Tuesday, February 26, 2008

The Specter of Copyism v. Blockheaded Authors

Just posted on SSRN: The Specter of Copyism v. Blockheaded Authors: How User-Generated Content Affects Copyright Policy. Here's the abstract:
Technological advances, because they have radically lowered the costs of creating and distributing expressive works, have shaken the foundations of copyright policy. Once, those who held copyrights in sound recordings, movies, television shows, magazines, and the like could safely assume that the public would do little more than passively consume. Now, though, the masses have seized (peacefully acquired, really) the means of reproducing copyright works, making infringement cheap, easy, and, notwithstanding the law's dictates, widespread. Copyright holders thus understandably fear that their customers have begun to treat expressive works like common property, free for all to use. That, the specter of copyism, does risk upsetting copyright policy, leading to a market failure in the production of expressive works. Even as we recognize that threat, however, we should also appreciate that technological advances have greatly reduced the costs of creating and distributing new works of authorship. Thanks to that deflation, we can increasingly count on authors who care little about the lucre of copyright - blockheads, as Samuel Johnson called them - to supply us with original expressive works. This paper describes the economic push and pull between distributed infringement and distributed authorship - between copyism and blockhead-created content, we might say - and how copyright policy should mediate those forces.

This free-standing article comes largely from various parts of chapters 1, 8, and 9 of my draft book, Intellectual Privilege: Copyright, Common Law, and the Common Good. As always, I welcome your comments.

[Posted at Intellectual Privilege, Agoraphilia, and The Technology Liberation Front.]

Thursday, February 21, 2008

In the News: Guy Likes to Surf

To my surprise, the O.C. Register ran a twee report about how I used surfing to motivate my sabbatical book project. The reporter, Marla Jo Fisher, evidently read my blog post on the topic, and figured that it would make a cute "slice of life" sort of story. She and the photographer, Leonard Ortiz, did a fine job of not making me look like any more of a fool than I am—no mean feat, that. Nice folks, too.

[Crossposted to Agoraphilia.]

Thursday, February 14, 2008

Folding Heart Card, Uncopyrighted

[NB: Updated; please see concluding paragraphs.]

As a matter of policy, we should favor love. It generates many private and public benefits. Individuals or communities short of love suffer terribly. Those rich in it thrive.

Please allow me to offer one small step towards encouraging love: An uncopyrighted (and thus public domain) card. Folding it for your love will prove your devotion, as the folds present a nice little origami challenge. A personalized card beats a store-bought one by a mile, too. Add messages inside and out, lock the heart up, hand it over, and brace yourself for some lovin'.

Folding Heart Card

Here are some details:

Folding Heart Card

Folding Heart Card

If I might geek out for a moment, I'd like to offer some pertinent observations about copyright law. That I've uncopyrighted Folding Heart Card by no means guarantees that those who copy it will escape all liability. I have placed in the public domain only mywork of authorship—the image and the folds portrayed above. Another might claim copyright privileges over the same work, or some part of it. I claim Folding Heart Card as an original, but I must also admit that, by definition, unconscious copying remains a risk. So while I encourage you to copy the work as you see fit, and thereby honor both my love and your own, you must assume full responsibility for the outcome. I think, on net, you'll like the results.

Update: On his eponymous, conspiratorial blog, Eugene Volokh kindly cited my Valentine's Day offering. That prompted a question about the copyrightability of origami creations--and another excuse for me to geek out.

Origami works probably merit copyright protection under U.S. law as works of sculpture, though the constraints imposed by paper-folding (there are only so many ways to fold a heart, for instance) might support a merger defense to any such claim. The sequence of folds required to make a particular origami work, in contrast, would probably fall outside the scope of copyright, instead qualifying as a "procedure, process, system, [or] method of operation," per § 102(b). A patent would better suit that subject matter. An illustration of a folding sequence, such as my photos showing how to make the Folding Heart Card, would of course enjoy copyright protection.

As long as I'm updating, I'll also caution those of you who create the Folding Heart Card that its front does not open. The back does open up, however, once you unlatch the paper locks that hold it closed. If you prefer a version that will not tempt the card's recipient to try to open the front, you can, by way of a minor variation on the technique I illustrated, close its face with a kimono fold. I leave the details of that method, which I rejected as unappealingly unsymmetrical, as an exercise for students of origami.

[Crossposted to Agoraphilia and The Technology Liberation Front.]

Friday, February 8, 2008

The Packet-Switched Society

Two sharply contrasting views dominate the debate over copyright policy. On the one hand—the left one, we might say—copyrights represent mere policy tools, no better in principle than any other legal mechanism and, indeed, more modern, rationally planned, and democratically chosen that anything the common law can offer. On the other hand—the right hand, we might say—copyrights represent property rights no less than real estate or moveable goods do. On that view, copyrights deserve strict enforcement and our solemn respect.

[My draft book, Intellectual Privilege: Copyright, Common Law, and the Common Good, presents] copyright policy on a third hand. So grasped, copyright represents nothing better than a clumsy attempt to correct an alleged market failure. Common law rights, implemented by technological advances, social networks, and growing wealth, increasingly suffice to stimulate the production of original expressive works. Increasingly, we find that we do not need copyright. To that extent, it does us little good and much harm to remain imprisoned within the confines of the Copyright Act. Even if they wanted to, federal lawmakers could not put copyright policy into a delicate balance; they face powerful incentives to not even try. Better we should cast aside copyright's statutory privileges and rely on the common law to promote the public good.

Many people—well-informed, intelligent, and sincere people—will doubtless disagree with this third view of copyright policy. Many will have good reasons for doing so, too. Some, though, will have perhaps been mislead by their reliance on an older, less flexible understanding of copyright—what we might call a circuit-switched model. In fact, however, we can best understand copyright policy, and much else, by following the example set by packet-switched networks.

As courts and commentators traditionally describe copyright, it arises through the collective deliberation of central authorities who, after a delicate balancing of competing interests and in the name of the general welfare, create statutory rights to expressive works. In that model, lawmakers let copyright holders borrow the State's power to violate natural and common law rights, empowering copyright holders to control others' pens, presses, and voices. That approach strongly recalls the policy model applied to earthbound, closed, circuit-switched networks.

Those who build circuit-switched networks invoke the State's power of eminent domain to justify violating common law rights, laying wires that cut across private property. Regulators supervise the monopoly that results, imposing common carrier obligations, cross-subsidizing universal service, and controlling rates. So, too, goes the circuit-switched model of copyright: The Act empowers copyright holders to violate the common law, granting them statutory privileges that cut across customary rights, while lawmakers carefully calibrate the ebb and flow of expressions to maximize the general welfare.

This book takes a fundamentally different approach to public policy, an approach inspired by packet-switched networks like the market, person-to-person communications, and the internet. In such a network, message-bearing packets flow from point to point over any of many different paths, routed not according to the dictates of a central command but rather by generally accepted protocols. So long as a packet follows a few, simple rules, it can take any route it likes. Packet switching has many virtues; it often proves more flexible, robust, and scalable than circuit switching, for instance. It supports layer upon layer of complexity, too, encouraging a wealth of unplanned order. Most importantly for present purposes, packet switched networks offer us an apt model for understanding that vast web of consent-rich relations we call the liberal society.

Each of us a liberal society pursues a variety of goals, some shared and some unique. Each of us follows his, her, or (in the case legal persons) its own route through a network of voluntary ties. No central authority directs how we pursue our goals. Nor could it, given the complexity of the system and the distribution of information. Our packet-switched society instead relies on a few simple rules--based in natural rights and implemented through the common law--to define a protocol universally just and locally fair. Our society spontaneously generates peace and prosperity, the fruit of conscious action but not of conscious design.

As wire-bound parts of the internet demonstrate, a packet-switched network sometimes runs on a circuit-switched infrastructure. Similarly, liberal societies typically rely on some measure of State intervention to help patch the gaps where private means fail. But in neither case should we confuse an old fix for a necessary feature. Thanks to open-access and packet-switched radio communications, the Internet can—and probably should—escape from those circuit-switched bottlenecks so susceptible to disruption and censorship.

Similarly, common law now stands ready to finally cure the market failure that alone justifies copyright's statutory privileges. If thus rendered superfluous, the Copyright Act will turn from a necessary evil into simply an evil. We should not let that political kludge trap us within copyright's confines. Let us instead seek the common good in the common law.

[NB: The above text comes from the conclusion of my draft book, Intellectual Privilege: Copyright, Common Law, and the Common Good. You can find a PDF of the entire chapter, including footnotes, here. I welcome your comments.]

[Crossposted to Agoraphilia and The Technology Liberation Front.]