Debate on Copyright Enforcement
posted by Frank Pasquale
The NYT Bits Blog features a fascinating debate between law prof Tim Wu and entertainment executive Richard Cotton. Here’s a taste:
Cotton: Today unfortunately the scale of infringing traffic has exploded to the point that as much as 50% of the carrying capacity of many, if not most, Internet service providers are being hijacked by a relatively small percentage of users to carry huge volumes of complete, unchanged pirated digital copies of films, games, and software. . . . There are tailored, technically feasible and commercially reasonable steps that can be taken by the commercial institutions (whether those are Internet providers, video sharing Web sites, consumer electronics manufacturers, or IT companies) that create the broadband Internet ecosystem to reduce today’s huge volume of infringements.
Wu: Content filtering at the network level is a dangerous practice that we should only tolerate in the rarest of circumstances. Technologies designed to examine what kind of content is passing the network are technologies of censorship. Tolerating the routine inspection of all content, in the search for “forbidden” content, is a fast road to a private police state. This may sound like hyperbole but the issue is serious. We should not tolerate the creation of technologies that routinely monitor millions of people to see if what they are reading is forbidden. Google’s actions in this area are bad enough, but ISP filtering takes this to a whole new level.
Fascinating commentary on the dilemmas of digital copyright enforcement. It is troubling to see the key players here toying with the idea of a massive surveillance upgrade without adequately considering the types of alternative compensation schemes people like William (Terry) Fisher have proposed.
Hat Tip: Biddle Blog.
January 22, 2008 at 9:22 pm
Posted in: Intellectual Property
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Responses (7)
Dave - January 22, 2008 at 9:44 pm
If you are interested in this and in the Bay Area, here’s a small plug: Tim Wu and others will be speaking this Saturday at a symposium on Network Neutrality at USF School of Law.
More info here: http://www.netneutrality2008.org/
Bruce Boyden - January 22, 2008 at 10:16 pm
I’m curious, if someone has “adequately considered” alternative compensation schemes, and yet rejects them, how would that manifest itself in a debate like the one on the Bits Blog? Or does “adequate consideration” of a scheme entail embracing it?
Frank - January 22, 2008 at 10:24 pm
Bruce, who do you think has made the best case against these schemes?
Frank - January 22, 2008 at 10:37 pm
To answer your question more directly, Bruce, perhaps the following might indicate adequate consideration:
1) Congressional hearings on the scheme
2) Copyright office notice of proposed rulemaking (or at least some workshop akin to the many the FTC has done on difficult policy issues in competition law/cyberspace)
3) Public debate on the proposals that goes beyond specialty journals/trade press/blogs.
I am just objecting to the fact that groups like RIAA, while heavily (and successfully) lobbying for a compulsory license for lyricists/composers, curtly dismiss proposals for it for their own work. I believe a Theresa Bevilacqua has written an article mentioning the history of lobbying for compulsory licenses for lyricists/composers.
Bruce Boyden - January 22, 2008 at 11:51 pm
So, if I understand this correctly, to “adequately consider” compulsory licenses on the Bits Blog discussion, Rick Cotton should have called for congressional hearings, copyright office NPRMs, and public debate, all on a proposal I presume he rejects. Was Tim Wu under a similar obligation to call for action on proposals he rejects, or just Rick Cotton?
Nor would opposition to compulsory licensing for retail consumption of sound recordings be unprincipled, as you seem to be suggesting. There are huge problems of how to detect and reward blockbuster works, or any work, under such a scheme. How does the person who produces something really popular get proportionately compensated for that? The market allows such compensation through higher prices or more sales. Blanket licenses at flat fees do not. If the answer requires some sort of monitoring of downloads, that raises huge problems of its own.
The parallel to mechanical licenses is inexact in an important way. Compulsory mechanical licenses are on the producer side, for transformative-type works. They only kick in after the retail market has had an opportunity to confer a measure of success on the work, via the first authorized sound recording. Compulsory retail sound recording licenses that kick in from the first sale flatten out any opportunity to separate the hits from the bombs — they all get compensated equally (unless there is monitoring of downloads, as I mentioned). And in any event, the compulsory mechanical license tends to serve as a statutory ceiling that is rarely invoked, as most mechanicals are still voluntarily licensed. It serves as a holdout price, not the default rate. Separately negotiating a license with each consumer would be an impossible task, and so the compulsory license would become the default price, not a holdout price, for every work that’s out there — Luciano Pavarotti and Florence Jenkins alike.
Finally, I don’t see how the history of the lobbying here really tells us much of anything. The compulsory mechanical license was originally added in 1909, without the RIAA’s help (or even existence). I suppose you’re referring to lobbying that may have helped *preserve* the compulsory license in the 1976 Act — industry loves the status quo. But that lobbying was 30 or 40 years ago. Sure, you can make an argument that an organization is being inconsistent by supporting one thing decades ago, and then opposing an arguably similar thing now. But Cotton was supposed to bring all this up in a blog post? Wasn’t that Wu’s job?
Frank - January 23, 2008 at 8:53 am
No, you don’t understand correctly. My point about inadequate consideration was a general one, not limited to the blog post at issue.
But I think you have identified a good critique of my procedure-based point there. In truth, procedural points are most often based on substantive aims.
To me, the key substantive aim in copyright law is to stop denying access to works to poor and middle class people in an effort to “squeeze blood from a stone.” I believe you’ve trivialized that point in other comments on this blog (asking, for instance, whether there is really a crisis in music or entertainment access for the poor).
I could respond in kind by asking: do we really want to be so concerned about preserving compensation for blockbusters? Is your central aim to protect extant “winner-take-all” business models that, as Hans Abbing has noted, leave most artists poor?
But to return to the procedural point, my sense is that the political economy of copyright prevents adequate consideration alternative compensation schemes. And I’d challenge you to find a work that debunks, say, Jessica Litman’s scholarly efforts (in Digital Copyright) to show the lopsidedness of copyright policymaking.
Bruce Boyden - January 23, 2008 at 12:05 pm
Frank, I think you’re exaggerating in a way that unfairly presumes I have malign motives. My question about whether there was a crisis in entertainment access for the poor was a genuine one, not some Snidely-Whiplash-esque rhetorical ploy. I hope at least that was apparent to others.
The same goes for my “aims.” My aim is not to starve artists. It’s difficult for me to believe that you actually believe that is my aim, but I’ll take you at your word. In general, we live in a system that tends to proportionately reward efforts that meet with popular approval — for everything from music to toilet paper. That’s not the only method of compensating people, to be sure — and there’s lots of grant money out there that pursues a different model. But I think in general the prospect of making filthy lucre off a better product, whatever it is, drives efforts to produce things beyond the producer’s inherent hobby-like interests. A flat compensation scheme removes that incentive. I think that’s a genuine issue.
Finally, I happily concede that if you took a vote of all copyright professors, they would probably side lopsidedly with your views on lobbying and compulsory licensing. I believe that fact proves very little in itself.
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