Happy Internet Freedom Day! Today is the anniversary of the anti-SOPA blackout protests, and to celebrate today only we’re making available for free Copyright Unbalanced: From Incentive to Excess, the new book I edited on the free-market case for copyright reform. Just head on over to CopyrightUnbalanced.com to get your free Kindle or iBooks version.
“We hold that the lacquered red outsole, as applied to a shoe with an ‘upper’ of a different color, has ‘come to identify and distinguish’ the Louboutin brand and is therefore a distinctive symbol that qualifies for trademark protection,” U.S. Circuit Judge José A. Cabranes wrote in a 31-page opinion.
Facepalmiest thing of the day (so far). Et tu also trademark law?
I’m working on a project looking at libertarian views on copyright (more on that soon), and I’d like to solicit your feedback on an analogy I’m developing. I’ve set up a comment thread at Google+ and I’d sincerely appreciate your thoughts on this post. Email feedback is also appreciated. Here goes…
Libertarians, conservatives and other supporters of a free market tend to be critical of government programs that subsidize particular industries. For example, the loan guarantees that allowed Solyndra to set up shop. We don’t like them because they distort the market and tend to lead to rent-seeking, if not corruption.
Why do we have loan guarantees for renewable energy projects like Solyndra’s solar power technology? Quite simply it’s because we’d like to see more renewable energy technology developed; more than is profitable to develop right now. So, the government offers a subsidy to incentivize the creation of such technology, which will eventually benefit the public at large. So far so good, but there are problems with this kind of government privilege.
First, there is a knowledge problem. How do we know that we’re not already getting the right amount of investment in renewable technologies? Without a government subsidy, there would still be investment in renewable energy technologies. We just think it’s not enough. But even putting aside how we can know that, the other question is, how much investment is optimal? Without a market process to guide investment, we don’t know how much is enough. So when the government offers subsidies, it’s guessing. It’s likely offering too little or too much, with each error introducing its own inefficiencies.
Tim Lee in response to my post on the EFF’s attack on Apple:
[Consumers are] being deprived of the freedom to purchase legal jailbreaking tools. In 1998, Congress passed the Digital Millennium Copyright Act, which makes it a felony to distribute products “primarily designed” for circumventing copy-protection schemes like the one on the iPhone. Breaking the law “willfully and for purposes of commercial advantage” can get you a half-million dollar fine and five years in prison. …
When Apple decided to lock down the iPhone, it was effectively invoking the force of criminal law against jailbreaking. That seems like a restriction on users’ freedom to me even if, like me and Jerry, you view freedom in terms of negative rights.
I agree with Tim that the DMCA’s anti-circumvention provision is a misguided encroachment on personal liberty. But it’s Congress, not Apple, that is to blame. As far as I know, Apple didn’t lobby for the law, and iIt’s not their fault that locking down a phone can create criminal liabilities. But even if Apple willfully avails itself of the law, the solution is not to force Apple to be open through regulation, but instead to repeal the anti-circumvention law. Two wrongs don’t make a right. Apple isn’t depriving anyone of liberty; the government is.
Germany plans to introduce legislation that would require search engines to pay content owners for using snippets shown in search links to news items. Obviously this would be a curtailment of fair use, and as a result, free speech. But what’s truly amazing is that the stated reason for this plan is that search engines are making more money than new sites.
A site like Google News (or standard Google when it returns news links at the top of a search) are not substitutes for news sites. In fact, search engines are the primary source of traffic for news sites. So it’s not the case that news sites are harmed by search engines. They are not losing any money to search; it’s quite the opposite. So why the law? According to the New York Times, “The proposal was cheered by German publishers, who complain that Internet companies like Google have profited hugely from their content, while generating only scraps of digital revenue.”
Got that? They’re saying, ‘Google hasn’t taken anything from us—in fact they’ve driven traffic to us—but at the end of the day they’re making more money than we are, and we want some of it.’
If you’re dubious, consider that publishers right now have the ability to opt out of being indexed by Google—or even just opt-out of Google News and stay in Google search. Yet they don’t. If the aggregation and linking that Google and other search engines are doing was not a fair bargain, publishers would opt out and demand payment. The fact that they don’t shows that they already value being in Google’s index. They are already being fairly compensated. This plan is not about fairness; it’s about rent-seeking.
Compulsory licensing as a way to address online piracy is alive and well, at least in France. Challengers to Nicolas Sarkozy are making the HADOPI three-strike law a campaign issue:
To Mr. Sarkozy’s right, the leader of the National Front, Marine Le Pen, says she would scrap the law and replace it with a so-called global license, under which consumers would be free to share content and artists would be remunerated in other ways, perhaps with revenue from new taxes.
On the left, the Socialist Party’s nominee for president, François Hollande, also opposes Hadopi. …
The Socialists, some of whom previously championed the global license, backed away from it once Ms. Le Pen took it up. Ms. Filippetti said, however, that there could still be a role for new taxes on Internet service providers, search engines or other Internet companies, with the proceeds being distributed to artists.
Kevin Drum and Tim Lee have been having an interesting exchange about whether those of us who oppose granting copyright holders stronger enforcement powers feel this way because we are ideologically opposed to IP protection. Tim points out that copyright owners have, as a matter of fact, received greater and greater enforcement powers—almost on an annual basis. As a result, Tim says, “most of us are not anti-copyright; we just think enough is enough, and that the menu of enforcement tools Congress has already given to copyright holders is more than sufficient.”
Sufficient for what, though? Sufficient to significantly reduce piracy online? That’s certainly not the case. Piracy is rampant on the net. Some would say, though, that the only meaningful ways left to enforce copyright would (dare I say it?) break the Internet as we know it.
So I think that when Tim says that the powers copyright holders now have are “more than sufficient,” I think he means sufficient to provide an incentive to create. After all, the purpose of copyright is to “promote the progress of science,” not to protect some Lockean notion of property. It may be the case that while owners’ rights are no doubt being violated, a further reduction in piracy won’t affect the incentive to create.
This is why many, including Julian Sanchez, Tim O’Reilly, Mike Masnick and Jonathan Coulton, question whether piracy is really a problem at all. That is, they don’t believe it may be the case that the present level of piracy doesn’t hurt content owners’ bottom lines because it’s clear that not every infringement would have otherwise been a sale. If that’s the case, then the costs of new enforcement powers would outweigh any benefits. So, the argument goes, we should do nothing.
Another argument might be that even if there is some harm on the margin to content owners from piracy—some reduction in the incentive to create—the toll a bill like SOPA would take on free speech and innovation are just not worth the reduction in piracy. So, again, we should do nothing.
Two observations about this. First, many folks, including many policymakers, do in fact take a Lockean view of copyright. I think this is why many persons believe that opponents of new legislation are secretly IP anarchists. We need to do a better job of explaining the utilitarian purpose of Copyright. (I like to tell my friends on the Right that I’m for the “originalist vision of copyright” that the Founding Fathers intended.)
Second, it’s practically impossible to figure out the exact effect of online piracy on the economy, let alone creators’ incentives. In my view the truth is much closer to the “there’s no problem” end of the spectrum than to the inflated estimates put forth by the content industry. But, it’s certainly possible that there is too much piracy. If that’s the case, and we do believe in copyright, then I think it’s incumbent upon us to try to develop alternatives to reduce piracy without breaking the Internet. I’m not saying we should advocate for these, just that we should think about what those are.
If nothing else, we’ll be able to point to these alternatives when the next SOPA is portrayed as the only possible solution. Otherwise, people like RIAA President Cary Sherman will get away with saying that we have no “constructive alternatives” or that we’re IP anarchists.
Kevin Drum thinks that we may yet see a technical solution emerge that reduces piracy while preserving an open Internet. That may be, but color me skeptical. I think it will have to be a legislative solution. What that should be, I don’t know. The OPEN Act is one alternative. Compulsory licensing, however unpopular, is another way to tackle the issue. I’m sure there are others.
It’s a hard problem, and there are no easy answers. But if we do believe in copyright, then I think the intellectually honest thing to do is to spend some time thinking about how to reduce piracy, on the margin, without breaking the Internet. We can do this at the same time we fight for greater recognition of fair use, to protect the public domain, and to roll back terms and other over-reaching in copyright.
Over at TIME.com I write that if you didn’t like SOPA because it threatened free speech, then you probably won’t like the new “Right to be Forgotten” proposed in the EU. Prof. Jane Yakowitz contributes some great insights to the piece. What I dislike most about the rule is that it subordinates expression to privacy:
[T]he new law would flip the traditional understanding of privacy as an exception to free speech. What this means is that if we treat free expression as the more important value, then one has to prove a harmful violation of privacy before the speaker can be silenced. Under the proposed law, however, it’s the speaker who must show that his speech is a “legitimate” exception to a claim of privacy. That is, the burden of proof is switched so that speakers are the ones who would have to justify their speech.
Over at TIME.com, I consult public choice theory to glean the meaning of last week’s SOPA protest success:
The SOPA blackout protest last week was an unprecedented event. Its massive success — with dozens of members of Congress switching their stance in one day under the withering intensity of thousands of phone calls — surprised even the activists who spurred the protest. So does this mean that we are entering the much-heralded era of Internet-powered citizen democracy?
Read the whole thing here.
I write at TIME.com:
At a moment when Secretary of State Hillary Clinton is urging world governments to keep their hands off the Internet, creating a blacklist would send the wrong message. And not just to China or Iran, which already engage in DNS filtering, but to liberal democracies that might want to block information they find naughty. Imagine if the U.K. created a blacklist of American newspapers that its courts found violated celebrities’ privacy? Or what if France blocked American sites it believed contained hate speech? We forget, but those countries don’t have a First Amendment.
The result could be a virtually broken Internet where some sites exist for half the world and not for the other. The alternative is to leave the DNS alone and focus (as the bills also do) on going after the cash flow of rogue websites. As frustrating as it must be for the content owners who are getting ripped off, there are some cures worse than the disease.
Over at TIME.com Techland, I write about the newly introduced Stop Online Piracy Act and the renewed push for a “rogue website” law.
At a moment when Secretary of State Hillary Clinton is urging world governments to keep their hands off the Internet, creating a blacklist would send the wrong message. And not just to China or Iran, which already engage in DNS filtering, but to liberal democracies that might want to block information they find naughty. Imagine if the U.K. created a blacklist of American newspapers that its courts found violated celebrities’ privacy? Or what if France blocked American sites it believed contained hate speech? We forget, but those countries don’t have a First Amendment.
The result could be a virtually broken Internet where some sites exist for half the world and not for the other. The alternative is to leave the DNS alone and focus (as the bills also do) on going after the cash flow of rogue websites. As frustrating as it must be for the content owners who are getting ripped off, there are some cures worse than the disease.
Read the whole thing here.
The Matrix is a remix, as is everything.
No wonder I like it so much. The Killer, Ghost in a Shell, Total Recall, all that’s missing is Lebowski.
(Source: theatlanticvideo, via andrewgreene)
Everything is a Remix Part 3 (by Kirby Ferguson). There’s more after the credits.
Fair use.
Michael S. Sawyer, a fellow at the Berkeley Center for Law and Technology, discusses the impact of the DMCA on user-generated content. The discussion also turns to the principle of fair use and competing solutions for dealing with copyright infringements on user-generated content sites.
