Peter Friedman's Favorite Techdirt Posts Of The Week
from the favorites dept
This week's favorites post comes from Peter Friedman, a professor at Case Western Reserve University school of law, Of Counsel to Hull McGuire PC, and the author of the excellent blog Ruling Imagination: Law and Creativity. A lot of the "favorites" posts to date have been just from people who are regular commenters on the site, but the "community" here goes beyond just those who comment, and includes people like Peter, who is one of the lawyers I regularly rely on for insights into the law.I have my own pet peeve in our society's obsession with property and ownership. More and more it seems people use claims of ownership to extend their desire to control as much as they can. And, of course, there are the legions of theorists who seem to always find a magic elixir for all of society's ills in the creation of new forms of property and "free" markets for them. So I enjoyed the post about "a small antiques shop, called Obsolete, in Los Angeles against the large retailer, Restoration Hardware. The complaint? That Restoration Hardware bought some lamps from Obsolete and then made similar lamps for sale in its own stores." The article Mike linked to in that post asked the following question:
If an independent merchant stakes his reputation to his ability to find rare and compelling pieces of design around the world, and he invests significant time and money to do, is it fair for a larger company to cherry-pick the best discoveries, manufacture lookalike reproductions and undercut the little guy on price?It seems like a loaded question, especially when you consider the implication of considering the practice unfair: elevating the "finding of rare and compelling pieces of design" to ownership of those designs. Mike's comeback is right on the money: "Funny, but I don't see anything whatsoever unethical about buying nice antique lamps and then making newer, cheaper versions for sale to people who want to buy them."
Of course, the desire to assert control appears repeatedly to anyone paying attention. As a Cleveland Cavaliers' fan, I was amused to see that the least of the "3 Kings," Chris Bosh, "is suing the producers of VH1's Basketball Wives for violating his trademark, publicity rights and 'life rights,' because his ex-girlfriend and the mother of his child is on the show." She apparently doesn't say very nice things about him. In order to avoid being sued myself, therefore, I'll refrain from any comments regarding Mr. Bosh's teammate and former Cavalier. He can keep his life rights for himself.
But this type of grasping after whatever might be grasped goes on and on. "[T]he Tokien Estate . . . threatened author Stephen Hillard, who has written a bit of historical fiction combined with literary criticism, called Mirkwood, which uses a fictionalized JRR Tolkien as a character." There was the one law professor who apparently believes copyright law should protect brides from having their wedding dresses "stolen." And, finally -- back to sports again -- there's the NHL's threat to a car dealership for having posted decals on its window saying "Go Canucks Go," in cheering on the Canucks in the NHL playoffs. Apparently, the NHL's reasoning goes, the sign constitutes a trademark infringement because it might confuse customers into believing the Vancouver hockey team endorses the dealership. I better get that Browns sticker off my bumper pronto!
A few other favorites from this past week:
The Wall Street Journal�s stab at creating its own version of Wikileaks. Oh, except for that small point about offering no protection of the anonymity of any whistleblower who leaks information to it.
As a lawyer, I love the detailed and pointed requests Mozilla sent the Department of Homeland Security in response to the request from DHS that Mozilla take down from the online list of Firefox extensions one called MAFIAAfire that negates domain seizures by automatically rerouting users to alternate domains. Lawyers often get a bad rap, and often deservedly so, but the best lawyers are willing to stand up and keep their clients from getting run over. It's not always the most obvious thing to ask questions in response to a demand from DHS like this one: "Is Mozilla legally obligated to disable the add-on or is this request based on other reasons? If other reasons, can you please specify."
As a lawyer too, I think it's wise to know what others can find out about you. Mike wrote about the "details of what kind of info Facebook provides law enforcement on the receipt of a valid subpoena." Of course, you don't need to be the target of a criminal investigation to be subject to subpoenas. If you start a civil lawsuit or get sued, your life might become an open book. Legal policies differ across jurisdictions, and your end user agreement with any website might leave the door open regardless of the law that would operate in the absence of that agreement. Money isn't the only price that has to be paid when you sue.
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Re "fashion", I recommend that the proposed legislation (both the House version that was not submitted for a floor vote, and the Senate version that I believe will be submitted) be read. The legislation proposes a sui generis right, and is very limited in the scope of qualifying subject matter and term duration. Frankly, I believe the incessant hand-wringing by those proclaiming "OMG, more unnecessary copyright) it over what is little more than a tempest in a teapot.
As a lawyer I well recognize the issues associated with these matters, and can argue with adeptness the pros and cons of each. Even so, these are policy issues over which reasonable minds can and do differ, and whether or not one likes it, our political system addresses more than just Econ 101. I shudder to think what our laws would look like if their content was governed solely by economic theory. Such an approach would emasculate many basic rights we take for granted, including property rights in otherwise scarce goods.
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Just because it maybe 'limited in scope' doesn't make it a good law. Just about all laws are limited in scope to some degree, that doesn't mean that all laws are good laws. and our existing copy protection laws have a 'limited' term duration and are limited in scope to some extent, but those limits are so broad and the duration limit is so long (and keeps continually getting extended) that it's effectively non-existent.
"Such an approach would emasculate many basic rights we take for granted, including property rights in otherwise scarce goods."
I'm not sure how this comment even makes any sense. IP abolition will not weaken the property rights of real property. The founding fathers recognized that no one is entitled to to a monopoly on anything and that these monopolies are designed only to promote the progress, not to strengthen privileges that IP holders take for granted. If strengthening some privilege that someone takes for granted is the purpose then I say we abolish it.
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Just about every law has limitations, but that doesn't make every law a good law. and the word "very" limited is subjective in nature, what you may consider very limited in scope, someone else may not.
The more relevant question here is, can you prove that these laws will promote the public good (and if they're intended to be a compromise between the public good and some private interest then they shouldn't exist).
The reason I am asking you to prove this is because
A: monopolies are known to create economic harm (ie: they cost jobs by restricting the competitors that hire people, they reduce aggregate output)
B: No one is entitled to having any government grant them a monopoly on anything.
C: Government granted monopolies cost the government (and hence taxpayers) resources to enforce.
D: It is my natural right to copy as I please
So the burden is not on me to prove that these laws won't promote the public good, it's on you to provide proof that they will. Can you do that? No? Then they shouldn't exist.
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Yes, our government still struggles with believing the world works under Keynesian theory. There are quite a number of structures that are set up as large central distribution centers, where we have a very top heavy way of allowing change.
Look at the FBI, the CIA, the Executive Branch. If you're a part of these branches, you have no say if you're at the bottom. Look into how Congress is structured, where the representatives have NO idea on what they legislate. All they do is vote yes.
Yes to sugar tariffs that make sugar more expensive, and make fructose (a more dangerous substitute) a great alternative.
Yes to needless legislation (such as fashion copyright) that doesn't keep the US competitive with the rest of the world (we already lead, yet the copyright bill makes litigation, not innovation, more prominent.)
And finally, yes to innocent infringers being liable for undue statutory damages that can't be proven. In regards to fashion copyright, the incentives to create certain styles and be ahead of the times is a far better incentive than monetary. Since you're trying to stay ahead of the pack (those darned copiers), the inspiration from your work could come from anywhere, so long as it's not held back arbitrarily. But woe be tide to the victim that decides they want to use zebra stripes for high heels while they're in fashion...
Should all of this occur because of a "Yes-No" vote that swayed to someone's political advantage? Should we have society have a popularity contest with economic theories? Or should it be that we have more educated individuals look up the reasons why certain forms of economics make far more sense than others? I'll let you decide. But understand others are going to look at your words and discuss the flaws to your argument.
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Hmm. When the specific law is *about* economics, then shouldn't it be governed by economics?
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I find it odd that whenever anyone disagrees with you, you make the false assumption that we haven't "read" the law in question. Even thought the fashion copyright is quite limited, that's not the issue: the issue is whether or not it is needed, and there has been NO evidence presented that it is needed, other than complaints by certain law professors and designers that they don't like the fact that there's competition.
If you look at the actual economics (I know, I know, you don't want to do that), you quickly realize there is no need for any sort of fashion copyright, whether it's a limited sui generis right or not.
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on your statement regarding the questions posed by mozilla, sure you could try to boil it all down to that single general question, but there is way more too it than simply asking "do you have the right to do this?". as we have seen time and time again from DHS and ICE, they dont particularly appear to care all that much if they do have the right to do it and are not above relying on slanted information in order to declare that they do. the questions are slated in such a way as to ask specifically if they can substantiate the larger boiled down version of the question. if you think they are going to launch into an item by item breakdown of exactly what current laws and court orders are relevant to those specific questions asked breaking everything down and explaining it you are living in a fantasy world.
your comment about the incessant hand-wringing being little more than a tempest in a teapot belies the larger issues at play which is: when does it become too much as a general issue?. sure, its just one thing...and thats just one thing... and thats just one thing... and thats just one thing... (and are you getting the drift yet?)
but they are tons and tons of one thing here and one thing there which there is no need for in the first place. at what point do we as the actual members of society that these laws, which by their original intent, are supposed to benefit, start to become too ridiculously overburdened by their favoring of the corporate entities?
if you choose to look at just a single instance, then sure it looks like a tempest in a teapot but its only a small portion of the larger issue which is really "how much is too much?". a broken teapot can be pretty dangerous if not used in the manner to which it was intended (much like the current state of copyright and trademark).
your last point seems a bit of a non-sequitur, but okay...
i too shudder at the thought of our political system being based solely on economic theory. but mostly because it has no choice but to devolve into some form of fascism when its mixed with any sort of capitalism. so at least we both can agree that even though we may not agree on the name or causes which would lead to it, government based solely on econ101 is bad. however, if those policy decision are made at the behest of corporate entities seeking not to advance society but rather to protect their business interests with no thought given to the average member of society to whom these policies directly affect, what other outcome can you have other than that same policy gradually drifting towards nothing more than econ101?
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It goes without saying that questions for which answers are already known by the questioner will be viewed as argumentative and will not engender any responses. The above noted question like would engender a response, from which later questions may be appropriate to present. At this time, however, anything beyond that is wasteful of everyone's time.
Legislative creep is always a matter of concern. That in and of itself, however, is not in my view a compelling reason to do nothing on an issue over which reasonable minds can differ and a compromise appropriate.
Your final comment appears to track much of what is routinely presented here, i.e., corporate entities (presumably the really big ones with lots of lobbying cash) control the day in Congress. I am not so naive as to believe that they do exert significant influence, but at the same time I am well aware that many of these issues are likewise shared by a large number of small businesses and individuals. At the same time it is helpful to bear in mind that there are always groups on both sides of issues associated with proposed legislation, and that in many, many instances each possess the means readily at hand to blunt the activities of their opponents.
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There is no issue here to do something over (well, there is, namely, we need to abolish these copy protection laws altogether, but that's besides the point). and our existing copy protection laws aren't a compromise, they're a one sided decision. Extending them is not a compromise, it's further expanding that one sided decision in one direction.
Policy shouldn't be about a 'compromise' between the public interest and some private interest, it should be solely about serving the public interest. IP exists only to promote the progress, and serve the public good, not to strike some compromise between industry and the public. If these laws exist for the purpose of being some sort of 'compromise' that helps privilege holders out, then I say we abolish them.
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Copying is my right, preventing me from copying is not a right, but a privilege. I do not want to 'compromise' away my right to copy any more than you want to compromise away money in my direction, especially if the purpose of this 'compromise' is to help someone else at my expense.
Laws should exist only to serve the public will/interest, not to serve some private interest/will. Laws aren't about a compromise between the private interests and the public interest, they're only about serving the public interest/will. I, for one, as a member of the public, have decided that IP laws should be abolished. and if the rest of the public agrees then these laws should be abolished without compromise.
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Good luck with your communism and all that.
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My right to copy exists outside of government.
"And what's wrong with laws also serving private interests?"
If it costs the public interest anything then that cost is what's wrong with it. and our current laws only serve private interests. If anything, that's corporate welfare.
"Like it or not, interests are balanced."
95+ year copy protection lengths isn't a balance by any stretch of the imagination. and interests should only be 'balanced' in a way that ultimately serves the public interest. The whole purpose of having industry and an economy is to serve the public interest, not to serve any private interest. The founding fathers recognized this (they were hardly communist) which is why they said that IP laws should only exist to promote the progress. They should only exist to the extent that they serve the public interest.
The argument for having free market capitalism is that free market capitalism better serves the public interest. In fact, that's the argument for having any form of government. The Chinese would argue that communism best serves the public interest. No matter what form of govt we have it should be intended for the public interest.
"Good luck with your communism and all that."
FUD. Communism needs government. Govt imposed monopoly abolition needs no government. Govt imposed monopolies are closer to communism and a corporate welfare system than their abolition. Free markets have no govt imposed monopolies.
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Govt imposed monopolies resemble communism far more than their lack because
A: Both communism and govt imposed monopolies require a govt to enforce. Govt imposed monopoly abolition requires no govt.
B: Both communism and govt imposed monopolies give the govt more influence over who does (or can do) what and who does not (or can not).
Just look at Russia, where you have a system of government that goes out of its way to impose monopolies and maintain the status quo (ie: with all the bail outs). Having a system of govt imposed monopolies makes America resemble Russia more than a free market capitalistic society.
So please, feel free to explain why govt imposed monopoly abolition more closely resembles communism beyond just making things up. Because I want the laws to serve the public interest? The argument for supporting any market structure (including free market capitalism) is that said market structure does a better job of serving the public interest than alternatives. Otherwise, we should simply switch to an alternative.
Likewise, the argument for avoiding communism should be that communism doesn't do a good job at serving the public interest and that there are better market structures that do a better job at serving the public interest. If you want to argue that communism better serves the public interest than free market capitalism then you ought to argue in favor of communism. I argue against communism, and having a system of govt imposed monopolies, exactly because I do not believe such a system serves the public interest very well. and if you don't believe me, look at Russia, where govt imposed monopolies and a govt that serves private interests at public expense (probably wit the same 'compromise' excuses that you mention) is the norm.
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Basically, in communism the govt chooses winners and losers. They choose who does what. Govt imposed monopolies allow the govt to better choose winners and losers by blocking non-monopolists out the market.
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IOW, if your agenda is to help ensure balance then you would be seeking to substantially repeal copy protection laws. You're not interested in balance, you're interested in serving your personal interests.
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Re: The Right To Copy?
Indeed. Imagine if humans never had the right to copy anything. Take`the wheel. Some caveman had an idea that created the wheel. Other cavemen copied that idea. Imagine if they could not. Would we have as many cars as we do now?
And on the subject of cars, Henry Ford, among others, apparently challenged the patent on cars in the US and the patent was overturned. Imagine if you couldn't copy cars? For that matter, did Henry Ford get a patent on his production line? He may well have had a patent on the actual car but imagine if only Ford could produce cars with a production line because people could not copy the idea?
We have "cheap" cars because of people copying (1) the wheel (2) the car itself (3) the production method. If there was no right to copy, the car industry would probably exist to a mere fraction of a percentile of it's current state.
Regardless of copyright, humans copy. It is how we learn. I learned how to write because I copied the letters I saw on "Sesame Street". My mother then bought me some activity book and she showed me how to string the letters together into words. That was before I started school. But if I could not copy the letters then how could I read?
Many people learn a trade by copying what their teacher/instructor does. Nina Paley wrote "If I steal your bicycle you'd have to take the bus, but if I just copy it there's one for each of us". Somebody asked in retort "Would you get the steel and rubber and tools required and actually out in the effort to copy a bicycle?" Anybody who has the knowledge on how to use the tools and materials to build a bicycle could copy a bicycle if they chose to do so and they could copy any bicycle design they like in the process.
My keyboard layout is a copy of a typewriter that was designed to slow down typists. It is called a QWERTY keyboard because the keys are laid with 1234567890-= on the top row, QWERTYUIOP[]\ on the second row, ASDFGHJKL;' on the third row, ZXCVBNM,./ on the third row and a giant space bar as the bulk of the fourth row. But if you could not copy the layout, the keys on a keyboard could wind up anywhere.
If there is no right to copy, we would not have computers as we know them because the design of almost every home computer was originally done by IBM in 1981 and every other brand is a copy of the IBM design.
Have I laid that out simply enough for you? The right to copy may not be written anywhere but if there was never any copying then we would not be where we are today.
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Re: The Right To Copy? (Smart Arse Version)
Here http://creativecommons.org/licenses/by-sa/3.0/
Guess you just weren't looking hard enough
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(not to mention I copied this joke in the first place!)
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Also, the 'compromise' argument seems to suffer from some convoluted version of the middle ground fallacy.
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