August 22, 2004  ·  Tim Wu

Doug Lichtman is an information law scholar at University of Chicago and one of the best of our generation (I recommend in particular his information platforms piece). He and I agree on many things, but disagree on some too. And when you boil things down, the differences come down to something simple: our views on timing.

Doug believes that property rights are tantamount to government promises. If, say, government promises to grant patents that last 20 years, it needs to stand by those promises to maintain the credibility of the system, and the incentives to invest in it. So even if someone comes along who might make better use of the patented technology, that’s too bad. To use an old phrase, these are rights that are vested.

Myself, I am inclined toward anoter position: that the question of who “comes to the nuisance” shouldn’t always matter. Imagine someone wanted to open a restaurant next to your house, and that the restaurant is loud and odiferous. On the one hand, we might say that since the restaurant is ruining the value of your property, you ought be allowed to stop it or ask for damages. That seems to make some sense. But we can reverse the question and ask whether are letting you, the homeowner, ruin the business and social value of the restaurant, just because you got there “first.” For yes there is some value to honoring the promises inherent in property rights, but not a value that always transcends looking for the highest use of a given asset.

The translation of this position into copyright and telecom law is simple. In general, copyright owners were already “there,” and the electronics industry and the Internet came, and began ruining an otherwise peaceful existence. Tivo, for example, comes along and wrecks the value of DVDs sales, something the owners of copyright had counted on. Or, more obviously, uncontrolled P2P filesharing wrecks the value of existing copyrights.

In Doug’s view, the government, to preserve incentives, must stand up for the rights it promised, to whomever it promised first. In my view, that promise is always conditional — and if more valuable uses come later, they should sometimes win out (for Constitutional law buffs, think Charles River Bridge). It may be that values stressed in Doug’s position are more compelling for patents (which are after all, much shorter) and mine for copyright. But in general, how you feel about this question can help explain much of how you feel about law and technological change.

(Thanks also to Washington attorney Matthew Schurers, who also formulates the question this way).

  • http://www.lawhacker.com Andrew Greenberg

    The translation of this position into copyright and telecom law is simple. In general, copyright owners were already �there,� and the electronics industry and the Internet came, and began ruining an otherwise peaceful existence. Tivo, for example, comes along and wrecks the value of DVDs sales, something the owners of copyright had counted on. Or, more obviously, uncontrolled P2P filesharing wrecks the value of existing copyrights.

    You had me until this passage, which seems to indicate some reasonable expectation of the copyright owner with respect to evolving technologies. No, no, for gosh sakes no!

    The copyright owner is granted enumerated exclusive rights, subject to responsible expectations with respect to exploitation of a work — not the medium on which the work is copied or the manner by which it is distributed. No doubt, many content owners have and hold expectations in their capacity to control their works — but that had nothing to do with the promise.

    Indeed, the time-honored notions of fair use and exhaustion militate to the contrary. No right or interest in profiting from one mode of duplication or another of distribution exists — the right or interest is profiting from the facts of reproduction and distribution. Allowing copyright to bleed into technology regulation was one of the slipperiest slopes upon which we have trodden, threatening to invade deeply the most fundamental balancing of intellectual property interests.

    Ignoring the fact that virtually everyone is an author of a copyrighted work, that those rights are enforceable with no effort at all, and strongly enforceable with only slightly greater effort and nominal expense, to permit content owners to control technologies they didn’t invent threatens not only fundamentals of copyright policy, but invades likewise the rubric of the patent.

    Since a cabal of content owners is presumed to always own at least one copyrighted work — though past works may expire (if every they will again), to permit technology regulation through copyright is the equivalent of granting patent-like rights to unpatented (and possibly unpatentable) inventions for an indefinite term, and to a class of plaintiffs who did not even invent the invention!

    What is worse, this technology regulation “right” is the most peculiar possible property interest ever, an exclusive right jointly owned by almost everybody, but ENFORCEABLE by each — even when another joint owner has given its consent. MPAA cannot grant a license to circumvent, only its own community’s covenant not to sue — everybody else who owns a copyright may sue for anti-circumvention. Clearance of such rights are practically impossible, and the transaction costs barely measurable. Only lack of imagination (perhaps also decency) has prevented bizarre lawsuits by some sole luddite asserting circumvention of his movie in DVD format against manufacturers of DVD players “licensed” from a third-party consortium.

    What is more, granting even the possibility of technology regulation through copyright litigation creates all of the wrong incentives. A content-owner incidentally having vested interests in a distribution and reproduction infrastructure will always seek to protect that investment, rather than to seek ways to benefit society and profit from progress.

    As owernship of copyright aggregates, so will the owners of those works find themselves in a position to benefit from that to effectively control, at least influence, and profit from certain standards of distribution and reproduction. But those benefits from the copyright are incidental, and not part of the copyright itself.

    I believe that copyright owners are absolutely entitled to the protections of copyright law in their works, and against the misappropriation of those exclusive rights by others. But they are entitled to no more, and their reasonable hopes to continue profiting from incidental benefits of copyright ownership do not equate to reasonable expectations to continue to have those benefits.

    Put another way, and perhaps most clearly. The copyright act does not exist to serve the purpose of the RIAA. To the contrary, the RIAA exists because the copyright exists to serve the interests of authors and the consuming public. Likewise, the copyright act limitations do not exist to serve the purpose of the CEA. To the contrary, CEA gets its freedom of action because of copyright act policies solicitous of the interest of authors and consuming public.

    In “the great debate” on scope of secondary liability, RIAA and CEA serve as proxies for some of these interests (each ironically claiming to serve both interests, by the way). To the extent the proxy’s representation of the principal is apt, this works well. To the extent each proxy overreaches those interests to the detriment of that balance, it is time to ignore their respective plaint and focus on the real interests at issue.

    Sorry for drawling on … but you hit a nerve. Perhaps I’ll put these thoughts together more coherently on my blog.

  • http://www.cs.duke.edu/~justin/ Justin

    I think Andrew might have touched on this in his post, but hopefully this will be less verbose. :)

    There’s a difference between the 1) the rights of the owner of a work, 2) the value of that work, and 3) how that work is distributed. In the house/business case, there are 1) the rights of the owner of the property, 2) the value of the property itself, and 3) the use (or utility) of that property.

    P2P, TiVo, and the Internet are disrupting #3 for the entrenched content distributors; their business model of serving as the middleman and arbiter of talent is outdated. People are realizing that the price they have been paying for music and movies is not #2, but #2 /plus/ #3, and that #3 (inefficiencies introduced by middlemen) is what’s costing them.

    Now, the CTEA and DMCA have altered #1 in an attempt to preserve #3; the owners now have more control over the nature of distribution and, conversely, lack of distribution, for longer and longer periods of time.

    -jdm

  • http://www.aetherial.net Chris

    Tivo, for example, comes along and wrecks the value of DVDs sales, something the owners of copyright had counted on.

    From personal experience, I don’t know if this is actually true. Tivo has prompted me watch more television, which is not debatable. However, given the often-incomplete lineups of some series, Star Trek Voyager being one that skips a lot of issues, Tivo has enabled me to gain an interest in series I would have otherwise overlooked and this newfound interest often translates into a desire to see the complete series and has lead (more than once) to purchases of forty and sixty-dollar DVD box sets. Also, given the lack of interesting movies on extended basic cable, Tivo has not been successful at all in being a substitute to MPAA content, as I still watch the same amount of movies. If I had HBO, this may be different, but I think that the thing keeping me from purchasing DVDs is more HBO than Tivo.

    So, this is the long way of saying that in personal experience, Tivo is more of a compliment than a substitute to DVD sales. The real threat to this regime is not things like Tivo, but things like NetFlix. NetFlix has definitely lowered my movie (but not television) purchases. If anything, this presents a larger threat, but I don’t see Hollywood moving to shut them down any time soon, as I imagine that they would have to take on Blockbuster and Walmart in the process.

    Of course, this is a sample of size one, so I may be a fluke.

  • Doug Lichtman

    Tim -

    There is a lot of truth in your post. I wonder, though, if we are actually that far apart. After all, I too believe that *sometimes* the government should update its promises based on newly available possibilities, like P2P.

    The difference, I think, is that I am very suspicious of new technologies for which survival seems almost entirely predicated on breaking promises to others. That is, I am suspicious of P2P because it seems like it could not survive in a world where it would be required to take even modest precautions designed to protect existing copyright rights. That sets off alarm bells, in my view, and I think it should make us worry that P2P’s real charm is that it offers up music at zero cost, rather than the more up-beat stories about its many charms on the merits.

    So our differing views on timing might for both of us just be starting presumptions. (Many thanks, by the way, for the kind introduction.)

  • http://www.digital-copyright.ca/petition Chris Brand

    Of course, Doug’s point also works well against the CTEA – copyright holders were promised 50 years and then that term was retractively extended.

  • brian

    To Doug Lichtman‘s comment:

    Poppycock.

    In no way is the survival of P2P technologies dependent on breaking rules and stealing from others. The Sony standard of “substantial noninfringing use” simply acknowledges that to penalize the makers or users of a technology merely because it can be used unlawfully is to abrogate the presumption of innocence – a basic Constitutional right.

    One of the most comical aspects of this debate is that we are talking about laws governing bits, which have no conscience, no feelings, and can’t be punished. In the end, it may be unlawful, but P2P technology is never going to go away. It will always exist as long as there is an Internet, and there will always be an Internet as long as there are people who want information.

    The real debate needs to be about how copyrights can be enforced in the face of this incontrovertible fact, not about whether human law should try to change it. We earn only ridicule, and breed disrespect for law, when we attempt to govern the laws of the universe.

    Please pardon my tone; I am reacting only to one point in your comment.

  • Doug Lichtman

    Brian -

    You are right that it might be troubling to penalize private parties merely because their tools can be used to commit unlawful acts. Sometimes we should — for instance, maybe you would agree with a complete ban on radar detectors — but surely sometimes not.

    My concern with Sony is that it in no way encourages those private parties to even try a little when it comes to respecting the law. In essence, Sony is a blank check: do a couple good things, and you are completely relieved of any obligation to try to avoid doing bad things. That seems odd, and hardly efficient.

    On your second point, I do not want to go too far off on a tangent, but I think you give up on law too easily. There was an active literature ten years ago in the law journals asking whether the Internet was destined to be a law-free zone. The consensus turned out to be that it was not, and that there are many ways for law to influence code. (If you are interested, I think Jack Goldsmith is the person who wrote the best stuff on point — readable and thoughtful both.)

  • brian

    I’m still having a lot of trouble with the idea that any defense needs to exist for producing a product merely because it can be used unlawfully. I can’t imagine any product that would not then need such a defense. I reiterate: what has become of presumption of innocence?

    The use of a radar detector needs defending because its purpose is to avoid detection in the commission of an offence. It is, prima facie, evidence of intent to commit an offence, strongly rebutting the presumption of innocence. As such, laws against its use may be considered reasonable, and by extension, to its manufacture, provided that no lawful use could be made of it.

    But the Betamax had numerous beneficial uses – indeed, rather than destroying the movie market, it broadened it by an order of magnitude – and I find nothing at all inappropriate about the court’s forebearance from enjoining Sony to implement restrictive technologies which even today are costly, annoying to honest users, preventing many non-infringing uses, and largely ineffective against infringers with only a little motivation.

    On the topic of law over code, I do agree that law can influence code. But that’s not the word that I used. The interface is a human one, and depends on humans respecting the law. Because it’s not possible to have police watching to prevent all crimes, all law depends ultimately on an overwhelming majority of people accepting that it’s a good thing. It’s hard enough to stop spam, which everyone hates; no law will stop activity that everyone wants to do, especially when everyone considers the law wrong.

    Respect for law is eroding rapidly, and legislative responses in the direction of prior restraint only accelerate the decline.