cory doctorow | Copyhype

Friday’s Endnotes – 11/02/12

November 02, 2012 · Terry Hart · 3 comments

Why Cory Doctorow’s “Pirate Cinema” Makes Me Root for Big Content — A fabulous read from a self-ascribed fan of remix culture who finds Doctorow’s latest anti-copyright screed so over-the-top that it turns him off. “That’s the gaping black hole at the center of this book: any sort of acknowledgement that copyright law is IMPORTANT. What he dismisses as ‘greed,’ the entertainment industry would certainly defend as “basic fairness.”

Google News wars are here again: Schmidt vs France on ‘news tax’ — In response to a French proposal to copy a recent German law requiring a license to excerpt material online, Google has stated that such a levy would “threaten its very existence.” Hyperbole?

Have EU orphans found a caring home? — IPKat reports on the recent Orphan Works Directive from the EU. Some good preliminary analysis from the Directive, which is directed at certain permitted uses of orphan works.

Kirtsaeng v. John Wiley & Sons, Inc. — Sandra Aistars of the Copyright Alliance shares some thoughts on the first sale case which the Supreme Court heard this week. “If you are concerned that as a result of a copyright case the Supreme Court is hearing tomorrow, Kirtsaeng v. Wiley, you will be frisked at the border for foreign newspapers and magazines when you return from your next trip abroad, that libraries will stop lending books, and that discounted overstock items will no longer be available from big box stores, read on.”

On Letting Foxes Mind Chicken Coops — David Newhoff continues to post thought-provoking articles on his new site, Illusion of More. “So far, it looks a lot like there isn’t a piece of legislation, a trade agreement, a civil action, or any other policy initiative that is not going to be labeled a ‘threat to freedom’ by [internet] companies, their lobbyists, and their PR groups. The first sane question anyone should ask when any industry makes such a claim is, ‘Do you mean a threat to my freedom or your cash flow?’”

CCI Recommits to Independent Evaluation of Content Methodology — The Center for Copyright Information, responsible for implementing the Copyright Alert System, was in the news this week because of the expert they retained for evaluating their system. “Recent reports that a former employee of Stroz Friedberg lobbied several years ago on behalf of RIAA on matters unrelated to CCI have raised questions about the impartiality of Stroz Friedberg,” says the CCI, and in response, the organization will be retaining a second, independent expert to evaluate the system’s methodology.

Future of Music Coalition Summit 2012 — FOMC’s annual conference is November 13th and features an interesting lineup of panels and speakers, including friends of the blog David Lowery and Chris Ruen. Check out the site for links to a livestream of the event.

NYC Conference: Earlybird Extended Until Next Monday — Another upcoming event that looks interesting, the Copyright and Technology NYC 2012 conference in December, is still open for registration. Because of this weeks weather, the deadline has been extended to November 5th.

Posted in: Friday's Endnotes · 3 comments

Share: Facebook Twitter Reddit Google+ LinkedIn

There is no magic bullet

August 22, 2012 · Terry Hart · 3 comments

Eat less, exercise more.

This simple advice is, barring medical problems, at the heart of any weight loss plan for the 75 million self-identified dieters in the US.¹ Yet the US weight loss market is valued at over $60 billion a year, filled with a constant stream of fad diets, “miracle” foods, and dubious supplements, as many search in vain for a magic bullet.

The same is true when dealing with expressive works like music, movies, and books. Many search in vain for a magic bullet to ensuring a vibrant creative ecosystem online, but more and more the key boils down to simple advice: Make piracy harder, make legal options easier.

Carnegie-Mellon economist Michael D. Smith describes this in a recent article on Digitopoly, Anti-piracy regulation and competing with free. The article is a response to an earlier op-ed piece by Nick Bilton at the New York Times, Internet Pirates Will Always Win. Smith took issue with the defeatist attitude that Bilton adopted concerning making piracy harder.

In short, Bilton’s arguments don’t mesh with reality. Smith points to his own research on price differentiation that ”found that while Amazon’s prices were well above the lowest price online, they still retained a dominant share of the market in head-to-head competition with much lower priced alternatives from online retailers like altbookstore, booksnow, and musicboulevard.” Smith goes on to explain:

What does this have to do with anti-piracy regulation? Possibly quite a lot if one views “competing with free” as simply a special case of price competition. Imagine competition in the digital media space where the media companies and their online distribution partners play the role of Amazon, and where pirate sites play the role of lower priced alternatives from the likes of altbookstore. The twist on this example is that while Amazon could only control the differentiation of their own offerings, media companies can use anti-piracy regulation to impact the differentiation of their pirate competitors’ offerings as well. Thus, media companies can use iTunes and Hulu to improve the convenience, quality, and reliability of their paid products, while also using anti-piracy regulation to reduce the convenience, quality, and reliability of the free pirate competition.

Smith points to empirical evidence that this is indeed what happens when anti-piracy regulations are adopted. Smith’s takeaway is that they “don’t have to be perfectly effective to get the job done. In that way, anti-piracy interventions may be less like ‘Whac-A-Mole,’ and more like horseshoes where you can score points just by getting sufficiently close to the target.”

But attitudes like Bilton’s persist.

One strand of thought seems to embrace the idea that antipiracy efforts are all or nothing. You have folks like angry sci-fi author Cory Doctorow pounding on the podium that efforts to make piracy harder are just the first step in a “war on general computing.”

You have Pirate Party founder Rick Falkvinge saying, with a straight face and clenched fist, “The only way to even try to limit file sharing is to introduce surveillance of everybody’s private communication. There is no way to separate private messages from copyrighted material without opening the messages and checking the contents. Gone is the postal secret, the right to communicate in private with your lawyer or your web-cam flirt, or your whistle-blower protection if you want to give a sensitive story to a journalist.”²

And a recent documentary from al-Jazeera claims that debates over copyright are “about centralized control versus ‘the ability to share information across the world without traditional boundries or regulations’” and recent legislation was ”not about pirated entertainment but how do we live in the digital age and who gets to decide what we do.”

This line of thinking is, to put it bluntly, insane. It would be like saying the only way to stop tax fraud would be to allow government access to everybody’s bank accounts, or the only way to prevent speeding would be to require that speedometers broadcast data to the feds. No one seriously contemplates these solutions, and we somehow manage to enforce these laws without 100% compliance. The same is true with copyright.

On the flip side, legal options need to be more easier. Here, the failure of creators to adopt legal alternatives has been overstated.

Just yesterday, the MPAA noted “there are more legitimate avenues available today to watch movies and TV shows online than ever before: Hulu, HBO Go, Vudu, Crackle, UltraViolet, Epix, MUBI, Netflix, Amazon – and that just scratches the surface.” The RIAA reported in its recent IPEC comment that there are currently over 2,000 digital services offering access to consumers to over 20 million music recordings, a number that is growing. Countless other opportunities exist for emerging and indie musicians, authors, and filmmakers online. And the infrastructure continues to develop — for example, this past May, the RIAA, NMPA, and DiMA rolled out five new licenses that provide a “one-stop shop” for new online music distribution services.

Access to music, films, TV shows, books, and other works has never been easier or cheaper. Ever.

But, just like “eat more, exercise less”, “make piracy harder, make legal options easier” goes hand in hand; neither one is sufficient on its own. Legitimate options are better for the public in the long run, but they need a fair marketplace in order to thrive.

Footnotes

See Caroline Scott-Thomas, Advice to Eat Less, Exercise More Still Trumps Diet Products for Weight Loss, Study Finds, April 16, 2012; Heidi Grant Halvorson, 5 Habits of Highly Successful Dieters, CNN, Mar. 19, 2012: “Eat less, exercise more. That’s the recipe for losing weight, and we all know it by heart”; Kristen Philipkoski, Stop Complicating a Simple Obesity Solution: Eat Less, Exercise More, Gizmodo, Mar. 8, 2012. [↩]
This argument is quite common. New America Foundation’s James Losey wrote in Slate last year, “If the United States decides that copyright infringement must be stopped at any cost, the required censorship regime will depend on ever more invasive practices, such as monitoring users’ personal Web traffic.” [↩]

Posted in: Copyright Criticism · 3 comments

Share: Facebook Twitter Reddit Google+ LinkedIn

Dispatches from the SOPAcolypse

November 02, 2011 · Terry Hart · 8 comments

Harold Camping has famously predicted the end of the world three times.

His first prediction — September 6, 1994 — came and went with little fanfare. His second attempt at setting a date for the apocalypse was far more successful. The Internet was abuzz as May 21, 2011 approached. But again, the world did not end.

Undeterred, Camping checked his math and announced a new date. October 21, 2011, would mark the final day of everything we know, for real this time. Wrong once again, the former leader of the California-based Family Radio has apparently retired from his role as apocalyptic soothsayer.

Apocalypse Now?

I mention Camping because a similar phenomenon occurs in the copyright realm. It seems that whenever new legislation is introduced, there are those who are ready to predict that if it passes, it will surely result in the demise of the Internet, or innovation, or some other thing we hold dear.

You can see this in action by taking a look at some of the headlines in response to the US House’s introduction of the Stop Online Piracy Act (SOPA):

This are just a sampling of the dire predictions about the epic catastrophes SOPA would bring if passed — the SOPAcolpyse, if you will.

But, like Camping, copyright’s skeptics have made these predictions before.

Sometimes they are done with striking consistency. Sci-fi author Cory Doctorow says SOPA “might be the worst-ever copyright proposal in US legislative history.” Not one to make use of hyperbole sparingly, Doctorow also declared a 2005 French proposal the “worst copyright law in Europe”; in 2007, it was an EU proposal that would surely be the “worst copyright law in the world!”; little more than seven months later, he stated that a Canadian legislative proposal “promises to be the worst copyright law in the developed world.”

The same goes for copyright activist Lawrence Lessig, a big proponent of the “break the internet” line over the years. Talking in 2003 about his idea for a compulsory license that would cover P2P activity, he said, “We have to buy [music and movie companies] off, so they don’t break the Internet in the interim.” That same year on PBS’s NewsHour with Jim Lehrer, it was DRM: “The response that the music industry has insisted on would be technologies that would essentially break the Internet.” Fast-forward to 2008, and Lessig, speaking at an event hosted by Harvard’s Berkman Center, Google, and the Family Online Safety Institute, again cautions against letting copyright law “break the Internet.”

The Sky is Falling

The doomsday scenarios began on day one. In February 1993, the Clinton administration put together the Information Infrastructure Task Force to study the advancement and development of information technologies, including the burgeoning Internet and infant web. Part of their mandate was examining the intersection of copyright law, digital technologies, and networked communications and exploring what changes were necessary.

The Working Group on Intellectual Property Rights released its report, Intellectual Property and the National Information Infrastructure (the “White Paper”), in September of 1995, sparking the first wave of the “parade of horribles” that would accompany copyright reform from then on out.

Copyright scholar Pamela Samuelson penned an article in Wired magazine that gave a laundry-list of reasons to oppose legislation proposed after the White Paper was released: “your online service provider will be forced to snoop through your files”, it would “transform the emerging information superhighway into a publisher-dominated toll road”, it would “eliminate fair-use rights”, “it can be construed as outlawing many activities widely believed to be lawful.”

Others concurred. “The bill in Congress now, critics say, goes much too far … the Internet’s potential as a source of public education and free expression could be crippled … [it] could instead turn out to be the executioner of the Internet’s real promise.”

The initial legislation evolved to become the Digital Millennium Copyright Act (DMCA), which became law in 1998. Some still weren’t convinced the days of a free Internet weren’t numbered. A writer in the Berkeley Technology Law Journal predicted shortly after the DMCA became law that:

The post-DMCA Internet will feature even more of those damnable “404 – file not found” messages than it currently does. As media companies expand their demand-letter operations from commercial “piracy” to include negative commentary, transformative uses, and what they deem to be a little bit too much sampling or quotation, the ranks of the independent Internet publishers will be radically depopulated.

Ten years later, many of those same critics couldn’t praise the DMCA enough. Wired magazine calls it “the law that saved the web.” “Blogs, search engines, e-commerce sites, video and social-networking portals are thriving today thanks in large part to the notice-and-takedown regime ushered in by the much-maligned copyright overhaul.”

A Decade of Falling Sky

Since the DMCA, most copyright legislation has elicited similar responses.

The No Electronic Theft (NET) Act was passed in 1997, expanding the definition of “financial gain” in criminal copyright infringement and increasing criminal penalties. Among the opponents of the bill was the Association for Computing, which raised concerns that it would restrict dissemination of science, criminalize the transfer of information protected by fair use, and chill free speech in research institutions. Others warned it would greatly expand the scope of criminal infringement; “aggressive prosecutors would abuse their discretion to win convictions” or “bring weak felony cases to get quick misdemeanor plea bargains.”¹

None of these concerns materialized. As Eric Goldman concludes after examining the five years following the Act, “the prosecutions to date appear generally consistent with Congress’ objectives for the Act.” None of the convictions could be fairly characterized as “de minimis“, none of the defendants could have raised a legitimate fair use defense, and universities and educators remained untouched by efforts under the Act.²

The Artists’ Rights and Theft Prevention (ART) Act of 2005 added provisions to criminal copyright law that expressly targeted “camming” and distribution of pre-release commercial works. Critics called it draconian, foresaw an uptick in prison sentences, and decried a lack of fair use in the Act. The provisions have instead been used judiciously; prisons have not been filled with cammers and leakers.

2008 brought the Prioritizing Resources and Organization for Intellectual Property (PRO-IP) Act, a broad bill that amended civil and criminal provisions of the Copyright Act and created the Intellectual Property Enforcement Coordinator position, currently held by Victoria Espinel.

The response? Michael Seman of NetSherpa wrote, “The passing of the PRO-IP act is the latest in a string of actions taken by the U.S. Government that result in further constricting the free exchange of ideas,” one that “means we’re close to losing the flow of culture that the Internet so greatly facilitates.” Mike Masnick said, “All it will actually serve to do is to limit more creative forms of expression and much more innovative business models from being allowed to thrive.” And noted copyright scholar William Patry remarked, “The dangers in the new Zero Tolerance to copyright go far beyond the individuals swept within its net, although that is bad enough: the Zero Tolerance approach threatens respect for law itself.”

Grokster pt. 2

Legislative proposals aren’t the only things that brings out the freedom and innovation pessimists.

The Supreme Court issued its decision in Metro-Goldwyn-Mayer Studios v. Grokster in 2005, holding that “one who distributes a device with the object of promoting its use to infringe copyright” may be liable for the resulting infringing acts by its users. In its amicus brief to the Grokster court, the National Venture Capital Association warned that a rule holding Grokster liable would “have a chilling effect on innovation.”

However, since Grokster:

[V]enture capital in the media and entertainment sectors grew faster than the rest of the VC market in four out of the six years. By comparison, in the five years before the Grokster decision, growth was lower in four of them. From 2000 to 2004, media and entertainment venture capital accounted for about 4.6 percent of total VC dollars invested. From 2006 through 2010, media and entertainment VC dollars grew to 7.1 percent of total VC dollars.³

This year alone, in a down economy, music-based startups have received nearly half a billion dollars in funding. And some of these startups are far more exciting than the mere hoarding of music files that Grokster and other P2P services offered.

Little difference that makes though. In a letter to Congress on the proposed PROTECT IP Act, a group of venture capitalists offer the same warning: the bill would “throttle innovation” and “chill investment.”

It’s the End of the World as We Know It

Despite this history, critics of the Stop Online Piracy Act promise that the bill spells the end of innovation, culture, freedom, and the very Internet itself, for real this time.

It won’t.

In the long term, the public benefits the most when both creators and innovators succeed. And our laws should continue to adapt to make sure that happens.

Footnotes

Eric Goldman, A Road to No Warez: The No Electronic Theft Act and Criminal Copyright Infringement, 82 Oregon Law Review 369 (2003). [↩]
Id. 392-96. [↩]
Greg Sandoval, VCs to Congress: Antipiracy will ‘chill’ tech investment, CNet, June 24, 2011. [↩]

Posted in: Copyright Criticism · 8 comments

Share: Facebook Twitter Reddit Google+ LinkedIn

Does amateur creativity make copyright obsolete?

September 26, 2011 · Terry Hart · 15 comments

Techdirt points to a report that Facebook currently hosts 4% of every photograph ever taken in history. Whether that’s an accurate number or not, the social media giant does host a huge amount of photos on its servers. Masnick uses this story to question copyright:

What is the real purpose of copyright? Is it only to incentivize professional content creation, or to incentivize content creation overall? Given the stated purpose is to “promote the progress,” and to provide the public with more content, I would argue the goal is to promote more overall content, and it seems that technology is doing a much better job of that than copyright.

There’s a couple of points here I want to talk about later, but first is this undercurrent that runs through many criticisms of copyright — that of valuing amateur content over professional content.

Yes, copyright incentivizes professional content creation — it is an economic incentive to invest money in the production of creative output. There is a moral rights aspect to copyright — explicit in many civil law nations, implicit in many common law nations — but the incentive aspect of copyright is primarily economic.

Critics of copyright law occassionally advance arguments attacking the incentive given by copyright as unnecessary or outdated. This one in particular goes something like this: we have no need for copyright anymore because amateur creators don’t need copyright’s incentive to create and amateur creativity is better than professional creativity.

This notion isn’t unique to Masnick. Sci-fi writer Cory Doctorow shares this view. In the Guardian last November, he writes, “I mean, I love sitting in an air-conditioned cave watching Bruce Willis beat up a fighter jet with his bare hands as much as the next guy, but if I have to choose between that and all of YouTube, well, sorry Bruce.”

Swedish politician Rick Falkvinge is even more blunt, who, though he doesn’t get around to defining what he means by “new” types of culture, can’t wait for “old” types of culture to die out:

I’m going go out on a limb here and say, that even if it is true that movies can’t be made the same way with the Internet and our civil liberties both in existence, then maybe it’s just the natural progression of culture.

[…] After all, we have previously had operettes, ballets, and concerts as the high points of culture in the past. Even radio theaters (and famous ones). Nobody is particularly concerned that those expressions have had their peak and that society has moved on to new expressions of culture. There is no inherent value in writing today’s forms of culture into law and preventing the changes we’ve always had.

You’ll even find such ideas coming from more scholarly sources. The Social Science Research Council’s Media Piracy in Emerging Economies report adopts this idea and wraps it up in more academic language:

[W]e take seriously the possibility that the consumer surplus from piracy might be more productive, socially valuable, and/or job creating than additional investment in the software and media sectors. We think this likelihood increases in markets for entertainment goods, which contribute to growth but add little to productivity.

Promoting the Progress

“To promote the progress of useful arts, is the interest and policy of every enlightened government.”¹

In the US, the end goal of copyright law is promoting the progress of the useful arts and sciences. A private right is secured as an incentive for creating and disseminating works for the public benefit.

Usually when we talk about “amateur creativity” and copyright, we’re talking about cultural works that are made for many of the same reasons as professional works but without the commercial aspect — videos, music, and writing created by hobbyists or striving professionals. But some of those making the argument that amateur creativity makes copyright obsolete sweep in not only this type of creativity but all noncommercial creative acts.

Snapshots, home videos, and status updates are great ways to communicate and express ourselves, but these can hardly be considered contributing to the promotion of the progress of the useful arts and sciences. Where is the public benefit in a stranger’s vacation pics? (Never mind that, unless you’re friends with all these people, you likely can’t see most of them.)

I wonder sometimes about those who don’t see the value of art and entertainment made by someone who got paid for it. It’s stunning that they can’t see the value of these novels, or these films, or these albums, or these photographs.² To dismiss these works and countless others like them as mere “entertainment” that is “unproductive” is an incredibly narrow viewpoint.

What’s equally stunning is the view that the measure of progress when it comes to copyright law should be based solely on numbers — quantity over quality. Ten photos are better than one, no matter what.

Come on.

Faza, at the Cynical Musician, addressed this topic last year in a post on Graphomania. And the late Barbara Ringer had this to say:

I agree that the copyright law should encourage widespread dissemination of works of the mind. But it seems to me that, in the long pull, it is more important for a particular generation to produce a handful of great creative works than to shower its schoolchildren with unauthorized photocopies or to hold the cost of a jukebox play down to a dime, if that is what it is these days.

Copyright protection

But suppose we ignore all this and decide to weaken copyright protection since the incentive is not needed anymore — problems would still remain. While the type of amateur creativity discussed above doesn’t rely on copyright’s incentive, it still benefits from the protection copyright law affords. A lot of attention is focused on end-user piracy of works from larger entities, but larger entities can infringe on individuals’ works.

Certainly, this type of infringement happens now. Look at the flurry of controversy that stemmed from news that photo service Twitpic claimed copyright on users’ images, allowing it to distribute those images to its company partners. This is far from an isolated incident — in 2007, the family of a 16 year-old girl took Virgin Australia to court for using a photo of her, uploaded to Flickr under a Creative Commons license, in an ad campaign (the case was dismissed for lack of jurisdiction). And even the aforementioned Doctorow has publicly railed against the unauthorized use of one of his wife’s photos by a newspaper.

Without copyright protection, companies would have free rein to behave like this. There’s nothing magical about copyright protection that makes it only limit the ability of consumers getting free movies.

Development of creative tools

Technology is suggested by Masnick as a better mechanism for promoting creativity than copyright protection. It’s true that people today have access to a vast array of cheap and portable tools to record and produce high quality audio and visual content (though no technology has yet made it easier to learn how to tell a story or convey an emotion). But this idea that technology has rendered copyright obsolete begs the question that a functioning market for professional content had nothing to do with the development of that technology.

Would there be technological tools that help amateurs create — especially free or cheap tools like GIMP, Blender, and Reaper — without their commercial precursors? These tools required investment and development, and that came largely from their use in professional contexts — decades of improvement fueled by a need for this technology and enabled by the money to meet that need. Invention, after all, doesn’t occur in a vaccuum.

No doubt this technology would have developed without copyright and a market for professionally produced content. But it certainly wouldn’t have developed at the rate it had — the tools that are available today would likely be decades away in such a world.

This ties into the benefit of copyright protection and its economic rationale. I think even copyright’s critics would agree that the ability to create movies and music from a home computer is a good thing. And, while I’m unaware of any research quantifying the effect of a market for professional content on the development of the technology used to create that content, I think it’s safe to say that it does have an effect, and probably not an insignificant one. We, as a society, generally want to encourage those things that bring about good results. Viewed this way, copyright makes sense from a public interest and economic perspective.

The “progress” of destroying markets

The biggest problem with attacking copyright by placing amateur content on a higher pedestal than professional content is that it sets up a false dichotomy. When did this become an either/or choice?

Amateur creativity thrives regardless of the copyright incentive. In fact, it’s an essential part of any culture with professional creators: almost without exception, every one of those professional creators has started out as an amateur. What Masnick, Doctorow, Falkvinge, and others are saying is that society would be better off with only amateur content rather than the combination of amateur and professional content.

That doesn’t sound like progress to me.

Footnotes

Grant v. Raymond, 31 US 218, 241 (1832). [↩]
I chose these lists only as representative examples of works held in high regard. Obviously there are problems with ‘best of’ lists of this sort. [↩]

Posted in: Copyright Criticism · 15 comments

Share: Facebook Twitter Reddit Google+ LinkedIn

Should Copyright be Treated Like Property?

October 13, 2010 · Terry Hart · Comments Off

Many critics of current copyright doctrine believe its problems stem largely from an infusion of “property talk” into policy discussions. William Patry writes in Moral Panics and the Copyright Wars, “By describing copyright as a private property right, proponents of the description hope to get policy makers and courts to believe that only private, and not public rights are implicated.”¹ Later, he adds, “The effort to describe copyright as property is intended to invoke ancient entitlement to powerful rights of exclusion, rights granted automatically as a member of the oldest families.”²

A similar argument is made by Steve Collins in “‘Property Talk’ and the Revival of Blackstonian Copyright“:

The possessiveness and exclusion that accompany “property talk” are difficult to reconcile with the utilitarian foundations of copyright. Transformative uses of copyrighted materials such as mashing, sampling and appropriative art are incompatible with a propertarian approach, subjecting freedom of creativity to arbitary licensing fees that often extend beyond the budget of creators (Collins). “Property talk” risks making transformative works an elitist form of creativity, available only to those with the financial resources necessary to meet the demands for licences.

This view is shared by many copyright critics online. Mike Masnick, at TechDirt, consistently argues that copyright is not property, and can in fact be viewed as “anti-property.” Boingboing blogger Cory Doctorow says,

Trying to shoehorn knowledge into the ‘property’ metaphor leaves us without the flexibility and nuance that a true knowledge rights regime would have.
…

Copyright – with all its quirks, exceptions and carve outs – was, for centuries, a legal regime that attempted to address the unique characteristics of knowledge, rather than pretending to be just another set of rules for the governance of property. The legacy of 40 years of “property talk” is an endless war between intractable positions of ownership, theft and fair dealing.

But is this necessarily true?

Transformation in Property and Copyright

Legal Theory Blog points to a new paper by Christopher M. Newman that argues many of the problems in current copyright doctrine – specifically relating to how it treats creative uses rather than consumptive uses of existing works – may be better addressed by treating copyright more like property rather than less.

Transformation in Property and Copyright is available at SSRN, and I second Legal Theory Blog’s recommendation. The abstract reads:

Copyright requires us to distinguish between two different ways of transforming a “work of authorship”: “derivative works” and “transformative fair uses.” The absence of a clear line results in a tendency to assign all value arising proximately from a work to copyright owners. Many people blame this expansionist tendency on a “propertarian” understanding of copyright, and argue that the solution is to abandon any notion of copyright as property. I agree that current copyright doctrine often gives excessively broad scope to the exclusive rights of copyright owners, but argue that this may be a result of copyright not being “propertarian” enough. Property is an attempt to coordinate resource use through a system of in rem rights whose content can be understood by third parties without reference to the subjective use preferences of others. Traditional property law dealing with the transformation of mundane objects uses objective, socially intelligible tests of identity to determine when an owner’s rights in a thing have been extinguished, thus preventing owners from asserting subjective use preferences as a means of extracting value from transformed objects created by others.

Far from implying “absolutist” authorial rights, an in rem approach to copyright requires that we place clear boundaries around the identity of the “work of authorship.” This means moving away from the notion that disembodied fragments of “protected expression” can be owned separately from the “work of authorship” of which they are a part. I show how this might be done, proposing to define a “work of authorship” in terms of a coherent expressive experience designed by an author. Putative “copies” that are not tailored to facilitate beneficial use of the work as conceived by the author, but rather to communicate second-order information, or to give rise to expressive experiences radically discontinuous from the ones the author designed, therefore fall outside the author’s right to exclude altogether. Such a “propertarian” approach could be both clearer and more protective of free speech than current doctrine, because limits on the scope of the author’s rights would be defined intrinsically, obviating the need to resort to fair use doctrine with its value-laden weighing of social worth.

Essentially, Newman argues that copyright doctrine needs a better theory to sort out the age-old question of “which ‘further purposes’ authors should control, and which they shouldn’t.” Along the way, he touches on a number of situations in which current copyright doctrine finds infringing use where many would argue noninfringing use: unauthorized sequels (like The Wind Done Gone), “fictional facts” (at issue in the lawsuit against the Seinfeld Aptitude Test), and uses of a work to convey second order information (for example, incidental captures of copyrighted works in film scenes). Newman convincingly argues that his “propertarian” approach would sort out infringing and noninfringing uses that are better aligned to the underlying goals of copyright law.

It’s definitely worth a read. Those outside the legal and academic fields may find it long (it’s just under 80 pages) and technical at times, but there’s plenty of good stuff inside.

Newman’s article builds upon a number of previous works, but I wanted to specifically point out two that are worth reading if you’re interested in this area of the copyright debates. The first is Adam Mossoff’s Is Copyright Property? and the second is Richard Epstein’s Liberty versus Property? Cracks in the Foundations of Copyright Law, both available at SSRN.

Upon reading Newman’s article, I was reminded of an earlier article by David Fagundes, Crystals in the Public Domain. Newman argues along much the same lines as Fagundes, as you can see in the abstract:

The law increasingly treats copyright as if it were any other form of property, and numerous writers decry this trend. In particular, scholars who express solicitude for the public domain fear that the propertization of copyright means an inevitable accretion of private rights in information at the expense of the public domain. This Article critiques this conventional view, arguing that the propertization of copyright has unappreciated advantages for users of public information goods. The conventional view relies on an overly narrow view of what propertization means. The treatment of copyright as a form of property generally entails not only reduction of entitlements to private ownership, but also the bounding of those entitlements with clearly demarcated, or crystalline, borders. Although many writers prefer muddy entitlements that create fluidity regarding the extent of the public domain, this Article argues instead that it is this very fluidity that is at fault for excessive accretion of private rights in information. Uncertainty about the extent of public entitlements in information allows well-capitalized private actors lay claim to resources whose public/private status is at all ambiguous, and then deter the public’s claims through threats of litigation. By contrast, a public domain characterized by crystalline rule structures would benefit users, not only owners, by allowing them to better comprehend the extent of their entitlements and thus exploit common resources without fear of suit. By way of illustration, this Article provides three examples of how copyright law could be reformed to create user-friendly crystalline entitlement structures. It then concludes by situating the propertization of copyright law, and this critique of the dominant narrative about that trend, in the context of current debates in property law more generally.

Fagundes’s article includes several specific proposals to copyright law as a way of incorporating his arguments.

The cries that “copyright is not property!” embrace not only a simplistic idea of “property” but also ignore the benefits that taking a more “propertarian” approach to copyright doctrine may provide. The idea that “property talk” is a pretext for exerting “sole and despotic dominion” over all uses of a copyright does not hold weight upon closer examination. Newman’s article provides one such examination, and I highly recommend giving it a read.