More on Derivatives (and CLs)

More thinking out loud:

When I brought up derivative works the other day, I mentioned that Fisher’s proposal “may seem like a clean and simple way of eliminating the problems inherent in the derivatives right.” While that may be true, there is reason to question whether his plan is the best way of treating derivative works.

Consider the making of a derivative in the present legal regime.  Say part of X’s decision to make a movie is based on the potential for revenue from video game, toy, book, and other derivatives.  Say part of Y’s decision to license the right to make a video game based on X’s movie is that no one else will be able to make such a video game.  (The assumption about Y is a bit more plausible than the assumption about X, but let’s work with both for now.)

Now consider how the decision making might change in Fisher’s scenario: X’s incentive, initially, looks somewhat the same; X won’t be able to control the licensing, but X will still receive revenue from derivative uses. Y’s situtation, however, changes. Y now will have to compete with many video games.  While Y can still invest more to make the best video game, his potential for revenue will be challenged by other derivative makers. And now, looking backwards, X’s situation does change. If many people are like Y and decide not to invest in a derivative because of increased competition, then X’s revenue will greatly decrease. Moreover, even if some people hang around to make derivatives, if the people willing to make high quality derivatives are driven out, then X’s revenue will decrease.

To consider it in another context, think of the argument made against widespread proliferation of fan fiction. If everyone can make sequels of the newest best seller, then people will become so tired of the story that the original author will have no incentive to continue writing her stories and no movie producer will want to license it for production. ([added:] Given the low-level distribution of most fan fiction writers, this argument is generally quite overstated. But, if you consider commercial, large scale derivative uses, then the argument makes a bit more sense.)

I don’t know enough to state conclusively if these arguments are good or bad (or even plausible). If we’re trying to remunerate artists fairly for what they contribute to future work, then Fisher’s proposal seems to do the job well. But I wonder how the incentives and production of derivatives would change. 

Again, I’m doing this in the context of trying to think about the a better derivative works policy in general. And I guess what I’m talking about here begs the bigger question: what justifies the derivatives right?  Let’s start with this reading list, and go from there.

More on IPHacktivism: A Discussion Between Nesson and Fisher

Bricoleur links to this great discussion between Professors Nesson and Fisher (with Professor Zittrain, too, towards the end) – it’s got a slightly expanded view of where Nesson is coming from.

Raise Your Hand If You Think DoS Attacks Are Good

Some brief responses to Donna’s/Charlie Nesson’s questions:

What are the objections? The EFF raised many last year in response to the Berman bill.  Read it for the specific criticisms – here’s the overall point:

“The proposed law amounts to government-sanctioned vigilantism — copyright owners are given the power to ignore the law in pursuit of those that they decide are guilty. There is no warrant requirement, no trial, no prior notice to the targets, no due process, and very little recourse for innocent bystanders caught in the cross-fire.”

Sounds a heck of a lot like the current criticisms of the DMCA subpoena provision. Both put a great deal of power, without a lot of responsibility, in the hands of anyone who holds a copyright (which means effectively everyone). These hacktivist techniques will inevitably be used against the innocent, for purposes aside from stopping copyright infringement.  Perhaps your privacy is more valuable than your computer system’s resources, but I’m not sure that’s enough to allow copyright holders to be vigilantes.

I suppose these measures wouldn’t affect e2e, but they would still have grave consequences for the Internet. As the EFF’s comments note, innocent people on shared connections would be impacted, while ISPs would have to deal with this added hassle.

A broader point about harming ISPs:  Put aside, for the moment, arguments about whether the DMCA safe harbors are too strong or too weak. Remember that there used to be a time when we were trying to figure out how to reduce the burdens of secondary parties. To me, that perspective still makes sense – copyright shouldn’t dominate technology creation and Internet politics, just as it shouldn’t dominate the university. So, is that point now incorrect to the extent that sanctioning DoS attacks makes sense?

[update - footnote: I don't mean to suggest that Professor Nesson's talking about self-help with no potential for liability for copyright holders if they mess up (the Berman bill didn't really have that). Rather, I'm not sure liability for messing up is enough to make up for the collateral damage and the potential for harming innocents. Without any due process, I don't trust copyright holders to police fairly. And I doubt that many people innocently caught in the crossfire will be able to fight back.]