no question that prosecuting those who break the law is both valid and important, but many anti-piracy proposals go much further than that. Many of the proposals would require consumers to add hardware or software to their computing devices that would add to cost and reduce interoperability regardless of the machine’s use. This would slow the use of digital technology and its contribution to long-term innovation. Moreover, many proposed outright prohibitions on access to digital material explicitly denies users the prerogatives they have traditionally enjoyed under the doctrines of first sale and fair use. Thus, the risk in taking action on digital piracy is that we make choices that move the finely crafted historical balance away from the imitators and users and towards innovators. Finally, we are concerned about proposals that direct the government to anoint one particular technological solution to a social problem; this reduces incentives for future innovation and gives no one the incentive to solve the piracy problem at minimum social cost.
As the DCC report notes, the ultimate solutions to the problem of digital piracy are new business models. Just as player pianos and radio expanded the market for music and radio and television led to greater interest in televised and broadcast sports, there is every reason to expect that digital technology will expand the market for entertainment by reducing the cost of producing and disseminating it. Moreover, we must bear in mind that these are the issues confronting the marketers of digital product, who are often not the creators of it — the difference between a publishing house and an author. The publishing house is a business model for distributing the author’s work — the economy depends less on this specific manner of distribution than it does the work of authors who provide the economy with creative input.
The DCC’s recommendations are carefully considered and should be given serious consideration. The moral issues raised by widespread theft and the economic burden theft imposes on some businesses are of great concern. But they are not sufficient cause to take actions that could slow the rate of societal innovation so crucial to long-term economic growth.
And from the Executive Summary:
Because quick legislative or regulatory solutions for the problem of digital copyright protection pose risks to innovation and economic growth and are likely to have unintended consequences in a period of rapid technological change, we should move slowly. Our first concern should be to “do no harm.” [...]
The development and testing of new business models for the distribution of creative content should be given the highest priority by the content industries. We should not turn to law or regulation to protect any particular business model.
Existing solutions to the issue of unauthorized uses, such as enforcement and education, should continue to be explored.
We recognize the need for digital rights management (DRM) systems that will allow creators to be rewarded for their efforts. We are skeptical about government-mandated DRM, and we recommend that manufacturers not be required to build in mandated copy protection technologies. But DRM systems provide a useful “speed bump” for consumers by inhibiting unauthorized uses of materials. During this period of consensus building about “safety valves” in intellectual property law, we encourage continued experimentation in private DRM systems .[...]
Market-based economic tools that provide incentives for copyright-holders to facilitate follow-on innovation should be considered — including measures to provide earlier dedication of copyrighted materials to the public domain.
Some light reading for the day……. [Donna's thoughts]