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The Future of Ideas
Ideas has been reviewed in Salon and in the Washington Monthly; the book has a promotional website as well.
Lessig starts off by looking at the idea of a "commons," a community resource of some sort. The traditional commons is a public park or piece of land, but Lessig is more interested in looking at less-traditional commons on the 'Net and other communications systems. He moves on to examining some of the innovations that have been spurred by the recent growth of the Net -- typically startup companies that have taken advantage of the commons represented by TCP/IP and HTTP to provide a new service or product. If you follow Slashdot religiously, you probably read about most of these companies at least twice -- once when they started offering their innovative new whizbang, and again when they were sued by Megacorp, Inc., and shut down. The final part of Ideas covers the lawsuits, or more precisely the efforts by entrenched players to keep anyone else from playing. The distinction is important, because lawsuits are not the only way to keep upstarts from being able to participate: control of the code is also an important tool. For every control through lawsuits story that Slashdot runs, there's an equivalent story about control through code.
Just as in Code, Lessig is not optimistic about the future. Why should he be? So far, despite every warning, every attempt to sound the alarm, the forces trying to shut down innovation are winning in an utterly convincing fashion. A blurb compares the book to Silent Spring, the famous book about the environmental effects of DDT. Silent Spring was more or less successful -- DDT is now banned for most uses in the U.S., and the book had great effect in raising environmental awareness, but overall, environmental quality has continued to suffer. Lessig's book is not likely to be as successful. Attacking DDT was relatively easy compared to attacking the unlimited expansion of intellectual property, which has many multi-billion dollar companies willing to fight to defend their continued erosion of the public commons.This should suffice to summarize Lessig's book. The ideas in it should not be unfamiliar -- Lessig is hardly the only one espousing this point of view today, though he is one of the most articulate. The final chapters have Lessig's suggestions for ways to reverse this trend of quashing innovation -- different ways of managing the electromagnetic spectrum to produce a better wireless commons (it's worth noting that the unlicensed 2.4 Ghz band has been the source of most recent wireless innovation), ways to create an Internet commons on the wired network (some municipalities are already doing this, laying municipal fiber to the home and following an open access policy), changing copyright law and patent law to put more code in the public domain, changing contract law so that end-users can't be forced to sign away their rights. All are good suggestions. Despite the hopeful notes in parentheses just above, most of these suggestions stand little chance of being adopted any time soon. But perhaps Rachel Carson was looking at much the same uphill battle against DDT.
Ideas is most comparable to The Control Revolution by Andrew Shapiro, an earlier effort to explore the changing dynamics of control on the net. Shapiro was much more optimistic, and writing without much of the recent evidence that Lessig uses to make his point that innovation is being squashed thoroughly. If you will, there is an optimism scale -- John Perry Barlow defines one end of the scale, Shapiro is in the middle, and Lessig occupies the pessimistic side. Smart money is on Lessig.
All in all, it's a fine book. I think I prefer Code though, for a variety of reasons -- I find the central premise of Code to be less obvious, more ground-breaking. Or perhaps I've just read so much about "innovation" during the Microsoft trials that I can never again read the word without wincing. As with Code, Lessig has extensive footnotes, making this a scholarly work (for the scholars) but a perfectly readable book even for non-scholars. In any case, it's strongly recommended.
You can purchase this book at Fatbrain. Want to see your own review here? Read the book review guidelines, then submit using Slashdot's web-submission page :)
As copyright holder of this message, I wish to squelch freedom and innovation by
1) Suing anyone who replies and quotes my copyrighted message.
2) Suing anyone who moderates this message down for attacking my character.
3) Sue any banner ad companies whose ads appear above my comment unless they have text within the ad saying "The comments of the advertiser are not meant to be related to LordOfYourPants."
4) Sue thinkgeek for giving me a hernia with their "Codito, Ergo, Summ" shirts.
Though pesticides and the internet (McAffee?) didn't particularly grab my attention I really do see the influence of the programming behind an interface and how it can control people without us even having a say in the matter.
:)
I think this is where the influence of open-source comes into play. If open-source technology is based on the people having their say in the code, and the code makes the laws, then I'd imagine once the online community gets large enough this would make for the only true online democracy
cool.
--- Need web hosting?
-- DDT is now banned for most uses in the U.S., and the book had great effect in raising environmental awareness, but overall, environmental quality has continued to suffer. Lessig's book is not likely to be as successful. Attacking DDT was relatively easy compared to attacking the unlimited expansion of intellectual property, which has many multi-billion dollar companies willing to fight to defend their continued erosion of the public commons.
Well, yeah, Silent Spring *did* raise the problem of DDT and it's gone now. But there had to be *something* to fill in those gaps. Now they are spraying for West Nile Virus mosquitoes up here in the Northeast US and doing far more damage with the pesticides than they are helping. After all, WNV has killed what.. three? five? people. Is it really worth destroying generations of birds and their offspring to save five lives? How many millions die of malpractice?
But back to the topic at hand.. until we get judges who know computers are better for something than product placement in televised courtrooms, or understand something about intellectual copyright itself, there wont be a change. If you dont think that large companies are stealing ideas left right and center, well, wake up. 3m bought the idea for post-it notes for like, 1.99 from the guy who came up with it, due to contractual obligations that almost all of us sign. If you develop code, and use your work computer for even one line of said code, it probably falls under your blanket contract that says your company now owns it, and owns j00 as well.
Until laws like that get challenged, and beaten, companies squelching free development, or the furthering of technology outside their-own pockets are going to continue to be the status quo.
What is the solution? I dont pretend to know.. but getting more technologically savvy people into the courts in judge, jury, and lawyer roles could be a start. Face it, M$ is going to send in the best 10 lawyers they can find, and what does a Mitnick get? Whatever the PD's office can spare.
Maeryk
Feminine Protection? What is that? A chartreuse flame thrower?
Its obvious that without air you cannot breath. It is also obvious that without a car you cannot drive 100mph on a highway. Writing a book to make these points would be ridiculous.
Yet intellectual monopoly marketing by companies has been so successful, it is not ridiculous to write a book that makes the point that the patent system as we have it today is the tool [used] by entrenched players to keep anyone else from playing.
I'm glad to see this book. Maybe it will wake a few more folks up. I hope so.
--- -- - -
Give me LIBERTY, or give me a check.
Arbitration of domain name disputes will be one of the major threads of Intellectual Property law in the 21st century. It's unfortunate that Lessig gave such short shrift to this important area.
With all these dim views of the future of cyberspace, and current trends do point in that direction, perhaps it is time to start implementing a FreeNet. Something outside of the mainstream Internet, away from corporate and government controls. Something entirely for geeks, by geeks.
In all honesty, I don't see any way around it. When non-Microsoft, non-FBI-bugged operating systems are outlawed, only outlaws will run Linux/BSD/etc.
The guy who invented post-it notes did it while he was on the job at 3M. All the work was done at work, using 3M's equipment and supplies. He's never complained.
You seem to be complaining that companies own the products that we are producing for them and for which we are paid.
Best Slashdot Co
The idea of inter-repression is a completely groundless concept today as it was during the Microsoft anti-trust cases.
-Baker
So, if intellectual property and free speech are the ground of the new commons, I guess it won't belong until we have to pay our local Lords for the right to make a living on their turf. Oh!, right... too late. :(
"that holders of intellectual property (copyrights and patents) will squelch freedom and innovation online. "
That genie is already out of the bottle. Freedom and innovation have already been squashed.
If you would like to read more on the subject of the book you can go here and look at some conference papers about the "public domain," one of them is even by Lawrence Lessig. I just bought his new book off of bn.com and I'm looking forward to reading it. Unlike the reviewer, I for one am looking forward to this book more than Code. I am thinking it will be more accessable to non computer people like myself.
-Grant
|grant.henninger.name|
though perhaps the moderator moderating that post has never read Huxley's classic on control and censorship, 1984.
The distinction between supression through code and supression through lawsuit is important, though. For example, Michael is supressing the parent comment through the use of code, by abusing his power and moderating it so that no one can see it. I believe supression through code is the more dangerous of the two. With supression through lawsuit, the courts at least have to okay it. Sure, you can argue that the courts are corrupt, but that's not the point. We can always clean up the courts. With supression through code, corporations and individuals like Michael can play Judge, Jury, and Executioner to maintain their positions and technologically shout down people who bring up inconvenient facts or provide competition.
Slashdot: Open Source, Closed Minds.
Always bear in mind the other possibility: that they might actually know the facts but honestly disagree with your conclusions. Whatever you and I may think of the DeCSS decisions recently, there is no denying that Kaplan and the appeal court knew and understood the technology and the law that was relevant to the case.
The idea that artists and inventors should be granted limited monopolies on their works is a very old and respectable idea (e.g. the US constitution). It takes a bit more than arm-waving to cast it all aside.
Also, bear in mind that the judges in the DeCSS case have very properly had to defer to Congress except where Congress exceeds its constitutional powers. The system was designed that way for good reason. Believe me, you really don't want judges making up the law as they go along.
I have a lower opinion of Congress as a venue for getting these things right though. For a variety of reasons they get a clearer view of the arguments to increase IPR than to limit them. Most of these come down to a combination of money and the tendency of focussed interests (e.g. 5 movie studios) to over-ride diffuse interests (e.g. 500e6 movie fans). But thats about par for the course. Congress has made some stunningly bad decisions over the past couple of centuries, and will no doubt make more. If you want to improve it, you know what to do.
Paul.
You are lost in a twisty maze of little standards, all different.
1984 was written by George Orwell, if I'm not in a mistake.
I'm from Argentina: Tango, Asado, Mate, Gaucho, Maradona, YPF
Personally, I think that part of the problem is that in our capitalist based society, any change to support a commons must be based on a viable business model. Open source is struggling with this, but seems to be making its way alright. That's code. Knowledge, on the other hand, is still suffering. There is a long history of knowledge being locked up and accessible to only those few with enough power or money. Part of this (recent) history includes copyright and patents. Another more interesting part is the educational system! Particularly universities, but also other levels of education all have barriers to prevent just anyone accessing knowledge. There are tuition fees, entrance exams, location, funding methods etc. All of these act so as to make information unavailable. For example, if I get low grades in high school, I may find it impossible to get into university - even if my reasons for having low grades have nothing to do with my inherent capacity to understand and add value to university-level knowledge. The only reason these barriers to entry exist is because of the guarding of academic credit. So. Many people here are familiar with the slogan information wants to be free. And some can even argue its validity based on economics. But the fact is that barriers to accessing information create wealth. So in order for those barriers to come down, alternative means to create wealth must be created.
Helping with organizational effectiveness is our job.
come from people will fourth grade spelling errors
Typos happen to the best of us don't they?
--- -- - -
Give me LIBERTY, or give me a check.
Silent Spring was more or less successful -- DDT is now banned for most uses in the U.S., and the book had great effect in raising environmental awareness, but overall, environmental quality has continued to suffer.
Silent Spring was successful at condemning millions to death from malaria.
We can see parallels in history by other institutions that embraced false property rights. How many of you have herd that freeing slaves was stealing, or that there was no incentive to grow cotton without them, or that the great wealth of America's plantations was proof of slavery's justification. Some people think it's unfair to make this compairison to slavery, but I think it is - for example look at what almost happened in Africa, there millions and millions of people risked death because American pharmacuticals wanted to sue over intellectual property rights.
However, we should consider ourselvs fortunate - because unlike our predacessors I think we can win this war without one bit of violence. It will first be done with copyrights where enforceing copy controlls will become nearly impossible without stirring up massive unpopularity, and imposing massive intrusions into millions of corporations and peoples private lives. Eventually something will half to give because we do live in a democracy. It will later come with patents where the ability to create and manufacture will come to the home. In non democratic countries, both of these will pose a serious problem because the government will likely not be as restrained before things really get out of hand.
Other approaches like the GPL, and public encyclopedias will also seriously relieve the pressure. (thank you RMS)
It would be interesting to see if this book has any copyrights or publishing rights.
I wonder how they would feel if someone published it on the web?
squelch this ..
Your comparison to "Silent Spring" is a pretty good one. We should note, however, that the chemical companies and the US government rallied *hard* against DDT studies that showed it was unsafe. It took something like 10 years for it to be declared unsafe for human exposure. The same goes for CFCs. Studies in the late 70s showed conclusively that they contributed to the ozone holes, but it wasn't until the late 80s that any real action was taken to require companies to lessen their use of them. Again, you had big companies fighting this tooth-and-nail.
The point is, these battles are always hard. The only thing this particular fight has going for it as that creators of content (coders, musicians, filmmakers) also have a vested interest in keeping their products from obscurity.
Hardly.
It was designed and is primarily used as a government and academic research tool, just as the Internet was in days before the popularity of the WWW brought useful data transfer to its knees. At the Abilene/Internet 2 NOC (which is in the building next to mine) they're actually the Operations Center for several other nets that show promise as the "replacement" for the Internet, but Internet2 is probably not it.
His whole line of reasoning in the decision rests on the assumption that DeCSS is a tool for piracy, and because it is a tool for piracy, fair use rights therefore don't apply. With a bit of hand waving and circular logic, he dismissed the defense's strongest argument. Regardless of his "understanding" of the technology in question, he deserves our contempt.
What, sacrifice a goat?
Duh. Does this book really tell us anything more than "Lessig hates IP"? If you've been on /. for longer than a few months, you already know that.
Give me one reason why I should buy this book, other than to OCR it, put it on line, and enjoy the delicious irony when Larry's lawyers come calling.
For all intensive purposes, "whom" is no longer a word. That begs the question, "who cares"?
Though Michael (charmingly) seems to think it is, "code as law" is not a new idea. Check out Marc Rotenberg's article here. It's a pretty obvious idea, actually, not particularly "groundbreaking." Lessig is an interesting writer though, and a great speaker.
Who modded up this incoherent garbage?
If you'd like to see a somewhat filtered synopsis of Lessig's ideas, you can see it in a Bruce Sterling speech linked by yesterday's /. Sterling mentions Lessig as the guy to pay attention to when it comes to the squelching of innovation by the establishment. If you missed it yesterday, and are interested in this topic, you should check it out as a primer to the issue.
If he cares so much about the affect intellectual property has on the enslavement of ideas, why doesn't he publish his book under the public domain, or under the GNU license for documents, or a BSD license for documents?
social sciences can never use experience to verify their statemen
The "commons" was originally often found as part of a system in which people were property. At that time, the commons was for the use of those who were bound to the local fiefholder. As more and more autonomy was granted to individuals, this system no longer worked and the commons system morphed into one in which the "owner class" began to seek compensation for the resource in the form of rents or other consideration.
I cannot help but think that Lessig's "intellectual commons" is part of a system in which the ideas that populate them are already bound through other less obvious means to entities such as universities and corporations. The proposition that these ideas be "set free" will lead to exactly the kinds of DCMA shenanigans that Lessig seems to passionately want to avoid??
Is it possible that the concept of an intellectual commons is already becoming an anachronism in the same way that the concept of a common pasture became unusable as the system changed? As our society is driven towards a different notion of property, driven by Disney, RIAA, and other content owners, will fair use of ideas even exist as a tenable mechanism?
Perhaps there will become "free ideas" just as there were "freemen." These ideas would be certified as free, and could be combined with other free ideas... Wait a minute, I've heard this idea before; RMS, where are you when I need an overcharged rant about freedom?
42
If the defense's strongest argument can be creditably dismissed by hand-waving, then the defense needed stronger arguments.
I seriously doubt that the RIAA will press civil charges against anyone who cannot be construed to be a threat to society (ie: pirate, terrorist, hacket, etc.). As for criminal charges, that's the DoJ's turf, and the case against Dmitri Sklyarov is the best example of how they'll work. In both arenas, they'll pick the ugliest targets, and try them for who they are, not what they've done, merrily building up precedents here and case law there.
Regardless of your feelings about DeCSS (I'm for it), the RIAA did a very good job of picking a target when they picked 2600 Magazine. It's right up there with Hustler for content and editorial integrity, and 2600 came into court with a serious negative image problem. The rest of the case went about as well as could be expected. That earned the RIAA a legal precedent, and set up additional hurtles for the next target.
The only way that the DMCA will get overturned is if someone manages to do something that obviously violates the DMCA, but is also easily recognizable as something that is socially acceptable and/or necessary. At this time, I can't think of anything that matches these criteria -- the right to download Star Wars movies off the 'net doesn't qualify, and neither does anything else I can think of. Anyone got any suggestions?
We call it art because we have names for the things we understand.
Garrett Hardin proposed what is to me the same thesis 33 years ago in his paper The Tragedy of the Commons. Hardin was proposing a class of problems that had no technical solution, no matter how hard we looked for them, as they were moral problems. Specifically he was talking about growing populations taxing resources, but the analogy is fairly easily applied to "the internet as commons" model.
The 400 lb gorillas of IP are trying to maximise their utility gains from the internet while impacting the utility to others negatively. Good old utilitarianism.
Hardin goes on from there, but it has been a few years since I read the paper so I'm going to breeze through it again. I'm looking forward to picking up this book to see what new thinking it might bring to the analysis.
I'd be interested to hear from Mr. Lessig (as he seems to be posting here) how much his thesis was influenced by Hardin.
Laugh while you can, monkey boy!
If a person is educated using copyrighted material, and just to make it more pointed, that copyrighted material is owned largely by one large media conglomerate, is it not the case that most or all of their thoughts are simply rearrangments of ideas "owned" by another party?
And in that case does their intellectual output not become a wholly or partially owned product of the company that provided the great bulk of the words, patterns and ideas that shaped their brain?
The idea of "idea" ownership is terribly insidious, but it is wholly consistent with the logic of capitalism.
The best argument for a strong state capable of resisting the encroachment of the private sector on culture, history, and ideas is that a strong counterweight is needed to resist the tendency of private parties to own what "should" be the collective property of peoples and of humanity.
i am all for the message that lessig is telling us. i have followed the debate some what however, for what it is worth, i feel as though it is ineffective. the message that the holders of ip are stifling the commons is valid however the words are falling on deaf ears. the only people who are really listening to him are his student (they have to, as he is the grader of their papers), academics and some ip lawyers who are not attached to to large companies who have large holding of copyright.
in order for his message concerning the future of ideas to be effective it must be received and adopted by the techies. it is only after the techies take up the cause that they are being threaten will his message will have some true meat to it. the people who are the most influence, i.e. congress and courts, are being inundate with anti-lessigism and are blind to the alternative (will we ever see mickey mouse in the public domain? No). the lobbies and the lawyers are drowning out whatever counter arguments exist against the extenuation of copyright controls.
until some of the 'leaders' of the techies take note and start supporting this platform we all will just end up watching our rome burn like nero. eric raymond thinks the message in code and most likely his new book are false. he feels that no matter what happens the techies will be able to adapt, overcome and conquer anything that washington throws at the techies. wired news on aug 29, 2001 says "linus torvalds... wasn't quite so pessimistic. 'a lot of people are wasting time over disagreements,' he said, referring to legendary sectarian squabbles within the open-source community. 'but i think people will get their act together,' torvalds said. ' within the last six months, there has been a lot more (political) activity.'" However as long as Prof Felton isn't publishing, the DCMA is up held and Dmitry Sklyarov is being prosecuted... then there isn't enough support for open source and more must be done.
once the techies, the geeks, the open sourcers and those who are most affected by copyright controls (DMCA), then perhaps the public will take note. without the techies support then the message lessig is telling us is ineffective and the internet will be lost.
there are hundreds of lawyers and millions of dollars against us, why aren't we doing something about it?
No one has the political power to overcome the MPAA or RIAA. You can be assured that congress will bend over backwards to meet their "needs" to gobble up ideas for public consumption. That's all ideas are anyway, right? Just goods, like bananas, Windex, and rubber tires that are good for nothing but getting consumed.
I'm sorry. We're fucked. Get pissed.
---Technology will liberate us if it doesn't enslave us first.
I suppose I'm the exception to the rule in that I consider copyright and patent laws (in general) to be good things. That is, I think that there _should_ be something that allows you to exercise a monopoly over the product of your intellectual labour.
On the other hand, I will concede that many of the recent copyright-protection rulings and laws (including the DMCA) have been ridiculous. However, the solution here is not to get rid of the laws entirely, but rather to encourage better jurisprudence. That is, judges should be encouraged to exercise their judgement in interpreting copyright law in accord with the spirit it was written in - to ensure that lawful producers of a piece of work are paid fairly for their work, rather than to prevent a multinational corporation from stifling anyone who designs a marginally similar word-processor to their own. More of these cases should be thrown out of court, not entertained by our legal system.
hey, I'm a twerpy looking Stanford lawyer, not a twerpy looking Harvard lawyer.
now I am pissed.
Consider how many geeks complain about their freedoms being threatened and then go work their day job writing proprietary software or designing hardware wrapped up in patents and trade secrets owned by their employer. Guess what? The only reason unethical corporations exist with the power to control 'our' technology is because we GIVE it to them. Business execs don't produce technology, they buy it and sell it. Their only power is the dangling carrot of higher salaries and (supposed) job security. When geeks take entrepreneurship into their own hands, then we'll get somewhere. Be 'greedy.' Capture markets with ethical enterprise. You deserve more than those morons who drank and partied their way through business school and now control your career because they accidentally discovered strength in fraternity. Stop believing the lie that you don't have what it takes to survive outside of the hampster wheel.
'Every man dies. Not every man really lives.'
Rewarding those who do good things is certainly something nobody will argue against, for it's how we teach our children.
But to be rewarded with the ability to then tell others they cannot make use of what good you have done is for others worse then you never having done it.
Do you see the inherent contridiction of giving exclusive use as a reward?
Change the IP laws from "cannot" based to "CAN" based and the forward moving force to advance will have a great deal less friction against it.
Who is to say that being rewarded with exclusive use that you will use such exclusive use to it fullest benefit to you and society? There is no magic intelligence that you somehow receive upon getting exclusive use granted you, that insure you will do the best thing.
However, to have "CAN" based laws such that anyone can use what good you have done, so long as they give you proper credit and reward. Perhaps based upon a relative percentage of the profits one makes in using your good. Or perhas this is a probelm area the public can better solve? see below!
This way, it's not up to just the do gooder to then figure out the best way to impliment the good, but rather up to any and everyone who wants to make use of it. Consider the following quote!
One of the papers from the Duke university Public domain conference didn't make it into the "download all papers" archive on that site: Coase's Penguin
"At the heart of the economic engine of the world's most advanced economies, and
in particular that of the United States, we are beginning to take notice of a hardy,
persistent, and quite amazing phenomenon--a new model of production has taken root,
one that should not be there, at least according to our most widely held beliefs
about economic behavior. It should not, the intuitions of the late 20th century
American would say, be the case that thousands of volunteers will come together
to collaborate on a complex economic project. It certainly should not be that these
volunteers will beat the largest and best financed business enterprises in the world
at their own game. And yet, this is precisely what is happening in the software
world." - Yochai Benkler
BTW, my home page is relative to this matter.
.
"However, to have "CAN" based laws such that anyone can use what good you have done, so long as they give you proper credit and reward. Perhaps based upon a relative percentage of the profits one makes in using your good. Or perhas this is a probelm area the public can better solve? see below! "
That SOUNDS great... except that when someone doesn't give you credit or reward, they face fines, penalities and lots of "CANNOT" restrictions, no?
Having laws that sound nicer doesn't feel like a solution of any useful sort.
If there are laws then there is enforcement... and enforcement is inherently nasty and unpleasant... but the existence of enforcement is the difference between
"pleasant recommendations for better living" and (say) "federal law, enforcable by big nasty penalities and jail time."
sorry less' your hair is too short to be i.d.ed as a stanford lawyer. face it, you just spent too much time at Yale and Harvard...
if your pissed just go to the beach while charle and terry freeze in cambridge.
and the future of their land. DDT is not nice to have in your soil, or on your skin.
The objective here is not to remove law but to change the incentive generated by the reward. To change the incentive of restricting others from use to incouraging them to use.
Certainly you would NOT want the following law to vanish.
The Universal Law
Preamble
The purpose of human life is to prosper and live happily. The function of society is to guarantee those conditions that allow all individuals to fulfill their purpose. Those conditions can be guaranteed through a constitution that forbids the use of initiatory force or coercion by any person or group against any individual:
The Constitution
Article 1: No person, group of persons, or government may initiate force, threat of force, or fraud against any individual's self or property.
Article 2: Force may be morally and legally used only in defense against those who violate Article 1.
Article 3: No exceptions shall ever exist to Articles 1 and 2.
neo-tech.
...sounds like a formula for a "who started it" dispute in court... with all the liklihood of success now associated with figuring out whether Palestinians or Israelis are the "real" agressors.
Sure change the incentives, but I still don't see that the situation is any different when someone violates the law by using without credit or payment.
I apreciate that you are trying to think outside of the box, but I think the box is a tough one to get outside of.
There's actually a good amount of work that's been done distinguishing between IP as a "property" right and IP protected by a "liability" rule. A property right means you must negotiate with me before you can use it; a liability rule says you must pay me if you use it. I'm a strong supporter of liability rules protecting IP in some contexts (e.g., for online music, I favor a compulsory licensing right, which means you can take it but you must pay a fixed rate if you do), and also with some patents. But if we had a relatively short and narrow protection, I don't think we would need to adopt the liability rule in all cases.
To think out of the box in this world would be to recognize that the world is not divided into valenti-ism or its opposite -- that there is a middle ground that has benefits.
That's interesting...(I'm no lawyer, although I do play one on TV) its a little like the distinction between...
Marriage law (you get married and all the usual laws apply...)
and an idea of
Contractual Relaitonships (you contract with any person and all the terms of the relationship and its termination are negotiated in advance and described in the contract subject only to standards of interpretation and general principles of contract law.
So you favor a veiw of "free to use" but "all existing legal requirements apply"... sort of like a standard marriage with all existing marriage laws applying.
The alternative would be that each use is subject to the terms negotiated in each case.... like a prenuptial agreement perhaps... or like any sale of real property.
That does seem like a useful distinction to make, and I do see the logic for enabling use (subject to payment requirements.)
Actually, since property law is excercised within a legal framework, each sale has many standard features.... and on the other hand, since liability law would seem to inevitably have "deviant cases" where the necessity of payment or the extent of payment came into dispute... perhaps these are not really pure types, but more two ends of a spectrum?
You also seem to be saying that in a liability context you would much more rarely get to enforcement because (1) compliance is easy (?); and (2) because the time frame where compliance is required is limited...(?).
---
I realize that this is late in the thread lessig, and perhaps beyond the scope of your interest, but what do you think of the idea of limiting licensing rights to the actual creator(s) but in some way keeping the right of ownership from moving beyond the actual human creators of an idea?
Is that too absurd to consider?
Too severe a limitation on the realizaiton of the economic value of new ideas?
If you ask the framers, the copyright is for innovation in society as such or as they choose to put it: "To promote the Progress of Science and the useful Arts." They way to achieve this was "by securing for limited times to authors and inventors, the exclusive right to their respective writings and discoveries."
Would society as such benefit from a shorter copyright term than life + 70 years?
As Jenny Dixon put it:
"Does any writer write less, or worse, because of the length of the copyright term?" [1]
This is the fundamental question that I think is not answered in your book, nor in Lessig's The Future of Ideas.
My take on this is that some writers don't care about copyright. They will publish or at least produce works no matter what. They are the Van Goghs of writing. Others care and they will publish "better" or more works with stronger protection (read: stronger economic incentives). Strong protection leads to increased economic incentives because the life + 70 years protection is in theory more or less discounted into the upfront payment and royalties by the publishers. Very few writers will refrain from writing because of the Alice Randall situation, i e too strong protection. The sum of this is that strong protection is good.
However, too strong protection will lead to fewer works beeing published. Nota bene - published, not written. I think that more or less the same amount and quality of works will be produced, i e written, regardless of the strength of the protection. Thus, the strength of the protection will in effect only affect the commercial aspects of innovation. In that respect I think the balance, as requested by Lessig, is very important. But it shouldn't be confused with innovation.
Regards
Mikael Pawlo
[1] Dixon, Jenny, The Copyright Extension Act, Hastings Communications and Entertainment Law Journal, summer 1996.
Pawlo.com
1) Suing anyone who replies and quotes my copyrighted message.
Is that a god in your pocket, or are you just glad to sue me?
DNA is a Turing machine. You, however, being dynamic and emergent, are not.
Convert "Cannot" based law into "Can" based law....
Convert "Liability" rule into "Asset" rule.
Target - human incentive - make it more profitable to all involved to do the right thing, more costly to do the wrong thing.
Just saying, as a general goal which of course needs to have the detail worked out.
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Liability - world military spending
Asset - military spending resources available to convert into productive value from destructive values.
What the World Wants!
Well I guess that's proof (potential to validate) that doing the wrong thing is more costly.
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