Against Monopoly

defending the right to innovate

Monopoly corrupts. Absolute monopoly corrupts absolutely.

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More Evidence That America's Greatest Appellate Court Judge Likes To Share Music Files

As a follow-up to my previous post, an illuminating letter can be found here.

The letter suggests that Kozinski and his staff were big NAPSTER fans.

I continue to maintain that trying to deflect this issue in the name of 'privacy' not only misses the mark, but is actually counterproductive for the ideas that this site stands for. Legal notions of 'privacy' can be twisted into another pernicious form of monopoly that is just as destructive as any overbearing IP law.

Assuming these allegations are true (and I hope that they are), it is far better to simply stand up and applaud a great judge for doing what we should all be encouraging: a re-shaping of fair use culture in the digital age.

Far from tarnishing his reputation, this should actually enhance Kozinski's reputation among defenders of informational freedom.


Yes, I am bemused at the idea that a web server's published files can be considered private by dint of a lack of promotion or prominence.

The term 'private' seems to be abused to describe personal information or material that one would wish to be kept private (such a wish often increasing after consequences of public availability have been appreciated). In terms of a right to privacy, the term strictly only applies to material that IS private. Aspiration is not actuality.

It is possible that the private domain gets fuzzy at the edges, e.g. an unclasped briefcase left on a train. Its owner has an expectation that the privacy of their private property will be recognised and respected despite having been lost, except that it may be invaded as far as is necessary to return the lost property. Here we can argue whether expectation or accessibility defines privacy.

In Kozinski's case it's as if he has pinned a scrapbook to a noticeboard, and an index alongside it - an index that omits to mention the contents of some pages. For some people it is quite natural to leaf through the book without consideration of the index. All pages must be considered public. Especially since the webserver's raison d'etre is to publish files to members of the public who ask for them.

But, yes Justin, you're right. We do need to be very careful that privacy describes a clearly bounded domain and not the subjectively defined class of work or data whose unrestricted circulation or publication is liable to cause embarrassment.

There is a fair bit of web chat at the mo ( http://www.digitalproductions.co.uk/index.php?id=117 ) that seems to drift into the idea that personal information is the rightful property of the person it describes. This could easily drift into the idea that being found in possession of embarrassing IP is the rightful secret of the person so embarrassed, even though they unwittingly let it slip.

But as for 're-shaping of fair use culture'?

I think it would be more coherent to suggest that we should all be encouraging a freer culture. The cultural constraint of copyright is inherently unfair because it unnecessarily and unethically suspends cultural freedom.

The definition of 'fair use' you'll find in copyright legislation describes only a tiny class of potential defenses that may be used after one has been prosecuted - they don't negate the fact of copyright infringement. I've never heard of a 'fair use culture'. And if you believe that judges can reshape our culture, such an atrocious predicament should give you a clue that something has gone terribly wrong. Judges should be the last to reshape culture. Our culture shapes the law!

Crosbie -

"Judges should be the last to reshape our culture."

Point well taken. I don't think I was as clear as I could have been. I didn't mean to suggest that Kozinski was actively trying to reshape our culture in terms of IP - but rather that we (meaning society) should be actively trying to reshape it and that we should hold up Kozinski's actions as a positive step to help fuel the discussion.

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