Sunday, August 10, 2008

Fair Use Reform in the Context of Overenforcement of Copyrights

This posting continues where some of our last postings at LawPundit left off, particularly concerning free speech and copyrights.

Solove's blog, Concurring Opinions, just posted links to articles in the last issue of the Iowa Law Review, Volume 93, Issue 4 (June 2008), including Fair Use and Copyright Overenforcement by Thomas F. Cotter, Briggs and Morgan Professor of Law and Solly Robins Distinguished Research Fellow at the University of Minnesota Law School.

In the Abstract to the article, Cotter writes :

"ABSTRACT: Economic analysis has long suggested that there are two distinct categories of cases in which the fair use defense, which permits the unauthorized reproduction and other use of copyrighted materials, should apply. First, fair use should apply when the transaction costs of negotiating with the copyright owner for permission to use exceed the private value of the use to the would-be user. Second, fair use should apply when the individual use is thought to generate some positive externality—such that the net social value of the use exceeds the value to the copyright owner of preventing the use—which in turn may exceed the value of the use to the individual user. Considerable anecdotal evidence, however, suggests that would-be users are often deterred from engaging in conduct that likely would fall within the ambit of fair use, due in part to concerns over incurring attorney’s fees and in part to the uncertainty and unpredictability of the fair use doctrine itself.

This Article presents a model of the private costs and benefits faced by would-be users of copyrighted materials in precisely those settings in which economic analysis suggests that the fair use doctrine should apply. The model demonstrates how, under current law, this balance of private costs and benefits may cause some users to forgo legitimate fair uses, particularly when those users are risk averse. It also suggests that, in cases in which fair use is justified by the presence of positive externalities flowing from the individual user’s use, the asymmetry between the individual user’s gain and the copyright owner’s loss may result in systematic copyright overenforcement. Put another way, the fair use doctrine suffers from an “appropriability” problem similar to that which is often cited as a justification for copyright protection itself. This Article then offers some observations on the likely effectiveness of six different types of fair use reforms."

Read Cotter's full article here.

Anonymous Heinous Postings Directed at Two Female Yale Law School Students Lead to Revelation of Poster Identities : Free Speech Law in Need of Change

This posting follows on the heels of our previous posting about the closing of the Patry Copyright Blog.

One of our pet peeves on the Internet is anonymous posting. It is one of the main reasons that we do not allow comments to this blog - due to negative experience in doing so previously - because we do not have the time to filter out spam or comment garbage by anonymous posters.

Our experience is that anonymous posting is sadly often relied upon by a large number of cowardly people who would otherwise never post the same materials under their own identifiable name. Internet anonymity appears to give people a blank check to publish harmful materials of all kinds with impunity, especially comments about other people, but as we shall see in this case of two Yale Law students, anonymity is no guarantee against ultimate detection.

Our view is that an identifiable person's free speech should be protected (within the the normal Constitutional free speech limitations), but less so that of his or her alias. We see nothing in the US Constitution which protects free speech incognito or alter ego. The fact that (allegedly) Alexander Hamilton, James Madison, and John Jay wrote the Federalist Papers under the pseudonym Publius or that the Federalist Papers engendered anonymous comments from the Federal Farmer in rebuttal, does not mean that anonymity was thereby justified or sanctified as a core element of free speech in a democracy. Anonymous publishing yes, but vast free speech protection for that publishing, no.

Anonymous writing should of course be permitted in a free society, but the actual content which is expressed anonymously should be subject to greater judicial scrutiny and stricter legal standards because of its innate potential of inflicting harm, without the normal counterbalance of individual responsibility.

People post anonymously on the Internet because they think it gives them an advantage, otherwise they would post under their real names. By consequence, therefore, all those who are at the mercy of anonymous postings should not be left at a disadvantage in law or in fact, and must be granted countervailing power to protect THEIR rights as well.

To us, this means that anonymous postings which disparage another person or cultural group are to be treated as particularly heinous, because they are made in the expectation that legitimate rebuttal against an invisible opponent is much more difficult than an identified or identifiable foe. Indeed, the average citizen seldom has the means to track down invisible attackers who try to destroy another person's or group's reputation while at the same time not having to fear any negative consequences for themselves. This is the epitome of an unjust world.

Unfortunately, the US Supreme Court has thus far seen the anonymous free speech issue somewhat differently, focusing primarily on political speech, rather than on everyday speech, even though the latter is far more common and involves a different set of issues (see Anonymity at the EFF). As written in McIntyre v. Ohio Elections:

Protections for anonymous speech are vital to democratic discourse. Allowing dissenters to shield their identities frees them to express critical, minority views . . . Anonymity is a shield from the tyranny of the majority. . . . It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation . . . at the hand of an intolerant society.
Our first impression upon reading that opinion by Justice Stevens is intellectual astonishment, giving way to dismay. Is that why violent demonstrators mummify their heads entirely so as to avoid identification, as they engage in senseless destruction and violence? The Supreme Court in that quotation is long on theory and short on reality.

First of all, as to the need for anonymous political speech in the USA, if a man or a woman is unable in American society to express his or her political opinions openly, without the fear of tyranny of the majority, then there is in fact no free political speech in American society, and it is a fata morgana. Free speech means free speech WITHOUT anonymity, dear Justices.

Secondly, what the Supreme Court writes about political dissent has no application to the ruin of individual reputations on the Internet by anonymous posters. Indeed, the much acclaimed right of political dissent as a justification for anonymous free speech is not a specific mark of democracy by any means. It is, quite the contrary, the principle means available for dissent in TYRANNICAL countries, not in democracies. People resort to anonymity in political speech - in many countries outside the USA - as a NECESSITY, because they can not speak openly.

The US Constitution envisioned that a citizen SHOULD BE free to speak his mind and express himself openly about politics in the context of democratic society, without fear of retaliation, if that speech is lawful. The reality of life, however, is that - for most people - you better learn to keep your mouth shut if you want to get ahead in life and be an accepted member of society - or, the tyranny of the majority will indeed be brought to bear upon you, anonymity or no.

But "political speech" is an entirely different issue from "everyday speech".


Our view is that anonymous Internet postings involving everyday speech should be protected as free speech ONLY if there is a compelling and socially-supportable reason for anonymity in a particular case .

But such cases are in fact quite rare. Quite the contrary, the mass of anonymous posters uses anonymous aliases not to publish political dissent but rather as a coverup for their incognito and alter ego acts on the Internet. Indeed, they often publish that everyday speech in a manner that they would never dare to do under their own name. Here, in the case of everyday speech, the freedom of anonymity gives people the ability to act irresponsibly, without fear of detection and without being called to answer for their deeds. This is the opposite of democracy.

Everyday speech must thus be judged by different standards than political speech.

The running case of two libelled female Yale Law Students is a case in point, where heinous anonymous postings about them most certainly harmed them seriously during their period of law school education, and may also have harmed them in its aftermath. There is a curious posting at the Volokh Conspiracy about this case, which regrettably gets off on an obscure personal tangent, rather than concentrating on the important core issues.

As written cogently at Wired by Ryan Singel:

"Ann Bartow, an associate professor at the University of South Carolina School of Law ... believes the problem lies in technology outstripping the law and our cultural responses. George Washington University Law Professor Daniel Solove, who's been thinking about the issue long enough to have written a book called The Future of Reputation, agrees. He says the law needs to change.

"The internet isn't a radical-free zone where you can hurt people. But on the other hand, we can't have everyone rushing to the court, because the court is a blunt tool," Solove says. "We need something to help shape norms -- there needs to be some kind of push back against the notion that the internet is a place where you can say what you want and screw the consequences. That's not what free speech is about." [emphasis and links added by LawPundit]

Amen, Professor Solove, Amen.

Mobile Phone Functionality Added to LawPundit (in the USA only)

Using MoFuse (Mobile Fusion) we have "mobilized" LawPundit so that our postings can be received by mobile phones, also iPhone (thus far, however, only in the USA). Mobile phone users in America can now view the mobile phone version of LawPundit by entering their MOBILE phone number in the appropriate box in the left column of this blog and sending it off. Here is what the mobile phone version of Lawpundit can look like:

William Patry Copyright Blog Gone With the Wind

Here today, gone tomorrow.

William Patry is closing down his copyright blog, the Patry Copyright Blog, for reasons expressed in his posting End of the Blog, which we summarize and comment below:

1. False identification of the Patry Copyright Blog with Google, plus crazies among the commenters. Patry writes:

"[When] I moved from private practice to Google I put a disclaimer to the effect that the views in the blog (as in the past) were strictly mine....

When other blogs or news stories refer to the blog, the inevitable opening sentence now is: "William Patry, Google's Senior Copyright Counsel said," or "Google's top copyright lawyer said... ." There is nothing I can do to stop this false implication that I am speaking on Google's behalf. ...

On top of this there are the crazies, whom it is impossible to reason with, who do not have a life of their own and so insist on ruining the lives of others, and preferably as many as possible. I asked myself last week after having to deal with the craziest of the crazies yet, "why subject yourself to this?" I could come up with no reason why I should: My grandfather chose to be a psychiatrist, but I chose a different professional path, one that doesn't obligate me to put up with such nonsense.
"

2. The Depressing State of Copyright Law

Patry writes that he is a centrist but that the depressing development of copyright law makes him appear much too negative through his dissenting postings. Patry writes:

"[I]n my view, and that of my cherished brother Sir Hugh Laddie, we are well past the healthy dose stage and into the serious illness stage. Much like the U.S. economy, things are getting worse, not better. Copyright law has abandoned its reason for being: to encourage learning and the creation of new works. Instead, its principal functions now are to preserve existing failed business models, to suppress new business models and technologies, and to obtain, if possible, enormous windfall profits...."

Of course, we understand Patry's complaints completely.

One of the reasons that we do not permit comments to LawPundit is because (based on experience) we simply do not have the time or inclination to go through postings to remove spam and improper anonymous comments. Patry has allowed comments to his blog up to now. Rather than closing down the blog, perhaps it is time to remove the comment function or seek the services of a "comment filtering" program or service.

As far as Patry's affiliation with Google is concerned, it is a fact of life that our perceived identity in the public sphere, rightly or wrongly, is very much a function of our professional affiliation(s). Patry is not alone in this. A high academic or corporate legal position grants many benefits, but it also exerts its pound of flesh. You have to be able to take the good with the bad.

That not only copyright law, but also patent and trademark law, have gone far off the rightly charted course is one of the persistent recurring themes of LawPundit. The best (and probably only) way to move patent, trademark and copyright law in the right direction again is by strong, persistent, and vocal dissent.

This can be seen in the case of Europe, where the Proposed directive on the patentability of computer-implemented inventions was rejected in the year 2005 by the European Parliament, largely due to strong, persistent, vocal dissent:

"The proposal catalyzed a campaign by diverse opponents of software patents, who took the opportunity afforded by the introduction of the proposal to argue that software patents are neither economically desirable nor mandated by international law. The FFII and the EuroLinux Alliance played key roles in coordinating this lobbying campaign, which drew support from some free software and open source programmers, some academics, some small business groups, and some proprietary software developers. Many of these organisations expressed concern over what they saw as abuses of the software patent system in the USA, and argued that although some software patents might be beneficial, the net effect of the Commission's proposals would be to suppress innovation and dampen legitimate competition."

"So we beat on, boats against the current...."
- The Great Gatsby, F. Scott Fitzgerald

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