By , October 17, 2014.

A Slippery Slope: the Facilitation of Fair Use as Fair Use — “Even with the limited nature of the decision, it continues a worrisome trend – permitting a for-profit entity to commit direct copyright infringement because of potential downstream fair uses by third parties. While the fair use doctrine has long been nebulous, it should concern copyright owners that that downstream fair use could justify upstream infringement. Under the court’s reasoning, one could assert that it is not copyright infringement for a street vendor to pirate a copyrighted film and sell it to a film critic so that she may review it because criticism and comment are permissible fair uses.”

Himma on the Unlimited Supply of Information — A fascinating (an d brief) take on the scarcity and nonrivalrous arguments in IP.

An intellectual object of any kind can be reached only through the mediation of some intellectual activity.

This is all the more so of complicated intellectual objects like mathematical proofs, scientific theories, and novels. Intellectual objects are not like fruits on a tree that can simply be picked and consumed; someone has to do something to make them available for consumption. Indeed, it might take hundreds of years of concerted intellectual activity on our part to gain reasonable access to an intellectual object in logical space – as was the case with the proof of Fermat’s Last Theorem.


Moreover, and this is crucial, the available supply of intellectual objects can be increased in only the same way that the available supply of material objects can be increased – namely, by deploying a resource that is limited and valuable because it is limited: human labor. Every moment I spend in writing this paper has value to me because I will live for only a limited number of moments. To increase the number of novels available for human consumption, then, someone has to devote her time and her energy, resources of value to any being with a finite lifespan, to produce one. To increase the number of apples available for human consumption (beyond the small number that naturally occur), someone has to devote her time and her energy to it. This is no less true of intellectual objects than it is for material objects.

Copyright, the Internet and Efficient Risk Bearing — Stuart Brotman argues the DMCA could be improved by using an efficient risk-bearing standard. “One of the most basic principles underlying liability rules is that legal responsibility should fall on those who most cost-effectively can limit or eliminate harm. The shape of common law’s tort rules largely is organized around this principle, and so are rules for enforcement of contracts and property rights, including intellectual property rights.”

Streaming Is the Future, Spotify Is Not. Let’s talk Solutions. — “Isn’t it odd that companies like Pandora and Spotify that are not profitable and don’t support artists are thought to behold some kind of gnostic wisdom of economics that defies all logic and reason? Last year Twitter lost $645 million dollars. Record labels have been profitable for over half a century with a sustainable ecosystem that invests in artists and new talent, while also creating hits and stars. It’s time to leave the rainbow unicorn school of economics and faith healing behind and develop real business models based on real economics.”

Smile! Marketing Firms are Mining Your Selfies — So if you’re, say, eating chips in a photo, you’ll be targeted for ads for more chips. Because that’s just how the Internet works.

Common Ground Between Creativity and Innovation — Last week, I was at a conference that explored the similarities between copyright and patent. Here is a summary of that conference.

Is Amazon a Monopoly? — “But on the larger question of whether Amazon is literally and technically a monopoly: Probably not, but the distinction is not all that important. It’s a bully, it’s destroying important institutions, and it’s getting more and more powerful, and its founder now owns the dominant newspaper in the nation’s capital. Amazon controls roughly half the trade in books in the U.S. We may need a new word to describe what it is, but to sit around and debate terminology as we watch the creative destruction seems to me the worst kind of chattering-class hair-splitting.”