Republican Study Committee Policy Brief on Copyright: Part 2

By , November 26, 2012.

Debate over the role and scope of copyright law in a digital age was reignited last week after the brief appearance of a policy brief by a Republican Study Committee staffer, Derek Khanna. The brief was officially pulled from the RSC website, but copies are easily found online.

Copyright skeptics were quick to dub the brief a “watershed” moment and seem unable to confine the hyperbole of their remarks. One Twitterer compared the policy brief to the 95 Theses, which catalyzed the Protestant Reformation. One might chalk up the reaction to a form of confirmation bias — or, “brilliant people agree with me“.

But as I mentioned last Wednesday in the first part of my examination of the policy brief, any debate should begin with sound premises. And the RSC policy brief, which first lays out three “myths” about current copyright law, does not do this. If copyright skeptics can’t advance arguments without rewriting history, perhaps their arguments are not as solid as they think.

Today, I want to continue my in-depth look at the RSC policy brief, focusing on the final “myth” and sections on the current status of copyright law.

Myth 3. The current copyright legal regime leads to the greatest innovation and productivity

First, this myth begs the question that the purpose of copyright under the Constitution is to provide the greatest amount of the ill-defined concepts such as “innovation” and “productivity.” Too often “innovation” is used as a code word for increasing the bottom line of venture capital firms and the consumer electronics sector. As I noted in my first part, this interpretation of the purpose behind the Copyright Clause does not comport well with history.

Second, and more importantly, is the suggestion that there are those who would say the current copyright legal regime is ideal. I doubt you will find many from any side of the copyright debate who will declare this. In fact, the perceived shortcomings of the law do much to explain its expansion over the past two centuries.

There were four major revisions to the Copyright Act since the first Act in 1790: 1831, 1870, 1909, and 1976. 1William Patry, Copyright Law and Practice, Chap. 1 (2000). During each of these, you can find those who expressed the need for reform precisely because the existing copyright law was inadequate in some fashion.

You can see this in the work of Noah Webster, writer of what would become the seminal American dictionary. Webster actively lobbied for copyright legislation under the Articles of Confederation. 2Noah Webster, A Collection of Papers on Political, Literary, and Moral Subjects, pp 173-75 (Webster & Clark, 1843). But before the end of his life, he would return to Congress in the 1820’s to argue on behalf of the “justice of a more liberal law” that would cure some of the “defects” in the 1790 Copyright Act. His efforts in part resulted in the first major revision of US copyright law in 1831. 3Id. 175-78.

Librarian of Congress Ainsworth Spofford remarked upon these shortcomings as motivation for the progression of copyright law during the third major revision to the Copyright Act in 1870. “It is a very notable fact that the United States of America was the first nation that ever embodied the principle of protection to the rights of authors in its fundamental law. Thus anchored in the Constitution itself, this principle has been further recognized by repeated acts of Congress, aimed in all cases at giving it practical effect.” 4The Copyright System of the United States—Its Origin and Growth.

Within forty years, Congress would again seek to revise the copyright law. During this period, the first US Register of Copyrights Thorvald Solberg said in 1904: “The laws as they stand fail to give the protection required, are difficult of interpretation, application, and administration, leading to misapprehension and misunderstanding, and in some directions are open to abuses.”

In the decades following, Congress engaged in perhaps the most thorough and comprehensive revision of copyright law. During this time, former Register of Copyrights Barbara Ringer said in a 1975 Congressional Hearing:

The Constitution speaks of the desirability of promoting the progress of science and useful arts, science in the broad sense of learning or knowledge, by offering protection for limited times to authors and inventors.

It seems to me that it is this protection, the exclusive rights that are supposed to be granted to authors, that is the ultimate public interest that the Constitution and its drafters were thinking about. I do not think that this has ever been fully or even partly realized in any copyright law we have had in our entire history.

If anything else, the past two decades have borne witness to many arguments that copyright law is not ideally fit to accomplishing its purpose of establishing a functional marketplace for the creation and dissemination of expressive works. This “myth” is little more than a strawman.

Current status of Copyright Law?

Khanna begins the next section of his brief by remarking:

Under the Copyright Act of 1790, the first federal copyright act, it stated that the purpose of the act was the “encouragement of learning” and that it achieved this by securing authors the “sole right and liberty of printing, reprinting, publishing and vending” their works for a term of 14 years, with the right to renew for one additional 14 year term should the copyright holder still be alive. This is likely what our Founding Fathers meant when they wrote in the Constitution for a “limited time.” Gradually this period began to expand, but today’s copyright law bears almost no resemblance to the constitutional provision that enabled it and the conception of this right by our Founding Fathers.

But is this “likely what our Founding Fathers meant”?

The US Copyright Act of 1790 borrowed the UK’s 1710 Statute of Anne Statute of Anne (1710) almost in its entirety, including the fourteen year term of protection. 5See Oren Bracha, The Adventures of the Statute of Anne in the Land of Unlimited Possibilities: The Life of a Legal Transplant, 25 Berkeley Technology Law Journal 1427 (2010). It’s worth noting that the adoption of the fourteen year term is entirely arbitrary, and reminds me of the old story about the Easter Ham. 6“As a little girl watches her mom prepare the Easter ham, she wonders why her mother cuts off both ends of the ham before putting it in the pot. So, she asks why, and her mom realizes that she doesn’t know. That’s the way her mother prepared the Easter ham.

So they call grandmother and pose the question about cutting off the ends of the Easter ham. Grandmother admits to not knowing either. She just prepared the ham the way her mom did it.

Their next call is to great-grandmother. When they ask her about her method of preparing the Easter ham, she laughs. Then she says, ‘It was the only way I could get the Easter ham to fit the small pot I had!'”

The US Congress chose a fourteen year term because that’s how long England protected copyright under the Statute of Anne. And England settled on a fourteen year term in the Statute of Anne because that is how long the Statute of Monopolies (1624), passed nearly a century prior, had protected letter patents. 7Ronan Deazley, ‘Commentary on the Statute of Monopolies 1624‘, in Primary Sources on Copyright (1450-1900) (eds L. Bently & M. Kretschmer, 2008). And that term, according to one scholar, was “based on the idea that 2 sets of apprentices should, in 7 years each, be trained in the new techniques.” 8Fritz Machlup, “An Economic Review of the Patent System”, pg 5, Study of the Subcommittee on Patents, Trademarks, and Copyrights of the Committee on the Judiciary, United States Senate, United States Printing Office, Washington: 1958.

Thus, the original fourteen year term was not “likely what our Founding Fathers meant when they wrote in the Constitution for a ‘limited time'” as Khanna claims. Instead, the 14 year term was a “quirk of history”, borrowed from tradition without much thought by a Congress that at the dawn of a new nation had more pressing matters to attend to. 9See Oren Bracha, Commentary on the U.S. Copyright Act 1790, in Primary Sources on Copyright (1450-1900) (eds L. Bently & M. Kretschme 2008). The argument that the length of copyright protection should be based on how long it took apprentices to master a craft 500 years ago is not so compelling.

Khanna next states:

Critics of current law point out that the terms of copyright continue to be extended perpetually, ensuring that works never actually enter the public domain – particularly Walt Disney’s production of Steamboat Willey, the first Mickey Mouse film. If this is true, if copyright is to be indefinitely extended, then that would effectively nullify Article I, Section 8, Clause 8 of the Constitution which provides protection only for “limited times.”

While this meme seems to begin to appear in early 2000, it was really Lawrence Lessig who popularized this alternative reality. Here is Lessig in a 2002 speech:

Eleven times in the last 40 years it has been extended for existing works–not just for new works that are going to be created, but existing works. The most recent is the Sonny Bono copyright term extension act. Those of us who love it know it as the Mickey Mouse protection act, which of course [means] every time Mickey is about to pass through the public domain, copyright terms are extended.

Lessig’s revisionist statements quickly became gospel among copyright skeptics. You can easily find these ideas — that copyright was extended 11 times in the past 40 years 10Ian McClure, Be Careful What You Wish For, 10 Chapman Law Review 1, 11 (2007), “The copyright term has been lengthened eleven times in the past forty years”; Gary Shapiro, President, Consumer Electronics Association, Remarks at the Cato Institute Conference: Copyright Controversies: Freedom, Property, Content Creation, and the DMCA, Copyrights and Property Rights, CATO Policy Report, July-August 2006, “Congress has acted 13 times to expand the length of the copyright terms; 11 of those expansions were passed during the last 40 years”; Larry Downes, ‘Free the Mouse’ for creativity’s sake, USAToday (Oct 7, 2002), “ In the past 40 years, entertainment industry lobbyists have persuaded Congress 11 times to extend copyrights on their vast treasure troves of books, films and music”; Kendra Mayfield, Setting Boundaries on Copyrights, Wired (Feb. 20, 2002); See also Lawrence Lessig, Free Culture, Ch. 10 (2004), “Eleven times in the last forty years, Congress has extended the terms of existing copyrights”; Jesse Walker, Copy Catfight, Reason (March 2000), “This period has been gradually extended, especially lately: It has been lengthened 11 times in the last 40 years, most recently by the Sonny Bono Copyright Term Extension Act of 1998.” and that these copyright extensions amount to “perpetual copyright on the installment plan” and/or have occurred everytime Mickey Mouse or Steamboat Willie is set to enter the public domain. 11“In the United States, we have perpetual copyright on the installment plan,” said Peter Jaszi in 2003; Jane Hamsher, GOP Tries to Overthrow the Tyranny of Mickey Mouse…Then Sadly Backs Down, bytegeist, Nov. 19, 2012, “Disney keeps bribing congress to extend copyright laws and keep Mickey Mouse under copyright”; Mike Masnick, Do Bad Things Happen When Works Enter The Public Domain? The Data Says… No, TechDirt, Sept. 28, 2012, “As you know, whenever Mickey is getting close to the public domain, Congress swoops in, at the behest of Disney, and extends copyright”; Matt Asay, Copyright extension of 45 years to net just $40 for most performers, CNet, Sept. 9, 2008, “Every few years the US extends copyright terms because Disney lobbies the heck out of Congress’ weak-kneed legislators to prevent Mickey Mouse from becoming public domain”; Kevin Goldman, Limited Times: Rethinking the Bounds of Copyright Protection, 154 University of Pennsylvania Law Review 705 (2006), “Each time the term of copyright protection has been due to expire, Congress has passed another extension.”

To put it bluntly, this idea is hogwash.

In a 2002 law review article, Scott Martin thoroughly debunks this idea. 12Scott M. Martin, The Mythology of the Public Domain: Exploring the Myths Behind Attacks on the Duration of Copyright Protection, 36 Loy. L.A. L. Rev. 253 (2002). Says Martin:

According to myth, Congress relentlessly extended the term of copyright eleven times in just forty years, and, unless the courts intercede, the “copyright dictators” will continue to successfully pressure Congress into extending the term countless times in the future.

In fact, Congress revised its view of the appropriate duration of copyright protection only twice in the past forty years: once in the 1976 Copyright Act-which changed the term from an initial term of twenty-eight years plus a renewal term to a term of life of the author plus fifty years (with a commensurate increase in the term of protection for existing works); and then again in the 1998 CTEA-which added twenty years of additional protection to all existing terms of copyright. The other nine extensions were short interim extensions passed during the deliberation over the 1976 Act in order to ensure that authors of works on the cusp of falling into the public domain would not be penalized by Congress’s glacial pace in enacting the new Copyright Act.

The 1909 Act provided for an original and a renewal term of statutory copyright totaling fifty-six years. Congress changed this in the 1976 Act, effective January 1, 1978, to a term of life plus fifty years for new works. Congress did not apply the new term to existing works, but it did add nineteen years to the term of protection for existing works which were not yet in the public domain. Congress began actively working on the new Copyright Act in 1962, but it took fourteen years to reach agreement on all the details of the new Act. Ironically, the term of protection to be applied by the new Act was one of the least contentious provisions of the new law. Since the provisions of the new Act did not apply to works which entered the public domain prior to the effective date of the Act, Congress provided for a series of nine short interim extensions of copyright pending final enactment of the new law.

The congressional intent behind the interim extensions was clear: Congress felt that it would be inequitable to deny the benefit of the extended copyright term to works on the cusp of entering the public domain solely because of the long delays in the legislative process.

The need for nine successive short-term extensions can be traced directly to the fact that no one expected the process of enacting the new Act would take years to complete.

 

And while the statement that copyright duration was extended eleven times in the past forty years might be forgiven because it is technically correct though meaningless, the notion that the impetus for these extensions was to circumvent the Constitution’s “limited times” mandate and keep Steamboat Willie out of the public domain is simply wrong.

As Martin says later:

Characterizations of these short-term interim extensions, all of which were a part of the single congressional effort to enact a revised Copyright Act, as unrelated extensions of the term of protection, or as a recidivist congressional pattern of endlessly extending the duration of copyright are either uninformed or intellectually dishonest.

Martin is not alone. Law professor Edward Samuels has also remarked that “these statements are misleading, if not downright disingenuous.” 13The Public Domain Revisited, 36 Loyola LA Law Review 389, 423 (2002).

Even the Supreme Court has weighed in. In Eldred v Ashcroft, where the constitutionality of the 1997 Copyright Term Extension Act was challenged, the Court declared that “a regime of perpetual copyrights ‘clearly is not the situation before us.'” 14537 US 186, 209 (2003), quoting Eldred v Reno, 239 F.3d 372 (DC Cir. 2001).

So far, Khanna’s policy brief is not holding up.

References

References
↑1 William Patry, Copyright Law and Practice, Chap. 1 (2000).
↑2 Noah Webster, A Collection of Papers on Political, Literary, and Moral Subjects, pp 173-75 (Webster & Clark, 1843).
↑3 Id. 175-78.
↑4 The Copyright System of the United States—Its Origin and Growth.
↑5 See Oren Bracha, The Adventures of the Statute of Anne in the Land of Unlimited Possibilities: The Life of a Legal Transplant, 25 Berkeley Technology Law Journal 1427 (2010).
↑6 “As a little girl watches her mom prepare the Easter ham, she wonders why her mother cuts off both ends of the ham before putting it in the pot. So, she asks why, and her mom realizes that she doesn’t know. That’s the way her mother prepared the Easter ham.

So they call grandmother and pose the question about cutting off the ends of the Easter ham. Grandmother admits to not knowing either. She just prepared the ham the way her mom did it.

Their next call is to great-grandmother. When they ask her about her method of preparing the Easter ham, she laughs. Then she says, ‘It was the only way I could get the Easter ham to fit the small pot I had!'”

↑7 Ronan Deazley, ‘Commentary on the Statute of Monopolies 1624‘, in Primary Sources on Copyright (1450-1900) (eds L. Bently & M. Kretschmer, 2008).
↑8 Fritz Machlup, “An Economic Review of the Patent System”, pg 5, Study of the Subcommittee on Patents, Trademarks, and Copyrights of the Committee on the Judiciary, United States Senate, United States Printing Office, Washington: 1958.
↑9 See Oren Bracha, Commentary on the U.S. Copyright Act 1790, in Primary Sources on Copyright (1450-1900) (eds L. Bently & M. Kretschme 2008).
↑10 Ian McClure, Be Careful What You Wish For, 10 Chapman Law Review 1, 11 (2007), “The copyright term has been lengthened eleven times in the past forty years”; Gary Shapiro, President, Consumer Electronics Association, Remarks at the Cato Institute Conference: Copyright Controversies: Freedom, Property, Content Creation, and the DMCA, Copyrights and Property Rights, CATO Policy Report, July-August 2006, “Congress has acted 13 times to expand the length of the copyright terms; 11 of those expansions were passed during the last 40 years”; Larry Downes, ‘Free the Mouse’ for creativity’s sake, USAToday (Oct 7, 2002), “ In the past 40 years, entertainment industry lobbyists have persuaded Congress 11 times to extend copyrights on their vast treasure troves of books, films and music”; Kendra Mayfield, Setting Boundaries on Copyrights, Wired (Feb. 20, 2002); See also Lawrence Lessig, Free Culture, Ch. 10 (2004), “Eleven times in the last forty years, Congress has extended the terms of existing copyrights”; Jesse Walker, Copy Catfight, Reason (March 2000), “This period has been gradually extended, especially lately: It has been lengthened 11 times in the last 40 years, most recently by the Sonny Bono Copyright Term Extension Act of 1998.”
↑11 “In the United States, we have perpetual copyright on the installment plan,” said Peter Jaszi in 2003; Jane Hamsher, GOP Tries to Overthrow the Tyranny of Mickey Mouse…Then Sadly Backs Down, bytegeist, Nov. 19, 2012, “Disney keeps bribing congress to extend copyright laws and keep Mickey Mouse under copyright”; Mike Masnick, Do Bad Things Happen When Works Enter The Public Domain? The Data Says… No, TechDirt, Sept. 28, 2012, “As you know, whenever Mickey is getting close to the public domain, Congress swoops in, at the behest of Disney, and extends copyright”; Matt Asay, Copyright extension of 45 years to net just $40 for most performers, CNet, Sept. 9, 2008, “Every few years the US extends copyright terms because Disney lobbies the heck out of Congress’ weak-kneed legislators to prevent Mickey Mouse from becoming public domain”; Kevin Goldman, Limited Times: Rethinking the Bounds of Copyright Protection, 154 University of Pennsylvania Law Review 705 (2006), “Each time the term of copyright protection has been due to expire, Congress has passed another extension.”
↑12 Scott M. Martin, The Mythology of the Public Domain: Exploring the Myths Behind Attacks on the Duration of Copyright Protection, 36 Loy. L.A. L. Rev. 253 (2002).
↑13 The Public Domain Revisited, 36 Loyola LA Law Review 389, 423 (2002).
↑14 537 US 186, 209 (2003), quoting Eldred v Reno, 239 F.3d 372 (DC Cir. 2001).

Photos are worth more than the paper they’re printed on

By , October 04, 2012.

Like many couples, Brian Edwards and Thomas Privitere of New York celebrated their engagement by taking engagement photos. They hired photographer Kristina Hill in March 2010 and shared the photos on a blog that documented their upcoming wedding for friends and family.

This past summer, the now-married couple learned that an anti-gay organization known as “Public Advocate of the United States” (“PAUS”) had misappropriated one of the photos, showing the two kissing, to use as the background for, in the words of the Denver Post, “ugly campaign fliers” in Colorado, advocating against a candidate who had supported civil unions in that state. A second mailing, directed at another candidate, was also mailed out by the group.

Last week, Hill, Edwards, and Privitere filed a lawsuit against PAUS, alleging copyright infringement and appropriation of personality and likeness. The photograph, they argued, was not only exploited without permission, it was done to advocate for a position they are diametrically opposed to.

Mike Masnick recently wrote about the case — Why it’s tempting, but troubling, to use copyright as a stand in for moral rights — admitting that the use is likely infringing, but like with any enforcement of creator’s rights, found reason to criticize the lawsuit. Said Masnick:

 I’m worried about the implications here. Copyright in the US is an economic right, not a moral one. Other countries may have “moral rights” or “droit moral” on photographs, but we don’t in the US. And it is clear that the copyright complaint is really entirely about the moral rights issue as it relates to copyright. There is no economic impact at issue here, because there is no economic interest in this image. There does not appear to be any plan or intent to license the image or exploit it economically in any way.

And, so, I worry when we start using moral rights arguments to defend a copyright claim, no matter how strongly I support the moral argument being advanced by the plaintiff.

This is reminiscent of his reaction decrying the Ninth Circuit’s decision in Monge v. Maya Magazines a few weeks ago, where the court held that fair use didn’t protect a tabloid that had published, without permission, private wedding photos that had been stolen from a couple.

Masnick is correct insofar as US Copyright law doesn’t protect “moral rights.” In copyright law, “moral rights” is a term of art, with a specific meaning. Also referred to as “droits moraux”, the term encompasses certain noneconomic rights, such as the right to attribution and a right of integrity. 1The Berne Convention, for example, provides for protection of moral rights in Article 6bis: “Independently of the author’s economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation.” Generally speaking, these rights are not recognized in the US. 2The Visual Artists Rights Act of 1990 (VARA), codified under 17 USC § 106A, grants some moral rights to visual artists under certain circumstances; see also Gilliam v American Broadcasting Companies, 538 F.2d 14 (2nd Cir. 1976).

But in a broader context, Masnick is incorrect. Copyright does recognize noneconomic interests — and the economic interests it recognizes go beyond a simple economic interest in commercial exploitation. Copyright, after all, gives creators the right to control a work, or “the right to say no“, and this right can often serve as a proxy to broader moral rights. In a sense, moral rights are “baked into” US copyright law.

We can turn to the courts to see what I mean.

The Copyright Act gives copyright owners the exclusive right “to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending.” 317 USC § 106(3). This right of distribution, among other things, gives authors the right of first publication.

The right of first publication, long an absolute in the common law (though that has been tempered in recent decades), is anything but an economic right. Rather, as the Supreme Court noted in Harper & Row v Nation Enterprises, “The right of first publication implicates a threshold decision by the author whether and in what form to release his work.” 4471 US 539, 553 (1985). The Court noted earlier that “Publication of an author’s expression before he has authorized its dissemination seriously infringes the author’s right to decide when and whether it will be made public.”

This example shows that author’s right to control her work through copyright is just as vital as her right to remuneration. This right extends beyond just first publication. The Second Circuit wrote in Castle Rock Entertainment v Carol Publishing Group:

Although Castle Rock has evidenced little if any interest in exploiting this market for derivative works … the copyright law must respect that creative and economic choice. “It would … not serve the ends of the Copyright Act — i.e., to advance the arts — if artists were denied their monopoly over derivative versions of their creative works merely because they made the artistic decision not to saturate those markets with variations of their original.” 5150 F.3d 132, 145-46 (2nd Cir. 1998).

Courts have also been clear that this right to control only applies as protection against commercial exploitation. In Sony Corp v Universal City Studios (the “Betamax” case), the Supreme Court stated, “Even copying for noncommercial purposes may impair the copyright holder’s ability to obtain the rewards that Congress intended him to have.” 6464 US 417, 450 (1984). It goes on to point out that these rewards are not limited to monetary payments:

The copyright law does not require a copyright owner to charge a fee for the use of his works, and as this record clearly demonstrates, the owner of a copyright may well have economic or noneconomic reasons for permitting certain kinds of copying to occur without receiving direct compensation from the copier. It is not the role of the courts to tell copyright holders the best way for them to exploit their copyrights.

Other courts have endorsed this characterization of the rewards due authors.

In a 2000 case, the Ninth Circuit noted that the defendant’s distribution or an unauthorized version of plaintiff’s work harmed plaintiff’s “goodwill by diverting potential members and contributions.” It disagreed with defendant’s argument that plaintiff’s failure to exploit the work showed that the work had no economic value that unauthorized dissemination would adversely affect. Said the court, “Even an author who had disavowed any intention to publish his work during his lifetime was entitled to protection of his copyright, first, because the relevant consideration was the ‘potential market’ and, second, because he has the right to change his mind.” 7Worldwide Church of God v Philadelphia Church of God, 227 F.3d 1110, 1119 (9th Cir. 2000).

This is obviously a very brief survey of how copyright law is not limited to purely economic rights. It isn’t “troubling”, as Masnick puts it, nor is it in any way novel, to use copyright to protect an image even though there is no “plan or intent to license the image or exploit it economically in any way.” What’s more troubling, in my opinion, is to strip the law of its humanity, place a dollar sign on everything, and view harm through the lens of a financial ledger. Copyright is more than just a right to remuneration; it “is deeply rooted in our conception of ourselves as individuals with at least a modest grade of singularity, some degree of personality.” 8Mark Rose, Authors and Owners: The Invention of Copyright,  pg. 142 (Harvard University Press 1993). “It is also a source of human liberties.” 9Ralph Oman, Going Back to First Principles: the Exclusive Rights of Authors Reborn, 8 J. HIGH TECH. L. 169, 182 (2008).

References

References
↑1 The Berne Convention, for example, provides for protection of moral rights in Article 6bis: “Independently of the author’s economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation.”
↑2 The Visual Artists Rights Act of 1990 (VARA), codified under 17 USC § 106A, grants some moral rights to visual artists under certain circumstances; see also Gilliam v American Broadcasting Companies, 538 F.2d 14 (2nd Cir. 1976).
↑3 17 USC § 106(3).
↑4 471 US 539, 553 (1985).
↑5 150 F.3d 132, 145-46 (2nd Cir. 1998).
↑6 464 US 417, 450 (1984).
↑7 Worldwide Church of God v Philadelphia Church of God, 227 F.3d 1110, 1119 (9th Cir. 2000).
↑8 Mark Rose, Authors and Owners: The Invention of Copyright,  pg. 142 (Harvard University Press 1993).
↑9 Ralph Oman, Going Back to First Principles: the Exclusive Rights of Authors Reborn, 8 J. HIGH TECH. L. 169, 182 (2008).

There is no magic bullet

By , August 22, 2012.

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. 1See 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. 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.” 2This 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.”

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.

References

References
↑1 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.
↑2 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.”

7 Mythbusting Copyright Law Articles

By , August 13, 2012.

Copyright law in recent decades has seen a number of shaky claims and arguments grow in popularity. These arguments are often based on faulty logic, historical revisionism, or erroneous facts. Nevertheless, they have a surface appeal that aids in their dissemination. The result is a rather well-developed copyright “mythology” which presents a mistaken view of copyright’s history, its goals, and its effects.

Below is a collection of seven law review articles that critically examine many of these myths, correcting the distortions caused by, in the words of one of the authors, the “scholarly house of mirrors” that increasingly permeates discussions of copyright. I’ve cited to or discussed most of these articles on this site before, but I think they all deserve a special mention on their own. Enjoy!

The Mythology of the Public Domain: Exploring the Myths Behind Attacks on the Duration of Copyright Protection

Link. Scott M. Martin, 36 Loyola L.A. Law Review 253 (2002).

This article was written before the US Supreme Court upheld Congress’s authority to extend the term of copyright protection in Eldred v. Ashcroft, and many of the arguments have been vindicated by that decision. But Martin debunks other common myths surrounding copyright duration that are still around today, including “Congress ran rampant by granting term extensions, enacting eleven extensions in just forty years, and must be stopped by the courts”, “copyright good, public domain better”, “extensions of the term of copyright protection are an affront to, and an impingement on, First Amendment rights”, and “the Sonny Bono Copyright Term Extension Act of 1998 was the worst kind of special-interest legislation engineered by Disney to satisfy its insatiable corporate greed.” The last one especially skewers the premises of those who refer to the CTEA as the “Mickey Mouse Protection Act.”

The Progress of Knowledge: A Reexamination of the Fundamental Principles of American Copyright Law

Link. David A. Householder, 14 Loyola L.A. Entertainment Law Review 1  (1993).

Householder embarks here on a “systematic reevaluation of the basic policy and principles of American copyright law by returning to the source of such law, the Copyright Clause of the United States Constitution.” The article shines a light on “a number of concepts that, through ritualistic incantation have attained the unfortunate status of basic tenets of copyright law, even though they have little if any relevance to the basic purposes of American copyright law.” Since i predates even the NII White Paper, the concepts could be considered the “old guard” of copyright critiques; they include: “1. A copyright is a monopoly; 2. Copyright is intended to motivate creativity; 3. Copyright law makes reward to the owner a secondary consideration; 4. The public interest is served primarily by the limited duration of copyright; and 5. The public interest competes with the interests of individual authors.”

Reason or Madness: A Defense of Copyright’s Growing Pains

Link. Marc H. Greenberg, 7 John Marshall Review of Intellectual Property Law 1 (2007)

Greenberg takes on seven of the leading arguments against existing copyright law in this post-Eldred article.

a. Argument One: The expansion of copyright protection has been driven by media conglomerates, who have received from the legislature an allocation of entitlements, to the significant detriment of individuals and the public at large.

b. Argument Two: Copyright’s principal purpose is to provide economic benefits to owners—this property right should not trump the First Amendment rights of users.

c. Argument Three: Changes in the scope and term of copyright law since the 1970 Nimmer article, as well as the nature of digital technology and the greater ease achieved in copying content, render Nimmer’s immunity doctrine out of date and in need of change.

d. Argument Four: Since copyright deals with content, the law should be subject to a strict scrutiny analysis as to its impact on First Amendment rights, and under such scrutiny, it clearly violates the First Amendment rights of users.

e. Argument Five: Some form of compulsory licensing for all copyrighted works should be sufficient to address the concerns of owners, which after all are principally economic in nature.

f. Argument Six: Free speech rights include the right to use the words or other expression of another in expressing your own point of view.

g. Argument Seven: The idea/expression doctrine and the fair use doctrine have become too rife with uncertainty to afford meaningful protection to users

Copyright and Incomplete Historiographies – of Piracy, Propertization, and Thomas Jefferson

Link. Justin Hughes, 79 Southern California Law Review 993 (2006)

Meanwhile, Justin Hughes reaches back to the dawn of US copyright law to see how closely it matches the version of history frequently used by copyright scholars. He concludes that “historical claims frequently made in arguments about the propertization of copyright are incomplete,” and specifically focuses on three common examples: “the newness of the word ‘piracy,’ Thomas Jefferson’s views on intellectual property, and the history of the phrase ‘intellectual property.'” Hughes other work, which goes into more detail surrounding historical and other aspects of copyright law, is worth checking out.

Economists’ Topsy-Turvy View of Piracy

Link. Stan Liebowitz, 2 Review of Economic Research on Copyright Issues 5 (2005)

Recent scholarship on the effects of piracy have retreated from the traditional view that unauthorized copying always harms copyright holders. Liebowitz notes that in some situations, there is no harm — his own earlier work even demonstrated this. But the exceptions today have seemed to swallow the rule, resulting in economic literature on piracy that is “badly out of kilter” and tends to embrace views that are “more traditionally known as a breakdown in civilization.” Liebowitz uses this article to set the record straight and provide “a more balanced and nuanced view of copying.”

Remix Without Romance

Link. Thomas W. Joo, 44 Connecticut Law Review 415 (2011)

Joo devotes his article, featured previously on this site, to only two myths, but these are two myths that serve a central role in what could be called “free culture”, and thus deserving of thorough treatment. The first is that copyright law stifles “recoding and remixing” — Joo focuses specifically on the practice of digital sampling in music. The second is that if this were true, copyright law should adapt, because “by enabling more people to participate in culture, remixing and recoding supposedly enhance ‘semiotic democracy’ and mitigate the dominance of the media industry.” As Joo explains, if the goal is to facilitate “semiotic democracy,” than weakening copyright law to allow more remixing is the wrong way to reach that goal, since doing so would only tend to reinforce dominant cultural expression.

Constructing Copyright’s Mythology

Link. Thomas Nachbar, The Green Bag, Vol. 6 (2002)

Last, but not least, is the briefest article of the seven, and perhaps the most readable for non-lawyers. Written while Eldred v. Ashcroft was pending in the Supreme Court, Nachbar dismantles the historical claims made by those arguing in favor of striking down the Copyright Term Extension Act on constitutional grounds. He explains that these claims — for example, that copyright was designed solely as an incentive to create works, or that it was originally intended to limit the power of publishers — amount to little more than mythology. Nachbar concludes by noting the dangers of relying on such historical myths to shape copyright policy today.

Remix Without Romance: What Free Culture Gets Wrong

By , April 18, 2012.

In his four-part video, Everything is a Remix, filmmaker Kirby Ferguson makes a familiar argument:

Copy, transform and combine. It’s who we are, it’s how we live, and of course, it’s how we create. Our new ideas evolve from the old ones.

But our system of law doesn’t acknowledge the derivative nature of creativity. Instead, ideas are regarded as property, as unique and original lots with distinct boundaries.

I say familiar because if you’ve paid any attention to copyright issues in the last decade or so, you’re bound to have heard a variation on the claim. Other videos like Copyright Criminals take the same approach. Lawrence Lessig has written several books on the topic, and entire organizations like Creative Commons have been created to address and advance this claim. 1See Remix and Free Culture by Lessig. See also Siva Vaidhyanathan, Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity; James Boyle, The Public Domain: Enclosing the Commons of the Mind.

This idea that copyright law hinders creativity is one of several ideas central to what could be called “free culture,” and it has fueled a great deal of criticism of current copyright law and opposition to enforcement efforts. Free culture scholarship has held sway in legal literature –  with many of its ideas cited by IP academics outside the free culture sphere — and enjoyed very little criticism until very recently.

In Remix Without Romance, UC Davis professor of law Thomas W. Joo provides a comprehensive and convincing critique of free culture scholarship.

Remix Without Romance

A highly recommended read. The abstract says:

A dominant argument in intellectual property scholarship asserts that technologies such as digital copying empower individuals to participate in the making of culture. Such participation involves individuals appropriating cultural material, “remixing” it with other elements, and “recoding” it by assigning it alternative meanings. By enabling more people to participate in culture, remixing and recoding supposedly enhance “semiotic democracy” and mitigate the dominance of the media industry. The same theorists who make this argument also tend to assert that copyright law is in need of significant reform because it inhibits recoding and thus stifles semiotic democracy.

This Article challenges the empirical assertion that law inhibits recoding—but it also questions the normative assumption that recoding is presumptively good for semiotic democracy. This Article focuses on a specific type of recoding: musical sampling (that is, the recoding of music through digital copying and other means). Sampling, particularly in hip-hop music, is frequently cited as a paradigmatic example of recoding that has been inhibited by intellectual property law. The legal history of sampling, however, suggests otherwise. Commentators have misread important judicial opinions about sampling and misunderstood the business practices of the music industry. At least in the sampling context, law has not prevented the reallocation of recoding rights by contract.

While markets have been able to reallocate sampling rights, however, such transactions do not necessarily advance semiotic democracy, because market failures afflict the marketplace of ideas. In the cultural context, as in the political and economic contexts, formally equal opportunity to participate does not result in equality of influence, and can in fact exacerbate power imbalances. For example, legal and technological innovations (such as digital copying and the Internet) can enable cultural underdogs to recode the messages of media conglomerates and other dominant cultural institutions. But those same innovations also allow dominant institutions to appropriate from the underdog—and dominant institutions can then use their influence to “drown out” those independent voices with recoded meanings. Moreover, recoding by its nature involves the incorporation and repetition of dominant cultural messages. Such repetition can propagate and reinforce dominant messages, resulting in the cooptation of recoding, regardless of the recoder’s intent. In short, recoding is not clearly conducive to semiotic democracy. Rather, it is full of internal contradictions that make its relationship to semiotic democracy an ambivalent one.

In short, Joo makes two claims.

First, many of the factual claims made by free culture advocates are incorrect. This is important. Amongst copyright skeptics, many question statistics about the economic benefits of copyright or effects of piracy and calls for more empirical evidence in copyright policy are common. Yet, as Joo demonstrates, many free culture arguments lack such empirical evidence. They may sound attractive, and they are repeated often, but do not hold up under closer scrutiny. In the article, Joo focuses specifically on musical sampling to demonstrate the differences between the facts on the ground and the narrative advanced by free culture scholars.

Second, Joo refutes the normative free culture claims that weakening copyright rules would increase participatory culture. He finds little reason to believe that “semiotic democracy” would be enhanced, and media dominance in culture would be reduced, if the law was reformed to better allow remixing and recoding.

I want to look at the first of these claims today.

Did Copyright Law Kill Sampling?

Thomas Joo focuses on “sampling”, especially sampling in hip-hop, because it is emblematic of the type of artistic practice free culture scholars focus on, and sampling has received so much attention from legal academics. Joo notes, “The hip-hop era has coincided with the digital age, and hiphop has become closely identified with recoding and particularly digital remixing. Indeed, the term ‘remix,’ which today is often used to refer to recoding practices in general, derives from pop music, where it has been used for decades to refer more narrowly to re-edited versions of records in hip-hop, disco, and other genres.”

The prevailing view is that sampling developed as an artistic practice in early hip-hop by flying under the radar of copyright law. Then, as a result of a series of lawsuits beginning in the 1990s, the legal landscape radically shifted. Sampling was declared copyright infringement and largely died out because of the cost of incorporating previously recorded music into new songs.

The prevailing view is wrong, according to Joo. “The narrative of a battle between copyright and hip-hop is an overdramatized myth that ignores the actual history of the interaction between law and musical recoding.”

Joo blames this myth on free culture scholars “thinking like a lawyer, not like an artist.” They overemphasise the effect of law on artistic practices: legal doctrines lag behind artistic innovation, which limits their “role to settling disputes over the proceeds from established practices.”

Joo marshals impressive research and analysis to support his claims. He begins by providing examples of “sampling” that pre-date hip-hop — and examples of recording artists getting and paying for permission to use such samples. The emergence of hip-hop in the late 1970s into the music industry did not change this.

Both turntablism and rap music made the transition from live performance to records, and the existing business practice of paying for permission to appropriate was, quietly and unremarkably, extended to hiphop records. Indeed, the practice dates to the very first commercially successful hip-hop record—yet it did not prevent hip-hop from becoming a dominant artistic and commercial force in popular music.

Infringement lawsuits involving sampling began to appear in the early 90s. The most frequently cited sampling cases, however, have been misinterpreted, and their effect exaggerated. Chief among these are Grand Upright Music v. Warner Bros. Records, (considered the first “sampling” lawsuit to go to court) and Bridgeport Music v. Dimension Films.

Joo on Grand Upright:

Copyright scholars are in general agreement that a 1991 opinion, Grand Upright Music v. Warner Bros. Records, suddenly and radically changed the legal status of sampling by declaring that sampling without copyright permission constitutes infringement. This general understanding is, in fact, a gross misconception of the opinion. Grand Upright did not even present the question of whether unlicensed sampling would constitute infringement, because the defendants conceded that it would. Indeed, the historical record, including the court records in Grand Upright itself, shows that the hip-hop community, from its earliest days, generally understood and respected the obligation to obtain and pay for permission to use samples in commercial recordings.

This “gross misconception” of the law and business practices surrounding sampling extends to Bridgeport, a 2004 Sixth Circuit decision that you’ll find in just about any discussion on copyright law and sampling since.

Joo points out that “Bridgeport is the decision of only one circuit, and not one that is especially influential with respect to copyright law,” and even so, the opinion appears  “to have been consistent with existing industry practices—practices under which sampling flourished. By the late 1980’s, it was well-established practice in the music industry to seek copyright permission both for lengthy, recognizable samples and for briefer, slice and-dice samples.”

Legal scholars often state that albums in the earlier years of hip-hop that made heavy use of sampling — the Beastie Boy’s Pauls Boutique and early Public Enemy albums are frequently used as examples — couldn’t be made today today because of copyright law. Joo argues that this is simply incorrect. These albums were made, after all, at a time when legal rules and business practices concerning samples were similar to today — not to mention that samples on many of those albums were cleared and licensed. The shift away from sample-heavy styles of music is more reflective of a shift in musical tastes than a shift in the law.

Joo’s takeaway: “As a historical matter … copyright law has not prevented the development of sampling.”

The Mythology of Free Culture

Remix Without Romance is a fascinating read for anyone interested in the issues discussed above. And it’s tremendously useful for its empirical contributions to copyright doctrine.

In my opinion, it is also an important work for critiquing free culture (and other copyright skepticism) scholarship. The “exaggerations” (to use Joo’s term) in such scholarship are not isolated to digital sampling — it is concerning how many similar claims are made in this area. In a way, large portions of free culture and other opposition to copyright have been built upon mythology. The effects of this scholarship aren’t limited to academia; free culture has become very popular online and in the general public, where these specious claims morph into talking points against copyright in toto.

References

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.

The Story of John and Jack

By , November 30, 2011.

A funny thing happens when one reads about how “content industries hate technology.” See if you can tell what it is:

Historically, intellectual property rights holders had a tendency to initially complain about the adverse impact of new technologies only to find them later opening up new markets for their products and services. For example, well-known American composer John Philip Sousa testified before Congress about the challenge created by the manufacture and sale of phonograph records:

When I was a boy . . . in front of every house in the summer evenings you would find young people together singing the songs of the day or the old songs. Today you hear these infernal machines going night and day. We will not have a vocal cord left. The vocal cords will be eliminated by a process of evolution, as was the tail of man when he came from the ape”

… Decades after Sousa’s testimony, the late Jack Valenti, the long-time lobbyist for the U.S. movie industry, made the same mistake. In his effort to lobby against the manufacture and distribution of videocassette recorders, he declared that the new device was “to the American film producer and the American public as the Boston strangler [was] to the woman home alone.”

Peter K. Yu, Digital Copyright and Confuzzling Rhetoric, 13 Vanderbilt Journal of Entertainment and Technology Law 881 (2011)

Moving into the 20th century, the claims about technology as a threat to content came fast and furious. The threats in the first decades of the 20th century were the player piano and the gramophone. John Philip Sousa wrote an article, The Menace of Mechanical Music, in which he argued that those infernal devices were a “threat to his livelihood, to the entire body politic, and to ‘musical taste’ itself. . . . The player piano and the gramophone [ ] strip[ ] life from real, human, soulful live performances.”

… By the late 1970s we get to the example that is perhaps the most familiar: the VCR. The free television model, augmented by cable, had been established for some time. Along came a technology that allowed people to copy this freely provided television content and do what they wanted with it. The content industry warned us that the VCR must be stopped. Here is Jack Valenti of the MPAA, speaking to Congress:

[T]he VCR is stripping . . . those markets clean of our profit potential, you are going to have devastation in this marketplace. . . . We are going to bleed and bleed and hemorrhage, unless this Congress at least protects one industry that is able to retrieve a surplus balance of trade and whose total future depends on its protection from the savagery and the ravages of this machine.

If that were not enough, he went on to say, “I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone.”

Mark Lemley, Is the Sky Falling on the Content Industries? 9 Journal on Telecommunications and High Technology Law 125 (2011)

Over 100 years ago, the famous composer John Philip Sousa tried to block two new technologies, the gramophone (phonograph) and the player piano. In 1906, Sousa testified before Congress about his concerns: he “viewed the mechanical reproduction of music as an ominous threat.”

In an article attacking the new technologies, Sousa warned of “a host of other injuries to music . . . by virtue – or rather by vice – of the multiplication of the various music-reproducing machines.”

… In 1976, two movie studios sued Sony Corp. to try to block sales of Sony’s Betamax, a videocassette recorder (VCR or VTR), in probably the most famous example of the content industries’ attempts to block new technology. Overstatements about the supposed effects of the VCR were rampant. As quoted above, Mr. Valenti likened the VCR to the “Boston strangler.”

Viacom v. YouTube, Amicus Brief of Consumer Electronics Association (2nd Cir. 2011)

Copyright owners have greeted every new technology with panic. At the turn of the 20th century, sheet music publishers viewed the player piano, which used copyrighted sheet music in the pianos (and threatened to reduce revenue) with great alarm. John Philip Sousa bemoaned the introduction of the technology, predicting “a marked deterioration in American music and musical taste, an interruption in the musical development of the country, and a host of other injuries to music in its artistic manifestation.”

Eight decades later, Jack Valenti, then the head of the Motion Picture Association of America (MPAA), warned that the market for copyrighted movies would be “decimated, shrunken [and] collapsed” by the VCR, and that “the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone.”

Viacom v. YouTube, Amicus Brief of Michael Carrier (2nd Cir. 2011)

In the last century or so, which industry has a habit of being hysterical and hyperbolic about copyright issues… and which has a history of being right. Let’s start about a century ago, with John Philip Sousa, the composer. In 1906, he went to Congress to complain about the infernal technology industry and how it was going to ruin music:

These talking machines are going to ruin the artistic development of music in this country. When I was a boy…in front of every house in the summer evenings, you would find young people together singing the songs of the day or old songs. Today you hear these infernal machines going night and day. We will not have a vocal cord left. The vocal cord will be eliminated by a process of evolution, as was the tail of man when he came from the ape.”

… Jump forward a decade or so, and we have the infamous statement of Jack Valenti comparing the VCR to the Boston Strangler:

I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone.

Mike Masnick, A History of Hyperbolic Overreaction to Copyright Issues, TechDirt (Nov. 9, 2011)

Besides, this is just another line like Valenti’s old “Boston Strangler” line. People who don’t know or understand culture or history always blame the new technology for “killing” off the old industry. The reality — as shown time and time again — is that it actually enhances and grows that industry. You see it again and again. The sheet music industry insisted the player piano would kill the music business. John Philip Sousa insisted that the phonograph would kill the music industry, because with it, no one would ever learn to play music or want to hear live music again.

Mike Masnick, What Happens When You Get Two Internet Haters Together? An Interview that Kills Brain Cells, TechDirt (Nov. 2, 2011)

The second reason for the threats to innovation is copyright owners’ panic upon the introduction of new technologies. John Phillip Sousa thought the player piano would lead to “a marked deterioration in American music.” Jack Valenti famously thought the VCR was to the American public as “the Boston strangler is to the woman home alone.”

Michael Carrier, Why Innovation is Under Attack, TechDirt (May 13, 2011)

At the turn of the last century John Philip Sousa argued that the gramophone was a grave threat to musicians. How could musicians earn a living if the public were free to listen to music in our homes?

… In the early 1970’s the Motion picture association argued that the video recorder would make the film and television industry “bleed and bleed and haemorrhage”, their president, Jack Valenti, claimed the VCR was as great a threat to film producers as the Boston strangler was to women home alone.

Conor Mulhern, Making money the only way they know how, conormulhern.com (May 2, 2011)

New technology has always caused great distress for copyright owners, going all the way back to 1903, American composer John Philip Sousa was worried the player pianos would destroy music as they then knew it. After that each new technological advancement which created a new method of transmitting information met fierce opposition from the content industry of the time from the radio, to the cassette tape to Mp3′s its always the same story. Not that all of their concerns were unwarranted or unfair but the rhetoric has at times been laughable. My personal favorite is this gem:

“I say to you that the VCR is to the American film producer and the American public as the Boston Strangler is to the woman home alone.” ~ Jack Valenti, Former President MPAA

t3chjurist, Us, Them and Copyright, techjurist.wordpress.com (Feb. 23, 2011)

Other companies, and their trade associations, instead attempt to avoid change of any sort. To quote Jack Valenti, the past President of the Motion Picture Association of America, in his testimony to the U.S. Congress about Video Cassette Recorders:

I say to you that the VCR is to the American film producer and the American public as the Boston Strangler is to the woman home alone.

… Every Disruptive Technology has caused a reaction like Jack Valenti’s by the Corporations involved. Artists have also fought these new means of production and/or distribution. In a submission to Congress about the new-fangled phonograph John Philip Sousa, the great American Composer and Conductor said:

These talking machines are going to ruin the artistic development of music in this country. When I was a boy…in front of every house in the summer evenings, you would find young people together singing the songs of the day or old songs. Today you hear these infernal machines going night and day. We will not have a vocal cord left. The vocal cord will be eliminated by a process of evolution, as was the tail of man when he came from the ape.

Wayne Borean, An Explanation of my Views on Copyright Part One, madhatter.ca (Sept. 7, 2010)

Home-use VCRs were available as far back as 1963, but didn’t catch on until mass-production dropped the price in the late 1970s. In an almost unrelated note: Shortly afterwards Jack Valenti, head of the MPAA, completely lost his shit.

Appearing before Congress–flecks of spittle presumably slinging from his red, swollen face and melting caustic holes into the floor–he proceeded to proclaim in all seriousness that “…the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone.”

…Pirated music is hardly a new development. In fact, there have been Metallicas in every age of man, making loud and opinionated asses out of themselves every time somebody accidentally coughs a note they once thought of using in a song. In this case, we’re referring to the “March King” himself, John Philip “Stars And Stripes Forever” Sousa.

In this piece first published in Appleton’s Magazine in 1906, Sousa argues that, “…I myself and every other popular composer are victims of a serious infringement on our clear moral rights to our own work…”

Ralf Bakr, 5 Insane File Sharing Panics from Before the Internet, Cracked (May 7, 2010)

The gramophone (or phonograph) was unleashed upon a music industry that reacted with predictable fear. The composer John Philip Sousa said:

These talking machines are going to ruin the artistic development of music in this country… We will not have a vocal cord left. The vocal cord will be eliminated by a process of evolution, as was the tail of man when he came from the ape.

… The film industry has a similar fear-filled history. In the 1980s, Jack Valenti, president of the Motion Picture Association of America said:

…the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone.

Jeremy Keith, Fear is the Mind-Killer, Adactio (May 2, 2010)

Content owners have railed against technological change since before Big Content even existed, from John Philip Sousa’s denouncing of the player piano to former Motion Picture Association of America chief Jack Valenti’s famous comparison of the VCR to the Boston Strangler.

Cory Ondrejka, “Big Brother” versus “Little Brother”: Two Possible Media Futures, Futurist Magazine (March 1, 2010)

Hyperbole has characterized rights holder reaction throughout, from John Phillip Sousa complaining to the US Congress in 1906 that player pianos:

“are going to ruin the artistic development of music in this country…The vocal chord will be eliminated by a process of evolution, as was the tail of man when he came from the ape.”

… to Jack Valenti, as President of the Motion Picture Association of America, testifying before the US House of Representatives in 1982 that:

“the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone”.

Open Rights Group Briefing: Illicit P2P file sharing (2009)

Motion Picture Association of America (MPAA) President Jack Valenti made the following statement to a U.S. Congressional panel in 1982:

I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone.

Yet the reality is that home video viewing, beginning with the VCR and later the DVD player, ultimately came to be the mainstay of movie studio revenues throughout the 1980s, 1990s and into the 2000s. British copyright commentator Tom Watson recently made these insightful observations on a similar phenomenon that occurred much earlier:

In 1906, composer John Phillip Sousa testified before the US Congress that the technological advance of his day would not only “ruin the artistic development of music” but also cause the vocal chord “to be eliminated by a process of evolution”.

Bell, Rogers, Shaw and TELUS, Submission on update to Copyright Act, Copyright Consultations, Canada (2009)

Similar predictions have arisen around every new technology for communicating ideas. John Philip Sousa argued passionately that musical recording would be the end of human singing, and Jack Valenti (then president of the Motion Picture Association of America) compared the video recorder to the Boston Strangler in its anticipated effect on the movie business.

Kevin L. Smith, Books and reading in the Google age, News & Observer (Nov. 30, 2009)

In 1906, famous composer John Philip Sousa took to Appleton’s Magazine to pen an essay decrying the latest piratical threat to his livelihood, to the entire body politic, and to “musical taste” itself. His concern? The player piano and the gramophone, which stripped the life from real, human, soulful live performances. … In 1982, when the movie and music businesses were engaged in a full court press to shut down the hot new VCR, the warnings about its sinister effects made Sousa sound like a wimp.

Chief movie lobbyist Jack Valenti appeared at a Congressional hearing on the VCR and famously went hog-wild. “This is more than a tidal wave. It is more than an avalanche. It is here,” he warned after reciting VCR import statistics.

… One lobbyist (rightly) contended that “the VCR is the greatest friend that the American film producer ever had,” to which Valenti responded, “I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone.”

Nate Anderson, 100 years of Big Content fearing technology — In its own words, Ars Technica (Oct. 11, 2009)

Emerging technology has often appeared as a bad omen to copyright owners. In 1906, three years before the enactment of the 1909 Copyright Act, famed American composer John Philip Sousa expressed his fears over the invention of player pianos when he said, “I foresee a marked deterioration in American music … and a host of other injuries to music in its artistic manifestations, by virtue–or rather by vice–of the multiplication of the various music-reproducing machines… .”

… Following the U.S. Supreme Court’s decision in Universal City Studios v. Sony Corporation of America, Jack Valenti, former-president of the Motion Picture Association of America (MPAA), foresaw the doom of the movie and television industries in the rise of the VCR: “I say to you that the VCR is to the American film producer and the American public as the Boston Strangler is to the woman home alone.”

Marques S. Johnson, Negotiating Digital: XM Satellite Radio, the AHRA, and Keeping Copyright Balanced, 51 Howard Law Journal 397 (2008)

During testimony, MPAA CEO Jack Valenti, in a performance that was worthy of an Oscar, famously said the following:

“the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone.”

… This was not the first time, or the last, that the entertainment industry has attempted to use the courts in order to eradicate a technology from existence. While the Betamax case has been the most important decision in years, and arguably the most widely known, there have been other cases that were just as significant. The industry has been short-sighted since its infancy.

In 1906, songwriters objected to the release of the player piano. John Philip Sousa, a famous American composer and conductor who was widely known for his various American military marches, had the following to say about the introduction of the player piano:

“I foresee a marked deterioration in American music and musical taste, an interruption in the musical development of the country, and a host of other injuries to music in its artistic manifestations, by virtue — or rather by vice — of the multiplication of the various music-reproducing machines.”

Scott Jarkoff, Embracing File-Sharing is Essential for Industry Survival, Piratpartiet (July 24, 2006)

“I forsee a marked deterioration in American music…and a host of other injuries to music in its artistic manifestations, by virtue—or rather by vice—of the multiplication of the various music-reproducing machines…”

–John Philip Sousa on the Player Piano (1906)

…

“But now we are faced with a new and very troubling assault on our fiscal security, on our very economic life and we are facing it from a thing called the videocassette recorder.”

–MPAA on the VCR (1982)

You’ve Heard This Song Before! Consumer Electronics Association advertisement, Roll Call (June, 2006)

“I foresee a market deterioration of American music and musical taste. An interruption of the musical development of this country and a host of other injuries to music and its artistic manifestation by and the virtue who are riding the vice of the multiplication of these various music reproducing machines.”

This was Mitch [Glazier] last week. Just kidding, this was John Philip Sousa in 1904, over a hundred years ago when he came to Congress, asking that it stop the production of these player pianos because they were going to be the death of the music industry. If you look back historically that was the same reaction that the music industry and Hollywood had to music on the radio, television and VCR. I remember the Betamax was to the American movie industry what the Boston Strangler is to the women at home, according to Jack Valenti, TiVo, the MP3 player and so forth.

Progress & Freedom Foundation, The Role of Music Licensing in a Digital Age (Michael Petricone remarks), Progress on Point 13.18 (July 2006)

But the entertainment industry has been crying wolf for a century, ever since John Philip Sousa claimed that the player piano spelled the end of music in America. Each new technology has been attacked as a grave threat to the sanctity of copyright, yet somehow the sanctity of copyright has survived. The Sony case again provides the best illustration of this fact. The Chairman of the Motion Picture Association of America testified before Congress that the motion picture industry would suffer devastating financial losses if the VCR were not strangled at birth. (“[W]e are facing a very new and a very troubling assault on our fiscal security, on our very economic life and we are facing it from a thing called the video cassette recorder and its necessary companion called the blank tape. . . . I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone.”)

MGM v. Grokster, Amicus Brief of National Venture Capital Association (S.Ct. 2005)

When the phonograph hit the US market, conductor and military composer John Philip Sousa claimed in front of Congress that, along with hurting his business, it would deprive us of our ability to speak: “We will not have a vocal chord left. The vocal chord will be eliminated by a process of evolution, as was the tail of man when he came from the ape!” In 1982, Jack Valenti, then spokesman for the MPAA, stood in front of the same body, calling the VCR “the Boston Strangler” of the American film industry, alleging it was quietly killing American filmmakers.

Alex Aylett, Copy That, This Magazine (July 2005)

This is really part of a much longer historical set of fights between new technologies and the entertainment industry, going back at least to the player piano at the dawn of the 20th Century. No less a figure than John Philip Sousa, the famous American composer, said “The player piano will be the end of music in America.” … that’s exactly the mantra they came up with during the fight over the VCR, and Jack Valenti, who was then head of the Motion Picture Studios, famously said that the VCR was to the movie studio as the Boston Strangler was to a woman alone.

The Shape of Film to Come (remarks of Fred von Lohmann), On the Media (April 1, 2005)

Exhibit I-1: Piracy Panics V. Technological Progress: Economic & Moral Catastrophes are Always about to Befall the Entertainment Industry

John Phillip Sousa, “The Menace of Mechanical Music,” Appleton’s Magazine, Vol 8 (1906)

…I foresee a marked deterioration in American music and musical taste, an interruption in the musical development of the country, and a host of other injuries to music in its artistic manifestations, by virtue — or rather by vice — of the multiplication of the various music-reproducing machines…

…

Jack Valenti, “Home Recording of Copyrighted Works,” Committee on the Judiciary, United States House of Representatives, April 12, 1982

… I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone.

Mark N. Cooper, Time for the Recording Industry to Face the Music: The Political, Social and Economic Benefits of Peer-to-peer Communications Networks, Consumer Federation of America, et al. (March 2005)

In the propaganda campaign that preceded the Betamax case, Jack Valenti, president of the Motion Picture Association of America, declared that the video recorder was ‘to the American film producer and the American public as the Boston strangler is to the woman home alone’. Strange, then, that video rentals went on to become the film industry’s main source of revenue.

Established interests have never much liked innovation. Back in 1906 the composer John Philip Sousa predicted ‘a marked deterioration’ in musical tastes as newfangled gramophones ‘reduce the expression of music to a mathematical system of megaphones, wheels, cogs, disks, cylinders and all manner of revolving things’.

David Rowan, MGM v. Grokster (op-ed), The Times Magazine (March 26, 2005)

Several examples are telling. At the turn of the twentieth century, the invention of the player piano sparked much concern on the part of musical composers. In fact, renowned American composer John Philip Sousa published an editorial in 1906 attacking the player piano, declaring that it represented a threat to copyright owners and, indeed, the future of music in America. Of course, the player piano ultimately gave way to the phonograph, from which the entire modern music industry arose.

More recently, the motion picture industry attacked the video cassette recorder (VCR) as a threat to the future of film. In 1982, Jack Valenti, then-head of the Motion Picture Association of America (MPAA), famously declared, “I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone.”

EFF, Letter to FTC (Jan. 18, 2005)

Jack Valenti, the head of the Motion Pictures Association of America, testified before Congress, and if you’ve seen him before Congress he often looks like this, and he said in 1982 to the Congress the following: “The VCR is to the American film producer and the American public as the Boston strangler (the notorious serial killer) is to the woman home alone.” Now that’s pretty strong rhetoric. But it’s not unprecedented in the history of copyright and technology in this country. When the phonograph was invented we heard the same kind of complaints from the music industry of the time. John Philip Sousa went before the Congress in 1906 and he said this: “These talking machines (meaning phonographs) are going to ruin the artistic development of music in this country. When I was a boy in front of every house in the summer evenings you would find young people together singing. Today you hear these infernal machines going night and day. We will not have a vocal chord left.”

Edward W. Felten, “Rip, Mix, Burn, Sue: Technology, Politics, and the Fight to Control Digital Media” (lecture) (Oct. 12, 2004)

Predictably, the composers and music publishers went nutso. Sousa showed up in Congress to say that:

These talking machines are going to ruin the artistic development of music in this country. When I was a boy…in front of every house in the summer evenings, you would find young people together singing the songs of the day or old songs. Today you hear these infernal machines going night and day. We will not have a vocal chord left. The vocal chord will be eliminated by a process of evolution, as was the tail of man when he came from the ape.

… Jack Valenti, the mouthpiece for the motion-picture industry, told Congress in 1982 that the VCR was to the American film industry “as the Boston Strangler is to a woman home alone.”

Cory Doctorow, Microsoft Research DRM talk (June 17, 2004)

Everyone wins when copyright law adapts to new technologies

Did you catch it?

But on a serious note, the myth that “content industries hate technology” fails for several reasons. It requires fabricating a group (“the content industry”), ascribing a broad characteristic to it (“hates technology”), and then pulling together disparate quotes from anyone who has stated a concern over some new technology as proof of the theory.

And, ironically, the myth neglects the fact that in most cases, copyright law in the past adapted to new technologies.

In the case of Sousa, for example, while he admitted at the time that his remarks may have been a bit over the top, his primary concern was that gramophone manufacturers were appropriating his work without compensating him. 1In the essay quoted many times above, Sousa writes “I am quite willing to be reckoned an alarmist”, but “Could anything be more blamable, as a matter of principle, than to take an artist’s composition, reproduce it a thousandfold on their machines, and deny him all participation in the large financial returns, by hiding back of the diaphanous pretense that in the guise of a disk or roll, his composition is not his property?” Just a few years after his essay and testimony, Congress revised the Copyright Act to provide that mechanical reproductions of musical compositions were part of a copyright holder’s exclusive rights. The result was the recording industry — which greatly benefited composers, recording artists, technology manufacturers and the general public.

Similar stories played out with other technologies, like radio 2A series of court decisions in the early 1920s, including M. Witmark & Sons v. L. Bamberger, 291 Fed. 776; Remick & Co. v. American Automobile Accessories, 5 F.2d 411; and Remick & Co. v. General Electric, 16 F.2d 829, solidified in law the proposition that a radio broadcast of a musical composition is a public performance. and cable television. 3The 1976 Copyright Act provided that retransmission of a broadcast by a CATV operator constitutes a public performance; see Capital Cities Cable v. Crisp, 467 US 691, 709 (1984). Again, the law adapted, the creative and technology companies thrived, and the general public and consumers benefited.

In all cases, the opposition is not to new technologies, but to those who think the introduction of a new technology gives them the privilege of misappropriating someone else’s work.

Just something to keep in mind the next time someone trots out Sousa and Valenti to oppose legislation to adapt copyright law to new technology.

References

References
↑1 In the essay quoted many times above, Sousa writes “I am quite willing to be reckoned an alarmist”, but “Could anything be more blamable, as a matter of principle, than to take an artist’s composition, reproduce it a thousandfold on their machines, and deny him all participation in the large financial returns, by hiding back of the diaphanous pretense that in the guise of a disk or roll, his composition is not his property?”
↑2 A series of court decisions in the early 1920s, including M. Witmark & Sons v. L. Bamberger, 291 Fed. 776; Remick & Co. v. American Automobile Accessories, 5 F.2d 411; and Remick & Co. v. General Electric, 16 F.2d 829, solidified in law the proposition that a radio broadcast of a musical composition is a public performance.
↑3 The 1976 Copyright Act provided that retransmission of a broadcast by a CATV operator constitutes a public performance; see Capital Cities Cable v. Crisp, 467 US 691, 709 (1984).

Dispatches from the SOPAcolypse

By , November 02, 2011.

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.” 1Eric Goldman, A Road to No Warez: The No Electronic Theft Act and Criminal Copyright Infringement, 82 Oregon Law Review 369 (2003).

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. 2Id. 392-96.

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. 3Greg Sandoval, VCs to Congress: Antipiracy will ‘chill’ tech investment, CNet, June 24, 2011.

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.

References

References
↑1 Eric Goldman, A Road to No Warez: The No Electronic Theft Act and Criminal Copyright Infringement, 82 Oregon Law Review 369 (2003).
↑2 Id. 392-96.
↑3 Greg Sandoval, VCs to Congress: Antipiracy will ‘chill’ tech investment, CNet, June 24, 2011.

Response to David Post re:Jefferson

By , October 19, 2011.

David Post responds, in his article Why Should We Care What Jefferson Thought about Copyright, to my earlier post on the subject regarding Jefferson’s letter to Isaac McPherson.

My answer was “Sure”, we should care what he thought about copyright, as long as we understand what he thought about it and place it in the correct context. His letter to McPherson sheds no light on the former; Jefferson was writing about patents, not copyright.

So whether or not you agree that “Jefferson had more interesting thoughts about a more diverse range of subjects than any other person in history” or that “he was smarter than you, or I, or anyone else currently commenting on intellectual property matters”, it doesn’t change the fact that this particular letter was addressing a separate (and different) topic.

I also respectfully disagree with the following reason given by Post:

“3. Because he was the first person in history to articulate, in one document (and a short one, at that) the foundational theory of intellectual property.”

Accepting for the sake of argument that the nature of ideas is “the foundational theory of intellectual property”, this is just incorrect. Again, Jefferson was talking about patents, not copyright. The two are distinct, and copyright lays no claim to ideas.

I think it could fairly be said that a consensus on (1) the divergence of patent and copyright, (2) the distinction between ideas and expression within copyright, and (3) the basis of copyright protection as statutory rather than through common law had emerged by the mid to late 18th century. In Authors and Owners: The Invention of Copyright, Mark Rose writes that “By 1774, the year in which the Donaldson decision resolved the issue of the perpetuity, all the essential elements of modern Anglo-American copyright law were in place.”

Certainly these and other debates concerning copyright weren’t over and continue today. 1Adrian Johns notes in Piracy: The Intellectual Property Wars from Gutenberg to Gates that opposition to the Donaldson decision emerged “quite soon” but has “never been definitively defeated.” But the “non-exclusive” and “non-rivalrous” nature of ideas was recognized by then, decades before Jefferson wrote to McPherson.

Some examples —

William Warburton, An Enquiry into the Nature and Origin of Literary Property, 1762:

Neither hath it any tendency to confine the powers of genius: for he who obtaineth my copy may appropriate my stock of ideas, and, by opposing my sentiments, may give birth to a new doctrine or he may coincide with my notions, and, by employing different illustrations, may place my doctrine in another point of view : and either case he acquireth an exclusive title to his copy, without invading my property : for though he may be said to build on my foundation, yet he rears a different superstructure. An inconsiderable addition or improvement however, will not support his claim: the supplying literal or verbal omissions, or the correcting of literal or verbal errors, for instance, will not be sufficient to found a new right in him : and a jury endued with the slightest degree of common understanding may, be the subject what it will, distinguish, or be taught to distinguish, where the difference is essential, and where it is evasive.

Francis Hargrave, An Argument in Defence of Literary Property, 1774:

I Have only one other objection to encounter, so far as the claim of literary property depends on general reasoning. It is an objection, founded on a supposed resemblance between the case of an inventor of a machine, and that of the author of a book. I claim the full benefit of all the ingenious reasons, which others have made use of to distinguish the two cases; but instead of repeating them, I will add one to their number. In my own opinion, the principal distinction is, that in one case the claim really is to an appropriation of the use of ideas; that in the other the claim leaves the use of the ideas common to the whole world. There are not any bounds to the extent of such a claim. It would be impracticable to receive it; because it could never be fairly decided, when an idea was new and original, when it was old and borrowed. The title of the supposed inventor of the machine to the sole making of it, cannot be allowed, without excluding all others, not only from the use of their borrowed ideas; but even from the use of ideas, which may be as original in them, as in the person who first publishes the invention. The same ideas will arise in different minds, and it is impossible to establish precisely, in whom an idea is really original; and perhaps most ideas may in fact be equally original in the greater part of mankind; and priority in the publication of an idea is a most insufficient proof of its originality. This shews, that the perpetual appropriation of the use of an idea to the real or supposed inventor of a machine, would be as inconsistent with the rights of others, as it would be impracticable. But these are not the only arguments against perpetually appropriating the use of knowledge and inventions, It is impossible to sustain the claim consistently with the laws of any country, in which the policy of disallowing monopolies prevails. Every article of trade, every branch of manufacture and commerce, would be affected clogged, if not totally stopped. Such a perpetual appropriation of the use of inventions and ideas would be the most unlimited kind of monopoly ever yet heard of—a monopoly, not of one trade or manufacture, but such, that if it bad ever been endured, it would have ended in a monopoly of almost all trades, and manufactures collectively. I have already shewn, that the appropriation of the right of printing, to an author, is not liable to any of these objections that the claim has its limits and bounds; that the use of ideas and knowledge is as common as it would be, if the right of printing was not appropriated; that the author’s title to the sole sight of printing, is quite consistent with the rights of others; and that his appropriation of his copies, is so far from falling within the true idea of a monopoly, that the appropriation of copies, independently of the author’s right, is even essential to the carrying on the trade; cf. printing in a manner beneficial to the public.

Johann Gottlieb Fichte, Proof of the Illegality of Reprinting, 1793:

We can distinguish two aspects of a book: its physical aspect, the printed paper, and its ideational aspect. The ownership of the former passes indisputably to the buyer upon purchase of the book. He can read it and lend it as often as he likes; he can re-sell it to whomever he wishes, and for as much or as little as he wants or can get; he can tear it to pieces or burn it — and who could quarrel with him? But since people seldom buy a book for such purposes, and most seldom of all simply to display its paper and printing and cover the walls with it, they must assume that when they buy a book they are also acquiring a right to its ideational aspect. This ideational aspect is in turn divisible into a material aspect, the content of the book, the ideas it presents; and the form of these ideas, the way in which, the combination in which, the phrasing and wording in which they are presented. It is apparent that simple transfer of the book to us does not yet confer ownership of the former, for ideas cannot simply be handed over or bought for cash. They do not become ours just by our picking up a book, carrying it home, and putting it in our bookcase. In order to appropriate the ideas a further activity is necessary. We must read the book, think through its content — insofar as it goes beyond common knowledge — look at it from various points of view, and in this way assimilate it into our own pattern of thought. However, since we would not be able to do this without possessing the book, and since we did not purchase it just for the sake of the paper it contains, buying it must accordingly also confer on us the right to appropriate its content as well. By purchasing the book, that is, we acquire the possibility of appropriating the author’s ideas; but to transform this possibility into reality, we must invest our own effort. Before the publication of his notable works, then, and for a considerable time thereafter, the ideas of the originating thinker, whether of this or past centuries, and most probably of all to come, are the exclusive property of the author. No one has ever acquired the ideas of the Critique of Pure Reason in exchange for the money he paid for it. There are some clear-sighted men now who have appropriated these ideas, but most certainly not just by buying the book, but rather through assiduous and rational study. And, be it said in passing, this process of reflection is the only fitting recompense for instruction of the mind, whether oral or written. The human mind has an inborn propensity to produce agreement with its own pattern of thought and every sign of satisfying this propensity is the sweetest of rewards for all effort expended. For who would want to teach to bare walls, or write books that nobody read? It would be absurd to consider the money paid for such instruction as equivalent in value. It is simply compensation for the sums the teacher must pay to those who, while he is thinking for others, hunt, fish, sow, and harvest for him.

What is certainly offered for sale through the publication of a book, then, is first of all the printed paper, to anyone, that is, who has the money to buy it, or a friend who will lend it to him; and secondly, the content of the book, namely to anyone who has enough brains and diligence to appropriate it. As soon as the book is sold, the former ceases to be the property of the author (whom we can still consider here as the seller) and passes exclusively to the buyer, since it cannot have more than one lord and master. The latter, however, which on account of its ideational nature can be the common property of many, and in such a manner that each can possess it entirely, clearly ceases upon the publication of a book to be the exclusive property of its first proprietor (if indeed it was so prior to publication, which is not always the case with some books nowadays), but does continue to be his property in common with many others. What, on the other hand, can absolutely never be appropriated by anyone else, because this is physically impossible, is the form of the ideas, the combination in which, and the signs through which they are presented.

By the time Jefferson wrote this letter on patents, then, few would find any relevance to copyright. It was well-established that copyright protection did not extend to the ideas in a particular work, and I do not know of anyone who seriously argued that it should, let alone that it should as a matter of natural right.

So, in my opinion, even if we look to this letter for principles to apply to copyright law, there is little we can take away. Post mentions concerns over tension between copyright law and free speech, a relatively recent debate. 2As I note in Copyright and Censorship, it wasn’t until 1969 — nearly 200 years after the first colonies passed copyright acts — that this tension began to receive attention from scholars and courts. But the freedom of ideas from copyright protection is one of the “free speech safeguards” baked into copyright doctrine; “Due to this distinction,” said the Supreme Court in 2003, “every idea, theory, and fact in a copyrighted work becomes instantly available for public exploitation at the moment of publication.” 3Eldred v. Ashcroft, 537 US 186, 219-221 (2003). This sounds like something Thomas Jefferson would encourage.

References

References
↑1 Adrian Johns notes in Piracy: The Intellectual Property Wars from Gutenberg to Gates that opposition to the Donaldson decision emerged “quite soon” but has “never been definitively defeated.”
↑2 As I note in Copyright and Censorship, it wasn’t until 1969 — nearly 200 years after the first colonies passed copyright acts — that this tension began to receive attention from scholars and courts.
↑3 Eldred v. Ashcroft, 537 US 186, 219-221 (2003).

Does amateur creativity make copyright obsolete?

By , September 26, 2011.

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.” 1Grant v. Raymond, 31 US 218, 241 (1832).

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. 2I chose these lists only as representative examples of works held in high regard. Obviously there are problems with ‘best of’ lists of this sort. 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.

References

References
↑1 Grant v. Raymond, 31 US 218, 241 (1832).
↑2 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.
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