The recent issue of IP Law & Business has a fascinating Q&A with Harvard law professor Charles Nesson, who is representing Joel Tenenbaum, a 25-year-old doctoral student being sued by five record companies under the Digital Theft Deterrence and Copyright Act of 1999. Tenenbaum refused to settle, and Nesson is arguing "that the law is unconstitutional because it allows for 'grossly excessive' awards."

While it's demeaning to have to hope for a just statutory interpretation by fake judges appointed by the criminal state of an artificial positive law enacted by "law"-makers of another department of the same criminal gang, it's heartening to see some people fighting back, and some otherwise mainstream legal professionals fighting for them. I doubt Nesson is a libertarian or against IP completely, but some of his comments are great. For example, he says,

"With the Net, there are artists who are figuring out ways to profit without using this clout of the copyright law. ... I believe the recording companies have great skills to offer artists, and there may need to be some reshuffling in the way those skills are passed around and the ways in which revenue is returned. ... If you see the United States in a competition with other nations in a digital world, and you think the best asset you have for the future are your own children, who will become the digerati, who think imaginatively in that environment, you will be against the idea that you use the law, the power of the state, to make those learners fearful of clicking on the Net."

(Aside: I also like how the same publication refers to a recent patent settlement as a "tax": Intuit Taxed $120 Million by Intellectual Ventures.)

[Cross-posted at SK and Mises]

The Supreme Court has declined to take an appeal of a case that held that Cablevision does not infringe copyright by providing a "remote DVR" service to its customers--the court reasoned that it is the customers, not Cablevision, who are making copies of programs, which they are permitted to do (if Cablevision were the one "making" the copies, it would be "more akin to video-on-demand, for which they negotiate licensing fees with cable providers"). The upshot is that consumers won't need to have a DVR box in their homes to record shows; they will be hosted on the servers of the cable or other provider. If only there were not a copyright statute in place in the first place, the courts would not have to engage in contorted reasoning to achieve just results.

[Cross-posted at LRC and StephanKinsella.com]

My review of Music and Copyright by Ronald S.Rosen on my site has led to an interesting correspondence with the author, Ron Rosen, which serves to illustrate the difficulty which any open minded copyright lawyer can have in actually debating copyright issues.

Ron, if you will recall, was the attorney for the composer John Williams who was sued for allegedly copying a phrase which he used in the score for the movie "E.T. The Extraterresterial". After four years of litigation the dispute over a commonplace musical phrase ended successfully for Mr Williams and Ron Rosen. Hence this book which outlines the importance of expert testimony in cases involving music - and provides insights into some of the novel arguments which might today be presented in cases involving mash-ups.

I was critical of one aspect of the book. I said "The main difficulty with this book is its use of musical notation. Understanding a music copyright case without being able to hear the actual music does not work well. I would like to see Rosen make a video lecture of parts of his book - possibly as a TED talk - since only then could the non-musical reader gain an understanding of the complexities of bringing and defending musical copyright claims. Put the video on a YouTube, link it to a website selling the book and Rosen will have created a resource for all lawyers and creative people worldwide."

However Ron e-mailed me to say "...A propos your comment about the need for aural examples, that is something we wanted to do for this edition, but as a new publication, the need for licenses and the budget foreclosed our doing so. "

The thought that Ron would need 'licences' merely to illustrate an academic argument had never occurred to me - although it should have. I responded "...I now fully understand why you have not illustrated your book by way of a video - but what an extraordinary position to be in. You really find yourself in a "Catch 22" - since, as a copyright attorney (who will be presumed will be fully aware of the law in this area) you need the permission of the copyright owners to illustrate, in an intelligible manner, the fact that their copyrights are likely to be worthless. If ever there was a case for compulsory licensing and fair use this is it. If you were doing this in the courtroom you would be free to do so. But instead if you just went ahead and put a video lecture on the web you would open yourself up to a law suit and heavy damages. The law of copyright has serious chilling effects today. I wonder what Larry Lessig and James Boyle would think about the situation you find yourself in."

Ron replied "Thank you for the comments, which are right on the mark. If we are fortunate enough to publish a second edition, we might be a position to secure licenses for small portions of the sound recordings at reasonable rates. If, however, the current edition is highly successful, we may be able to get licenses for the second edition in exchange for crediting the record companies for the use of these extracts, if the composition is in the public domain. If, however, the music itself is also protected by copyright, we would need licenses from both the copyright owner of the sound recording and the owner of the copyright in and to the music. Looking over this paragraph, you will notice a lot of "ifs", which sums up the situation."

You would think libertarians would be unambiguously for freedom of speech. In Intellectual Property vs. Creative Freedom, Cathy Young discusses a literal book banning by a federal judge: he has temporarily enjoined "publication of a novel called 60 Years Later: Coming Through the Rye," based on copyright claims by "J. D. Salinger, author of the 1951 classic Catcher in the Rye." The judge is expected to decide soon whether to make the ban permanent. Yes, this is all because of copyright.

Copyright now lasts well over 100 years, due to continual copyright extension over the years--as Young notes, "When copyright legislation was first passed in the United States in 1790, the term of copyright lasted for 14 years, with the option of renewal for another 14."

Does Ms. Young want to abolish copyright, this obvious threat to freedom of press? Or at least return to the 14 + 14 year system? Why, no. She has figured out the optimal way to handle this: "Personally, I would support a term of 50 years, with a portion of revenues from any derivative work published thereafter going to the original author." Fifty years. Where she gets this number is anybody's guess.

This is libertarianism?

[Cross-posted at StephanKinsella.com]

From a reader who is a Library and Information Science graduate student, currently working at several libraries:

I did not see any mention of Creative Commons (http://creativecommons.org/) and would be very interested in hearing your thoughts on it..

I think we are all very supportive of the Creative Commons movement. It is unfortunate in a sense that it has to exist. The fact that the default is for works to be under copyright is one of the worst changes to the law in recent memory. It would be far better if copyright existed only for those that actually wished to claim it. Creative commons does an enormous service by at least providing a simple and clear way of renouncing parts of copyrights. I use it extensively for my own work. Far better of course just to get rid of copyright.

I think Open Access Journals, Institutional Repositories and Creative Commons Licensing are as innovative as the Open Source movement for software, challenging the current system and opening doors for creation and competition.. Again these topics were not covered in the book and I would be really interested in learning about your opinions on these movements. (Any chance for a second edition?)

Don't know about a second edition...the first hasn't been out that long. Professional journals are a scandal that we've discussed occasionally on this blog. The issue has somewhat limited connection to copyright - more to do with the fact that commercial publishers own the reputations of scientific journals. I'll be posting more on open source publishing shortly.

Also I'd be interested in your take on the somewhat recent events of - the HR-801 Fair Copyright Act and the AM/FM Radio Royalty Bill.

HR-801 Fair Copyright Act is a bill pushed by commercial publishers to undo NIH policy that forces scientific work paid for by government grants to be open access after a period of time. The idea that the government pays for research that is then put under lock and key is both offensive and from a policy point of view stupid.

The AM/FM Radio Royalty Bill seeks to force radio stations to pay royalties to copyright owners. Was there something here broken that needed to be fixed? This is the central reason that I oppose intellectual monopoly in all of its forms. Once you have it, there is constant lobbying to grab more and more, regardless of whether it fulfils the purpose of promoting science and the useful arts.

Two recent studies about copyright, differing wildly in their conclusions and in the quality of their analysis. On the high quality side (via Slashdot) an article by Felix Oberholzer-Gee and Koleman Strumpf analyzing the impact of file sharing on the music industry. While this confirms what we thought informally, it is the first study I've seen with hard numbers: musicians income up due to increased demand for their live performances; the total production of songs way up, even as the recorded sales have dropped. Basically - the internet balancing distribution cost and business model against the reduction in demand for recordings has helped musicians and increased the output of music. A really careful detailed analysis.

On the negative side - I'm really sorry to see my former employer the RAND corporation sink to this - a study entitled "Film Piracy, Organized Crime, and Terrorism". As it turns out the authors are highly confused between film piracy and counterfeiting...well perhaps just highly confused. Maybe we should send the authors out to see Be Kind Rewind - that I suppose would qualify as movie counterfeiting.

Following the opening remarks by the Right Honourable Gordon Brown, MP Prime Minister, the report declares its ambition, "To secure the UK's position as one of the world's leading digital knowledge economies (p.7)."

The scale of the report is vast; it is about much more than intellectual property rights. That said, on the subject of IP, there is one sentence which is quaintly insightful. "A recent study in Scandinavia has shown that the biggest users of unlawful peer-to-peer material are also the biggest paid-for consumers of music (p.110)."

But, the correlation is unexplored. The next sentence is, "Where there are easy, affordable and lawful routes consumers will take them."

"Too big to fail" was the mantra for the government bailout of the big banks. "Too big" is also the question raised by Google's explosive growth and the settlement it has negotiated with most publishers to sell its scanned out-of-print books in return for a large payment link here. The public policy dilemma is the huge efficiencies of scale that have come to the first entrant. Google's market power has become immense. Can it be reigned in? Is that desirable? The Department of Justice is presumeably looking at these questions as it has asked for more information on the proposed settlement.

Riding a wave of innovation and a flood of investment money, Google emerged as the dominant internet search engine. It has gone on to provide software and on line services that are essentially free, based on advertising revenue and low costs derived from new technology. But without competition, will it remain free?

What about the libraries, only a handful of which have provided the books for Google to scan, and most of which will have to pay to offer their users access to the scanned texts. The participating libraries are mostly university supported, but the tax-supported public libraries will have to pay for access, as will individuals. Given that it is going to have a near-monopoly, what should public policy be on what they can charge?

And once again we come up with the question posed by copyright, giving publishers and owners a claim on an income stream that would not otherwise have existed. There is no clear public benefit from paying them. The owners will provide no service to receive this bonanza. Nor is the public interest protected to achieve the lowest possible price, consistent with providing the service, the marginal cost to the provider.

Sheldon Richman has a great "TGIF" ["The Goal Is Freedom," but released on a Friday--get it?] column out today, Intellectual 'Property' Versus Real Property: What Are Copyrights and what do they mean for Liberty?. For a very short column, it's packed with great insights.

Admirably, Richman focuses on justice rather than more utilitarian concerns such as incentive effects:

The crux of the issue is this: Do IP laws protect legitimately ownable things? One's view of the laws will proceed from one's answer to that question, and that's what I will concentrate on here. I leave for another time the issue of incentives. I do so because the justice of a claim must be decided before we consider the specific incentives and disincentives that flow from our decision.

Of course, a principled focus does not mean one doesn't care about consequences; as Richman adds parenthetically, "(No, this does not make me a "nonconsequentialist." Consequences figure in our basic conception of justice.)"

Richman concludes that IP is difficult

to square with traditional property rights. When one acquires a copyright or a patent, what one really acquires is the power to stop other people from doing certain things with what is indisputably their own property. One can say that a copyright holder doesn't actually own anything but the legal authority to stop other people from using their own equipment to copy a book or CD they purchased. And one who holds a patent on the widget actually only has permission to call on the state to stop others from manufacturing and selling widgets in factories they own.

Yes, this is the crux of the issue. IP amounts to trespass, or redistribution of property.

Richman quotes Thomas Jefferson to question the contention that property rules "which emerged to avert social conflict over tangible objects are also appropriate to intangible things":

If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property.

(As an aside, notice what Jefferson writes immediately before the quoted language above:

It has been pretended by some, (and in England especially,) that inventors have a natural and exclusive right to their inventions, and not merely for their own lives, but inheritable to their heirs. But while it is a moot question whether the origin of any kind of property is derived from nature at all, it would be singular to admit a natural and even an hereditary right to inventors. It is agreed by those who have seriously considered the subject, that no individual has, of natural right, a separate property in an acre of land, for instance. By an universal law, indeed, whatever, whether fixed or movable, belongs to all men equally and in common, is the property for the moment of him who occupies it, but when he relinquishes the occupation, the property goes with it. Stable ownership is the gift of social law, and is given late in the progress of society. It would be curious then, if an idea, the fugitive fermentation of an individual brain, could, of natural right, be claimed in exclusive and stable property. [emphasis added]

This argument here seems similar to the mutualist occupancy view of property. As mutualist Kevin Carson writes:

For mutualists, occupancy and use is the only legitimate standard for establishing ownership of land, regardless of how many times it has changed hands. An existing owner may transfer ownership by sale or gift; but the new owner may establish legitimate title to the land only by his own occupancy and use. A change in occupancy will amount to a change in ownership. . . . The actual occupant is considered the owner of a tract of land, and any attempt to collect rent by a self-styled ["absentee"] landlord is regarded as a violent invasion of the possessor's absolute right of property. [emphasis added]

Thus, for mutualism, the "actual occupant" is the "owner"; the "possessor" has the right of property. If a homesteader of land stops personally using or occupying it, he loses his ownership. Carson thinks this is compatible with libertarianism: here he writes "[A]ll property rights theories, including Lockean, make provision for adverse possession and constructive abandonment of property. They differ only in degree, rather than kind: in the "stickiness" of property. . . . There is a large element of convention in any property rights system Georgist, mutualist, and both proviso and nonproviso Lockeanism in determining what constitutes transfer and abandonment."

I have a forthcoming criticism of Carson's notion that mutualist occupancy is a type of libertarianism; I believe it is antithetical to libertarianism--libertarianism is Lockean. But suffice it to say for now that for an anti-mutualist libertarian, Jefferson's comments above at first glance seem uncomfortbly close to mutualism. However, I think Jefferson's comments here are not really so bad, for two reasons. First, I think Jefferson was trying to make even the argument for normal property seem a bit weak, so that IP seems even weaker by contrast. Second, he only denies that there is a natural right to hold property beyond occupancy--but he is not opposed to property being owned beyond occupancy, at least in an advanced society, unlike mutualists who think occupancy is a requirement even in mutuatopia.)

Back to Richman. He has a section dealing with a crucial mistake made by many proponents of IP: their explicit, or implicit, notion that creation is a source of ownership. Why do "so many advocates of freedom" support IP, even though it amounts to applying rules applicable to scarce, tangible resources, to non-scarce, intangible ideas where no conflict is possible?

A key reason is the importance attached to the act of creation. If someone writes or composes an original work or invents something new, the argument goes, he or she should own it because it would not have existed without the creator. I submit, however, that as important as creativity is to human flourishing, it is not the source of ownership of produced goods.

So what is the source? Prior ownership of the inputs through purchase, gift, or original appropriation. This is sufficient to establish ownership of the output. Ideas contribute no necessary additional factor. If I build a model airplane out of wood and glue, I own it not because of any idea in my head, but because I owned the wood, the glue, and myself.

(Richman is right on. I've written on this exact issue before: see Against Intellectual Property, pp. 36 et seq.; Libertarian Creationism; Rethinking IP Completely; and my ASC talk and related material linked here.) I like Richman's insight here that creation is not the source of ownership; rather, that the source of ownership is "Prior ownership of the inputs through purchase, gift, or original appropriation." In this connection, as I noted in Objectivist Law Prof Mossoff on Copyright; or, the Misuse of Labor, Value, and Creation Metaphors, Hans-Hermann Hoppe writes in his classic article Banking, Nation States and International Politics: A Sociological Reconstruction of the Present Economic Order:

One can acquire and increase wealth either through homesteading, production and contractual exchange, or by expropriating and exploiting homesteaders, producers, or contractual exchangers. There are no other ways.

Note that Hoppe here acknowledges that "production" is a means of gaining "wealth". But this does not mean that creation is an independent source of ownership or rights--production is not the creation of new matter; it is the transformation of things from one form to another; things one necessarily already owns. Therefore, the resulting more valuable finished products--the results of one's labor applied to one's property--give the owner greater wealth, but not additional property rights. If I carve a statue out of my stone, I already owned the stone, so I naturally own the resulting statue; what has changed is that I have transformed my property into a new configuration that is worth more to me, and possibly to others. (This is discussed further in Owning Thoughts and Labor.) (Similarly, if two people trade goods, each is now better off--i.e., the trade has created wealth, without creating new things--already-owned things were what was traded.)

***

Finally--Richman also highlights Kevin Carson's view that, because of "[t]he growing importance of human capital [i.e., the ideas in people's heads], and the implosion of capital outlay costs required to enter the market," the free society and competitive economy require an end to intellectual "property." (Richman observed to me that he was impressed Prychitko had written on this back in 1991, as noted in Carson's piece.)

[Cross-posted at Mises Blog]

I don't think I will ever understand how groups with a private interest in an outcome can continue to expect the public to accept the most outrageous arguments for their position. Mike Masnick has been a consistent popper of such arguments, and he has another now on some in the fashion industry who again want to copyright their designs link here. How many inches above or below the knee can a hemline be? Are they going to copyright that? Take the next step. How many inches can a skirt flair? How many pleats? How wide each pleat? How many colors? How high the waistline? I'd love to be the lawyer defending a copyright infringement case in court. Ask the plaintiff what distinguishes his design. How can he answer?

It gets only slightly better when one considers the example of pretty obvious knockoffs. But big-name fashion houses aren't going to produce them. So now we are in the realm low-end fashion. Isn't the copied better off accepting the emulation as what high-end fashion is all about? The design is obviously widely admired. The original must be worth several times what the knockoffs have to sell for. And why worry? The next season will bring a whole new set of fashions. That is the definition of fashion.

Copyrighting fashion is a contradiction in terms. It will kill innovation (and profit) in the industry. Like so much else with intellectual property protection.