DISQUS

"[N]o idea"?! "[N]ext week"?! Color me skeptical. But, anyhow, it's a pretty long flight from D.C. to Sili Valley. Just make sure that you top off your batteries before boarding.

Knock 'em dead, Adam!

Jim,

I guess I wouldn't object too much to that narrow formulation of the sorts of rights authors enjoy. Indeed, it pretty closely resembles so-called (but misleadingly so) "common law copyright." I'm still a little wary of applying "property," here, though, as that term comes freighted with implications that you would have to explain away. Better, I think, to use sui generis term ("author's rights," as some commentators called the common law version, for instance).

Enigma: I think you've pegged the current situation, but I'd add that I could imagine authors using automated rights management more frequently--or trying to--if they didn't have copyright to fall back on. That by no means requires the DMCA, though. Don't get me started on that piece of . . . legislation.

Noah: I hesitate to predict what entrepreneurs would come up with in the absence of copyright. I'll note, though, that back in the day when English authors enjoyed no U.S. copyrights, they would make money by selling serialized versions of their novels to U.S. magazines, and by giving readings. Dickens fairly well killed himself touring the U.S., so greedy was he for the generous revenues he thereby earned. Also, as I noted to Enigma, ARM could prove useful.

Thanks, guys (or "guy and gal," for all I know!). I'm not sure I'll get to all the points you suggest, and I'm sure I won't hit them as hard as you might like, but I do appreciate your thoughts. I've already added a couple of things to the book I hadn't originally planned on thanks to readers' comments (including, Steve R., one of your comments, in particular).

Peter: Please note that I used a conjunction between those two phrases. To make the sentence as a whole true, therefore, both of those subsets would have to be true. You appear to have read my "and" as an "or".

Enigman,

Hmm. Well, you revisionists always manage to cook up supposed causation chains that make the 2015 ConCon look inevitable in retrospect. And, of course, everybody knew something up once Pres. Barnett vetoed his 189th bill. All I'm saying is that nobody was talking about such things back in, oh, 2007.

Adam,

Chapter 9 will probably discuss why gifts and non-monetary incentives will, with population growth and holding all else equal, increasingly suffice to stimulate authorship. But I doubt I'll offer a great many details, largely because anybody interested in copyright policy already knows about gifts, tips, commissioned works, the allure of social status, and so forth. Who am I to try to predict the details of what entrepreneurs will come up with, anyhow?

Tim: I agree that I could do more to drive home the most unique aspect of my "third handed" approach: We should favor common law protections of expressive works over statutory ones. That's been a major theme in my writings, and something that I plan to discuss in at least a couple of chapters in this book. Thanks for reminding me to put it in the introduction, too.

Twinkerzzz: I don't mean to give the impression that those who create expressive works ought to be left entirely without recourse to the law. In fact, I favor protecting expressive works; I simply favor using common law protections more than statutory ones. Even within the scope of copyright law, I am not a big fan of fair use. You'll see that in chapter 4 of the book, "Fair Use v. Fared Use."

Steve R.: Thanks. I'll try to post that graphic next. I suffered a HD crash recently, though, which has slowed me down a bit.

Charles: I support Creative Commons, both morally and financially. But it aims for the most part at using copyright law in certain ways. Only as something of an aside does it mention the option of putting a work in the public domain, and it does not make it especially easy to so mark a work. I wouldn't want to require (¢) marking, but I do think we should adopt and use it when appropriate. CC does good work, but I think we need to promote uncopyrighting as well as creative copyrighting.

Good source! Thanks, Steve R.

Peter: I agree that trademark doesn't quite fit. As I describe in my paper, I would largely exclude it from my definition of intellectual privilege. I say "largely" because statutory add-ons (anti-dilution provisions of the Lanham Act, for instance) to common law unfair competition laws look suspect to me.

Russell: Thanks for the cite. I'll check it out.

Thanks, Sccarper.

I sympathize with the sentiments behind "monopoly," but question its accuracy. Following D. Friedman, I think it wiser to speak in terms of market power.

Check out the paper for my explanation of why "intellectual privilege," beyond offering merely a clever acronym, offers a useful rhetorical and mnemonic device.

Thanks, Luis. Got it.

Don: I switched "Accept Trackbacks" to "on"; I hope that accomplishes what you asked.

Barnaby: Even in a simple economy, the price set at the first sale of any copy would presumably include the future income from resale, so the authors would not lose in your scenario. And, granted, the price discrimination you describe would help some of those secondary users (finally) get access at a bearable price. But I don't think that would prove so perfect as to completely get rid of the deadweight social costs of restricting access to what can be, as a matter of physics if not law, made available a virtually no cost.

I think I see your point, Tim, but we are surely very far from the point where so many authors exist that they end up filling every niche with functionally equivalent works. I don't think, at any rate, that such an effect explains what's going on in the blogosphere. It isn't that bloggers duplicate what print media do. Rather, it's that they offer something different, that they do it for love rather than money (see one of my prior posts for a discussion of that effect), and that when bloggers do duplicate the print media, they do so with regard to facts, which fall outside of copyright protection.

I might add that because blogging has encourage an influx of new authors, it contradicts my assumption that the ratio of authors/consumers holds steady. In this case, we see not growth in the overall market for expressive works, but rather a disproportionate growth in authors. Or, rather, a disproportionate growth (thanks to new technologies) in the number of authors able to reach extant readers. Long story short: Blogging resembles not the sort of parable I told, but rather one where a magic spell suddenly empowers everyday folk to put their dreams into words. Though the author's guild suffers, the the rest of us end up rich in entertainment.

Luis: That's part of the story, granted. But another big part of it attempts (successful ones) to expand the scope of copyright. See, e.g., the Sony Bono Act.

Steve R.: I'm just trying to figure out how copyright works, right now. I won't pretend that I'm not predisposed to favor certain outcomes--my advocacy of "intellectual privilege" should show that much--but you shouldn't read too much into the present post.

David: I'm worried about the over-extension of copyright, too. Hence my effort in trying to get a firm grip on how to evaluate it as a matter of policy.

Steve R. (again): The price of the first sale should include the value of the future uses--including resales. For an excellent explanation of that idea, see Easterbrook's opinion in Lee v. A.R.T. Co., 125 F.3d 580 (7th Cir. 1997).

Wow, I'm having trouble keeping up with you guys! Please forgive me, then, if my replies fall short. Rest assured that I appreciate the time and effort you've put into your comments.

Enigma: I agree that it would prove useful to discuss how population growth affects the homogeneity of the market for expressive works. In fact, I think there's an pretty good argument that more consumers leads to a less homogenous market, which empowers authors to price discriminate, which in turn offsets the increased competition (from new authors) that might otherwise decrease authors' profits as population increases. But that's little more than a hunch, for now.

But I think, Enigma, you underestimate the importance of focusing on one metric at a time. Only long after we've nailed down the effects of many different variables can we start to think about combining them. Even then, I don't think you or anyone will ever be able to get the numbers necessary to quantify the efficiency of copyright policy.

Like you, Russell, I worry how government might muck up innovation. In fact, I'm trying to figure out the relationship between population growth and copyright in part to create a bulwark against the public choice pressures that so evidently warp copyright policy. If, as I think will prove the case, population growth pretty convincingly weakens the need for copyright, those who constantly clamor for more copyright rights will have a heavier burden of proof to bear.

While I of course agree that different expressive works have different qualities, Patrick, I don't think that materially affects the gist of my argument. It suffices that, at the margin, works offered at little or no cost to the consumer can substitute for those for which, thanks to copyright protection, consumers must pay. As population growth provides more and more of the former sort of work, the need for the latter decreases. Thus the conclusion that, holding all else equal, growth in the number of authors renders copyright less necessary.

Agreed, Luiz, that many composers are more likely to satisfy the market's demand for new and diverse works than a single (even if genius) one. But that is merely to say that we need to throw more population growth into the equation, so as to ensure that we have two, three, or more generous genii. See, e.g., the relative success of open source programming in some areas.

Thanks for clarifying, Steve R. You touch on one of the factors that I meant to dodge with my "holding all else equal" provisio: The effect that population increase will have on the amount of (profit-trimming) competition that any given author faces. That's a tricky problem, to be sure. It *suggests* that we might want *more* copyright protection as population increases (holding all other factors equal). But I'm still working on that problem, and remain for now undecided on the question.

Granted, Don, that we now enjoy a great many copyrighted works in the U.S., and that copyright surely bears a great deal of credit for that happy circumstance. And granted, too, that if copyright proved less remunerative, we would expect production inputs to go to other, more profitable, enterprises. That would be a good thing, though, if copyright policy were over-stimulating the production of expressive works. Recall that, for all its virtues, copyright protection imposes deadweight social costs by dint of inhibiting free access to public goods. Perhaps copyright's benefits outweigh those costs; perhaps not. It's impossible to get firm numbers on that question. I mean here only to describe one factor that would push the equation towards the conclusion that we have too much copyright protection.

Thanks for your kind words, Steve R. Two things, though: 1) I don't see why potential profits from copyright protection approach zero as the cost of reproducing expressive works drops. In fact, I've argued the contrary; 2) I don't "conclude" copyright is superfluous and inefficient; I only point to a trend and say that at some point, holding all else equal, it at some point would be such.

Steve R.: Thanks for the suggestions. (My, but you're a helpful bunch!) I agree with you about how technology is driving down the costs of producing expressive works, as well as the costs of disseminating them. I'd like to try to get the analysis to stand without invoking that factor, however, as I'd like to hold as many variables steady as possible.

Jim H.: Thanks for the tip!

Jim S.: Yes, that is an assumption of my model. I don't think it's very controversial, but your mileage may vary. I grant that artists have non-economic reasons for wanting to control their works, but that is not the job for copyright law (setting aside s. 106A, natch).

Doug L. Yep. Just 'cause authors want something doesn't mean they can or should get it--especially via copyright law.

Noel: As you'll see when you look over the paper, I very briefly address the question of whether the misuse defense works against DMCA Title I claims. I've found only one court to address the issue, and it found the defense inapplicable. In that, misuse appears to follow fair use; courts have limited both to copyright proper--not para-copyright a la the DMCA.

Steve: Many, many commentators share your skepticism about shrinkwrap and clickwrap licenses. Courts, however, and for better or worse, don't give a toot; they enforce such contracts fairly routinely.

Whoa! There's a blast from the (near) past! Kai has grown a lot since that post. He no longer babbles "peeees" when he wants an audiovisual treat; he explains why his to entertainment merits my serious consideration. But he still digs the Tank Engine and Friends.