Category: Copyright

In Defense of Piracy indeed

Larry Lessig writes preview of his new book in a Wall Street Journal column this weekend. Lessig makes some bold and compelling statements for one who is working less in the realm of copyright. Many of his arguments are actually near to the work I am doing on my dissertation–it’s nice to be in good company 🙂

A few points are worth further comment:

“We could craft copyright law to encourage a wide range of both professional and amateur creativity, without threatening Prince’s profits.” …I like this argument for a balance in the law where professional creative-types are still able to profit, while still loosening control for equally valuable amateur copying.

“Peer-to-peer file sharing is the enemy in the “copyright wars.” Kids “stealing” stuff with a computer is the target. The war is not about new forms of creativity, not about artists making new art.” …another great distinction between replacement copying (which carries an economic harm) and profitless but creative amateur creativity.

“Our kids live in an age of prohibition, where more and more of what seems to them to be ordinary behavior is against the law. They recognize it as against the law. They see themselves as “criminals. … That recognition is corrosive. It is corrupting of the very idea of the rule of law” …it’s not in the article, but gobs of theory and research can back up Lessig’s claim here.

I’m not sure if Lessig was responsible, but the sidebar with mash-y creations is also a good compilation for the unititiated.  His policy recomendations are not bad as well.  I’m looking forward to the book.

Interpreting foreign policy

Noah Feldman writes about the Supreme Court and foreign policy this week for the New York Times Magazine. It’s an insightful piece that I find myself agreeing with, although a “strict constructionist” might not. He shares an insight on the law and Gitmo:

It is often said by liberal critics that Bush’s anti-terror policies ignored the Constitution and international law. But this is a misleading oversimplification. What the choice of Guantánamo
demonstrates, rather, is the profoundly legalistic way in which those policies were designed.

The real meat of the article is that there are two ways to look at interpreting global law: facing inward and outward. When concerned about the legitimacy of law by our own citizens within our borders, we look inward. The outward perspective looks at applying the ideals of our constitution to all people everywhere.

There is an important way in which neither of the predominant approaches to the Constitution and the international order can provide a fully satisfactory answer to the problem. Although they differ deeply about what the Constitution teaches, the two sides share a common image of what the Constitution is. Both imagine it to be a blueprint offering
a coherent worldview that will allow us to reach the best results most of the time. According to this shared assumption, the way to find the real or the true Constitution is to identify the core values that the document and the precedents stand for, and to use these as principles
to interpret the Constitution correctly.

This sounds a bit like something another Times columnist, Stanley Fish, might say. To some degree, interpreting law is a political game that is seated in the context in which the decision was made. Separating a 2002 decision from 9/11 is just as impossible as trying to apply a 2008 decision in a 1787 mindset.

One example that jumps to mind is “policy laundering,” where a law (let’s take copyright as our example) is driven by a treaty. As a country, we sign treaties that are interpreted as law, but the public most often has little say in their drafting. This seems like a “bad thing,” yet taking the outward view, one can see how at some level the treaties are designed to give more universal protection to content owners. Some may disagree with me, but I would say adhering to the Geneva Convention is a “good thing.” There are probably grounds we could come up with for reconciling this difference, but on the surface it seems political. That’s why I’m inclined to agree with Feldman’s assertion that we need to balance both views:

The truth is that we have had an inward- and outward-looking Constitution by turns, depending on the needs of the country and of the world. Neither the text of the Constitution, nor the history of its interpretation, nor the deep values embedded in it justify one answer
rather than the other.

Public or Private Enforcement of Copyright

Tthe Senate Judiciary committee voted on new bill with provisions to increase punishments for copyright. Part of the bill would shift some of the enforcement burden to the public (but not criminal?) prosecution, away from the private enforcement like the RIAA’s civil lawsuits. CNet reports:

A group of librarians and nonprofit groups, including the American Library Association, Public Knowledge, and the Electronic Frontier Foundation, sent a letter to senators on Wednesday that says copyright holders–and not government lawyers funded by tax dollars–should be the ones filing the lawsuits.

This highlights an interesting conundrum–would copyright be better enforced privately or publicly? Enforcement by the RIAA and related groups seems in some ways like the efforts of the Stationer’s Company, which were an engine of censorship for almost 300 years of England’s history. Private enforcement has brought lawsuits that are arguably more of a PR campaign than a punishment. Yet, this seems like a step towards criminal prosecutions would cost more public funds and possibly give a lot of “normal” people a mark on their record. It’s almost a double edged sword.

One of the more controversial sections of the latest version would permit the Justice Department to file a civil lawsuit against “any person” committing a copyright violation…

Considering the lack of clarity in copyright law and the fact that fair use is understood as a defense and not a right, it’s not always clear when there is a copyright violation. We should be more careful making laws that could be difficult to apply and have a large impact on the middle class.