Could You Replace Copyrights And Patents With A Fairness-Based Legal Liability?

from the fairness-and-liability dept

Earlier this year, I recommended the book No Law by David L. Lange & H. Jefferson Powell. I still keep meaning to get around to writing a full review, but the book makes a very compelling argument that copyright law is a clear violation of First Amendment principles. However, rather than wiping out copyright law, the book suggests something of an alternative. In noting that the claim of "exclusive rights" has been bastardized from the original "exclusive rights to profits," they suggest that no one be barred from using the content of others, with the requirement that profits due to those uses must then be shared with the originator. I have some issues with that conclusion, but it looks like others are investigating that concept as well.

Andrew F alerts us to the latest work by Marshall van Alstyne, who we've mentioned before concerning his views on journalism business models and who did a great job at The Free Summit put on by Tech Policy Central, and emceed by me. His most recent paper, co-authored with Gavin Clarkson, explores both how strict intellectual property rights lead to socially inefficient outcomes, and how "fairness" principles could be much more efficient. The paper uses a combination of real world examples, previous research and game theory to make a rather compelling case.

Basically, it explains all the reasons why intellectual property leads to hoarding of information that slows innovation:

Property rights provide incentives to create information but they also provide incentives to hoard it prior to the award of protection. All-or-nothing rights, in particular, limit prior sharing. An unintended consequence is to slow, not has- ten, forward progress when innovation hinges on combining disparately owned private ideas.

As to why this happens, it's due to the injunctive ability of intellectual property holders to not just stop the specific use of their expression or invention, but effectively everything else built on top of it:

Infringement of copyright provides injunctive relief as remedy. This permits copyright owners the use of take-it-or-leave-it offers as strategy. The trouble that results from such a hold-up strategy is that it allows the injunctive rights owner, when bargaining with a non-owner, to extract nearly the full value of any transaction (with full information it is full value.) For recombinant works, this affords the last negotiating rights holder undue influence much as the last negotiating landowner exercises undue bargaining power relative to other landowners in any effort to develop a multi-parcel tract of indistinguishable parcels of land. For works of modest value, such as a single sample of a song, image, or video, negotiation costs can vastly exceed market value. For transformative works, insignificant inclusions of lesser material can retard or reduce the progress of more valuable material as when the release of the movie 12 Monkeys was enjoined due to the appearance in several scenes of a copyrighted chair.

From there, they make the case models that follow on "fairness" and "liability" work much better than a strict "property rights" setup. Along the way, they discuss the study we mentioned in the past about how people view fairness and relative compensation, as well as debunk the myth that if one person can take advantage of another they absolutely will.

The end result is a suggestion not unlike the one in No Law: that rather than setting up a system of artificial property-like rights called copyright and patents, there may be more social and economic efficiency in allowing unfettered usage of expression and inventions, with a system that then requires some sort of attribution and payment for a fair share of any of the profits. That would then actually encourage much greater sharing of ideas and inventions in an effort to get those concepts included more widely.

It's definitely interesting to think about, and I agree that in many ways it would likely lead to great net benefit than an IP regime, but it could also generate many other problems, especially in situations of independent generation or incidental copying -- as well as long, and drawn out legal fights over these situations as well as a determination of what is, in fact, fair. The paper does try to address the latter point with three responses, but I'm sure this won't be enough for some.

Either way, this is certainly an interesting paper that contributes to this ongoing discussion.

Filed Under: copyright, fairness, no law, patents

If AT&T Mobile Broadband Banned TV Streaming, Why Does It Allow MLB Streaming?

from the net-neutrality? dept

Earlier this year, we covered AT&T's back and forth over its terms of service, concerning whether or not services like SlingMedia's place shifting (streaming from your TV to a phone or laptop) was allowed. Some had noticed that AT&T's terms of service appeared to forbid it -- but then AT&T said it was a mistake and took it out, only to change its position a little later, and reinsert the language. Because of that, Sling had to disable its own player from working when an iPhone is connected via the 3G cellular network, rather than a WiFi connection.

Yet, recently, Major League Baseball's digital arm, MLB.com announced that it was going to start streaming video of games to its iPhone app, even on 3G connections -- and AT&T seemed fine with it. However, this differential treatment is leading to charges of favoritism and discrimination, even bringing out the dreaded charges that "net neutrality has been broken." The specific question is why AT&T gets to choose which streaming video apps are allowed, and which are not. If your regular ISP told you that you could watch Hulu, but not YouTube, there would be quite an outrage.

AT&T's response is disingenuous, at best, claiming:

AT&T said the MLB app streams video from MLB's website, while SlingPlayer streams from the TV set-top box Slingbox. AT&T also said the company is only trying to ensure all users on its network get the best possible service.

"We're certainly not crippling any apps," an AT&T spokesman said. "This is an issue of fairness.... While we would like to support all video services across our network, the reality is that wireless networks simply lack the capacity to support customers streaming hours of cable, satellite or IPTV video programming to individual users."

While this -- once again -- highlights the point that mobile cellular services are nowhere near legitimate competitors for real broadband services, note that the AT&T person never actually answers the question. The fact that Sling streams from a settop box and MLB streams from MLB's website is functionally meaningless to the iPhone. To the iPhone user it's the same thing. It doesn't care where the server is placed -- it's just receiving a video stream. So AT&T is not being honest or upfront about this at all. If the network is a problem, then it shouldn't allow video at all. Picking and choosing who gets to run video certainly smacks of discrimination and favoritism -- exactly the sort of thing the FCC claims is not allowed.

Filed Under: fairness, mobile, net neutrality, streaming video
Companies: at&t

Aretha Franklin Wants Royalties For That Hat She Wore...

from the oh-really? dept

It's always amusing to see what people feel they "deserve." Reader Brad writes in to point out that Aretha Franklin apparently told a radio reporter recently that she deserves royalties for any sales of the famous hat she wore to the inauguration. It's unclear if she was joking (one hopes she was)... But it does seem to be a common theme, where people suddenly think they automatically deserve a cut of something, despite not having set up an agreement for that beforehand. Newspapers want a cut of Google's revenues. Record labels want a cut of ISP revenue (and Apple's revenue). It just happens so often that it's worth calling out -- even in a totally ridiculous discussion about a hat. No one deserves a cut of anything if they didn't actually negotiate it beforehand.

Filed Under: demands, fairness, royalties

Don't Newspapers Owe Google Money For Helping Them Research Stories For Free?

from the of-course-not... dept

Last month, we parodied the mainstream press' criticism that everyone else "owed" them money because they were the original creators of a story, by noting that the press never paid the newsmakers for creating the story in the first place. Danny Sullivan has now taken a more serious look at this, noting that for all the talk about how Google is "stealing" from news publications, those same publications never seem willing to admit how much they rely on Google for their jobs these days -- and perhaps one could make an argument that these publications actually owe Google for helping make them more productive. After all, the newspapers claim they want a "fair share" of the money Google makes since it's using their content for "free." But, the same argument works in reverse. If it's "fair," then shouldn't Google get a share of the money the news publications make, since its reporters use Google's tools "for free"?

Obviously, the real point is that both sides benefit, and each is responsible for putting in place business models that work. Google has done that successfully. Many news publications have not. But no one should be claiming its "unfair" or that someone else owes them money.

Meanwhile, Sullivan's piece also goes into great detail about how a random AP story he found was written after an AP reporter found some stories on some blogs, and used them to do more research and publish his story. But were the blogs on which he found the story credited? Of course not. Did they get "their fair share"? Of course not. Hell, unlike Google linking to publications' stories, these bloggers didn't even get any traffic or attention from the AP reporter, who simply wants to pretend he came up with the story from nothing.

And the AP wants to claim that it's being treated unfairly?

Filed Under: business models, danny sullivan, fairness, free, journalism, newspapers, research

BBC Presents MPAA Propaganda On Movie Piracy, Claims It's 'Fully Balanced'

from the on-one-side-of-the-scale... dept

You may recall back in 2007, that the BBC put on a program all about the "dangers" of WiFi that was entirely one-sided and had shoddy reporting, bad science and (best of all) conflicts of interest, as one of the main participants sells products to protect people from so-called radiation. The program was widely criticized, and many months later, the BBC finally admitted it made some mistakes with the program -- but the only one it would admit was that it was unfair in how it presented the one dissenter who pointed out that there's little to no evidence that WiFi causes any harm.

It looks like the BBC has done the same thing yet again. TorrentFreak notes that it just did a segment on all of the harm done by "piracy" to the movie industry, including quoting the already discredited report, paid for by the movie studios, claiming that movie piracy funds terrorism. Beyond that, the BBC program speaks to four different people -- all of whom agree that movie piracy is a hugely dangerous problem that could (they claim) end the movie industry in the UK. Do they present any evidence? Other than the discredited Rand study, not a bit.

So when someone complained to the BBC about the piece, you would think that maybe they'd realize that the piece had been a bit one-sided, but instead, they responded:

This report focused in on a legitimate problem for both the film industry and the authorities as they try to tackle what is an ever increasing and profitable criminal activity. We feel the report outlined the laws surrounding the issue of film piracy adequately and that the interviewees from the film industry were entirely appropriate people to comment on the problem.

Impartiality is the cornerstone of all our output, and we feel this report was fully balanced in it's coverage of copyright theft.

You see, apparently there is no other side to the story, and you can take the word of the industry insiders, because they're the only ones who can or should comment on the issue.

Amusingly, TorrentFreak also points out that the previous segment on that same broadcast, was about pirate radio, where the participants are described as "lovable." Yet, suddenly, when it switches to movies, they become "no laughing matter." Why? Did it ever occur to the folks at the BBC that perhaps the issues are actually the same -- and the people involved in both types of "piracy" are effectively doing the same thing? Apparently not.

Filed Under: fairness, movies, mpaa, piracy, propaganda, uk