Legal Theory Blog |
|
 All the theory that fits! Home This is Lawrence Solum's legal theory weblog. Legal Theory Blog comments and reports on recent scholarship in jurisprudence, law and philosophy, law and economic theory, and theoretical work in substantive areas, such as constitutional law, cyberlaw, procedure, criminal law, intellectual property, torts, contracts, etc. RSS Links for Legal Theory Blog --Lawrence B. Solum (My Homepage at the University of Illinois) --My College of Law Directory Page --My Philosophy Department Directory Page --Email me --Legal Theory Annex (All the theory that does not fit.) --Legal Theory Lexicon (Basic concepts in legal theory for first year law students.) --My Publications on SSRN Noteworthy Posts Hiring Trends at 18 "Top" American Law Schools 2005-06 Report on Law School Entry Level Hiring 2004-05 Report on Law School Entry Level Hiring 2003-04 Report on Entry Level Hiring Legal Theory Bookclub: Lessig's Free Culture Getting to Formalism Water Wells and MP3 Files: The Economics of Intellectual Property Do Humans Have Character Traits? Naturalistic Ethics The Case for Strong Stare Decisis, or Why Should Neoformalists Care About Precedent? Part I: The Three Step Argument Part II: Stare Decisis and the Ratchet Part III: Precedent and Principle Fear and Loathing in New Haven A Neoformalist Manifesto Understanding the Confirmation Wars: The Role of Political Ideology and Judicial Philosophy Breaking the Deadlock: Reflections on the Confirmation Wars Going Nuclear: The Constitutionality of Recess Appointments to Article III Courts Archives 09/01/2002 - 10/01/2002 01/01/2003 - 02/01/2003 02/01/2003 - 03/01/2003 03/01/2003 - 04/01/2003 04/01/2003 - 05/01/2003 05/01/2003 - 06/01/2003 06/01/2003 - 07/01/2003 07/01/2003 - 08/01/2003 08/01/2003 - 09/01/2003 09/01/2003 - 10/01/2003 10/01/2003 - 11/01/2003 11/01/2003 - 12/01/2003 12/01/2003 - 01/01/2004 01/01/2004 - 02/01/2004 02/01/2004 - 03/01/2004 03/01/2004 - 04/01/2004 04/01/2004 - 05/01/2004 05/01/2004 - 06/01/2004 06/01/2004 - 07/01/2004 07/01/2004 - 08/01/2004 08/01/2004 - 09/01/2004 09/01/2004 - 10/01/2004 10/01/2004 - 11/01/2004 11/01/2004 - 12/01/2004 12/01/2004 - 01/01/2005 01/01/2005 - 02/01/2005 02/01/2005 - 03/01/2005 03/01/2005 - 04/01/2005 04/01/2005 - 05/01/2005 05/01/2005 - 06/01/2005 06/01/2005 - 07/01/2005 07/01/2005 - 08/01/2005 08/01/2005 - 09/01/2005 09/01/2005 - 10/01/2005 10/01/2005 - 11/01/2005 11/01/2005 - 12/01/2005 12/01/2005 - 01/01/2006 01/01/2006 - 02/01/2006 02/01/2006 - 03/01/2006 03/01/2006 - 04/01/2006 04/01/2006 - 05/01/2006 05/01/2006 - 06/01/2006 06/01/2006 - 07/01/2006 07/01/2006 - 08/01/2006 03/01/2011 - 04/01/2011 Blogosphere New: --PrawfsBlog (Group BLog) --Balkinization (Jack Balkin) --Crescat Sententia (Group Blog) --Crooked Timber (Group Blog) --De Novo (Group Blog) --Desert Landscapes (Group Blog) --Discourse.Net (Michael Froomkin) --Displacement of Concepts (Group Blog) --Election Law (Rick Hasen) --Freedom to Tinker (Ed Felten) --The Garden of Forking Paths --How Appealing (Howard Bashman) --Instapundit (Glenn Reynolds) --Is That Legal? (Eric Muller) --Law & Society Weblog (Group Blog) --The Leiter Reports (Brian Leiter) --Lessig Blog (Lawrence Lessig) --Marstonalia (Brett Marston) --Paper Chase @ Jurist (Bernard Hibbitts) --Political Arguments (Group Blog) --ProfessorBainbridge.com (Stephen Bainbridge) --Pea Soup (Group Blog) --Punishment Theory (Group Blog) --The Right Coast (Group Blog) --SCOTUS Blog (Group Blog) --Sentencing Law and Policy (Douglas Berman --Statutory Construction Zone (Gary O'Connor) --TaxProf Blog (Paul Caron) --Volokh Conspiracy (Group Blog) Websites of Interest +Arts and Letters Daily +Conference Alerts +Daily Whirl +fa.philos-l +Economic Theory News +Encyclopedia of Law and Economics +Jurisprudence and Social Policy Program (U.C. Berkeley) eScholarship Repository +Law and Politics Book Reviews +Metapsychology Book Reviews +Notre Dame Philosophical Review +Online Papers in Philosophy +PoliticalTheory.info +SSRN Most Recent Uploads More Blogs of Interest --Althouse (Ann Althouse) --Asymmetrical Information (Jane Galt) --bIPlog (Group Blog) --The Blawg Review (Group Blog) --Brad DeLong --The Buck Stops Here (Stuart Buck) --Copyfight (Group Blog) --A Copyfighter's Musings (Derek Slater) --The Curmudgeonly Clerk --Daniel Drezner --Discriminations (John and Jessie Rosenberg) --Eastmania (Wayne Eastman) --EveTushnet.com (Eve Tushnet) --Freespace (Timothy Sandefur) --Furdlog Frank Field --Ideoblog (Larry Ribstein) --The Importance Of (Ernest Miller) --The Indiana Law Blog (Marcia J. Oddi) --Infothought (Seth Finkelstein) --IPKat (Jeremy Phillips and Ilanah Simon) --Law and Economics Blog (Greg Goelzhauser) --Law Dork (Chris Geidner) --Law Meme (Group Blog) --Lee Blog Edward Lee --Legal Ramblings (Steven Wu) --Lenz Blog (Karl-Friedrich Lenz) --Letters of Marque (Heidi Bond) --The Light of Reason (Arthur Silber) --Matthew Yglesias --philosophy.com (Gary Sauer-Thompson ) --Public Defender Dude --Rodger A. Payne's Blog --Southern Appeal (Group Blog) --Strange Doctrines/A> --Susan Crawford blog --A Taxing Blog (Group Blog) --That's News to Me (Group Blog) --Thoughts Arguments and Rants (Brian Weatherson) --Three Years of Hell to Become the Devil --The Trademark Blog (Martin Schwimmer) --Troppo Armadillo (Ken Parish) --Technology 360 --Tutissima Cassis (Nate Oman) --Unlearned Hand --Weatherall's Law (Kim Weatherall) --WENDY.SELTZER.ORG (Wendy Seltzer) --yin (Tung Yin) Legal Theory Programs & Websites --Arizona State Committee on Law and Philosophy --Cambridge Forum for Legal and Political Philosophy --Columbia Law School Center for Law and Philosophy --Columbia Legal Theory Workhsop --Georgetown University Law Center--Colloquium on Constitutional Law and Theory --Jurisprudence and Social Policy Program (U.C. Berkeley) --Kadish Center for Morality, Law, and Public Affairs (U.C. Berkeley) --NYU Colloquium in Legal, Political and Social Philosophy --Oxford Jurisprudence Discussion Group --Oxford Legal Philosophy --Oxford Centre for Ethics & Philosophy of Law --Queen's University Belfast Forlum for Law and Philosophy --Rutgers Institute for Law and Philosophy --UCLA Legal Theory Workshop --University of Pennsylvania Institute for Law and Philosophy --University College London: Colloquium in Legal and Social Philosophy --University of Chicago Law And Philosophy Workshops --University of Chicago: John M. Olin Program in Law and Economics Workshop --University of San Diego Institute for Law and Philosophy --University of Texas Law and Philosophy Program --Yale Law School: Legal Theory Workshop Links to Law School Workshops +Australian National University Faculty Events +Boston University +Buffalo +Columbia Center for Law and Economic Studies +Florida State +Fordham +George Mason +George Washington--IP Workshop Series +Georgetown Colloquium on Intellectual Property & Technology Law +Georgetown Law Workshops +Georgetown Law and Economics Workshop +Georgetown Law & Economics Workshop Series +Hofstra +University of Illinois +Lewis & Clark +Loyola Marymount +New York University +NYU Legal History Colloquium +Northwestern Law Colloquium +Oxford Law Events +Rutgers, Camden +Stanford Center for Internet & Society +Stanford Law School Olin Series +UCLA Colloquium +UCLA Legal History Workshop +UCLA Tax Policy --University of Chicago: John M. Olin Program in Law and Economics Workshop +University of Michigan Law and Economics +University of San Diego Colloquium Series +University of Texas Colloquium Series +Vanderbilt Scholarly Programs & Events Calendar +Villanova +Washington & Lee Faculty Workshops +Yale Law, Economics & Organizations Workshop Calendars & Events +Aristotelian Society +British Society for Ethical Theory +Conference Alerts +Events in Analytic Philosophy in Europe (and Overseas Countries) +The Philosophical Calendar +Philosophy Now Calendar +Political Science Online Upcoming Conferences +SSRN Professional Announcements Other Programs --Australian National University, Research School of Social Science, Philosophy Seminars --Boston University Philosophy Colloquia --Brown University Philosoophy Upcoming Events George Mason Workshop in Philosophy, Politics, and Economics --Harvard University, Philosophy Colloquia --MIT Philosophy Colloquia --New York University, Philosophy Events --Oxford: Events at the Faculty of Philosophy --Princeton University: Philosophy Department Talks --Princeton University: Political Philosophy Colloquium --Princeton University: Public Law Colloquium --Princeton University: Seminar in Law and Public Affairs --Tulane Philosophy and Center for Ethics & Public Affairs Seminars --University College, London: Political Theory Seminars --University of Arizona Philosophy Colloquia --University of Bristol Philosophy Research Seminars --University of California at Berkeley Philosophy Events --University of California at San Diego Philosophy Colloquia --University of Chicago Political Theory Workshop --University of London, School of Advanced Study, Philosophy Programme --University of Manchester Politics & Philosophy Research Seminars --University of Melbourne Philosophy Events --University of North Carolina: Philosophy Speakers --University of Pennsylvania: Philosophy Colloquiua --University of Pittsburgh Philosophy Calendar --Yale Philosophy Department Talks Some Legal Theorist Homepages --Robert Alexy (Christian Albrechts University Kiel) --Randy Barnett (BU) --Brian Bix (Minnesota) --Jules Coleman(Yale Law & Philosophy) --Ronald Dworkin(NYU & University College) --John Finnis(Oxford and Notre Dame) --John Gardner (Oxford) --Brian Leiter (Texas) --Micahel Moore (Illinois) --Dennis Patterson (Rutgers, Camden) --Stephen Perry (NYU) --Richard Posner (University of Chicago & USCA7) --Joseph Raz (Oxford and Columbia) --Jeremy Waldron (Columbia More to come! Journals Specializing in Legal Philosophy --American Journal of Jurisprudence --The Journal of Philosophy, Science, and Law --Law and Philosophy --Law and Social Inquiry --Legal Theory --Oxford Journal of Legal Studies Legal Theory Resources on the Web Entries from the Stanford Encyclopedia of Philosophy +Austin, John +justice, distributive +justice, as a virtue +legal philosophy, economic analysis of law +legal reasoning, interpretation and coherence +legal rights +liberalism +libertarianism +naturalism in legal philosophy +nature of law +nature of law, legal positivism +nature of law, pure theory of law +republicanism From the Oxford Handbook of Jurisprudence +Natural Law Theory: The Modern Tradition From the Oxford Handbook of Legal Studies +Law as an Autonomous Discipline From the Examined Life A Critical Introduction to Liberalism Papers & Articles +Virtue Jurisprudence Organizations +American Political Science Association(APSA) +American Society for Political and Legal Philosophy (ASPLP) +Association of American Law Schools(AALS) +Internationale Vereinigung fur Rechts und Sozialphilosophie(IVR) +Law and Society Association +Midwest Political Science Association (MPSA) My Postal Address Lawrence B. Solum University of Illinois College of Law 504 East Pennsylvania Ave Champaign, IL 61820 USA 
|
Wednesday, March 31, 2004
Felten on Mark and Trace Digital Rights Management Check out Ed Felten's post on a supposedly new Mark & Trace DRM scheme. Here is an excerpt:
Domain Name Expansion CNN reported that ICANN's latest round of domain name expansion is underway:
WTO Action Henry Farrell over at Crooked Timber recently reported:
Wednesday Calendar Just one talk today:
Legal Theory Bookclub: Free Culture by Lawrence Lessig Part One Two Three Four Five Six Seven Eight
This is the third of eight posts on Lessig's book--a sort of blogospheric book club. There is still plenty of time to catch up; Lessig's book is a great (and fast) read. You are invited to read along, and to send your comments on the book, my posts, or on the comments of other readers. Pirates Chapter Four is called “Pirates.” Lessig expresses the thesis of the chapter as follows:
These arguments have familiar echoes in the wars of our day. So, too, do the arguments on the other side. The innovators who developed the player piano argued that “it is perfectly demonstrable that the introduction of automatic music players has not deprived any composer of anything he had before their introduction.” Rather, the machines increased the sales of sheet music. In any case, the innovators argued, the job of Congress was “to consider first the interest of [the public], whom they represent, and whose servants they are.” “All talk about ‘theft,’” the general counsel of the American Graphophone Company wrote, “is the merest claptrap, for there exists no property in ideas musical, literary or artistic, except as defined by statute.”
Lessig continues his story about piracy, pointing out that in the early days of radio, royalties were not paid to the owners of copyrights in the sound recordings played over the air. Similarly, early cable television providers did not pay for the right to retransmit broadcase signals. Lessig wraps the argument together at the end of the Chapter:
Piracy Chapter Four was “Pirates,” and Chapter Five is “Piracy.” Lessig’s strategy in this chapter is to distinguish two forms of piracy, commercial and noncommercial. Commercial piracy, i.e,, the wholesale illegal duplication and sale of DVDs and CDs, is bad. Noncommercial piracy is a different story. Although Lessig consistently insists that commercial piracy is wrong, he can’t seem to resist dropping the arguments that undermine his own conclusion:
That excuse isn’t terribly strong. Technically, our law did not ban the taking of foreign works. It explicitly limited itself to American works. Thus the American publishers who published foreign works without the permission of foreign authors were not violating any rule. The copy shops in Asia, by contrast, are violating Asian law. Asian law does protect foreign copyrights, and the actions of the copy shops violate that law. So the wrong of piracy that they engage in is not just a moral wrong, but a legal wrong, and not just an internationally legal wrong, but a locally legal wrong as well. Lessig knocks down a few more arguments made to justify commercial piracy and then turns to P2P:
The result was spontaneous combustion. Launched in July 1999, Napster amassed over 10 million users within nine months. After eighteen months, there were close to 80 million registered users of the system. Courts quickly shut Napster down, but other services emerged to take its place. (Kazaa is currently the most popular p2p service. It boasts over 100 million members.) These services’ systems are different architecturally, though not very different in function: Each enables users to make content available to any number of other users.With a p2p system, you can share your favorite songs with your best friend— or your 20,000 best friends.
Type B There are some who use sharing networks to sample music before purchasing it. Type C There are many who use sharing networks to get access to copyrighted content that is no longer sold or that they would not have purchased because the transaction costs off the Net are too high. Type D Finally, there are many who use sharing networks to get access to content that is not copyrighted or that the copyright owner wants to give away. Both Type A and Type C(ii) are defined counterfactually. Type A consists of those who would purchase off the internet, if they could not get the content for free over P2P. Type B consists of those would purchase off the internet, if the off-internet transaction costs were the same as the on-internet transaction costs. But this leaves another logical possibility, Type E (added to Lessig’s A through D) consists of those who would not purchase off or on the Internet even with zero transaction costs, so long as the price includes the royalty charged by the copyright owner. Roughly speaking, Type E consists of those who will not even pay $1 to download from iTunes(or perhaps 50¢, if half of the iTune price is transaction costs). Let’s go back to Lessig’s argument:
Now things get really interesting. What should is the optimal policy for P2P users of Type A, Type C(ii), and Type E: So far, so good, but Lessig’s version of the argument is incomplete. I’ve been going along with Lessig and treating Types A, C(ii), E are distinct categories, but this is misleading. A more illuminating story would make it clear that we all are willing to pay different amounts for different content. If I am Type A with respect to a given song (or collection of songs), this means that the price I am willing to pay for the content exceeds the market price of the CD. If I am Type C(ii), then the price I am willing to pay is below the market price of the CD but above the zero transaction cost price. If I am Type E, then the price I am willing to pay is below the zero transaction cost royalty. We might add Type F, those who would only accept the file if they were paid to do so. Any given song (or content file, more generally) will likely have consumers of Type A, C(ii), E, and F. Price and Enforcement Discrimination The fact that different consumers are willing to pay different prices for any given good does not create a problem for the allocation of tangible resources. The market establishes a price for the tangible resource, and those who derive the greatest utility from the resource purchase it. (I am setting the problem of wealth effects to the side.) But with information (the pattern of bits that make up the MP3 file), there is no need to get the file to the consumers who will derive the greatest benefit. That’s because consumption of information is nonrivalrous. Everyone can have a copy. So, in the best of all possible worlds, everyone who derives any positive utility form the content would have a copy. But we do not live in the best of all possible worlds. Our world has the defect that price and enforcement discrimination on the basis of demand curves is not feasible. Boy, that was a mouthful, what do you mean? In an ideal world, copyright owners would sell copies to each potential buyer at a price the buyer was wiling to pay. If I am willing to pay $50 for a copy of the Furtwangler recording of Bruckner’s Seventh Symphony, I would be charged $50 or less. But if you were only willing to pay $1 for the same recording, your price would be $1 or less. That is, the owner of the copyright in the recording would be able to engage in price discrimination on the basis of our demand curves—our willingness to purchase a different prices. In the actual world, however, this kind of price discrimination is difficult or impossible for two reasons. First, the owner of the copyright doesn’t know how much you or I are willing to pay; so the owner doesn’t know to charge you a lower price than she charges mes. Second, even if the owner somehow did know how much we were willing to pay, it would be difficult for her to prevent you from selling your copy to me at a price that was higher than you were charged but lower than the price that I would be charged. The same point could be made about enforcement. In a better world, we could enforce the copyright laws against Type A P2P users, but not against Type C(ii) or E users. But the legal system, like the copyright owner, lacks the information as to which users are which. And even if the legal system had this information, it would be difficult to prevent Type E users from selling their free copies to Type A users. So the impossibility of price and enforcement discrimination means that we must choose between giving the copyright owner the entitlement (the right to prevent copying) against Types A, C(ii), and E P2P users or giving all P2P users the entitlement to copy. Another Wrinkle: What if there were no free P2P? There is one more wrinkle that we need to add to Lessig’s story. If P2P filesharing were effectively eliminated by some legal regime, then the economics of for-pay downloading services would change. Demand would increase, economies of scale would kick in, and hence we would expect the price per download to fall. In other words, some users who are Type C(ii) or E given the availability of free P2P filesharing would become Type A if lower cost for-pay downloading were available. This is not a criticism of Lessig’s argument, but simply a supplement to it. Balancing Now that we’ve filled in the gaps, we can see that Lessig’s version of the argument, although highly compressed, was essentially correct. Free P2P filesharing has both costs and benefits. When we ask ourselves how entitlements should be allocated, we need to look at both sides of ledger:
Songs that were heavily downloaded showed no measurable drop in sales, the researchers found after tracking sales of 680 albums over the course of 17 weeks in the second half of 2002. Matching that data with activity on the OpenNap file-sharing network, they concluded that file sharing actually increases CD sales for hot albums that sell more than 600,000 copies. For every 150 downloads of a song from those albums, sales increase by a copy, the researchers found.
Would Out-of-Print Have Become Available Without P2P? Lessig identifies other benefits of P2P. Type C(i) involves P2P filesharing of music that is no longer for sale. Lessig argues that all of category C(i) should be counted as a benefit of P2P. I don’t think Lessig is right about this. Why not? Because in the absence of free P2P filesharing, it is highly likely that for-pay downloading services for out-of-print records and CD’s would have emerged. These services could not get off the ground given that they had to compete with free P2P. (Free is better than cheap.) But cheap for-pay downloads would likely have competed quite effectively with relatively expensive (and increasingly scarce) used copies of out-of-print records and CDs. Lessig reinforces his argument that Type C(i) filesharing is a benefit of P2P by asking this rhetorical question:
Lessig then turned to Type D filesharing. Type D works are either in the public domain or the owner of the copyright has consented to free copying. In either case, the elimination of Type D copying should count as a cost of the legal prohibition of P2P filesharing. Why Not Legalization? When I arrive at this point in Lessig’s argument, I was thinking to myself that Lessig has made an effective case for legalization. Even with all my quibbles and qualifications, it seemed to me that two of Lessig’s arguments (if correct on the facts) were compelling. If P2P actually increases demand for CDs, then there is no reason to restrict P2P—unless it could be shown that the optimal level of investment in music production requires an even greater monopoly rent from music and sound recording copyrights than was afforded by the pre-P2P regimes. (And that seems doubtful.) And independently, if Lessig is correct, that the net welfare gains from free P2P to Type A, C(ii), and E users far exceeds the costs to copyright owners, then it seems highly likely that we should siimply legalize P2P. If both arguments are correct, then the case for legalization is overwhelming. But this does not seem to be the direction in which Lessig is heading. After making a compelling case for legalization, Lessig seems to be preparing the way for some sort of compromise solution. He ends the Chapter by noting that we have a “tradition” of compromise between the interests of copyright owners and consumers. When the courts ruled that cable television operators had no obligation to pay for free broadcast signals, Congress created a mandatory license scheme. When courts ruled that the music recording industry had no obligation to pay sheet music copyright owners a royalty, Congress created a mandatory licensing scheme. I am puzzled. Why does Lessig seem to back off from the radical implications of his arguments? I will need to read on to answer this question. Comments
I'd better get a license up! For now, I give permission for use of all posts on Lessig's book in any form so long as the original source of the posts is clearly identified.
The Schedule Tuesday, March 30, 2004
Legal Theory Bookclub: Free Culture by Lawrence Lessig Part One Two Three Four Five Six Seven Eight
This is the second of eight posts on Lessig's book--a sort of blogospheric book club. There is still plenty of time to catch up; Lessig's book is a great (and fast) read. You are invited to read along, and to send your comments on the book, my posts, or on the comments of other readers. "Mere Copyists" Chapter Three of Free Culture is called "Mere Copyists," and it begins with a doozy of a story--George Eastman's development of the roll-film camera. Lessig's important point is about the legal environment that was essential for photography to flourish:
The Chapter meanders through a story about a school in San Francisco, but then it turns sharply, to the contrast between the way that 9/11 was covered by television as opposed to the Internet. Here is the key passage:
Catalogs The next chapter is called "Catalogs" and it begins with the compelling story of Jesse Jordan, a student at Rensselaer Polytechnic Institute, who developed a very effective search engine for the files on RPI's network. That search engine listed all the files on the searchable portions of the network--including, of course, mp3 (and other music) files--hundreds of thousands of them. Of course, the catalog of files also included lots of other stuff--about 75% other stuff, but nonetheless the RIAA was not amused and Jesse Jordan received a demand letter and the RIAA wanted all of his savings in exchange for dropping the suit against him. A great story! This is an example of the filesharing phenomenon where all of the equities and most of our moral intuitions are on the side of the defendant! Where will Lessig go with this? Chapter three was short and sweet. It certainly got my intuitions pumping wildly in favor of P2P users and against the RIAA. Comments from Hither and Yon
The Schedule Tuesday Calendar
At Columbia's IP series, David O. Carson, Esq., General Copyright Office, presents The Anti-Circumvention Provisions in 17 U.S.C. §1201: What is the appropriate balance between technological protection, and copyright exceptions and limitations? Monday, March 29, 2004
Joel Feinberg Christopher Maloney writes:
Weekend Wrap Up On Saturday, the Download of the Week was What's So Bad About Legal Paternalism? (Or What's So Good About Autonomy?) by William Talbott. The Legal Theory Bookworm recommended Free Culture by Lawrence Lessig--and today an eight part session of the Legal Theory Bookclub on Lessig's book begins. Also on Saturday, the regular feature on the top downloads on SSRN. Sunday, the Legal Theory Calendar previewed this week's workshops, talks, and conferences, and the Legal Theory Lexicon entry was on Public and Private Goods. Allen Buchanan's Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law Is Out I recommended this important book by Buchanan months ago. There is a long story about a badly formatted edition being recalled by the publisher, but the real thing is out now. My thanks to Jacob Levy for the news! Legal Theory Bookclub: Free Culture by Lawrence Lessig Part One Two Three Four Five Six Seven Eight
This is the first of eight posts on Lessig's book--a sort of blogospheric book club. You are invited to read along, and to send your comments on the book, my posts, or on the comments of other readers. What Is Free Culture About? So what is Free Culture about? As I begin to read the book, I've got quite a few preconceptions. Lessig's work in the Eldred case, challening the Copyright Term Extension Act which retroactively extended most copyright terms for 20 years, was all about the effect of copyright extensions on the "public domain," works that are outside the protection of copyright. So I'm expecting a book about the value of the public domain. In the Preface, Lessig gives a hint about what is to come:
Instead, the free culture that I defend in this book is a balance between anarchy and control. A free culture, like a free market, is filled with property. It is filled with rules of property and contract that get enforced by the state. But just as a free market is perverted if its property becomes feudal, so too can a free culture be queered by extremism in the property rights that define it. That is what I fear about our culture today. It is against that extremism that this book is written. The Introduction: "Cujus est solum ejus est usque ad coelum et ad inferos” A maxim of the common law went:
“Common sense revolts at the idea.” Chapter One tells another story--that of Edwin Howard Armstrong--who invented FM radio. Lessig tells us about Armstrong's battle with RCA, which attempted to surpress Armstrong's superior technology in order to protect its market position in AM radio. Another good story, and again Lessig is making vivid a general point about law and technology. Stakeholders in the status quo will use the law--both fairly and unfairly--to protect their interests, even at the expense of progress that is manifestly in the public interest. Lessig ties some of these ideas together towards the end of the introduction:
Creators Chapter One of "Free Culture" is titled "Creators." This chapter tells two, very compelling, stories about the value created by copying. The first story, familiar from Lessig's prior work, is about Walt Disney. Lessig argues that the early history of Disney's creative output was based on derivative works. Early Disney cartoons borrowed form, parodied, and mimiced a variety of works. Some were in the public domain (Snow White, others were relatively new works, still in copyright--(Steamboat Willie ripped Steamboat Bill, Jr., a Buster Keaton film). The second story is about doujinshi--a form of Japanese comic book in which a source comic is reworked and tranformed. Japanese copyright law is not so different than the copyright laws of the United States. So, quite naturally, Lessig asks, why don't the owners of the originals sue?
Copynorms are the sea we swim in when we think about copyright law. We don't see them, except when they begin to break down or change. Doujinshi are "ok;" they are within the accepted bounds of behavior. P2P filesharing is a bit different though. P2P did not creep up on us, alterning norms as it went. P2P exploded; it was a "big bang" transformation of copybehavior. In one segment of the culture, college dorms and teenage bedrooms, the copynorms went one way. "This is just sharing. It's like sharing compiliation cassette tapes." In the IP industry, the copynorms went another way. "This is just theft. It's like running an pirate CD pressing plant." Let's return to Lessig's theme:
The hard question is therefore not whether a culture is free. All cultures are free to some degree. The hard question instead is “How free is this culture?” How much, and how broadly, is the culture free for others to take and build upon? Is that freedom limited to party members? To members of the royal family? To the top ten corporations on the New York Stock Exchange? Or is that freedom spread broadly? To artists generally, whether affiliated with the Met or not? To musicians generally, whether white or not? To filmmakers generally, whether affiliated with a studio or not? Tomorrow I will continue tomorrow with Chapters Two and Three. The full schedule of posts is set out below. The Schedule Monday Calendar
At New York University, Eleanor Fox presents Taming Unruly Horses: The Laboratory of Global Antitrust. Here is a taste:
The antitrust community is relatively far advanced in grappling with the problems of coherence and sovereignty; yet numerous questions remain. This essay explores four specific antitrust problems of globalization. The first two are case-specific problems of external effects of national decision-making: the Empagran case, now pending before the U.S. Supreme Court, and the Microsoft case, decided by the European Commission on March 24, 2004. The third is less a problem than a description: how the world community is handling the proliferation of pre-merger filing laws; convergence has been championed by the business community and a process is under way. The fourth and final episode describes the plight of developing countries vis-à-vis an emerging world system, and identifies this problem as least amenable to a common understanding, least understood, and least under control. The paper draws some conclusions regarding methodologies likely to succeed, circumstances congenial to success, and indeed what is success. Posner & Yoo on International Adjudication Eric A. Posner and John C. Yoo (University of Chicago Law School and University of California at Berkeley School of Law) have posted A Theory of International Adjudication on SSRN. Here is the abstract:
Hoofnagle on FTC Privacy Efforts Chris Jay Hoofnagle (Electronic Privacy Information Center) has posted Privacy Practices Below the Lowest Common Denominator: The Federal Trade Commission's Initial Application of Unfair and Deceptive Trade Practices Authority to Protect Consumer Privacy (1997-2000) on SSRN. Here is the abstract:
Vranas on Doris Peter Vranas (Iowa State, Philosophy) has posted a review of John Doris's Lack of Character. Here is a taste:
Sunday, March 28, 2004
Legal Theory Calendar
At New York University, Eleanor Fox is presenting.
At Columbia's IP series, David O. Carson, Esq., General Copyright Office, presents The Anti-Circumvention Provisions in 17 U.S.C. §1201: What is the appropriate balance between technological protection, and copyright exceptions and limitations?
At the University of Texas, Brian Leiter's outstanding law and philosophy program is hosting John Gardner, the Professor of Jurisprudence at Oxford University. Gardner will deliver the Leon Green '15 Lecture in Jurisprudence and participate in the Berman/Sager Colloqium in Constitutional and Legal Theory. Today Gardner presents Backwards and Forwards with Tort Law. At UCLA's tax policy series, Steve Sheffrin, UC Davis Economics Department, presents Understanding Public Attitudes Toward Taxation: 1. Are Surveys of Taxpayers' Honesty Honest? 2. Can Brute Deterrence Backfire--Perceptions and Attitudes in Taxpayer Compliance. and 3. Perceptions of fairness in the crucible of tax policy. At Michigan's Olin series, Dean Lueck, Arizona, presents Property Law. At George Mason, Giuseppe Dari Mattiaci, Nancy 2 University and GMU School of Law, presents Voluntary Slavery. At Boston University, John Coffee is presenting.
At the University of San Diego, the Institute for Law and Philosophy is hosting a Roundtable on What Is Legal Interpretation. The participants include Dean Stanley Fish ? University of Illinois at Chicago, Dagfinn F?llesdal ? Stanford University, Department of Philosophy, Elizabeth Garrett, University of Southern California Law School, Jeffrey Goldsworthy, Monash University School of Law, Australia, Kent Greenawalt, Columbia University School of Law, Mark Greenberg, Princeton University Department of Philosophy, Provost Steven Knapp, The Johns Hopkins University, John Manning, Columbia University, School of Law, Matthew McCubbins, University of California, San Diego, Political Science Department, Walter Benn Michaels, University of Illinois, Chicago, Department of English, Michael Moore, University of Illinois College of Law, Dennis Patterson, Rutgers school of Law, Camden, Frederick Schauer, Harvard University, JFK School of Government, Scott Shapiro, Yale Law School, Walter Sinnott-Armstrong, Dartmouth College, Department of Philosophy, Adrian Vermuele, University of Chicago School of Law, Jeremy Waldron. Columbia University School of Law, Barry Weingast, Stanford University, Department of Political Science, and Keith Whittington, Princeton University, Department of Politics. Larry Alexander has outdone himself! John Gardner's visit to the University of Texas continues with the Leon Green '15 Lecture in Jurisprudence. Legal Theory Lexicon: Public and Private Goods
It may be helpful to quickly preview the basic idea. So here goes: A Note on Terminology: "Public Goods" versus "Public Interest" versus "Public Resources." Before we go any further, let's make sure we agree about how we are using the phrase "public good." This is important because the same phrase is used for different purposes in different contexts. So let's stipulate to the following: The Criteria for Public Goods There are two criteria by which public goods and distinguished from private goods. A good is public only if it is both nonrivalrous and nonexcludable. A good is private only if it is both rivalrous and excludable. (We will deal with the mixed cases in just a bit.) "Rivalrousness" is a property of the consumption of a good. Consumption of a good is rivalrous if consumption by one individual X diminished the opportunity of other individuals, Y, Z, etc., to consume the good. Some goods are rivalrous because they are "used up." If I drink a glass of Heitz Martha's Vineyard, then you cannot drink that same glass of wine. If set off a firecracker, you cannot set off the same firecracker. Other goods are rivalrous because of crowding effects. If I am using the free internet terminal at the student lounge, then you cannot use the same time slice of the terminal--because only one person can sit in front of the screen at the same time. "Excludability" is also a property of consumption of a good. It is helpful to distinguish two forms of excludability: (1) excludability through self help, and (2) excludability through law. If I want to exclude you from my land, I can build a fence--the exclusion results from self help. But if I want to exclude you from copying a novel that I've written and I want to make the novel generally available for sale, self help will not work. (It would be ridiculously expensive to hire a guard to monitor each copy or every photocopy machine.) Government, however, can make unauthorized copying a criminal offense or actionable civil wrong, thereby creating exclusion through law. Markets and Government The conventional view is that markets should provide private goods and government should provide public goods. The case for market provision of private goods relies on the idea of Pareto efficiency. The weak Pareto Principle is the simple idea that if some action would make at least one person better off and no one worse off, then that action is good. If we have a private good, e.g. a widget, and a willing buyer and seller, then allowing the sale is Pareto efficient: the buyer prefers the widget to the money and the seller prefers the money to the widget. If we assume that the transaction has no external costs (harms to third parties), then allowing the transaction makes buyer and seller better off and hence is required by the weak Pareto principle. But when we come to public goods, markets simply don't work. Why not? Most simply, because if a good is nonexcludable, then no one will pay for it. Suppose someone goes into the business of cleaning the air with a pollution removal machine. I won't voluntarily pay for this service, because I will be able to breathe the air even if I don't pay. If a private firm offered to defend me against foreign invaders, I won't voluntarily sign on. My individual payment would have a negligible effect on the size of the armed force. If others pay, I don't need to. If others don't pay, then my payment won't do any good. Of course, you will recognize that I am describing the free rider problem, a form of the Prisoner's Dilemma. Because markets cannot provide public goods, governments should. As you might expect, the argument for government provision of public goods and market provision of private goods is controversial. Socialists argue that governments may do a better job of providing private goods, because government planning can create welfare benefits that cannot be realized by markets. Libertarian legal theorists argue that markets can provide most if not all private goods for various reasons, including arguments that nonexcludability can often be overcome by ingenious market solutions. I won't get into either the socialist or the libertarian critique of the argument for market provision of private goods and government provision of public goods, but you should know that these criticisms have been extensively developed. The Expanded Typology: Public, Private, Toll, and Common Pool Goods So far, we have been assuming that excludability and rivalrousness go together and hence that there are only two categories, public goods and private goods. In fact, it is possible to have a good that is rivalrous but nonexcludable or one that is nonrivalrous but excludable. So there are four categories, not two: Table One: Public, Private, Common Pool, Toll, and Club Goods. __________________________Excludable___________Nonexcludable___ _______________________________________________________________ ____________________|____________________|____________________| ____________________|____________________|____________________| ____________________|____________________|____________________| ____________________|_____Pure___________|_____Common_________| __________Rivalrous_|_____Private________|_____Pool___________| ____________________|_____Good___________|_____Good___________| ____________________|____________________|____________________| ____________________|____________________|____________________| _______________________________________________________________ ____________________|____________________|____________________| ____________________|____________________|____________________| ____________________|_____Club Good______|____________________| ____________________|____________________|_____Pure___________| _______Nonrivalrous_|____________________|_____Public_________| ____________________|_____Toll Good______|_____Good___________| ____________________|____________________|____________________| ____________________|____________________|____________________| _______________________________________________________________ We've covered the first two categories, but we need to consider categories three and four. So let's do that now. Toll Goods and Intellectual Property A toll good is characterized by nonrivalrous consumption but excludability. Suppose we have a highway in a rural area, where the capacity of the highway would never be approached even if access were free. Nonetheless, use of the highway can be limited by the installation of toll booths. This means that we can charge for access to the highway. Economists call goods that are nonrivalrous but excludable "toll goods." One of the most important applications of the concept of a toll good in legal theory arises in the context of intellectual property. A simplified version of the conventional story goes something like this. Without intellectual property rights created by law, the information (e.g. the invention or composition) would be a pure public good. In a world without intellectual property, for example, the first copy of a new book could be copied by the first purchasers. This copy could then be copied by others. Eventually, the "free" copies would dominate the market. And this would destroy the incentives of authors to write! (More on the question whether this is right towards the end of this post.) Intellectual property law comes to the rescue. By enforcing patents and copyrights through legal sanctions, intellectual property law transforms information from a public good to a toll good. Intellectual property law creates excludability, but not rivalrousness. For more on this, see Water Wells and MP3 Files: The Economics of Intellectual Property. Common Pool Goods and the "Tragedy of the Commons" Common pool goods are rivalrous but non excludable. An example might be the fish resource in those portions of the ocean that are outside national waters (the high seas). This resource is rivalrous, because over fishing can result in a reduction of the stock of fish. But excludability is difficult to establish. Self-help would work for a localized fishing area where the fish population does not range over a large area; in theory a patrol boat could establish a virtual fence. But this solution won't work if the fish population ranges over a wide area of the high seas. Unless some international treaty regime can establish enforceable quotas, the result may be a "tragedy of the commons." Each fisher has an incentive to take the most she can, but the result of all fishers doing this is a depletion in the stock of fish that harms everyone. (Once again, we have a version of the Prisoner's Dilemma.) Club Goods We are almost done, but we have one or two more ideas to pick up. One is the idea of a "club good." A club good is a good where the utility of each individual's consumption of the good is a function of the number of others who consume the good. Take a golf course. If too many people try to use the course simultaneously, then the utility that each derives from the experience goes down. Golfers have to wait for tee times, the course is crowded, and so forth. In other words, there are "crowding" problems. One solution to such problems is to form a "club," which limits the number of persons with the right to use the golf course. Private Goods and the "Tragedy of the Anticommons" And finally, we should note the flip side of the tragedy of the commons, dubbed by Frank Michelman, "the tragedy of the anticommons." This refers to the phenomenon where ownership in a resource has been divided among so many owners that transaction costs and holdout problems prevent Pareto efficient transactions from occurring. For example, when property was "privatized" in the former Soviet Union, a single apartment building might end up with many, many fractional owners, including ownership interests by various government entities and the residents of the building. In theory, every owner must agree before a transaction involving the building could take place. Given the large number of owners, the costs of completing the transaction and paying off the holdouts (those who withhold consent in order to increase their share of the profits) can make the transaction economically unattractive. This is a case where the market is incapable of efficiently allocating a pure private good. Conclusions The public/private goods distinction is basic to a variety of topics in legal theory. Whenever you encounter a resource allocation problem, ask yourself, "Is this resource a public, private, toll, or common pool good?" And then ask, "Could a change in the legal rules governing this resource change its status?" Although the terminology may be daunting at first, they are really very simple and straightforward. Saturday, March 27, 2004
APA Pacific Division: Saturday Afternoon Here are some of the programs of particular interest to legal theorists:
Mini-Conference on Global Justice A mini-conference on global justice is being held in conjunction with the APA Pacific Division. The program can be found here. Speakers include Charles Beitz, Michael Blake, Ryoa Chung, Daniel Wikler, Soran Reader, Larry May, Elizabeth Ashford, and many others. APA Pacific Division: Saturday Morning Here are some of the programs of particular interest to legal theorists:
|