15 Objections to Copyright from 1855

By , March 06, 2012.

Everything is a remix. Information is non-rivalrous. Intellectual works are non-excludable. Copying doesn’t deprive a creator of anything.

Spend enough time reading about or discussing copyright online and you’re bound to have become familiar with statements like these. The increasing popularity of copyright with the general public has brought more attention to these arguments — but don’t make the mistake that these are new arguments.

Case in point: The Law of Intellectual Property; or An Essay on the Right of Authors and Inventors to a Perpetual Property in their Ideas, a book that devotes considerable time repudiating fifteen objections that are strikingly similar to ones made today. The book, however, was written over 150 years ago.

The author, Lysander Spooner, was an American anarchist, abolitionist, and legal theorist who lived from 1808 to 1887. The Law of Intellectual Property; or An Essay on the Right of Authors and Inventors to a Perpetual Property in their Ideas was published in 1855 and considered one of the most extensive defenses of intellectual property as a natural right ever penned — it is also one of the earliest uses of the term “intellectual property.” 1Randy E. Barnett, “Spooner, Lysander“, The Yale Biographical Dictionary of American Law, pg. 509 (2009).

The entire volume is too long to post here but well worth a read. 2The work is labelled as “volume 1” with indications of what topics Spooner planned to discuss in volume 2. However, Spooner never completed the second volume. Instead, I’d like to highlight a few key passages.

Spooner begins with a discussion of the concepts of wealth and property. His assertion that man has a natural right to property in his ideas is similar to Locke’s labor theory of property. 3See Steve J. Shone, Lysander Spooner: American Anarchist, pp. 11-13 (2010). This is followed by Spooner’s response to fifteen common objections. Though he focuses on ideas, in the context of inventors and patent law, the discussion is generally just as applicable to copyright law and its protection of original expression of ideas as well.

First up is the charge that there can be no property right in ideas because they are incorporeal, or intangible. Spooner concludes:

The right of property being incorporeal, and being itself a subject of property, it demonstrates that the right of property may attach to still other incorporeal things; for it would be plainly absurd to say, that there could be an incorporeal right of property to a corporeal thing, but could be no incorporeal right of property to an incorporeal thing. Clearly an incorporeal right of property could attach to an incorporeal thing—a thing of its own nature—as easily as to a corporeal thing, a thing of a different nature from its own. The attachment of this incorporeal right of property, to a corporeal thing, is not a phenomenon visible by the eye, nor tangible by the hand. It is perceptible only by the mind. And the mind can as easily perceive the same attachment to an incorporeal thing, as to a corporeal one.

The fifth objection Spooner addresses would today be described as the “everything is a remix” objection:

… That the course of events, and the general progress of knowledge, science, and art, suggest, point to, contribute to, and aid the production of, certain inventions; and that it would therefore be wrong to give to a man an exclusive and perpetual property, in a device, or idea, which is not the unaided production of his own powers; but which so many circumstances, external to himself, have contributed and aided to bring forth. …

The sum of this argument, therefore, is, that authors and inventors have the benefit of all the knowledge that has come down to us, to aid them in producing their own writings and discoveries; and therefore they should have no right of property in their writings and discoveries.

If this objection be sound, against the rights of authors and inventors to their intellectual productions, then it will follow that other men have no right of property in any of those corporeal things, which the knowledge, that has come down to us, has enabled them to produce, or acquire. The argument is clearly as applicable to this case as the other.

It is no doubt true, that the course of events, and the general progress of knowledge, science, and art, do suggest, point to, contribute to, and aid the productions of, many, possibly all, inventions. But it is equally true that the course of events, and the general progress of knowledge, science, and art, suggest, point to, contribute to, and aid the production and acquisition of, all kinds of corporeal property. But that is no reason why corporeal things should not be the property of those, who have produced or acquired them. Yet the argument is equally strong against the right of property in corporeal things, as in intellectual productions. If, because authors and inventors, in producing their writings and discoveries, had the advantage of the course of events, and the general progress of knowledge, in their favor, they are to be denied the right of property in the fruits of their labors, then every other man, who has the course of events, and the progress of knowledge, science, and art in his favor, (and what man has not?) should, on the same principle, be denied all ownership of the fruits of his labor—whether those fruits be the agricultural wealth he has produced, by the aid of the ploughs, and hoes, and chains, and harrows, and shovels, which had been invented, and the agricultural knowledge which had been acquired, before his time; or whether they be the houses or ships he has built, through the aid of the axes, and saws, and planes, and hammers, which had been devised, and the mechanical knowledge and skill that had been acquired, before he was born.

Under the ninth objection, Spooner addresses the equivocating argument against copyright — sure, creators should be compensated for their work, just not through legal protection of intellectual property:

This view of the case, it will be seen, denies to the inventor all exclusive right of property in his invention. It asserts that the invention really belongs to the public, and not to himself. And it only advocates the morality and equity of allowing him such compensation for his time and labor as is reasonable. And it maintains that such compensation should be determined, in some measure at least, by the compensation which other men than inventors obtain for their time and labor. And this is the view on which patent laws generally are founded.

The objection to this theory is, that it strikes at all rights of property whatsoever, by denying a man’s right to the products of his labor. It asserts that government has the right, at its own discretion, to take from any man the fruits of his labor, giving him in return such compensation only, for his labor, as the government deems reasonable. …

Those, who talk about the justice of the government’s allowing an inventor reasonable compensation for his labor, talk as if the government had employed the inventor to labor for it for wages—the government taking the risk whether he invented any thing of value, or not. In such a case, the government would be entitled to the invention, on paying the inventor his stipulated, or reasonable, wages. But the government does not employ an inventor to invent a steamboat, or a telegraph. He invents it while laboring on his own account. If he succeed, therefore, the whole fruits of his labor are rightfully his; if he fail, he bears the loss. He never calls upon the government to pay him for his labor that was unsuccessful; and the government never yet undertook to pay for the labor of the hundreds and thousands of unfortunate men, who attempted inventions, and failed. With what force, then, can it claim to seize the fruits of their successful labor, leaving them only what it pleases to call a reasonable compensation, or reasonable wages, for their labor? If the government were to do thus towards other men generally than inventors, there would be a revolution instantly. Such a government would be universally regarded as the most audacious and monstrous of tyrannics.

On the “non-rivalrous” nature of intellectual property:

It is said that ideas are unlike corporeal commodities in this respect, namely, that a corporeal commodity cannot be completely and fully possessed and used by two persons at once, without collision between them; and that it must therefore necessarily be recognized as the property of one only, in order that it may be possessed and used in peace; but that an idea may be completely and fully possessed and used by many persons at once, without collision with each other; and therefore no one should be allowed to monopolize it. …

On this principle a man has a right to take possession of, and freely use, any thing and every thing he sees and desires, which other men may have produced by their labor—provided he can do it without coming in collision with, or committing any violence upon, the persons of other men.

This is the principle, and the only principle, which the objection offers, as a rule for the government of the conduct of mankind towards each other, in the possession and use of material commodities. And it seriously does offer this principle, as a substitute for the right of individual and exclusive property, in the products and acquisitions of individual labor. The principle, thus offered, is really communism, and nothing else.

If this principle be a sound one, in regard to material commodities, it is undoubtedly equally sound in relation to ideas. But if it be preposterous and monstrous, in reference to material commodities, it is equally preposterous and monstrous in relation to ideas; for, if applied to ideas, it as effectually denies the right of exclusive property in the products of one’s labor, as it would if applied to material commodities.

It is plain that the principle of the objection would apply, just as strongly, against any right of exclusive property in corporeal commodities, as it does against a right of exclusive property in ideas; because, 1st, many corporeal commodities, as roads, canals, railroad cars, bathing places, churches, theatres, &c., can be used by many persons at once, without collision with each other; and, 2d, all those commodities—as axes and hammers, for example—which can be used only by one person at a time without collision, may nevertheless be used by different persons at different times without collision. Now, if it be a true principle, that labor and production give no exclusive right of property, and that every commodity, by whomsoever produced, should, without the consent of the producer, be made to serve as many persons as it can, without bringing them in collision with each other, that principle as clearly requires that a hammer should be free to different persons at different times, and that a road, or canal should be free to as many persons at once, as can use it without collision, as it does that an idea should be free to as many persons at once as choose to use it.

The rest of the objections are just as familiar to modern audiences. Spooner rebuts the Jeffersonian-inspired argument against intellectual property (“that his giving knowledge to other men is only lighting their candles by his, thereby giving them the benefit of light, without any loss of light to himself; and that therefore he should not be allowed any exclusive property in his ideas”), the argument that intellectual property belongs to society instead of creators, and the argument that intellectual property is invalid because it is nonexcludable.

A modern update to The Law of Intellectual Property would perhaps only need to add one additional objection: the idea that copyright only “made sense” in a world without digital technology and global communication networks, but those technologies have somehow rendered the law’s foundations absurd. As the book illustrates, however, for as much as technology has advanced, arguments against securing the exclusive rights of creators have stayed remarkably the same.

References

References
↑1 Randy E. Barnett, “Spooner, Lysander“, The Yale Biographical Dictionary of American Law, pg. 509 (2009).
↑2 The work is labelled as “volume 1” with indications of what topics Spooner planned to discuss in volume 2. However, Spooner never completed the second volume.
↑3 See Steve J. Shone, Lysander Spooner: American Anarchist, pp. 11-13 (2010).

Rehabilitating Locke: The Labor Justification of Copyright

By , March 05, 2012.

Copyright law is generally justified under three theories. 1Moore, Adam, “Intellectual Property“, The Stanford Encyclopedia of Philosophy (Summer 2011 Edition), Edward N. Zalta (ed.); see also the Wikipedia entry on Justifications for copyright.

The first is the utilitarian, or consequentialist, basis. Society benefits from the production of creative works. But in the absence of legal protection, creative production tends to be inefficient since costs of creation are high while costs of copying and distribution are low.

The second form of copyright justification is based on moral rights or personality claims. This theory embraces the view that expressive works are the extension of one’s self and thus are deserving of protection because of an individual’s inherent dignity.2As with the utilitarian justification of copyright, rights-based theories are not static. Recent work by Abraham Drassinower, for example, presents a rights-based justification of copyright that conceives works as communicative acts.

The final theory owes its origins primarily to the work of Enlightenment philosopher John Locke. Here, the justification of copyright stems from the right of an individual to control the fruits of his labor.

Generally speaking, Anglo-American copyright law adheres more closely to a utilitarian system while Continental legal systems start with a moral rights basis—though there is plenty of overlap in the two systems. The Lockean justification, however, has largely fallen out of favor among academics and policy makers.

But as legal professor Adam Mossoff explains in his recent article Saving Locke from Marx: The Labor Theory of Value in Intellectual Property Theory, Locke’s justification has been “relegated to the dustbin” of history not because it is faulty, but because it has been misunderstood. As Mossoff puts it, “Locke’s labor theory of value has suffered much at the hands of contemporary philosophers.”

According to the abstract:

The labor theory of value is fundamental to John Locke’s justification for property rights, but philosopher Edwin Hettinger argued in an oft-cited article that it fails to justify intellectual property rights. In making this critique, though, Hettinger redefined Locke’s theory into a theory about proportional physical labor creating economic value, just as Robert Nozick, G.A. Cohen and other philosophers have done. In response to this strawman attack, this article describes Locke’s labor theory of value and how Locke himself applied it to intellectual property rights. It does so by analyzing the actual text of the Second Treatise, including many forgotten or neglected sections, and by integrating Locke’s property theory within the context of his natural law ethical theory, as presented in An Essay Concerning Human Understanding and in other works. In its proper context, Locke’s concept of labor refers to production, which is both an intellectual and physical activity. His concept of value refers to what serves the flourishing life of a rational being, which is a conception of the good that is more robust than merely physical status or economic wealth. Locke’s own text and philosophical arguments answer the absurdities imposed on him by Hettinger, Nozick, Cohen and others. Even more important, understanding his labor theory of value explains why Locke expressly approves of inventions in his property theory and why he explicitly argues that authors have property rights (copyrights) in their writings, which are arguments that are seemingly lost on his modern critics.

For non-philosophers, like myself, the writing may at times be dense, but it is no less important and well worth a read. As Mossoff points out, the Lockean view of copyright was prevalent in the US during the 18th and 19th centuries. The Continental Congress resolution to the States to pass copyright legislation was inspired in part by lobbying from author Joel Barlow. His 1783 letter to the Congress reads in part:

There is certainly no kind of property, in the nature of things, so much his own, as the works which a person originates from his own creative imagination: And when he has spent great part of his life in study, wasted his time, his fortune & perhaps his health in improving his knowledge & correcting his taste, it is a principle of natural justice that he should be entitled to the profits arising from the sale of his works as a compensation for his labor in producing them, & his risque of reputation in offering them to the Public.

Twelve of the thirteen existing states passed legislation following the resolution, with the majority of them explicitly espousing the principle that authors are entitled to the value of their labor.

Labor and Value

Since that time, legal scholars and philosophers have eroded this prevalent view. Mossoff explains why. John Locke, the Founding Fathers, and early American jurists weren’t laboring (pardon the pun) under a false assumption; it is the legal scholars and philosophers who are mistaken, misconstruing Locke’s notion of labor with only physical labor and his notion of value with only economic value.

According to Mossoff:

[Locke’s] concept of labor refers to production, which has intellectual as well as physical characteristics, and his concept of value serves his moral ideal of human flourishing, which is a conception of the good that is more robust than merely physical status or economic wealth.

The Feist Fallacy

This erosion in Locke’s theory was bolstered by the US Supreme Court’s 1991 decision in Feist Publications v. Rural Telephone Service. There, the Court heard a dispute between two competing publishers of telephone books, with one accused of copying the directory listings of the other. The Court held that the “sweat of the brow” doctrine did not extend copyright protection to factual information—the original publisher of the telephone directory could not claim copyright protection over its collection of telephone numbers merely because it had expended labor compiling them.

Mossoff points out that “intellectual property scholars widely believe that Feist represents an unequivocal rejection of Locke’s labor theory of property in copyright law.” Though not mentioned in the article, noted copyright scholar William Patry, in his 2008 book Moral Panics and the Copyright Wars, goes so far as to say the Court rejected the “labor basis for copyright” as unconstitutional.3Pg. 65. Yet the Court explicitly approved of Locke’s theory, says Mossoff. The “sweat of the brow” doctrine relies solely on the physical labor expended in creation, so when one realizes that Locke was not talking solely of physical labor, one realizes the mistake scholars have made.

Mossoff stops short of endorsing Locke’s justification of intellectual property. As he notes:

This article describes Locke’s argument for his labor theory of value in order to expose the strawman attack on his property theory by contemporary philosophers, especially within intellectual property theory, but it does not purport to justify his labor theory of value. This justification, which raises difficult questions about the foundations of value theory, such as whether values are objective, subjective, or intrinsic, must be left for another day.

It will be interesting to see if scholars build upon Mossoff’s work, but my hope is that Locke’s labor theory regains its stature among the other justifications for copyright. We live in a global, pluralistic society, and legal doctrines, including copyright law, should enshrine pluralistic justifications. Just because someone—whether an individual or a multi-billion dollar corporation—can exploit the value of someone else’s labor doesn’t make the fact that they shoulda foregone conclusion. In Locke’s words, man is a “proprietor of his own person”, and because of this, as Mossoff interprets Locke, “value-creating, productive labor is a moral activity that creates in the laborer a moral claim to the products of his labor.” These principles have served society well, and no technological innovation can render them obsolete.

References

References
↑1 Moore, Adam, “Intellectual Property“, The Stanford Encyclopedia of Philosophy (Summer 2011 Edition), Edward N. Zalta (ed.); see also the Wikipedia entry on Justifications for copyright.
↑2 As with the utilitarian justification of copyright, rights-based theories are not static. Recent work by Abraham Drassinower, for example, presents a rights-based justification of copyright that conceives works as communicative acts.
↑3 Pg. 65.

Friday’s Endnotes – 03/02/12

By , March 02, 2012.

And we’re back.

Posting has been sparse in the past couple of weeks as I focused on preparing for the bar exam, but with that behind me, I can now turn my attention back to the blog. Today will be a super-sized collection of links as I continue to catch up with many of the recent developments in copyright law. Enjoy!

Tinseltown, Ghost Town — A sobering op-ed from the NY Times on how the economic downturn has hit the film industry. “Her eviction follows that of our mutual neighbors, actors on a well-known soap opera forced out of their house in a foreclosure in a driving rainstorm four days before Christmas. Their dark, vacant houses, emblazoned with the public notices taped in the windows like shameful scarlet A’s, are holes in the hidden, fraying social fabric of Hollywood, where a vast majority belong not to the 1 percent but to the 99.”

Patience and piracy: Why helping yourself hurts good TV — Todd VanDerWerff, writing at the Onion AV Club, delves into the recent Oatmeal comic on piracy. Highly recommended. Says VanDerWerff, “I came into this piece with the idea that there was an easy answer here: Be more patient. The Internet has created a largely immature desire to have everything you’ve ever wanted now, and if it’s not available now, well, who cares about the companies who funded that entertainment in the first place? For the most part, I find this sort of behavior—and the self-righteous chest-thumping that too often goes along with it—distasteful.”

Comments, Questions, Concerns:  RIAA CEO Reflects On Responses To His New York Times Op-Ed — The RIAA’s Cary Sherman provides a thoughtful response to those who volunteered their thoughts on his article in the NY Times earlier this month. “Skepticism is a healthy and useful thing.  It is good to question.  But that posture should apply universally to all sources of information.  The technology companies that turned their platforms into engines of advocacy did so because it was in their business interests.  I don’t have a problem with them looking out for their economic interests, but technology companies have an obligation to make sure that readers and users get straight facts and understand that this is about business, not idealistic values.”

Piracy is not competition — When brick-and-mortar bookstores complain about the threat they face from Amazon.com, they are complaining that customers will leave them for a superior alternative; when Hollywood complains about piracy, they are complaining that customers have left them for an illegal alternative. They have stopped paying for Hollywood products yet are still consuming them. These are not even remotely similar situations — morally, legally, or economically.”

Hadopi Becomes un Ballon de Football Politique — Bill Rosenblatt takes a look at some of the recent statistics concerning France’s graduated response program and offers some comments on the politics of copyright debates. “Like it or not,” he notes, “the Hadopi system seems to be working so far.” “Let Hadopi-haters do their own serious quantitative studies, and let’s compare the results.  Let’s make the judgments on facts, and for God’s sake let’s not let political posturing pollute the atmosphere.”

Keeping the Pirate Bays at Bay — Barry Sookman offers his usual stellar insights into a current UK High Court case where record labels are seeking ISP blocking orders against the notorious Pirate Bay. “Based on previous jurisprudence in the UK and elsewhere in the EU,” says Sookman, “it seems very likely that the UK High Court will make an order blocking or impeding access to The Pirate Bay.”

Copyright, piracy and when fans need to stop circulating the tapes — The Whine Seller’s Hillary DePiano ponders the challenges created by the ease of piracy and difficulty of creating legitimate online outlets. Obviously, content creators want to make it as easy and convenient for consumers to access their works, yet pirates have a clear advantage when they don’t have to worry about pesky details like licensing or the costs of producing content.

The end of two free culture myths — John Degen highlights recent comments by Canadian attorney James Gannon in front of the Bill C-11 Committee of Parliament. The myths? Number 1: “Only old, incumbent players advocate for strong copyright protection. The new generation doesn’t bother with copyright.” And number 2: “Those advocating strong copyright protection just don’t understand new technology.”

The Relationship Between the ISP Safe Harbors and the Ordinary Rules of Copyright Liability[PDF] — An informative academic introduction to how ordinary principles of direct and secondary copyright liability have interacted with the DMCA safe harbors since their introduction, by IP lawyer and professor R. Anthony Reese. “The safe harbors may be more valuable than they initially appear for OSPs facing secondary liability claims, and less valuable than they initially appear for OSPs facing direct infringement claims.”

Cord Cutting Can Wait: Subscription TV Added 343,000 Subs in Q4 — Reports PaidContent, “The nation’s top cable, satellite and telco TV service providers grew their customer base sharply in the last quarter of 2011, reversing several years of steep decline. … So what’s happening here? Did the cord-cutting movement stall out? Hardly—it was the bad economy all along.”

Celebrating Independent Film at the DC IFF Hill Summit — The Copyright Alliance reports on a recent panel discussion at the DC Independent Film Festival Summit on the Hill. Congressman Brad Sherman gave a keynote on the importance of copyright protection for independent filmmakers, followed by the panel discussion on online video sharing and piracy.

Business Matters: When is it Safe to Say Google Music Has Failed? — Glenn Peoples at Billboard says: “Google’s giant footprint was to give Google Music unparalleled access to music lovers. But according to a report by CNET’s Greg Sandoval, Google Music has disappointed industry executives in its 3 short months of existence.”

Author discovers that Amazon can reprice his indie Kindle books however they want and cut his royalties, at will — Meet the new boss. “Hines points out that when his traditional publisher and its bookseller partners decide to offer his work at sale prices, he still gets paid royalties based on the cover price, and discusses the difficulties he faces in lacking the clout of an agent or a major publisher in negotiating with Amazon over this practice.”

The Fallacy Of Music Like Water — A thoughtful guest post from Portland songwriter and producer Gavin Castleton. Castleton points out that “proponents of the Music Like Water concept have put far more thought into making everything free to the consumer than they have into making sure people can find what they want, and in order for artists and consumers to have a better experience with music, distribution and filtering have to be lockstep.”

Scroogle: Dear Google, we’re not bots, we’re HUMAN — Why is Google so intent on creating artificial scarcity for its search results?

Upcoming Supreme Court Case May Be Key To Holding Spy Tech Companies Responsible For Human Rights Violations — The EFF argues that the US should hold technology companies liable for what their users do with their products.

Friday’s Endnotes – 02/17/12

By , February 17, 2012.

Spinning the Online Piracy Debate — Christopher Shea at the Wall Street Journal reports on how a study that examined the effects of P2P downloading on US box office receipts has been spun by some, including Boing Boing’s Cory Doctorow and TorrentFreak, to show no harm from piracy. (I would add Public Knowledge to this list.) This has prompted one of the study’s authors, Joel Waldfogel, to write a blog post in response. “We think our marquee result is the opposite,” said Waldfogel. “We do find evidence that piracy depresses international sales.”

African IP Summit short a development dimension? — The Afro-IP blog presents a comment from law professor Mark Schultz taking NGOs to task for criticism about the first-ever continent wide intellectual property conference in Africa. Well worth a read:

Inventions, creative works, and other fruits of the mind are not solely the product of the Global North. The human mind is the one resource we share in common, and everybody, everywhere has the capacity to create and innovate. Thus, the people of developing countries should not be treated as mere consumers of the products, innovation, and creativity of wealthy countries. IP is not an obstacle to poor people getting what they need from rich people; it can instead be the means by which the poor gain the things they need to flourish by protecting the products of their intellectual labor.

I wish that these assertions represented an attack on strawmen, but they do not. All throughout the Development Agenda discussions, the helplessness of developing countries was the implicit and sometimes explicit premise articulated by IP skeptics. It angered me then while I was sitting in the WIPO assembly hall in Geneva, and still angers me. IP isn’t something that helps only wealthy people. It’s something that could offer empowerment and security to the filmmakers of Nollywood and their aspiring cousins in Sollywood (RSA) and Hillywood (Rwanda); it could keep talented researchers at home and support the development of domestic industries.

Blackout?  What Blackout? “The SOPA blackout was about as organic as the masses of North Koreans crying in the streets upon hearing of Kim Jong Il’s death” — As more time passes since the online protests against SOPA, more and more people are digging into the driving forces behind it. As a character in one editorial comic puts it: “Ok, something’s up — that was way too easy.” Chris Castle reviews David Rodnitzky’s article (featured in a previous Endnotes) that examines some of these groups and lobbyists and adds additional info and context.

Protecting Content and Promoting Innovation in a Digital World: A Post-SOPA/PIPA Conversation — The Paley Center for Media hosted this interesting panel discussion between NBCUniversal General Counsel Rick Cotton and Union Square Venture’s Fred Wilson, where the two discussed the future of copyright on the internet.

Poll: Americans not with internet lobby on SOPA/PIPA — “There is a big political disconnect between the fact that ~80% of Americans believe online piracy and counterfeit drugs is a problem worthy of stronger laws, while the Internet lobby convinced millions of Americans to oppose a bipartisan proposed solution to this piracy problem – by characterizing the proposed legislation as “censorship” and “breaking the Internet.””

5 Misconceptions Sites/Hosts Have About the DMCA — Jonathan Bailey looks at some of the most common mistakes website hosts make dealing with the DMCA’s safe harbors.

Friday’s Endnotes – 02/10/12

By , February 10, 2012.

Hit record — Salon.com Editor-in-chief Kerry Lauerman reports on lessons his company has learned. Aggregation, staff cuts, and emphasis on churning out content — doesn’t work. Focusing on originality, quality over quantity, and publishing less while spending more time on writing — does work. The site has grown its readership for the second year in a row under the latter approach.

How SOPA and PIPA did and didn’t change how Washington lobbying works — A surprising take on the internet blackout from the Sunlight Foundation. 1I say surprising because the funders and board members of the Sunlight Foundation include many who were active in the opposition to SOPA and PROTECT IP. The post notes how tech lobbying has quickly eclipsed entertainment lobbying. It also notes the role the internet played in calling attention to the bills, asking in the end, “if the Googles, Facebooks, Twitters, and Wikipedias are becoming new guardians of political accountability, how accountable are they?”

In the music biz — Digital Music News has a couple of charts. The first shows a breakdown of Warner Music Group’s revenue sources from the last quarter of 2011. Physical formats still account for 51% of revenues. The second shows the distribution of digital revenues from online independent music store CDBaby. Over three quarters of these revenues comes from iTunes, while all streaming services bring in less than 10%.

The Sheepdogs Prove The Power Of Major Labels — Says the New Rockstar Philosophy, “As a close friend watching The Sheepdogs play for years, it’s interesting to see how the world has latched on to them. They’ve been doing the same music for a while, but only since the involvement of the Major Labels are The Sheepdogs starting to get larger recognition for their sound. To me this is a clear sign of the power of Major Labels. For all the talk of the end of an era, the Major Labels still have a lot of cash, expertise, and relationships that get doors open. Major Labels can get you seen and heard.”

Introducing Fountain — This one is for geeks/screenwriters. John August and Stu Maschwitz announce the Fountain markup language that enables script writing in any text editor using straightforward syntax. The result is a platform independent, future-proof file format ideal for collaboration and working anywhere.

Reining in the Rhetoric on Copyright Reform — Barry Sookman expands on his recent Financial Post article dealing with recent comparisons between Canada’s Bill C-11 and SOPA. “While recent attempts by the usual suspects making hysterical predictions about copyright reform in Canada have been ratcheted up yet again, this time the claims are so outrageous that they can perhaps best be described as having “jumped the shark”.”

The Future for Television or Google Wants to Burn Your Remote: More Google Union-Busting — Then they came for the trade unionists… Chris Castle sheds light on Google and company’s efforts against entertainment industry unions like IATSE, AFTRA, DGA, and SAG.

What Wikipedia Won’t Tell You — Cary Sherman’s op-ed in the New York Times provided fodder for many online discussions this week (including this odd piece from the EFF that refers to the record industry as “Hollywood”). One of the most important points he raises: Google, Wikipedia, and other services used their platforms to argue against the bill. Television networks and other media outlets that supported the bill didn’t. Understanding why they didn’t is crucial to understanding the concerns over the tactics used by the internet platform giants.

References

References
↑1 I say surprising because the funders and board members of the Sunlight Foundation include many who were active in the opposition to SOPA and PROTECT IP.

Friday’s Endnotes – 02/03/12

By , February 03, 2012.

What do Record Labels Actually Do? You’d be Surprised — “For all the cynicism about money-grabbing majors, labels still offer artists the security they need to produce their best work,” says Helienne Lindvall of the Guardian. “It’s true the internet has been brilliant for artists in many ways, giving them an alternative route to make contact with and sell directly to fans, but record labels do much more than distribute to retailers.”

5 Ways Piracy is Changing — Jonathan Bailey offers some thoughts on how the Megaupload indictment has affected the landscape of online infringement. “Piracy has been a part of being a content creator since day one and it isn’t going to go away. However, with time and effort, it may become more of a nuisance than a major concern and that, in the long run, should be the end goal. Not the elimination of piracy, but the mitigation of it.”

Bill C-11, “Digital Locks”, and Copyright Reform: What Kind of Business Models Do We Want to Encourage? — James Gannon poses this question in light of Canada’s efforts to update its copyright law. “While laws that would legalize modchip manufacturers and file-sharing websites might be popular with certain segments of the population, they are still bad economic policy. These are not business models that lead to sustainable, job-heavy enterprises; these are not business models that provide any rewards to artists and creative workers,” says Gannon. “When copyright opponents claim that we shouldn’t amend our laws in order to support outdated business models, I couldn’t agree more.”

Judge Declares Batmobile is Subject to Copyright — Why so serious? A federal judge denied a motion to dismiss a claim of copyright infringement against a defendant for creating replicas of the Batmobile. That doesn’t necessarily mean infringement, just that, at this stage, such a claim is plausible — which is not a terribly novel decision, since courts have long held that artistic elements of functional objects can be protected. But it does make for good water-cooler discussion.

Lobbyists 1, Internet 0: An Alternative Take on SOPA — It’s interesting to read accounts of the SOPA blackout that seem to take the view that opposition arouse wholly spontaneously. David Rodnitzky doesn’t buy it, and offers a look behind the scenes that is comprehensive yet still only the tip of the iceberg. “The notion that this was a battle of David vs. Goliath – the unwashed masses versus powerful Hollywood lobbyists – is a fiction. The outrage against SOPA simply would not have occurred without well-funded, well-organized efforts led by lobbyists and lawyers at major Internet sites.”

2Cellos – the artists behind ‘Glee’s’ ‘Smooth Criminal’ cover — There was something incredible about the two cellists providing the music for one of the songs on Glee this week, so I looked them up and discovered 2Cellos, a very talented duo. Good stuff.

More Evidence for Copyright Protection

By , February 01, 2012.

Following the shutdown of Megaupload, Internet folk hero Jonathan Coulton asked:

[W]here is the proof that piracy causes economic harm to anyone? Looking at the music business, yes profits have gone down ever since Napster, but has anyone effectively demonstrated the causal link between that and piracy? There are many alternate theories (people buying songs and not whole albums, music sucking more, niches and indie acts becoming more viable, etc.). The Swiss government did a study and determined that unauthorized downloading (which 1/3 of their citizens do) does not create any loss in revenue for the entertainment industry. I remember but am now too lazy to find links to other studies that say the same thing. I can’t think of any study I’ve seen that demonstrates the opposite. If there is one, please point me to it.

Now, before addressing Coulton’s remarks, I want to be clear — since The Internet can be touchy about such things — that I’m not picking on Coulton; I like some of his music.

Having said that, his remarks about the evidence concerning piracy are quite common. Facts and evidence are important to discussions of copyright policy, and it’s important that we understand exactly what those facts are.

Piracy Causes Harm

As for pointing to studies that demonstrate the harm of unauthorized downloading, I would point to the same link Coulton provided. The Swiss government report 1The report is in German. I haven’t tracked down an English version yet, but you can read a Google-translated version here. — not, technically, a study — cites an academic literature review that points to not only one such study but fourteen.

The review, The Economics of Music File Sharing – A Literature Overview, by Peter Tschmuck (Microsoft Word version here), examines 22 studies which look at the effects of filesharing on the music industry. Because some are skeptical of industry generated studies, it should be pointed out that all the studies here are independent, academic studies — working papers, academic journal articles, and dissertations. Of these 22 studies, 14 — roughly two-thirds — conclude that unauthorized downloads have a “negative or even highly negative impact” on recorded music sales. 2Three of the studies found no significant impact while the remaining five found a positive impact. The literature review looked at a 23rd study but did not classify it here since the author presented a mixed conclusion: the overall effect of unauthorized downloads is insignificant, but for unknown artists, there is a “strongly negative” effect on recorded music sales.

Studies since Tschmuck’s only confirm these findings. One notable contribution is economist Stan Liebowitz’s study The Metric is the Message: How Much of the Decline in Sound Recording Sales is Due to File-Sharing? released in November 2011. In it, Liebowitz translates the conclusions of existing studies on the effects of unauthorized downloads on recorded music sales into a common metric to answer the question posed in his title.

His conclusion is stunning: “file-sharing has caused the entire decline in sound recording sales that has occurred since the ascendance of Napster.”

Looking at the available evidence, one thing is clear. It is a fact that there are multiple academic studies that show a significant negative effect on music sales caused by unauthorized downloading, and this conclusion has been reached by a significant majority of researchers. Coulton is not alone in being unaware of these findings — you don’t have to look far to find those who don’t know about the existence of these studies.

But there they are.

Enforcement Boosts Legal Alternatives to Piracy

The fact that evidence backs up one of the central premises of copyright law is, however, only a precursor to the real question: what, if anything, should be done to address the harm from online copyright infringement? The role of law in answering this question attracts perhaps the most heated debate. That leads to the next question: does copyright enforcement work?

Some point to the 400+ page Media Piracy in Emerging Economies report, released in 2011 by the Social Science Research Council and funded by the Ford Foundation, as providing evidence that enforcement “doesn’t work.” But that’s not what the report concludes, as the editor of the report itself, Joe Karaganis, pointed out in a Torrentfreak article last week:

We talk about the efficacy of enforcement at some length in our Media Piracy report. Many readers have concluded that enforcement doesn’t work.  But that isn’t what we say.  We say, rather, that we’ve found no evidence that it has worked.

It’s also important to note what the report researchers looked at to come to that conclusion: the research was primarily qualitative rather than quantitative, relying on interviews, focus groups, and analysis of media reporting.

That said, this is but one study. Other researchers have found evidence that enforcement has led to increases in legal purchases of music.

In a paper released last week, Dr. George Barker of Australian National University analyzed the data from a 2006 Industry Canada survey to conclude that “P2P downloads have strong negative effects on legitimate music purchases” and “stronger copyright laws would substantially increase music purchases and music industry sales revenues.”

These findings are confirmed by another recent study by four economists from Wellesley College and Carnegie Mellon University, which determined that France’s graduated response program (Hadopi) caused “iTunes song and album sales to increase by 22.5% and 25% respectively relative to” countries in a control group that hadn’t enacted graduated response programs.

A Multipronged Approach

The idea that there is no evidence showing a harm from online piracy is erroneous, as is the idea that there is no evidence that people will turn to legal alternatives with more effective enforcement.

So where does that lead us?

I think it’s incorrect to draw the conclusion that better enforcement of copyright equals more enforcement. That’s not true in any area of law, including copyright.

But at the same time, I think it’s incorrect to ignore the evidence. There are those who say piracy is only a business model problem, or a marketing problem, and enforcement should play zero role.

This puts copyright at odds with most other issues. Take driving, for example: we prefer to minimize the harm that comes from accidents. To that end, we build safer cars, we have driver education, but we also have traffic laws and cops to enforce those laws.

There’s nothing inherent to copyright law that warrants an exception to this general practice. The challenges faced by creators and businesses that invest in creativity in the online environment are myriad and require continuing innovation to craft sustainable business models and take advantage of emerging technologies. But they also require attention to legal protection of private rights to ensure that the public continues to benefit from the talents and creativity of authors and artists.

References

References
↑1 The report is in German. I haven’t tracked down an English version yet, but you can read a Google-translated version here.
↑2 Three of the studies found no significant impact while the remaining five found a positive impact. The literature review looked at a 23rd study but did not classify it here since the author presented a mixed conclusion: the overall effect of unauthorized downloads is insignificant, but for unknown artists, there is a “strongly negative” effect on recorded music sales.

Friday’s Endnotes – 01/27/12

By , January 27, 2012.

The Truth Behind Google’s Copyright-Bills Hysteria — Great piece on the hyperbole that became the norm over recent legislation. “The tech industry has demonstrated great political clout through the mobilization of its users and fan base; and the industry lobby, led by Google, will say and do pretty much anything to advance its commercial interests.”

The MTP Interview: Indie Film Maker David Newhoff — Chris Castle sits down with the creator of Gone Elvis and talks about indie filmmaking and the challenges and opportunities provided by the internet.

Wright & Diveley on Expert Agencies & Generalist Judges — When Senator Wyden announced the OPEN Act, he announced that one of its advantages was putting the adjudication of sites dedicated to piracy “in the hands of the International Trade Commission – versus a diversity of magistrate judges not versed in Internet and trade policy.” But is this an advantage? This new paper examines the general claim that administrative judges produce better decisions than generalist judges. The conclusion: “there is little empirical basis” for these claims.

Academic publishing is full of problems; lets get them right — The Copyright Librarian (Nancy Sims of the Univ of Minnesota) gives a comprehensive overview of how academic database JSTOR works, along with a look at some of the challenges facing academic publishing. Great read.

Creative Commons for Music: What’s the Point? — “Without a real enforcement mechanism, CC licenses are all little more than labels, like the garment care hieroglyphics mandated by the Federal Trade Commission in the United States … The practical value of CC seems to be concentrated in business-to-business content licensing agreements, where corporations need to take more responsibility for observing licensing terms and CC’s ready-made licenses make it easy for them to do so.”

The Summers’ Tale — Nicholas Carr rebuts recent statements by former Harvard president Lawrence Summers concerning 21st century learning. “This idea that knowledge can be separated from facts – that we can know without knowing – really needs to be challenged before it gains any further currency.”

Who is the A$%#hole? — Music information researcher Paul Lamere, who has long done exciting work in the field, remarks on yet another “enlightened” blog post in the wake of SOPA called Can we kill the music business too? Says Lamere, “James is certainly right – you can’t have a great music startup without great music, but he goes off the rails if he thinks that companies protecting themselves from theft infringement are assholes. A music startup, or any business should not be able to build a business on top of  someone else’s IP without compensating them for the use. It is easy to build a company that makes money by giving away someone else’s property. But it is not legal.”

Megaupload and the DMCA

By , January 25, 2012.

Last week’s indictment and arrest of Megaupload and seven of its execs added a strong dose of drama to an already dramatic couple of days in the copyright arena.

The US Department of Justice calls this “among the largest criminal copyright cases ever brought by the United States,” though I wouldn’t be surprised if it is actually the largest such case — I’m not aware of any larger criminal actions. 1The closest seems to be Operation Safehaven in 2003. No doubt the proceedings will be followed closely by many over the next few months.

Already, the arrest has had a sharp effect online, with other cyberlockers scaling back or shutting down altogether.

While the federal government’s action against Megaupload — which had been in the works since March 2010 (months before ICE even began its Operation In Our Sites) — will obviously have many ramifications for the future of copyright law online, I wanted to focus specifically on one of the legal issues that may be implicated in the case.

Does the DMCA apply to criminal infringement?

Perhaps the most novel legal issue that may arise during the Megaupload proceedings is whether the DMCA safe harbors provide the defendants with any defense.

As an initial matter, it seems to be an open question whether the DMCA safe harbors are available to any criminal defendant. The U.S. appears to adopt the view that they aren’t. 2The U.S. is not alone in adopting this view. See, for example, Eric Goldman, A Road to No Warez, 82 Or. L. Rev. 369, 425 (2003), “In the DMCA, Congress putatively provided some facilitators a safe harbor from civil liability for user-caused infringement [emphasis added].”

The indictment notes without further explanation that “Internet providers gain a safe harbor under the DMCA from civil copyright infringement suits in the United States if they meet certain criteria [emphasis added],” although it subsequently offers reasons why the Megaupload defendants wouldn’t qualify for the defense anyway.

The language of the statute plausibly supports this view. Though it references only “infringement of copyright” — which could include both criminal and civil infringement — it merely shields service providers from “liab[ility] for monetary relief, or [in some circumstances] injunctive or other equitable relief.” This is civil lawsuit language — criminal defendants are punished with fines, not liable for monetary relief.

In addition, criminal liability would seem to preclude safe harbor protection solely as a matter of common sense. Criminal copyright infringement requires willful infringement. The DMCA safe harbor only protects service providers from liability for passive infringement. If the evidence shows that a defendant was willfully infringing copyrighted works beyond a reasonable doubt, it doesn’t seem possible that that same defendant could ever meet the requirements for safe harbor protection under the statute.

Deduplication and the DMCA

Regardless, the indictment alleges that even if the DMCA safe harbors are available to criminal defendants, the Megaupload defendants failed to satisfy the conditions for eligibility.

Among other things, Megaupload used deduplication, a common technical process used by online services to reduce the amount of storage needed for data. In Capitol Records v. MP3Tunes, Capitol argued that a similar process made the defendant liable for public performances of sound recordings, but the Southern District Court of New York disagreed, calling it a “standard data compression algorithm that eliminates redundant digital data” that didn’t give rise to liability.

It was a small win for MP3Tunes, however, since the court held that its failure to remove the actual files stored on its service when it received a DMCA takedown notice, rather than just links to the files, disqualified it from safe harbor protection.

The indictment alleges that Megaupload operated much the same way. When a user uploads a file already present on the system, “the system provides a new and unique URL link to the new user that is pointed to the original file already present on the server. If there is more than one URL link to a file, then any attempt by the copyright holder to terminate access to the file using the Abuse Tool or other DMCA takedown request will fail because the additional access links will continue to be available.”

If the Eastern District of Virginia follows the same reasoning as the MP3Tunes court, this doesn’t necessarily mean Megaupload is ultimately liable, but it would mean that it wouldn’t be protected by the DMCA.

I don’t know for certain how big a role the DMCA safe harbor will play in the case; only time will tell. But I’ll definitely be keeping a close eye on the legal developments of what promises to be a watershed moment in copyright history.

References

References
↑1 The closest seems to be Operation Safehaven in 2003.
↑2 The U.S. is not alone in adopting this view. See, for example, Eric Goldman, A Road to No Warez, 82 Or. L. Rev. 369, 425 (2003), “In the DMCA, Congress putatively provided some facilitators a safe harbor from civil liability for user-caused infringement [emphasis added].”

Saturday’s Endnotes – 01/21/12

By , January 21, 2012.

Slow news week, right?

Other than a Supreme Court decision, one of the largest criminal copyright infringement indictments in history, and an internet protest against SOPA that resulted in nearly 1.5% of the US population contacting their representatives.

Inevitably a lot of links today will deal with issues surrounding SOPA and the PROTECT IP Act. One of the more interesting developments I’ve noted is the reaction to the overreach and hyperbole of the “internet blackout.” Many who didn’t necessarily support the specific language of the bills raised concerns over the tactics involved and even expressed some sympathy for supporters of the bills — probably not an intended consequence of those behind the protest.

For example: Evan Brown, a whip-smart lawyer who blogs at Internet Cases, writes If you critique SOPA, read the text. If you read the text, read it right, noting the “misguided” arguments made by the Khan Academy in a video against SOPA. U of Chicago philosopher Brian Leiter says of the blackout that the “knee-jerk opposition of cyber-libertarians, who readily turn a blind eye to all the ugliness of cyber-space, is itself suspect in my view.” Bloggers at the well-respected IPKat blog offered sobering analysis here and here. Finally, NY Times technology columnist David Pogue cautions that “the scare language used by some of the Web sites was just as flawed as the Congressional language that they opposed.”

If The Tech Industry Had Its Way, Hollywood Would Be Zynga — TechCrunch’s Alexia Tsotsis casts a critical eye at venture capitalist Paul Graham’s latest statement: Kill Hollywood. Graham had previously called SOPA supporters like Hollywood “un-American” and promised to not work with anyone on the list of supporters.

An Elegy for the Piracy Wars (On the Occasion of the SOPA/PIPA Blackouts) — An epic rant by author Chris Ruen. At 4000+ words, few perhaps will agree with all his sentiments, but there’s certainly much food for thought.

The False Ideals of the Web — Jaron Lanier’s book You Are Not a Gadget is recommended reading for anyone interested in digital issues. In this NY Times editorial, Lanier reitirates his skepticism of a worldview where “the Internet is a never-ending battle of good guys who love freedom against bad guys like old-fashioned Hollywood media moguls.”

Starving the Artist is FREE Forever. Download the Free E-Book — Author William Aicher has made his book Starving the Artist: How the Internet Culture of “Free” Threatens to Exterminate the Creative Class and What Can Be Done to Save It’ available as a free download. I just started reading it this weekend, good stuff so far.

Explainer: How can the US seize a “Hong Kong site” like Megaupload? — Nate Anderson at Ars Technica has a good overview of the jurisdictional issues implicated in Thursday’s arrest of Megaupload executives.

165 French File-Sharers Now On 3rd Strike, “iTunes Up 22.5%” — Less than 2 years after France began its graduated response approach to piracy, reports show encouraging statistics. Those receiving second warnings represent less than 10% of those receiving first warnings.

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