[DMCA-Activists] Eric Grimm re: Zittrain: Call Off the Copyright War

[Seth Johnson]

(Forwarded from CYBERIA list)

-------- Original Message --------
Date: Wed, 27 Nov 2002 22:03:01 -0500
From: "Eric C. Grimm" <address@hidden>
To: address@hidden

As much as I like Professor Zittrain, he has an unfortunate
tendency to try to come up with cute and over-simplified
"solutions" to really difficult issues.  This brings to mind
nothing so much as his kooky "check a list of boxes for the
countries where your Website subjects you to jurisdiction"
proposal to "solve" the problem of extraterritoriality and
the way it stifles innovation and commerce (not to mention
expression and speech) -- a seemingly clever idea, but not
thought-through quite as well as it might have been before
he announced his proposal with great fanfare at a CFP
conference.

One of his points in particular -- that nobody will create
in the absence of legal regimes establishing
government-granted perpetual (trademark) and
practically-perpetual (copyright) monopolies -- is, IMHO,
demonstrably false.  Looking at cultural output as a whole,
a strong case could be made in the opposite direction --
that it would be a positive boon to culture to get greed out
of the equation altogether.  The very best cultural
creations, the ones into which artists and authors and poets
and even sports fans have poured countless hours of personal
toil, blood, sweat and tears, are -- quite simply --
cultural artifiacts they HAD to create whether or not they
expected to make any money.  When Eric Clapton first
recorded "Layla," I think it is fair to speculate that the
farthest thing from his mind would have been that -- 30
years later -- this song and a couple other episodes of
bearing his soul in music would become his ticket to start
doing laid-back swanky corporate-sponsored tours to sell
Miller beer and Lexus automobiles to now-balding
former-hippies.

I'm inclined to believe that the "no creativity without
financial incentives" pitch by the MPAA and the RIAA is
profoundly overplayed, and has little or no empirical social
science data to back it up.  Anyone with good science to
back up these arguments, is certainly welcome to cite it
here!

A careful examination of whether the "IP" industry's
predictions about human behavior are true or not, it seems
to me, would be among the most worthwhile possible fields of
study at present.

In this regard, Zittrain has one insight that seems quite
valuable -- the one related to the observation that the
extension of copyright terms by tacking 20 years onto an
already-overlong term, cannot possibly confer any meaningful
"incentive" on persons who might potentially produce new
things today.  I just simply cannot imagine some
hypothetical artist taking the position that life-plus-70
makes the creative process attractive, but life-plus-fifty
is such a bad deal that he or she is just going to go ahead
and chuck a promising artistic career in the toilet and take
up something more pedestrian like law.  Nobody thinks that
way.  Nobody.  Perhaps JZ has put his finger on the *real*
unspoken agenda by pointing out that there may be something
else at work -- namely, shaping public perceptions and
reinforcing a legislative agenda by trying to ensure that an
entire generation or two can go through life without any
practical memory of any previously-copyrighted work  passing
into the public domain and becoming available without
payment of royalties.

There's a huge opportunity here to examine with great care
some of the largely unexamined assumptions underlying the
debate over "intellectual property."  And, I'm afraid that
Zittrain's piece -- instead of struggling with the difficult
questions -- just takes a whole host of untested assumptions
as true, and then suggests that those of us who have
legitimate questions about this way of thinking just need to
"compromise."  At the same time, his pitch to the "IP"
industry is pretty lame.  He doesn't argue they should
compromise because the other point of view is right (in many
ways it is), but because the pro-copyright position might
become more and more unpopular even if it is assumed to be
right.

There's a big difference between an argument more typical of
Lessig or Lemley or Moglen -- pointing out that the other
point of view is factually baseless, morally bankrupt, and
economically illogical, and following each such assertin
with a rigorous explanation about why, objectively, one
point of view is better than the other -- and Zittrain's
appeal only to political expediency and the desire to enjoy
the continued support of public opinion.

It is not, as Zittrain claims, that the "logic" of
copyrights "knows no limits."  Rather, the question that
needs to be asked is whether the surprisingly widespread
position that copyright should be unlimited is based on
"logic" at all.

And the time just all to get along and end the debate
certainly should not coincide with the month in which some
really thoughtful heavyweights like Richard Posner are
starting to focus their intellects on some of the heretofore
under-challenged assumptions of the
copyright/trademark/software patent/trade secrets debate.

With all respect to Professor Zittrain, I view his call for
everybody to find a middle ground based on logic and reason
quite welcome (although I'm not fond of his pitch that we
should find a common ground based on political expediency). 
But we have a long way to go from here, advancing the
project of applying reason and logic to these interesting
subjects, before we can come to a general consensus about
what makes sense and what does not, from the standpoint of
reason and justice, so far as "intellectual property" (a
misnomer, if there ever was one -- and a linguistic
construct of surprisingly recent origin and little practical
utility) is concerned.

ECG

-----Original Message-----
From: Law & Policy of Computer Communications
[mailto:address@hidden Behalf Of Seth Johnson
Sent: Wednesday, November 27, 2002 5:43 PM
To: address@hidden


(Link from Free Online Scholarship Blog)

>
http://www.boston.com/dailyglobe2/328/oped/Calling_off_the_copyright_war+.sh
tml

THINKING BIG

Calling off the copyright war

In battle of property vs. free speech, no one wins

By Jonathan Zittrain, 11/24/2002

**********************************************************************
For Listserv Instructions, see
http://www.lawlists.net/cyberia
Off-Topic threads:
http://www.lawlists.net/mailman/listinfo/cyberia-ot
Need more help? Send mail to:
address@hidden
**********************************************************************