I challenge anyone to explain how it is rational to allow someone to obtain a property right, and then simply exclude others from meddling with that property long after the fact without making any effort to exploit, stake out, or otherwise protect that right. In fact, with real property, we see that it is HIGHLY IRRATIONAL to allow this, so we first require that rights holders make some personal information available in the public record, and on top of that, we allow adverse possession. Every single state’s adverse possession statute tolls at somewhere between 5 and 20 years, with the majority at 7 or 10. Some easement statutes (and at common law) are even leaner than that. Meanwhile, both patents and trademarks have sizable maintenance fees every few years. The patent dies off rather quickly, and the trademark process REQUIRES that rights holders fend off those encroaching. If a major player like Google can pass out copies of a book for 10 years and not even get a takedown from that book’s copyright holder, either Google should be able to adversely possess the remainder of the copyright term, or the book should enter the public domain. Otherwise, we are simply cordoning off expression without benefit to the public at large — protecting a rights holder who fails to exercise due diligence cannot even rationally “promote the progress” of science and useful arts.

On a slightly related subject, fair use issues are huge right now, and I’m not sure rights holders understand the big picture in fair use defense. Take DVRs for example — there are countless law review articles on why the plain-jane standard DVR is infringing, and for the sake of argument, we’ll agree with all of them. However, there have only been two DVR [copyright] lawsuits in the US. The first was with SonicBlue’s automatic commercial skipping algorithm (unresolved because SonicBlue’s buyer declared bankruptcy mid-litigation), and the second was with Cablevision’s RS-DVR, and the defendant stipulated it would not plead fair use so long as the plaintiff only plead direct infringement. Yet, rights holders won’t sue DVR manufacturers for any equitable infringement because they fear a fair use defense could actually win (open floodgates, etc). However, if DVR manufacturers continue to sell units, DVR usage becomes fair use, not categorically by statute, and not ad-hoc by verdict, but instead by normative shift. If the public does something without challenge long enough, even if it is unlawful, we’ll have a normative shift as the old folk grow older and die off, being replaced by the young people who hold the normative idea that DVRs are not infringing. The same is happening in the sampling/mixtape arena with DJ Girl Talk. The labels repeatedly go after the mixtape rappers who are generally unlikable defendants, but the labels are scared to death of the all-american white-bread upper-middle class engineering student. The labels allegedly fear that Girl Talk’s actions will be judicially decreed to be fair use. If Girl Talk continues to do this unabated, he is essentially adversely possessing the right of sampling/mixtaping and slowly but surely, those with the normative view that this right is exclusive will grow old, die, and be replaced by those with the normative review that it is not.

I guess the moral of the story is that we do have a sort of adverse possession in copyright, but it’s based on general rights rather than individual instances of ownership. So when are we getting it by statute for individual properties?

I have no particular dog in this fight, but I read your post as simply presuming the ‘copyright laws should protect works’ viewpoint is wrong (-your primary assumption), and taking the logical argument from that assumption. In fact, that primary assumption (and its counter: copyright laws should encourage productivity) is the key to the debate.

Well, presumably the proper place to start looking for what the primary purpose of the law surrounding the bundle of artificial property rights that have been created should be, at least in the U.S., something like

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

Or do you see reason to think that we should look somewhere else?

Jack Valenti testified at a House subcommittee hearing in 1982, “I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone.”

Full testimony at http://cryptome.org/hrcw-hear.htm

Let’s be blunt – there simply aren’t any laws, especially not any federal laws, infringed on the scale of copyright infractions.

Ironically you were able to use the word “blunt” without realizing what other federal laws might be widely infringed.

We may be in a situation where we need to broaden the individual’s right to copy, not because of compelling moral arguments, but simply because the law is unable to stop it, and prohibiting that which you cannot enforce is damaging to the body of law as a whole.

Absolutely. Unfortunately there are a few multi-billion-dollar in the way of that.

Nor are there any real prospects for redress. Copyright is a federal case; all copyright cases have to go to federal court. There’s significant costs associated with going to federal court. That means that, without the ability to recover thousands of dollars per infraction, there’s no effective redress at all – every copyright case would lose money for the plaintiff, even if they won. But on the downside, a defendant who loses a copyright case is placed in a situation where they owe thousands of dollars in fines (to say nothing of their legal defense costs) for the theft of a work worth as little as $.99. It’s absolutely contrary to logic that you would get a smaller fine for physically stealing a CD from a store than you would for copying that same CD.

So we’re in a legal Catch-22; there’s no way to get justice for both plaintiff and defendant. The plaintiff cannot recover damages, or even treble damages, because the individual infractions are so small that they’re swamped by the transaction cost. But setting a higher statutory minimum, as has been done, means that the defendant is punished all out of proportion with the actual damages, and out of proportion with the severity of punishment for related crimes.

I wish I could say “here is the solution!”, but really there isn’t one. The genie is out of the bottle, technologically speaking (and DRM has not been effective in sealing it back up!) We may be in a situation where we need to broaden the individual’s right to copy, not because of compelling moral arguments, but simply because the law is unable to stop it, and prohibiting that which you cannot enforce is damaging to the body of law as a whole.

David Newton: … I would argue that what is needed in the US copyright world is:
…
4. The development of a proper licensing scheme for orphan copyright works.

One trivially predictable result of current trends — copyright term extension, and especially retroactive extension, will significantly increase the number of orphan copyright works.

One means that I think would be workable (but the “copyright industry” would fight hammer and tong) would be analogous to the drop dead legal announcements of foreclosures, probate proceedings, and other legal events. The republisher, or the derivative work publisher, places an announcement of intent to republish in some legally sanctioned medium of general circulation. If after some statutory time the current copyright holder has not asserted his rights, the publisher can not be sued for infringement.

With current technology there is no reason (except political will) that a single medium of general circulation could not be maintained. A publicly accessible and searchable government database of republication announcements would be both inexpensive and adequate for the purpose.

In addition, there should be very stiff criminal penalties for knowingly false claims of copyright infringement or DMCA takedowns.

Congressmen cannot win an election without an effective campaign. They cannot run an effective campaign without money. They cannot get money except from people with money. And people with money do not give altruisticly, they do it to get favors, such as a 75 year copyright for Mickey Mouse.

While there may not actually be corruption, there is an appearance of corruption at the highest levels.

Possibly ‘feh.’ This last sentence displays a typical academic’s unexplored presumption: if we just logic it out, we will come to the right answer. This is typically used to ‘logically’ eliminate opponents’ arguments (often religious-for instance, opposition to gay marriage).

The problem with this is: it all depends upon one’s primary assumptions. Anything can be logically arrived at if you start with the right assumptions.

And thus your mistake: in your sentence: “…evidence-based discourse in which we require our laws to be effective for their purpose (and who wants laws to be ineffective?)…” you already start the ‘academic logical argument,’ while eliding over the problematic assumptions, and in fact pulling a bait and switch (nobody wants laws to be ineffective-but that is really irrelevant to the issue at hand).

Your sentence should more accurately read “…evidence-based discourse in which we require our laws to be effective for their purpose (and HERE IS THE PURPOSE OF COPYRIGHT LAW)”- because that is where the disagreement is: not over effectiveness of law, but of purpose (should copyright laws protect works, or encourage creativity?-or what balance should be struck?).

I have no particular dog in this fight, but I read your post as simply presuming the ‘copyright laws should protect works’ viewpoint is wrong (-your primary assumption), and taking the logical argument from that assumption. In fact, that primary assumption (and its counter: copyright laws should encourage productivity) is the key to the debate.

Thus, the form of argument (moral panics discourse vs evidence based discourse) is really unimportant. Its the primary assumption or purpose (moral panics discourse in support of copyright owners, or moral panics discourse in support of society at large? evidence based discourse in support of copyright owners, or evidence based discourse in support of society at large?) which is at issue.

Future posts, presumably, will flesh this out.

Sk

Instead of protectionist tariffs and import bans the result has been copyright term extensions, the horrible beast that is the anti-circumvention rules of the DMCA and the suing of customers. Furthermore, when presented with an opportunity to make money legitimately by providing customers with what they want the music and film industries have tried to squash those efforts. If the music industry had either worked with Napster or created their own legitimate download services ten years ago they would have saved themselves an awful lot of pain. Instead they essentially ceded a great deal of control to Steve Jobs and Apple who now hold the whip hand thanks to the iTunes store.

There are some corrupt members of Congress. That has been proven by convictions over the last few years. However as the post says, that does not explain everything. The vast imbalance in lobbying power is what is main problem. What really makes a lot of people mad is how the lobbying verges on corruption in some cases. I cannot cite any specific cases of copyright industry lobbying verging on or actually being corrupt, and I would not want to for fear of defamation.

As with so many other situations, neither extreme in the copyright debate has it correct. I would argue that what is needed in the US copyright world is:

1. A repeal of the DMCA’s anti-circumvention provisions and a return to the proper respect for fair use in the United States.
2. A pre-emption of the patchwork of state laws about sound recordings prior to 1972.
3. No new sui generis rights like database right in the EU.
4. The development of a proper licensing scheme for orphan copyright works.

Those are what I believe are the really major problems that are facing US copyright law at the moment. When looking internationally things become slightly different. There are equivalent anti-circumvention provisions to the DMCA in many countries, and in the EU database right (ie protection of works created merely by sweat of the brow), which need to go. The orphan works problem is also international. A further thing which could be profitably adopted by the US would be the rule of shorter term in the Berne Convention.

In short international and US copyright is a mess and not fit for the internet age. Getting it fit for the internet age requires a lot of work.

Maybe I’m coming at this from the wrong perspective (no legal background), but it isn’t immediately obvious what the definition of “means testing” is. Similarly, I’ve never heard of “Jack Valenti’s ‘Boston Strangler’ testimony”, and while I’ve heard of “copyleft”, I’d be lying if I said I was familiar with the position.

What should be of concern is Congress’ extension seemingly forever of copyright terms. A patent is good for 17 years, and arguably patents are as important as Copyrights to innovation. A copyright is good for the life of the creator plus 75 years plus whatever extensions Disney will buy from congress in the future.

I don’t understand why this is even Constitutional, given the clear intent of the Copyright clause, but the IASNAL.

How, I wonder, are we to distinguish purposes for which we seek effective laws entirely from – at least, some – moral considerations? Should we treat property interests as somehow devoid of moral meaning? How can we distinguish between legitimate and illegitimate interests without reference to some [background] moral scheme?