Copyright Law

Copyright law has got to give up its obsession with ‘the copy.’ The law should not regulate ‘copies’ or ‘modern reproductions’ on their own. It should instead regulate uses–like public distributions of copies of copyrighted work–that connect directly to the economic incentive copyright law was intended to foster.

Lawrence Lessig, Remix: Making Art and Commerce Thrive in the Hybrid Economy

PG Note: This is Professor Lessig’s opinion. He is a respected law school professor, but he is stating a public policy argument, not a legal opinion.

11 thoughts on “Copyright Law”

  1. His opinions intruding into the world of tech have generally been proven wrong so I wouldn’t give much credence to his opinions in other areas.

    Note also, that this particular screed of his was published in 2008 so it was written pre-Kindle, pre-streaming, and probably pre-iPhone. In terms of Internet Time, it might as well be an opinion from the 19th Century.

  2. One should also note that he had been losing this argument consistently for a decade before 2008, too. Then there are these two problems:

    1. Exactly how does he propose to regulate “uses” and provide a realistic remedy for those whose copyright is infringed by unlawful “uses”? (Yes, I’m picking on some of his other writings; Lessig is an even stronger adherant of “rights imply remedies” than I am.)

    2. The US Constitution explicitly provides not a motive, but a mechanism, in the IP Clause. Congress was granted the power to grant “exclusive rights for a limited time” to creators not because that was inherently an economic benefit or requirement, but because the Founders believed — on the evidence of the UK tradition in which (notwithstanding the Statute of Anne) publishers claimed that right for works of “authorship,” and the Crown claimed that right for works in the “useful Arts” (inventions), which together resulted (in the Founders’ opinion) in both excessive patronage-related suppression of material on certain subjects and abuse — that the least-restrictive means of ensuring more creative/innovative works was a limited monopoly.

    The key problem, though, is this. The Berne Convention on Copyright — a treaty to which the United States is a signatory — does not share this connection. It allows, but does not require, profit as the foundation. It also allows other means of encouragement, so long as the author’s primary control is respected. (For example, the Berne Convention does not specify what remedies an author has upon infringement; it only declares what constitutes a right and an infringement thereof.) Treaties have a higher precedence in the “legal scheme of things” than do mere statutes, even statutes passed to implement an enumerated power. What all of this together means is that a “uses” meme requires international amendment of a treaty, not just lobbying of Congress.

  3. There’s a good reason why Lessig held this position, and why all the subsequent extensions of copyright law that ignored his arguments have been a complete pig’s breakfast. That reason is this:

    In digital media of any kind, there is no distinction between copying and transmission. To move a digital file from one place to another is to copy it. Whether the original data are kept on file by the transmitting device is immaterial. Whether a complete copy of the data is kept by the receiving device after reception is complete is also immaterial. The act of transmission is itself inherently an act of copying.

    The words in this present comment constitute a work of authorship in fixed form, and are therefore eligible for copyright. But as soon as I hit ‘Post Comment’, my words will be transmitted to the local servers of my ISP. This is done with my explicit permission, and poses no problem. The message will then travel by unknown and ad hoc routes to other servers in other countries, with many different owners, under multiple jurisdictions, before being reassembled at the server where this blog is hosted. At each stop, the message, or such packets thereof as pass through that point, are copied again, and this is done without the permission or knowledge of the copyright holder. It is quite possible that this traffic will be snooped on by a security agency which is entitled by law to install devices on major ISP servers and make its own copies of any or all data passing through. That also is done without my permission or knowledge. Each time anybody reads this comment, the same process is repeated. If a hundred people read my words, it is probable that they shall have been copied, completely, word for word, a thousand times.

    So long as copyright law concerns itself with the individual act of copying data, it can only deal with the technology of the Internet by a series of wonky ad-hoc pronunciamientos. Lessig is quite correct to point out that a different conceptual basis is needed.

    • (1) If by “extensions of copyright law” you mean the duration of copyright, that’s completely different from extension to new means and media. I would agree with the former, that continued extension of duration is unwarranted; however, the rest of your piece implies that you mean extension to new means and media… in which instance I do not agree.

      (2) The fundamental problem is that Lessig’s position — and the one stated here — demands that all considerations of “copy” take on all characteristics of the literal-electronic-copy problem. That is, that all practices (including copying of printed books, fine art, etc.) be treated as if any viewing or transfer (including transmission, but also including from storage media to memory, etc.) is a noninfringing-unless-beyond-some-unstated-boundary “copy” that doesn’t infringe copyright. In short, it demands inverting reality.

      The real problem — as with so many policy arguments in the law, especially but not only related to technological change — is that this demands an immediate, permanent, cost-free change from A to Z without passing through any intermediate stage. Umm, not so much; there is no such thing as a costless paradigm shift. I’m not exactly a defender of buggywhip manufacturers, but their problem was that their product no longer had use. I can’t say the same for books, or fine art, or musical compositions, or copies of classic films stored locally so that I’m not dependent upon increasingly expensive and inherently interruptible communications systems, and most of all not subject to someone else tracking what I’m doing.

      Perhaps some “different conceptual basis is needed” under some circumstances. That does not mean forcing all other bases to conform, and presuming that would be both costless and consistent with the purpose(s) of copyright protection in the first place.

      • The fundamental problem is that Lessig’s position — and the one stated here — demands that all considerations of “copy” take on all characteristics of the literal-electronic-copy problem.

        Not at all. It does demand that the literal-electronic-copy problem be addressed as an integral part of the issue, and not simply swept under the rug because technologically illiterate people don’t know how their gadgets work. Treating the vast majority of all copying of copyright works as an exception, and the tiny minority as the rule, is a hell of a way to run a railroad.

        Perhaps some “different conceptual basis is needed” under some circumstances. That does not mean forcing all other bases to conform, and presuming that would be both costless and consistent with the purpose(s) of copyright protection in the first place.

        If a different conceptual basis is needed, then it has to be sufficiently robust to address the new and old circumstances. It would have to include the case of copyright in analogue physical media, just as Einsteinian mechanics includes Newtonian mechanics as a special case. It’s no good simply declaring that copyright is what it is, and then inventing some other system to cover all the new media and new problems.

        And nobody is saying this will be ‘costless’. Paradigm shifts are never without cost, especially when they involve changes to the law and to businesses governed by that law. But there comes a point where the cost of change is less than the cost of pretending that things are still the same.

        • Any specific examples that justify paying the cost of revamping a global system that works “well enough”?

        • OK, the errors here are starting to irritate me.

          (1) It’s not the vast majority of “copying per se” that is at issue. It is “copying constituting infringement” that is at issue. One of the problems that I have with the position stated by Lessig and those who follow him is that it completely ignores the “noninfringing copy defense” — fair use in the US, fair dealing elsewhere — that already resolves the problem. The subtle distinction is upon whom the burden falls. Fair use is definitively an affirmative defense (Feist) that depends upon the exact circumstances and not a bright-line rule easily followed by a low-sophistication algorithm (even less sophisticated than Quiksort), and fair dealing is generally treated as such (string citation much too long for this blog, especially since it’s not my blog). That is, in the current system, those making the electronic copies proposed here must affirmatively justify their copying, with specific reference to the circumstances of the copying. The IWTBF/Lessig position, however, would flip the burden, and force presentation of admissible evidence that the copying was excessive against a standard established without regard to specific circumstances. Care to guess who ordinarily has the resources to win that battle (hint: it’s not individual copyright holders, and often not even media conglomerates, see, e.g., Authors[‘] Guild and American Publishers’ Association v. Google, Inc.)?

          (2) Lessig — among other advocates — was saying it was effectively costless, or at most that the costs would be outweighed by prospective benefits. I’ve been at CLE presentations (one by an associate counsel for EFF, citing Lessig’s work extensively; and there were others, not to mention law journal articles, testimony before Congress and the Copyright Office, etc.) that dismissed any costs that might be suffered by anyone, but especially by copyright holders (in that particular presentation, essentially limited to Disney-like vertically-integrated entities, and what that says about antitrust law was left unanswered when queried). But that’s for another time.

          Let’s assume that it isn’t costless. Who, then, pays for the transition costs? How? And how does that square with constitutional prohibitions on impairment of contracts, and might it constitute a regulatory taking? (There’s a Supreme Court case on this Term’s calendar that presents almost exactly that question, relating to real property and not intellectual property. That it hasn’t been just dismissed is a hint that the issue isn’t as clear or easy as might be wished.)

          * * *

          The moral of the story here is that policy arguments made on behalf of particular constituencies and particular methods almost never engage with the whole system. Not with the entire factual context (e.g., the blithe assertion that “the vast majority of all copying of copyright works as an exception, and the tiny minority as the rule, is a hell of a way to run a railroad” assumes both the factual prevalence and that all of those copies are infringing and have no defense, especially 17 U.S.C. § 107(4) and the unwritten fifth factor). Not with the legal context.

          Most of my work over the past quarter of a century has involved trying to get a seat at the table to even have economic and legal concerns of individual freelance creators in the discussion, and not presented by people (the agent community, for example) with conflicts of interest out the wazoo. It’s more than a bit frustrating that another interest-group thinks its self-interested position is even more deserving, without regard to the actual rationale(s) for or history of “intellectual property.” To only slightly mangle Mr Churchill’s aphorism — and, having been involved in several IP disputes himself, I think he’d agree this is consistent with his own experience* — strong intellectual property rights are the worst means of encouraging progress in the sciences and useful arts, except for all of the other methods that have ever been tried.

          * For example, the reason that his commercial writings are attributed to “Winston S. Churchill,” when he never used his middle initial as a government official. OK, it’s not technically copyright… under contemporary law; but it would have been under UK law at the time.

        • Tom– Agree. Well said. The last century or so of copyright law assumes that reproducing a copyrighted artifact requires effort, investment, and equipment: printing presses, etc.

          Digital objects are the reverse: they require effort, investment, and equipment to prevent reproduction: encryption, license keys, etc. Reproduction of unprotected digital objects is effectively free and ubiquitous.

          Copyright, as Lessig suggests, has to be completely rethought to deal with digital objects.

          For me, the most likely technical basis for effective ownership of digital objects is some form of public blockchain to establish and maintain ownership. Nothing like Bitcoin and its analogs.

          • Marv, I’m afraid this evades the question of what the baseline is or should be. At present — and for the foreseeable future — nondigital materials will be the vast majority of copyrighted works. (Remember, we’re also talking about fine art, architecture, etc.) Further, as I pointed out above, the issue is not “copy at all,” but “infringing copy.” Consider, as an obvious example (given your library trusteeship), § 108(g) of the Copyright Act, which defines certain copies as noninfringing.

            There’s a huge difference between designing a system tabula rasa based on a known new, stable paradigm, and adapting a present system to a new stable paradigm that does not (and cannot) completely displace the existing paradigm. Lessig et al. have refused to acknowledge that it’s an issue, let alone engage with it in detail… and I’m not going to hijack PG’s site further for the extensive citations, litigation, and negotiations involved, not even the large-but-not-as-extensive list of them in which I’ve been personally involved.

            • Worse, the “new normal” hasn’t stabilized and won’t stabilize for decades. We are and will be for decades in transition from physical IP rendition/distribution to a mixed world.

              Rushing to rework the system before a clear and enduring need emerges to define tbe new environment is folly. Maybe a technical solution arrives, maybe not. But designing a system for an environment in flux won’t lead to anything good. And the digital world isn’t done evolving. 2020 is nothing like 2007 and 2030 will be nothing like 2020.

              To paraphrase: legislate in haste, repent at leisure.

  4. 1- Lessig is a self-aggrandizing media hound. He is not particularly important in real world matters. None of his crusades have produced much beyond media attention.

    2- His focus in the quote and cited book is “remixing”, which in 2008 was supposed to be the next BIG thing requiring special protection but which has been dealt with using the existing mechanisms via Fair Use and de minimis. Plus, it’s become essentially a fad, hardly a new mode of creation even if one stretches the meaning of creation.

    His track record is similar to Nicholas Negroponte in getting media attention for his punditry and “authoritative” pronouncements about a future that never arrives. The real world moves on and leaves them behind without a thought. It never crosses their mind that reality has inertia and marches to its own beats and is far more complex than their ivory towers.

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