While we here at againstmonopoly.org are busy complaining about copyright, Larry Lessig is busy trying to do something about it. The Kahle vs. Gonzales case challenges the change from "opt-in" to "opt-out" copyright that was introduced in 1976. Except for a few authors and media firms who face less competition from existing work that is now "orphaned" and unusable by anyone, few people benefit from this change, so it has to be rated among the greater policy blunders of a Congress that has made a few. I'm doubtful that the courts will overrule a change in the law made in 1976 however stupid it might be - no doubt they will find some "infinity is really finite" way to parse the law. But I'm glad Lessig is pursuing this. He has a good post on some of the issues - just scroll past the beginning which is a not entirely comprehensible reference to a previous post until he starts talking about the justices and the questions they asked.

It has always been my thought that you cannot have ownership without responsibility. If you own something and it damages someone else you have a liability. How does the 1976 change to copyright overcome this, if it does? If your copyrighted material damages my property what restitution do I have? Imagine Live Aid, a unique one off event, and somewhere in the background there is a radio. If there is no ownership of the radio noise it is the Live Aid organizers problem. If that radio noise is owned doesn't the owner have a responsibility, as the owners of any property have a responsibility, to ensure it doesn't impinge on other people's rights?

Isn't the right analogy for the "radio noise" problem the rental car problem? That is, if I rent a car and use it to wreck someone else's car, I am liable not the owner of the car who rented it to me. Isn't it the operator of the radio who should be liable, not whoever owns the music?

I guess the issue I am unclear on is whether (under either current law or common sense) "intellectual property" can cause damage - and if so whether the owner is liable. If damages are possible and the owner is/should be liable, then a system of giving the rights away to unindentified and possibly unidentifiable individuals has the problem Glenn t point out.

Thinking out load: In copyright, the obvious damage seems to be something like libel. I don't know the law - is the copyright holder liable, or the author, or both? Although I admit I'm not clear on how "opt out" copyright creates a problem that didn't already exist. That is, if we can't find the author, we can't very well sue him for libel, regardless of whether he holds a copyright or not.

What about a patented device that has some unintended consequence (it explodes or burns, injuring someone). Does the patent holder have some liability for his bad idea?

Techdirt has more on this story here under the title Lessig Challenges the Constitutionality of an opt-out copyright system. The post has a lengthy set of comments.

I would think that the radio operator is liable only if the radio operator operates outside the terms of their license, whatever that may be. Maybe the copyright owners should be enforcing the conditions that their material cannot be played in public, so any radios in cars are illegal because a car is a public place. If they are not enforcing this then isn't there a legal precedent that they cannot selectively enforce at a later date when they have permitted (encouraged, its how they sell their records) breaches to happen without attempting to stop them??