Legal Commentary

Girl Talk and Intellectual Property

By Stewart Baker

David Post?s item on Girl Talk inspired me, in two ways.  First, I downloaded the album, which is indeed very good, if perhaps not quite as astonishing as Gillis?s last effort.  Of course, I?m a longtime fan.

And second, in reading some of the comments, I was reminded that I wrote a review of Larry Lessig?s Free Culture for the Wall Street Journal several years ago.   Here?s an excerpt:

When the 20th century began, copyright was a flimsy thing. It lasted for 28 years unless renewed. To obtain even that protection, the publisher had to deposit or register a work with the Library of Congress and print a notice claiming copyright at the front of every volume. And he could do little or nothing to prevent noncommercial copying.

Today, after a century of sustained lobbying, copyright lasts more or less forever ? 95 years for most corporate copyrights ? and it can be acquired with no formalities at all: no public notice, no deposit, no registration. As a result, copyright is everywhere; it belongs to anyone who has ever written an e-mail.

Infringement is everywhere, too; every e-mail you forward puts you at risk of liability, since even noncommercial copying is now prohibited. Meanwhile the cost of liability has become staggering and often divorced from the harm suffered by the alleged victim. Even in cases where the violation has caused no injury, ?statutory? damages of up to $150,000 are awarded for every work copied. Plus attorneys? fees, of course. While the state of California can fine a teenager who shoplifts an $18 compact disc no more than $1,000, Mr. Lessig notes, the record companies could sue him privately for $1.5 million if he intentionally copied the same set of songs. ...

?Free Culture,? in short, is an insightful, entertaining brief for changing our copyright policy. There is just one problem. Mr. Lessig aims most of his arguments at people like himself ? standard-issue Howard Dean liberals.

Bad choice. He should be talking to conservatives.

Viewed up close, copyright bears little resemblance to the kinds of property that conservatives value. Instead, it looks like a constantly expanding government program run for the benefit of a noisy, well-organized interest group ? like Superfund, say, or dairy subsidies, except that the benefits go not to endangered homeowners or hardworking farmers but to the likes of Barbra Streisand and Eminem.

It looks like Superfund in other ways, too. Copyright is a trial lawyer?s dream ? a regulatory program enforced by private lawsuits where the plaintiffs have all the advantages, from injury-free damages awards to liability doctrines that extract damages from anyone who was in the neighborhood when an infringement occurred. ... It?s asbestos litigation for the Internet age.

Conservatives ? and especially libertarians ? seem like a cheap date on this issue.   You?d think libertarians would have been in the forefront of objecting to governmental intrusions into our lives at the behest of a special interest ? let alone the creation of a new class of quasicriminals, defined as more or less everyone who entered high school after 1996, who can be investigated and prosecuted whenever the government or some member of industry decides that they are too troublesome.

But no.  For a lot of libertarians, judging by the comments to David?s post, all the RIAA has to do is call its new government-created entitlement a form of property, and, presto bingo, it?s sacrosanct.

Come to think of it, maybe I can persuade readers here that TSA?s new enhanced security measures are just fine ? as long as we enforce the rules by giving all the passengers on the plane a ?property? right not to travel with people who refuse body imaging and enhanced patdowns.  Instead of relying on oppressive government regulation, we?d just let the passengers collect millions in ?statutory damages? from noncompliant travelers.

Full post as published by The Volokh Conspiracy on November 20, 2010 (boomark / email).