Re: Napster destroys Western Civilization

On Wed, 03 May 2000, James Rogers <jetan[_at_]ionet.net> wrote:
>
> As some of you may have noticed, for a lawyer I take a somewhat
> nihilistic view of copyright, e.g., "blow it up". I realize that this
> will seem distasteful to some on the list, particularly to those whose
> bread and butter comes from protecting their client's IP interests.
>
> If you guys can forgive me for asking sort of an airy-fairy
> philosophical question, I'm a bit curious as to how you guys feel
> about the Napster and MP3 suits in the most _general_ sense. Clearly
> these are just the beginnings of an all out assault on copyright on
> the most basic, conceptual level. It also seems clear that none of
> us can readily conceive of all the tech fronts on which copyright
> will have to be defended.
>
> I am of the opinion that Napster represents a very clear violation
> of the copyright statute. But it also strikes me that the courts are
> going to come to this question rather late in the game. We all recall
> the videotape decision, in which the court virtually rewrote the
> statute in order to permit a widespread use in the face of existing
> copyright law.
>
> My position is (I think) that the court, soon or late, is going to
> have to adopt a new model for copyright, by which I mean a new economic
> model. Assuming that I am correct, what form can you conceive of this
> taking? I realize that in a way I am asking you folks to be science
> fiction writers and extrapolate larger effects from a technological
> development. But I would be interested in your opinions, and
> particularly interested if those who disagree strongly with my
> assumptions and prejudices give their best and worse case scenarios.
> By "best" I mean copyright succumbs to the assault, and good things
> happen, and by "worst" I mean that current copyright law is troubled
> but not substantilly altered by Napsterish criminal mischief, and that
> great economic harm is wrought by the transgressors.
>
> Doubtless most of you have already thought so far ahead on this
> (I'm not being facetious), that the question may strike you as both
> banal and pretentious. Nevertheless, I would be interested in your
> thoughts.

An excellent question.

It seems to me that Copyright lives a rather dodgy existence. The First Amendment, literally interpreted, would override the copyright clause. "law... restricting freedom of the press" is exactly what Copyright is, and in the First Amendment the quoted phrase is preceded by "Congress shall make no law..."

We allow this contradiction because we view copyright as useful to society. It encourages authors to write.

However, for several reasons, copyright's utility to society is diminishing, and the burden it places on free speech increasing. These reasons include:

(1) Technological change. The core premise of copyright is that dissemination of content costs a lot of money. It doesn't anymore.

(2) Lack of utility to authors. Copyright has less and less utility to authors for a variety of reasons--the widespread transfer of copyright to the distributor/producer means that the author's critical legal issue is interpretation and enforcement of his contract not copyright, the increasing prevalence of "group" created works lessens copyright's importance. Did the fellow that did the lighting for "Titanic" have a copyright interest? Was his work critical to the end product?

(3) Overreaching. Possibly because of the special interest flaws in our political system, copyright legislation has gotten out of hand. We extend copyright for ridiculous periods at little or no benefit to society or authors. We elevate the commercial over the important by declaring ebrything copyrighted unless the author disclaims it. We attempt to prohibit devices that are by themselves of utility because they might be used to violate copyright. We create legal strictures that make lawbreakers of common moral citizens. We even allow copyrighting of secret material, thereby elevating the gain to the copyright holder far above the societal interest.

The result is going to be a collision. The question is whether we will throw the baby out with the bathwater, assuming that there still is a baby in there.

Regards,
John Lederer
<johnl[_at_]ibm.net> Received on Sat May 06 2000 - 21:01:47 GMT