A Copyfighter’s Musings

Lawmeme pointed me to the new DMCA reply comments.

Filed by Derek Slater at 7:30 pm under General news
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A few days ago, I referred to the work of economists Michelle Boldrin and David K. Levine.  They run the “The Intellectual Property” page, which is a really cool site that applies economics and game theory to intellectual property to explain why we don’t really need “intellectual monopoly.”   In their forthcoming book, they write:

“[W]hen we are discussing the elimination of intellectual monopoly, we mean the elimination of patent and copyright except for the right of sale. We also mean that the government would not enforce downstream licensing agreements. That is, shrink-wrap, or other agreements about how intellectual property is to be used could not be enforced in the courts.”

 

Check out the first chapter and the second.

(via Larry Solum’s Legal Theory blog.  Larry is one of the greatest people I’ve ever interviewed, and he wrote a great piece about Eldred.)

Filed by Derek Slater at 7:25 pm under Big Ideas
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Professor Felten points to Declan’s article regarding the House’s hearing on universities and P2P piracy.  This part caught my eye:

“Rep. John Conyers, D-Mich., the senior Democrat on the full Judiciary Committee, warned that universities should take aggressive measures to police their own networks lest Congress do it for them in a much more invasive way. ‘There are people (on this committee) willing to take action, and it’ll probably go over the line in terms of privacy concerns,’ he said.”

I suppose that I’d rather have this university rather than the government do the monitoring.  Then again, it all depends on what sort of oversight would be available.  What exactly would the university get to log?  How would they watch?   

And, more broadly: I wonder what “action” committee members are willing to take.

Filed by Derek Slater at 7:11 pm under General news
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The recent article “Digital Wrongs” made me think of Declan’s piece “Debunking DMCA Myths.”

Declan brought up a lot of good issues in that article. On the one hand, the article showed that maybe there’s less to worry about when it comes to the DMCA and scientific research.  More importantly (I think) it showed how fine a line there is between creating awareness and activism,  and fear mongering.

What’s the connection between the two articles?  Well, when I read Hank Barry talk about not creating “a new technology that would allow music streaming for cell phones,” I wonder if anyone actually buys it.  I wonder if anyone says “that poor venture capitalist!” 

Does it generate sympathy or indifference?

I also wonder if people see a difference between what Barry’s saying and what Greg Ballard of SonicBlue is saying.  SonicBlue is actually losing money – it’s vulnerable, and many other companies like it are, too.  With Barry, it’s a “chilling effect” – but it’s not an actual commercial death sentence.  Actually getting sued by the MPAA is an incredibly difficult battle to fight let alone win, given cash constraints.  Barry’s not in that position yet.

One could argue that the actual, perceivable effects and the chilling effects must be seen together.  The chilling effects certainly are important.

But, rhetorically, I don’t think they’re equivalent.  Rhetorically, I think talking about chilling effects in the abstract is not as effective.  Especially when examples  of chilling effects are used to excess, they lose legitimacy.  Moreover, when you try to imply that there was a serious chilling effect, but nothing bad came of it, people are only going to say, “So, what the heck are you complaining about?”  It’s going to come off as fear mongering, rather than raising awareness.

Another point that came into my head: At the end of Declan’s article on scientific research and the DMCA, he notes, “Any type of publishing carries risks, including possible suits for libel, copyright infringement or invasion of privacy. Security research is no different.”

That’s definitely a good point.  Scientific researchers need to take responsibilty for following the law, just like anyone else   If they do publish something that they know violates the law, they accept the risks involved.

But, we still can’t overlook the fact that some people who aren’t breaking the law can’t afford to prove it in court.  That problem doesn’t just go away because “any type of publishing carries risks.” It doesn’t make it any better. (I’m not saying Declan meant this, but one could read that sentence as trying to shrug off the chilling effects of the DMCA.)

Filed by Derek Slater at 7:03 pm under Legal
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