John Thomas

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Consequences of Complexity

'Advances in technologies have...democratized the creation and dissemination of new works of authorship and brought ordinary persons into the copyright realm not only as users of others' works, but also as creators.' (Samuelson, 2007)

'The incomprehensibility of many copyright provisions didn't matter much as long as they only affected industry groups whose lawyers could decode the statute for them.' (Samuelson, 2007)

'But in the past few decades, copyright laws have become unnecessarily long, complex, difficult to comprehend, and biased toward the copyright industry groups who have largely written them to serve their interests.' (Samuelson, 2007)

'The consequence of this legal uncertainty, tied to...high penalties, is that an extraordinary amount of creativity will either never be exercised, or never be exercised in the open. We drive this creative process underground by branding the modern-day Walt Disneys “pirates.” We make it impossible for businesses to rely upon a public domain, because the boundaries of the public domain are designed to be unclear. It never pays to do anything except pay for the right to create, and hence only those who can pay are allowed to create. As was the case in the Soviet Union, though for very different reasons, we will begin to see a world of underground art—not because the message is necessarily political, or because the subject is controversial, but because the very act of creating the art is legally fraught. Already, exhibits of “illegal art” tour the United States. In what does their “illegality” consist? In the act of mixing the culture around us with an expression that is critical or reflective.' (Lessig, 2005)

'One reason why a simpler copyright law is needed is to provide a comprehensible normative framework for all of us who create, use, and disseminate works of authorship.' (Samuelson, 2007)

'The point is not that businesses should have a right to start illegal enterprises. The point is the definition of “illegal.” The law is a mess of uncertainty. We have no good way to know how it should apply to new technologies. Yet by reversing our tradition of judicial deference, and by embracing the astonishingly high penalties that copyright law imposes, that uncertainty now yields a reality which is far more conservative than is right. If the law imposed the death penalty for parking tickets, we’d not only have fewer parking tickets, we’d also have much less driving. The same principle applies to innovation. If innovation is constantly checked by this uncertain and unlimited liability, we will have much less vibrant innovation and much less creativity. The point is directly parallel to the crunchy-lefty point about fair use. Whatever the “real” law is, realism about the effect of law in both contexts is the same. This wildly punitive system of regulation will systematically stifle creativity and innovation. It will protect some industries and some creators, but it will harm industry and creativity generally. Free market and free culture depend upon vibrant competition. Yet the effect of the law today is to stifle just this kind of competition. The effect is to produce an overregulated culture, just as the effect of too much control in the market is to produce an overregulated regulated market.The building of a permission culture, rather than a free culture, is the first important way in which the changes I have described will burden innovation. A permission culture means a lawyer’s culture—a culture in which the ability to create requires a call to your lawyer.' (Lessig, 2005)

Consequences to Privacy

'Another problem with U.S. copyright law is that it is the intellectual work product of a copyright reform process initiated in the late 1950s; it was enacted without serious thought to how it would apply to computers, computer programs, or computer networks.' (Samuelson, 2007)

'In 1965, the Register of Copyrights opined that "it would be a mistake, in trying to deal with such a new and evolving field as that of computer technology to include an explicit provision [on computer-related uses] that could later turn out to be too broad or too narrow."'(Samuelson, 2007)

'Technology developers, educational institutions and libraries, among others, were understandably displeased at the prospect of having to resolve foreseeable disputes over these questions through litigation based on a statute that was intentionally not clarified to deal with them.' (Samuelson, 2007)

'But an even bigger part [of the problem] has to do with the increasing ease with which infractions can be tracked. As users of file-sharing systems discovered in 2002, it is a trivial matter for copyright owners to get courts to order Internet service providers to reveal who has what content. It is as if your cassette tape player transmitted a list of the songs that you played in the privacy of your own home that anyone could tune into for whatever reason they chose.' (Lessig, 2005)

'...For copyright owners, the public-private distinction ceased to have any meaningful bite in 1989, when publication without notice ceased to matter. For copyright owners, conduct in public no longer has potentially drastic legal consequences. For users, the result has been different. Increasingly, for users, it seems that the law no longer recognizes conduct in private. According to the current Register of Copyrights, digital communications networks and technologies "seamlessly" transform acts of private copying into acts of public distribution—acts, that is, in public, with public consequences.' (Cohen, 2005)

'One consequence of the copyright-owner-as-censor phenomenon that has gone largely unnoticed, however is the effect of the copyright system upon religious practice. A growing number of cases nevertheless show how copyright can impact religious practice, how legal institutions arguably exhibit against minority religions, and how a consideration of copyright doctrines in novel context can illuminate aspects of those doctrines that may be important in other contexts as well. Many of the cases involve variations upon a common fact pattern: Sect 2 breaks of from Sect 1; Sect 2 then reproduces, adapts, or redistributes Sect 1's religious texts, either for use in religious practice of for purposes of critique; Sect 1 ultimately files suit for copyright infringement. In several instance Sect1 has been successful in joining Sect 2's use. Although some of these cases may have been correctly decided on their facts, they raise some troubling implications, notably whether courts accord proper respect to non-mainstream religious groups and whether copyright owners are once again using copyright to censor religious dissent. Moreover, the growing important of so-called New Religious Movements ("NRMs") is likely to increase potential conflicts between copyright and religious freedom.' (Cotter, 2003)

'...For Internet users suspected of infringing copyrights, the consequences of conduct in public also have changed. Conduct in public now triggers private justice. The private justice process begins with streamlined procedures for exposing users' identities...Once disclosure has been obtained, the private justice process then funnels the information to private settlement service centers tasked with making users an offer they can't refuse: a quick and relatively painless alternative to public exposure in federal court followed by what telephone operatives describe as automatic infringement liability, a damaged credit rating, diminished employment prospects, and other sorts of public humiliation.' This result—a world in which all conduct is public and most justice is private—is one with which most thoughtful commentators do not seem entirely comfortable. And yet we are reluctant to scrutinize it in any serious way, and to parse the necessary implications of our discomfort for the content of copyright law in the digital age.' (Cohen, 2005)

'If you’re a copyright infringer, how can you hope to have any privacy rights? If you’re a copyright infringer, how can you hope to be secure against seizures of your computer? How can you hope to continue to receive Internet access? . . . Our sensibilities change as soon as we think, “Oh, well, but that person’s a criminal, a lawbreaker.” Well, what this campaign against file sharing has done is turn a remarkable percentage of the American Internet-using population into “lawbreakers.” And the consequence of this transformation of the American public into criminals is that it becomes trivial, as a matter of due process, to effectively erase much of the privacy most would presume. Users of the Internet began to see this generally in 2003.' (Lessig, 2005)

'[Another] aspect to this...that is particularly important to civil liberties, and follows directly from any war of prohibition. As Electronic Frontier Foundation attorney Fred von Lohmann describes, this is the “collateral damage” that “arises whenever you turn a very large percentage of the population into criminals.” This is the collateral damage to civil liberties generally. “If you can treat someone as a putative lawbreaker,” von Lohmann explains, then all of a sudden a lot of basic civil liberty protections evaporate to one degree or another.' (Lessig, 2005)

Consequences of Monopoly

'In recent years, such cases have spurred a wave of law review literature critiquing intellectual property jurisprudence for failing to appreciate the deleterious impact of trademark and copyright enforcement on the exercise of free speech rights. As the argument typically goes, congressional acquiescence to regular copyright-term extensions and the expansion of trademark protection beyond the goal of consumer protection have enlarged copyright and trademark monopolies in a manner that has undermined the “uneasy truce” between intellectual property rights and the First Amendment. As a result, internal safeguards such as the fair-use doctrine and the idea/expression dichotomy are no longer adequate to protect vital free speech interests. Although a few scholars have argued otherwise, the weight of authority in the academy supports the view that a clash exists between intellectual property and First Amendment rights and that copyright and trademark monopolies must be more carefully circumscribed in order to protect expressive freedoms.' (Tehranian, 2005)

'Moreover, in the case of monopolies for knowledge we must also take account of the costs arising not just from the loss of access but from the loss of reuse. Just as some users are restricted from getting the good, so will some innovators be prevented from building upon the original to make new products. If the monopoly acts as a significant bar in this respect, the result will most likely be a large loss to society. A classic example of exactly this outcome is afforded by Watt and his improvement to the steam engine. Watt in partnership with Boulton vigorously enforced his patent against both infringers and improvers. This held up new developments and it was only with the expiry of his patent in 1799 that the flood of pent-up innovation was released.' (Pollock, 2006)

Consequences Examples

'To give a concrete example, consider the case of pharmaceuticals in India. Since 1973 India has not had patents for pharmaceutical products. However, under the TRIPs (Agreement on Trade-Related Aspects of Intellectual Property Rights) agreement – to which India is a signatory – patent protection must be provided for pharmaceuticals. Patents are monopolies and therefore their introduction will result in a deadweight loss to society. A recent study (Chaudhuri et al 2003) sought to determine the magnitude of this loss. It estimated that this change will cost Indian society, via its effect on consumers and local manufacturers, between US$350 and 500 million a year, but that the gain to the owners of the patents will be only US$50 million a year. This implies a deadweight cost for these monopolies of US$300 to 450 million a year, a very significant sum.' (Pollock, 2006)

'Another example is provided by photography. In France the invention of the camera was bought by the government and made freely available, resulting in the development of a large number of improvements. In England, by contrast, it remained proprietary, inhibiting further research and development (Scotchmer 2003).' (Pollock, 2006)

'[Furthermore] most museums now explicitly or implicitly claim copyright over images of all works in their collection, whether in the public domain or not. The same copyright ownership is implied by for-profit collections of images of public domain works, in digital as well as traditional photographic forms. Such collections include stock image providers geared exclusively to commercial applications (such as Corbis, a company founded in 1989 by Bill Gates, which describes itself as a "visual solutions provider" of all manner of images, not limited to works of art) and image collections focused on reproductions of works of art for commercial as well as scholarly applications (such as the Bridgeman Art Library and Art Resource, which present themselves as "archives" or "libraries" of art images, many of which are licensed to these providers by major museums as well as private collectors). For museums and other owners of art in the public domain, granting non-exclusive licenses to for-profit art image providers extends the commercial value of works of art in their collections.' (Ballon & Westermann, 2006)

'[There is a] growing body of evidence of the difficulties caused by the proprietisation of science, particularly basic biomedical science, in the United States. For example, Cockburn (2005) concludes that: “[T]he extension of exclusionary intellectual property rights into basic research has unleashed a surge of entrepreneurial energy and risk taking in commercial science, with potentially very significant benefits to society once the technology reaches end-users. But these benefits carry with them substantial costs: the patent-driven vertical struggle for rents within the biomedical innovation system may have generated important inefficiencies, waste, and misallocation of resources [...] Restrictions on access to research tools and data are likely to prove very costly in the long run, and stronger protection of the public domain may be a prerequisite for the future health of basic biomedical science.”' (Pollock, 2006)

'As Jed Horovitz, the businessman behind Video Pipeline, said to me, We’re losing [creative] opportunities right and left. Creative people are being forced not to express themselves. Thoughts are not being expressed.And while a lot of stuff may [still] be created, it still won’t get distributed. Even if the stuff gets made . . . you’re not going to get it distributed in the mainstream media unless you’ve got a little note from a lawyer saying, “This has been cleared.”You’re not even going to get it on PBS without that kind of permission. That’s the point at which they control it.' (Lessig, 2005)

Consequences of Eldred vs. Ashcroft

'In Eldred, [Professor Lawrence Lessig] challenged the 1998 Sonny Bono Copyright Terms Extension Act.' (Tehranian, 2005)

'The Sonny Bono Act...clogs the public domain by extending the copyrights on many old works whose copyright holders may be costly or even impossible to trace and negotiate with for a license, though this problem can be mitigated by an intelligent construal of the fair-use defense to copyright infringement or by modest statutory amendments.' (Posner, 2003)

'Lessig's central argument was that the U.S. Constitution says Congress shall offer copyright restrictions "for limited times." But how can copyright be for a limited time, Lessig argues, if Congress keeps passing laws that prevent copyright protections from ever running out? Thanks to retroactive extensions like the Bono Act, works stretching back to the Great Depression are still restricted by copyright, even though at that time Congress only offered 28 years of protection.' (Tehranian, 2005)

'The “serious public harm” of the Eldred decision, in the words of Justice Stephen Breyer’s powerful dissent, will be felt in the absence of hundreds of thousands of works that would now be freely available for use by scholars, students and the general public. In the longer term, the Court’s failure to place free-speech limits on an ever-more-voracious copyright regime spells danger, if not disaster, for creativity and the rights of consumers. The only hope is that Eldred can help galvanize a nascent public movement against the expansion of intellectual property. New organizations like Creative Commons, Public Knowledge and DigitalConsumer.org are fighting for a rich public domain—and gaining unlikely allies. Among Lessig’s supporters in court were Phyllis Schlafly and Milton Friedman, and The Economist recently editorialized in favor of returning to the fourteen-year copyright term that existed at America’s founding. That’s the kind of originalist thinking we should all embrace.' (Shapiro, 2003)

'There are many other examples of the problem [caused by Eldred v. Ashcroft decision] Here are just two. Belgrave House reissues as e-books popular fiction that has gone out of print. Neff Rotter of Belgrave House, asked whether his company had been affected by Eldred v. Ashcroft, replied: "Yes. I'd like to make e-books of Georgette Heyer Regencies, but now they won't come out from copyright for many years.'" Modem Library Paperbacks, which publishes books online, was hurt when the CETA continued the copyrights of works such as The Great Gatsby and Mrs. Dalloway. David Ebershoff, the publishing director, remarked that before the CTEA, "[t]he first thing you'd do in the classics publishing was keep a list—a rolling schedule of what was going into the public domain. . . . That was item No. 1. Now it's not only not item No. 1; it's not an item" since no copyrights will expire until 2018."' (Patry and Posner, 2004)

Works Cited

Ballon, H., & Westermann, M. (2006, December 1). Copyright Ownership in Works of Art and Images. Retrieved from the Connexions Web site: http://cnx.org/content/m13912/1.2/

Chaudhuri S, Goldberg P, Jia P (2003) Estimating the Effects of Global Patent Protection in Pharmaceuticals: A Case Study of Quinolones in India Newhaven, CT: Yale Working Papers, available at www.econ.yale.edu/~pg87/TRIPS.pdf

Cockburn I (2005) ‘Blurred Boundaries: Tensions Between Open Scientific Resources and Commercial Exploitation of Knowledge in Biomedical Research’, paper prepared for the Advancing Knowledge and the Knowledge Economy Conference, National Academy of Sciences, Washington DC, January. Available at http://people.bu.edu/cockburn/cockburn-blurred-boundaries.pdf

Cohen, J. E. (2005). Comment: Copyright's Public-Private Distinction. Case Western Reserve Law Review, 55(4), 963-970.

Cotter, Thomas F. (2003). Gutenberg's Legacy: Copyright, Censorship, and Religious Pluralism. California Law Review, 91(2), 323-393.

Krause, J. (2004). The Education of Larry Lessig. ABA Journal, 90(1), 36-41.

Lessig, L. (2005). Free Culture. USA: Penguin.

Patry, W. F. & Posner, R. A. (2004). Fair Use and Statutory Reform in the Wake of Eldred. California Law Review, 92(6), 1639-1661.

Pollock, R. (2006). The Value of the Public Domain. Retrieved November 5, 2007, from http://www.ippr.org/members/download.asp?f=/ecomm/files/value_of_public_domain.pdf&a=skip.

Posner, R. A. (2003). The Constitutionality of the Copyright Term Extension Act: Economics, Politics, Law, and Judicial Technique in Eldred v Ashcroft. Supreme Court Review, 143-162.

Samuelson, P. (2007). Copyright Need to be Reformed? Communication of the ACM, 50(10), 19-23.

Shapiro, A. L. (2003). Copyright Monopolies. Nation, 276(6), 6-7.

Tehranian, J. (2005). Whither Copyright? Transformative Use, Free Speech, and an Intermediate Liability Proposal. Brigham Young University Law Review, 2005(5), 1201-1257.