Techdirt Reading List: No Law: Intellectual Property In The Image Of An Absolute First Amendment

from the the-first-amendment-matters dept

Thu, May 5th 2016 12:44pm — Mike Masnick

We're back again with another in our weekly reading list posts of books we think our community will find interesting and thought provoking. Once again, buying the book via the Amazon links in this story also helps support Techdirt.

With copyright reform a big topic again these days, we've been talking about some worthwhile books to read in thinking about the topic. The last couple weeks we wrote about some important books by Bill Patry in thinking about how to reform copyright, and this week I'm going to recommend No Law: Intellectual Property in the Image of an Absolute First Amendment by David Lange and H. Jefferson Powell. I had actually just mentioned this book a few weeks ago in discussing copyright's free speech problem, and I'll recommend it again. I'm not sure why the book never seemed to get that much attention, even in copyright circles, because it's really worth reading.

It is not, necessarily, a book about copyright reform, per se. The authors admit that it's more of an intellectual exercise. I should also warn you that the book can be a bit of a dense read at times, but I found it extremely worthwhile. The first half basically explains how copyright and the First Amendment clearly are in strong conflict, and has a rather detailed discussion of how the Supreme Court clearly got things wrong in the infamous Eldred case. The second half of the book then focuses on a possible solution -- that doesn't involve dumping copyright altogether. Instead, they're suggesting something more akin to the way defamation law often works, in which the speech is not removed, since that could violate the First Amendment, but you may need to pay for it. In effect, it would be about creating a compulsory licensing system. I'm not sure I agree with this approach for a variety of reasons, but the book is detailed, thorough and thought provoking.

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Filed Under: copyright, first amendment, free speech, no law, techdirt reading list

14 Comments

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Anonymous Coward, 5 May 2016 @ 12:55pm

My favorite part of this book: "© 2009 David L. Lange and H. Jefferson Powell. All rights reserved."

That pretty much says it all.
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Mike Masnick (profile), 5 May 2016 @ 2:47pm

Re:
That pretty much says it all.

Did you read the part about how the book itself explains how to reconcile copyright law with free speech? They're copyright system supporters. They just think it needs some changes.

Not everyone looking to reform/fix copyright law is against copyright entirely. Weird that you assume otherwise. Says a lot about your thought process, though.
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Anonymous Coward, 5 May 2016 @ 4:13pm

Re: Re:
Did you read the part about how the book itself explains how to reconcile copyright law with free speech? They're copyright system supporters. They just think it needs some changes.

Not everyone looking to reform/fix copyright law is against copyright entirely. Weird that you assume otherwise. Says a lot about your thought process, though.

I read the preface, where they say that "doctrines conferring exclusivity in expression, however defensible they may be in themselves, are nevertheless inessential, repressive, and ultimately unacceptable[.]" Despite this supposed stranglehold that copyright has on free expression, the authors nonetheless explicitly reserve all of their rights. They talk the talk, but they don't walk the walk. Why is that?

Did you read what comes after the copyright notice? "No part of this book may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying and recording, or in any information storage or retrieval system without prior written permission." Hilarious. So copyright is this terrible thing that's killing free expression, and they protect their own book to the fullest extent of the law under copyright. Priceless.

I get it. They're absolutists in the Blackian tradition and they reject the Holmesian view. You dig that. I get it. But the book is "legal fiction," as the authors admit in the preface. I don't waste my time with legal fiction. I spend my time reading the actual law. But I get why you love this book so much: Your disillusionment with reality.

But, hey, if you want to explain which parts of copyright law you support, I'm all ears.
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Janet Klien, 5 May 2016 @ 4:37pm

TPP opponent RUNNING against speaker of the house that gave us TPP
Please read
http://www.breitbart.com/big-government/2016/05/05/paul-nehlen-paul-ryan-sold-his-vote-i-absolutely- believe-that/

If he wins TPP is dead and the Internet SAVED
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Coyne Tibbets (profile), 5 May 2016 @ 4:42pm

In small bills, please
Instead, they're suggesting something more akin to the way defamation law often works, in which the speech is not removed, since that could violate the First Amendment, but you may need to pay for it
Oh, sure, that'll solve it. Right.

Because you know that when an average Joe says something Doofus Corp doesn't like, Doofus Corp is sending a bill for a licensing fee of $30,000--with an alternative of "take it down". An average Joe would never take his "infringing" speech down rather than pay a tiny little bill like that: that's pocket change to an average Joe...oh, wait, no it isn't.

In reality, all that shows is that David Lange and H. Jefferson Powell have their heads up their asses: their proposed restriction on IP law would accomplish nothing but shutting out the average Joes out of the marketplace of ideas.
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Anonymous Coward, 5 May 2016 @ 5:46pm

antidirt just hates it when due process is enforced.
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Anonymous Coward, 5 May 2016 @ 7:53pm

No Law
Simple.
Abolish copyright.
Period.
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Anonymous Coward, 6 May 2016 @ 8:26am

Re: Re: Re:
The absolutist position is the one that says that anyone that disagrees with you in any way, shape, or form is an absolutist.

"if you want to explain which parts of copyright law you support"

Even if there is nothing about the current state of copy protection laws that someone agrees with not agreeing with the current extreme, corporate written, state of copy protection law is different than being an abolitionist. To say otherwise is an extreme position and shows what kind of absolutist you are.

I think some copy protection laws could be good but they should be substantially shortened to, say, ten years or so. Most profits are made within that timeframe and there is little reason to hold up the public domain for the very few contrary cases. Copy protection laws should not be about the IP holder it should be about the public.

Furthermore to help out both artists and the public artists that have their works taken down falsely should receive at least the same protections as IP holders that have their works infringed upon. The current one sided penalty structure is unacceptable and harms both artists and the public.

Furthermore IP laws should be democratically determined and not written by corporations. These nonsense secretive meetings with industry interests invited are not acceptable. If the people don't want IP laws then they should be abolished. If they do then they may exist. But corporations should not be writing laws. When you have things like

Homeland ... Announces Shut Down Of Movie Sites At Disney

https://www.techdirt.com/articles/20100630/14391410029.shtml

and it was Disney/MPAA that argued that copy protection laws should be retroactively extended to forever minus one day and it keeps getting retroactively extended at the request/demand of Disney/MPAA

https://en.wikipedia.org/wiki/Copyright_Term_Extension_Act

then it becomes clear who is behind these laws. Not the public. Not the artists. The big corporations. Again, this is supposed to be a democracy, not a corporatocracy.

But I suppose that you will then take the extreme, absolutist, position that I am an abolitionist and an absolutist right? I'm the extremist here right? Because I think that the people, and not corporations, should write laws that makes me an extremist I suppose. That position of yours shows who the real extremist is.

"I spend my time reading the actual law."

As does most everyone here. But that's not to say that we can't make suggestions to the law. How is law supposed to be changed? What, are only corporations supposed to be allowed to change law and make suggestions because they have the money?

"I don't waste my time with legal fiction."

That's a rather extremist position that no one else, besides corporations, should engage in thought experiments about possible ways to change the law and what the consequences could be. Yet we're the extreme ones here right?
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mb (profile), 6 May 2016 @ 9:41am

Compulsory Licensing
I am not a big supporter of copyright, but I think that artists should be entitled to some protections on their creations. Without a doubt a complete void of IP law would harm creativity. I think shortened copyright terms combined with a compulsory licensing regime would strike a great balance: If you think you can do a better job of marketing another work, then you should be afforded equal access to that privilege, and the creator should also be permitted to benefit from the work of creation. It's a win-win.
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John Mitchell (profile), 6 May 2016 @ 12:36pm

"No law" amended "maybe law"
The issue that most troubles me about the First Amendment / copyright coexistence is the lack of any compelling explanation of why First Amendment principles do not apply with full force and effect to copyright. Sure, the Supreme Court has come up with quotable (but baseless) stuff like calling copyright the engine of free expression, and has pointed to First Amendment "safeguards" built into the Copyright Act, but that still does not explain why the ordinary operation of an amendment should not take full effect. Article 1, section 8, empowers Congress to create exclusive rights belonging to authors. Later, we amended the Constitution to provide that, notwithstanding the aforementioned power, Congress is prohibited from enacting any law abridging the freedom of speech. Copyright is an option; the First Amendment is an imperative. Congress' task then, is to decide whether to exercise the non-mandatory option of creating something in the nature of exclusive rights, and if it chooses to do so, to craft it carefully to avoid abridging freedom of speech. The notion of "balancing" the two or "accommodating" the latter is simply not an option. When in conflict, the First Amendment question should trump copyright to the same degree it would, for example, Maryland's right to issue or not issue license plates bearing characters in an order it disapproves. See Mitchell v. Md. Motor Vehicle Administration - Case No. 10, September Term, 2016, http://www.courts.state.md.us/coappeals/petitions/201604petitions.html. Perhaps it would be a hard task, but no harder than any other speech restriction.
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Anonymous Coward, 6 May 2016 @ 9:24pm

Re: Re: Re:
Hey asshole, just look at the last couple years of posts will give you a pretty good idea. Provided you're not clown shoes retarded of course.
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Anonymous Coward, 7 May 2016 @ 5:22pm

Re: Compulsory Licensing
Right, and everyone's an artist. My whole life is a piece of performance art. I'm sure I could be more creative if I was rewarded for every action I took.
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Wendy Cockcroft, 9 May 2016 @ 5:58am

Re: TPP opponent RUNNING against speaker of the house that gave us TPP
I doubt it; Fast Track Authority means that Congress can only accept or reject TPP, they can't discuss it.
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Wendy Cockcroft, 9 May 2016 @ 6:00am

Re: Re: Compulsory Licensing
Methinks you missed the part about compulsory licencing. That would restrict copyright privilege to those who are willing to pay for it because they seriously believe they can make money from it. I'm on board with that.
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