May 13, 2004
Made it through three great articles recently:
1. As noted before, I read Lemley and Reese’s UDRP for P2P infringement cases. It’s a worthwhile read no matter what you think should be done about P2P infringement. If you think that the lawsuits should continue, then it’s a more efficient and possibly more humane method. They suggest lower penalties in a less costly legal system for both copyright holder and P2P user. More lawsuits with lesser penalties would help counter the critique that the lawsuits are unfair, leveling enormous penalties on a few of many million infringers (see Lemley and Reese in other paper as well as Lichtman). The authors also explicitly discuss how this streamlined enforcement process would work for the EFF’s VCL. After all, you would still need some threat of enforcement against “stragglers.” It makes more sense to do so in a cheaper, streamlined fashion than through the costly civil infringement process with huge penalties.
2. Sonia Katyal’s The New Surveillance provides a fascinating framework to understand numerous privately-enforced ways of policing consumers. These ways include section 512 (including notice-and-takedown and the expedited subpoena provision), DRM and section 1201, “bots” that search for copyrighted materials, and interference (primarily interdiction). This policing matters in terms of the threat to privacy but also in how it ties into controlling and chilling legitimate use of copyrighted materials. It is particularly problematic because it is extrajudicial in nature; enabled by certain laws, but determined mostly by private actors, namely copyright holders. Katyal discusses the resulting panopticism and the effects on speech, privacy, and autonomy. I’m not quite sure yet if it makes sense to lump so many technologies and actions together, but it is a helpful lens.
3. Tim Wu’s Copyright’s Communications Policy provides another amazing framework, this time in the ways copyright resembles other communications policy, governing distributors of information. Like in telecom policy, copyright involves choosing a “stewardship” or “competetive and open” model for distributors; whether assigning a strong property right to incumbents or removing barriers to market entry for new innovators will lead to the best result. Wu takes on a trip through copyright’s history as well as telecom’s to show similarities. He also addresses the Sony doctrine in the P2P age as a communications issue. One really interesting, somewhat unusual point he makes is that, contra Litman, a less complicated copyright statute wouldn’t necessarily be better when looking at it from this communications policy viewpoint. A “future proof” copyright law that could work no matter what technology comes along would not necessarily have the vagueness and uncertainty that allows those new technologies to come along. Uncertainty in the law can be bad for copyright owners and technology creators, but it can also enable new entry because incumbents do not have by definition have control. While this uncertainty leads both sides to spend large sums trying to get government on its side, that process can lead to better, compromise solutions. Ambiguity is thus a feature, not a bug – sound familiar?