joegratz.net

First, Larry Lessig:

Thanks to the contributors. This has been a great success.

Thanks, too, to Jamie. Since the book, Jamie has worked with a bunch of us in this weird life as an academic activist. He helped with CC, science commons, etc. He has motivated us.  This is a difficult balance, and a difficult dual life. Every moment, though, is a moment of regret — you’re not quite as good at both as you are at either alone. Encouraging this kind of scholar-activism is important for us all to do.

We all share this value. We have a bigger duty than just finding truth. We must also make that connect. Where issues are as important as this, it will only be that we make progress when Jamie’s practice becomes more common.

Next, Jamie Boyle.

This is like being hit by a nice truck.  I’m still waiting for the big joke to be revealed. It’s a stunning honor.

This will be conceptual housekeeping. I still think that we have a whole bunch of projects going on under a common umbrella. When we understand the hopes and fears that gave rise to each project, we will know which tools to use. More conceptual clarity will help.

I commit to finish my new book by the end of the summer.

Having admitted this problem, I want to suggest that the series of hopes and fears structures our discussion.

We fear dead-weight loss, blocked innovation, costs. Jamie Love says that in drug pricing, dead-weight loss is also known as dead people.

We fear single-entity control as an instrument of power. We fear censorship. We fear the destruction of libraries.

We fear cripppling the new social spaces that technology enables through technological rules. Telecom and trusted computing are the biggest problems.

We fear imposing a one-size-fits-all system on developing economies. We ear a world in which covert judgments embedded in the IP system conceal distributional results that are indefensible when stated openly.

We fear a world in which innovation is stultified. We have vested interests against groups that have not yet arisen.

There is a hearkening back to the authors of the antitrust laws. We know concentrations of power can be efficient, but there’s a fear beyond the economic fear. I don’t want just one super-media-entity, even if it’s economically provable that it’ll provide me with the necessary variation.

A different commons is implied by each fear, and a different set of tools. For some, free as in beer; for some, free as in speech. For some, access; for some, control over choke points in innovation.

There isn’t a single notion of property, or a single set of tools. This leads to the hopes.

One hope is that rational IP policy based on evidence with a presumption against restraints on trade would be awfully nice. I aspire to be banal.

We hope for a technolgical vibrancy and openness. Not just because it’s innovation, but because it’s changed our lives and we want to see it change the world.

We get to play with stuff and create stuff and it’s amazingly fulfilling. We want everyone to be homo ludens. We don’t know how far these methods scale. Maybe they don’t go beyond the world of the virtual, but I think they do.

If I’m right about this, I think it pushes me in Siva’s direction. We don’t need a big theory, but a bunch of little ideas that work. Maybe out of them, there turns out to be a set of things that take off in unexpected ways. that’s the way to enable our hopes and resist our fears.

The final paper presenter at the conference is Molly van Houweling.

Both environmentalists and cultural environmentalists have complex relationships with property. We assume these relationships are adversarial, but they don’t have to be. Why aren’t the hills along 280 alive with the sound of condominia? Partly because property allows civic-minded organizations to buy rights in property and preserve it. Increasingly, environmentalists are using property rights to protect open space. There’s a property turn, then, in environmentalism.

The same thing is happening in cultural environmentalism — first with Free Software, now with Creative Commons and others. The conservation easement — tool of environmentalists — separates the right to possess from the right to develop. The sticks in the bundle are divided in a way designed to preserve the undeveloped nature of the land.

The FSF and CC use a similar technique — a “cultural conservation easement”. The GPL, for example, gives the right to copy and adapt the software, but separates that stick from the right to control downatream copying and derivative works.

Both of these moves have been important, and have been rightly praised for their voluntary nature. The GPL-like technique is being proposed for all sorts of IP-related problems. Given that, let’s make sure we’re not doing unintended harm.

My main project is to identify two big concerns coming out of the literature on conservation easements. First, background on conservation easements in real property.

They’re a species of servitude — a non-possessory right running with the land. The conservation easement violates several common law rules intended to limit servitudes, like the “touch and concern” requirement. That’s not a problem today, since every state has gotten rid of the common law rules for this purpose. It’s still worth asking about the purpose of those common-law rules.

What concerns animate the common law rules?

First, notice and information costs. The rules are around to make sure buyers know what they’re getting. Idiosyncratic servitudes can surprose people and can muck up the property system with unexpected and weird conditions. Maybe we should have a numerus clausus principle, since recognizing too many forms creates information costs. Why don’t we worry about this in the conservation easement context? We don’t need them, since we have a system of land recording (which didn’t exist when the English common law rules arose). In the context of cultural conservation easements, we don’t have this recording system. We don’t know what the background rules are and what all the variations are.
Second, the problem of the future. Serviitudes impose too much control on future generations. We don’t want the living to be limited by the wishes of the dead, and we don’t think that dead people will always make efficient land-use decisions. She quotes Mahoney.] The sticks are divided up in a way that makes them hard to put back together on policy grounds in the future.

Do these problems plague cultural conservation easements as well? I think they’re serious worries, but the problems are for the most part not caused by the manipulation of the IP rights but by the nature of the underlying copyright system.

First, applying the notice problem to GPL and CC. Typically, the terms are embedded in the code or the work is somehow marked. The little CC logo doesn’t communicate everything about the license. But the notice here is better than the background notice that copyright provides. The baseline rule is use prohibition with no notice, so imperfect notice of allowed uses is OK, since it doesn’t upset any assumptions.

Second, the problem of the future applied to the GPL and CC. It’s less of a problem than it would otherwise be. In the absence of the GPL, commercializing software still requires negotiation with the author. The lessons we can extract from the conservation easement movement are useful for improving our cultural conservation easements.

Cultural conservation easements can be complicated and can confound our future endeavors. We need to continue to learn lessons from the environmental experience to tell when to use them.

Comments by Peggy Radin:

This is a property teacher’s dream project. Three ideas. First, the relevance of the public-private distinction and democracy. Second, the problem of abstract versus situated freedom (or freedom now versus freedom later). Third, standardization versus customization.

Public and private. Today’s scholarship ignores the distinction, but that’s because it’s been deconstructed by legal realism. The distinction has to exist pragmatically anyway. TPMs, for example, are self-help and raise this concern. The copyright act is supposedly democratically imposed. Copyright might be like a servitude — non-bashing runs with the ownership of a baseball bat, and is thus a servitude too, in that sense.

Placing a renewal burden on the owner is better than making a servitude run with the digital object.

Freedom now and freedom later. Utility is utility, now or later. Clean slates don’t help much.

Molly’s Response:

Two tidbits. First, a potshot at Richard Epstein. The only dead hand control he doesn’t like is the GPL. Second, the reason it’s hard to apply public/private is that legal realism proved too much. If everything’s public, where do we go? What do we do now? Do we throw up our hands? We tend to think of things as more public and less public — the more public they are, the move checks they require. This sliding scale describes the ways we’ve treated property versus contract. Once contracts are ubiquitous and subject to market difficulties, they have more of the public characteristics of property and less of the private excuses of contract. They need more democratic control for that reason.

Comments by Yochai Benkler:

We can be potimistic that we’re getting toward more democratic control over the imposition of these property regimes.

You make your job too easy by comparing directly to copyright. It’s obviously better than copyright, but we need to look at the broader menu of possible property systems.

The problem of the future is easy with BSD, harder with the GPL, and harder still with CC because of the choices available to the author.

I don’t have a real guess as to whether it’s better to have more choice and a broader movement or less choice and a smaller movement. You can imagine a CC that’s all SA, or all NC.

The fact that we have this conference now is not for resting on laurels, but understanding the trajectory of a provisional success and a calll to arms. Constantly measure the intellectual work against real-world approaches. Measuring scholarly work by its political feasibility is hard and painful. The same is true in reverse.

There’s much work to be done for all of us. Our freedom rests on our ability to succeed both intellectually and as a movement; our culture depends on it; and our capacity to promote human flourishing depends on it.

Molly’s response:

Part of the problem is compatability between the easements over adjacent parcels. Adjacent parcels, one protecting ducks and the other protecting foxes. Combining GPL and CC is the same way, for example. More flavors lead to more problems.

The problems could be worse int he cultural realm because there are only so many real parcels that can be physically near each other. In the cultural context, millions of works can all be next to each other.

Siva Vaidhyanathan’s comments are posted on his blog. He didn’t get to all of them in his allotted time, but I encourage you to read the whole post.
Molly’s response:

This has broad implications, not just for culture. Property talk is deployed in strange ways, in dense ways, but it’s really a simple and natural set of rules about freedoms.

Questions:

Larry Lessig: What? No notice in the public domain?

van Houweling: That’s right. No notice means copyrighted, not PD, because of the current copyright rules. So therefore we need the Eldred Act.

Lemley: Minor comment — it’s worth noting, vis-a-vis the notice problem, whose job it is to trace the licensing in OSS packages and tell people how they are constrained. Notice problem can be solved where there’s a market incnetive. Heretical comment — property-based conservation has a checkered past in the environemntal movement, since it plays into the hands of the property system itself. It masks the problem and avoids government regulation. Does Free Software and CC playing the role of the nature conservancy in the good sense but also the bad sense, providing cover for the property system?

Siva: One of the problems wiht conservancies is that they may be preservationist but not ecological.

van Houweling: I don’t know the answer — it’s partially an empirical question. Elkin-Koren thinks the same as you. The response is that nobodyt experienced the propertization before, and this helps them experience it. I don’t know that the benefits are worth those collateral problems. We shouldn’t have to rely on uncertain freedoms to build our culture.

Benkler: Collaborative production serves as an object lesson in proving the inefficiency of the property right. We are showing that it can happen without copyright.

Oren Bracha: The projects are second-best projects. The best thing would be to change the copyright system. We know it won’t happen any time soon. What do you do in the mean time? Go for second best. Use the system against the grain of the system. Part of what you’re hoping to do is create cultural practices — things that people actually do. Practices create ideology and political support for the first-best solution.

van Houweling: It’s hard to get out of that difficulty. We go forward recognizing these possible incompatible goals.

Peggy Radin: We’re in a non-ideal state. How do we get to a better place? Implement the first-best or go with the second-best? There arises a dilemma. Are we going to create support for the status quo?

Jamie Boyle: Is the GPL just another reason for enclosure? Will the need for a commons lead to greater property rights?

van Houweling: We need to think about other models for making a commons other than building it out of property rights.

I’m at day 2 of the Cultural Environmentalism at Ten conference. The first speaker this morning is Rebecca Tushnet. My not-for-attribution notes follow.

I found fandom in 1987. I also invented it in 1980 in my room. Every fan invents fandom, just like everyone falls in love for the first time. How do we reconcile this with an IP system that cares whether you’re the first or the second person to recite a poem? Let’s look at patterns and processes of creativity as they’re actually experienced (by wealthy, white internet users). Let’s look at their practices to see how people understand the nature of authorship.

Example to structure the discussion: Razzle Dazzle (from Chicago), but a music video made of old Star Trek clips.

What did they do? The thing that made you laugh was the selection and arrangement of elements the videomakers didn’t create. Within the fandom community, people like this shed new light on preexisting texts. It’s a non-transformative use of the song, though. This is a slightly different way of looking at authorship (the credits at the beginning credited Richard Gere and the videomakers). The romantic author conquers virgin territory, makes something from nothing — male. The romance author is elaborating, embroidering — female. It’s a binary, and that’s troublesome. Romance authorship is about the execution, like any genre work. “Originality” means executing in a new way.

Media fandom has aesthetics — several competing aesthetics — that accept an author function that doesn’t require any concept of conventional ownership of the resulting product. Fans attribute, fans don’t reuse each other’s products, distinguishing between “within” and “without”. What about reusing somebody else’s Mary Sue? The norm is seeking permission. For video (”vidding”), it’s even stronger — don’t reuse someone else’s editing at all.

Why treat inward differently from outward? First, simple selfishness.

Why is this OK? Experiences reach out and grab us. We connect to media and they become part of us, and they’re designed to do so. Thus, it’s fair to engage with a public text in this way. Second, “it’s noncommercial”. This is problematic, since it cements a lower status. But this status helps form community, with a common enemy. Also, it establishes norms.

What are the obligations? Not permission from outside. No reuse inside. The other one is attribution. It can be necessarily implied, as with a Star Trek vid. There are attribution norms in lots of places where control doesn’t happen — here, but also academia. They can be quite context-sensitive, too, and there are formal guidelines for certain fields (e.g. AHA guidelines for history). Also, french chefs.

And importantly, the Copyright Office orphan works proposal. It requires reasonable search and attribution. How did this get in there, with almost no comments? The CO proposed it at the roundtables and met with general agreement. But it cuts both ways, especially with orphan works. But what if you don’t know, or don’t know for sure? “This might be a Picasso sketch.” Attribution is not just credit, but responsibility. It differs in this way from moral rights. This came up in the Gone With The Wind case. Also, the Cat Not in the Hat. The process is one of literary criticism — can we connect this up with the original text? If you can, it’s fair use; if you can’t, you don’t. In some way, the original author is responsible, partly, for the interpretation that the second comer placed on the original.

There are authors who are offended by this. “I didn’t mean that” is hard to argue with. There’s a second fear — the author may fear that the audience can’t distinguish betwene the original and the derivative. This is the problem with Gilliam — heavy editing of Monty Python that makes it less funny. In fandom, we can tell because of production values and general cultural knowledge.

Although it’s a different form of control, attirbution is an exercise of authority over the original Author as well as disclaiming one’s own Romantic authorship. Not that attribution’s bad — it’s a workable norm.

We can learn from fandom that there are ways to have authorship without having total control. They are complicated and messy and hard for the law to recognize, but they exist and they work.

Comments by Jessica Litman:

Boyle has written that there’s a balance between controlled and uncontrolled uses. None of the policies of copyright would be undermined if fan creations were uncontrolled and legally uncontrollable. Fans made Star Trek survive as a franchise. Same with Star Wars. Without the fans, and without the fic, these wouldn’t have survived.

But “No Harry-Draco slash” sounds pretty reasonable, coming from JK Rowling. But these works are not completely original — they are influenced by the fans, and moreover the fans’ experiences of the works influence other fans’ experiences of the works.

We’ve all been undervaluing the reader, and their place as a creator in the copyright skein. To read anything at all, someone needs to experience the work. We haven’t been paying enough attention to readers and listeners, at a theoretical level. Author incentive theories relegate readers to the ghetto of fair use. And fair use just isn’t capacious enough.

there are other tools to properly treat fannish creativity — implicitly authorized derivatives, for example. If they want to vary the terms, let them do so by contract. As a normative matter, it’s an ominous sign that we’d need an implied license theory to make this work.

We’ve allowed two large non-statutory expansions. We’ve promoted an expansive literal reading of copyright, in which everything’s licensed, privileged, or infringing. the reading is broader than the language of the statute requires. Second, we’ve failed to prevent the expansion of each of the rights in the copyright bundle, and they’ve coalesced into a general use right. Copyright owners have persuaded courts that “looking at” is an exclusive right, and that “distribution” includes making available. This is a huge expansion, and implied license won’t make much of a dent.

To resist this, we need to push back with something. Recalling that readers, listeners, and viewers have a central place in the copyright system is one way to push back. Rebecca’s fan communities may seem utterly exceptional, but they’re not. They interact with the works. This is something that copyright should encorage, and traditionally did. Only expansion shows the problem, and we need to reexamine it.

Comments by Mark Lemley:

Yesterday, we talked about the need for ethnographies. This is one. Since it’s about fanfic, it seems appropriate that I repurpose her idea in an unintended way. Here goes.

Let’s use this as a way of thinking about fair use. One important lesson is that there’s a relationship between fair use and scale. Fanfic works primarily because it’s small-scale. You can only have Harry-Draco slash in a small community — if it took over from the real thing, the original would be changed, and the normative baseline would move. If we fork the genre, we can’t comment on it anymore.

There are a number of cases like this, where scale matters. An identical large-scale use is problematic where a small-scale use isn’t. Photocopying is one example. P2P file sharing is another example. When it’s friends, it’s less of a problem than when it’s with the whole internet. The fair use doctrine deals with this by implying that the scale will always be large — “If this use becomes widespread, will it interfere with incentives?” This might be the wrong question. It creates problems where they don’t exist. Marginalization is probably a cost of not seeking permission.

Second, flying below the radar — not producing fanfic that’s illegal under fair use but which never gets caught — may still be an important freedom. Does the practice onthe ground, even if nominally illegal, give us the freedoom to tinker? Feinstein was bemused, at the “post-Grokster” hearing, that P2P still existed. The answer is that the world is not dictated by law, and that interaction may be a freedom we enjoy without being legal.

Third, should we protect copyright owners from themselves? Things copyright owners fail to prevent turn out to inure to their benefit over and over and over. But I think it’s important to separate compensation from control. One of the problems with fair use is that it denies both compensation and control, where one or the other may very well be appropriate. Its lack of granularity limits the scope of the doctrine.

We ought to get rid of the injunctive right where the use is unfair ONLY because there’s a market for licensing those uses. These are rightly derided as circular. your right ought to extend only to payment in such a case, not to an injunction. Copyright law would have to change to make this work. We’d need a non-punitive damages regime (no statutory damages, for example).

In the last two pages, the attirbution norm come up. Which instinct’s at work? How do we work this out?

Comments by Paul Goldstein:

I liked this paper’s window on a culture I’m not familiar with. Having opened the window, it sheds light on the interplay of two copyright themes — fair use and moral right. I’d like to nudge open the window a bit wider with regard to the “fair dealing” attribution requirement in other countries. That captures both fair use and moral rights in a single strain.

The norms implicit in the practices of other countries underpin Berne. We’re contrained by Berne, so let’s keep in tin mind.

First, fair use is a vessel capturing a variety of impulses. There are four versions of fair use in US practice — Betamax private copying (he thinks acceptable under Berne), parody (even more robust elsewhere — even in France), transformative use other than parody (problematic under Art. 12 of Berne, since it’s an adaptation), and abuse of right. Using copyright for non-copyright purposes, like the Howard Hughes case where it was used to protect privacy. Another case is Sega v. Accolade, where copyright was leveraging control over uncopyrightable operating system elements. I’d love to see more of this in American copyright doctrine.

Next, moral right. She rightly underscored the attribution right. The right of integrity, in the US, is viewed as central. In fact it’s not. The central right is that of attribution. There’s a powerful norm at work here. Moral right gets a bad rap here. Motion picture studios don’t want it. In the Dietz report, he shows that moral right can be as utilitiarian and as flexible as American fair use. Let’s pay attention to developments abroad.

Tushnet’s response:

We must be wary of the sense of authorial genius in fandom.

Authorship owny showed up at the end of Lemley’s comments, with attribution as a substitute for compensation. But it actually shows up at the beginning, before the corporate form takes over. I’m hesitant about the “small-potatoes” argument. Let’s point to Batman. Batman is corporately owned, and has been for quite a while. There are many different canonical Batmans. To say that copyright is a way of guaranteeing control seems odd when there’s no individual owner. Corporate ownership may change the works substantially. People can tolerate forking of stories in ways they can’t tolerate forking of code. You can maintain an image of the canonical Harry alongside the Harry-Draco slash Harry.

With respect to the international points. Japanese practices are particularly interesting. There are fan populations all over the world, and a lot of Western European vidding.

Questions:

Larry Lessig: What’s the pushback given the clear logic of describing the problems in the copyright system? Fandom has always been around, independent of copyright. The expansion of the mechanics of copyright is sweeping in things that never implicated copyright before. How do we draw the line between the domain of copyright and the rest of the world, keeping it from sweeping too much with its reach?

Litman: In 1994, fighting off the DMCA, we were busy saying that copyright was so big that it was big enough. Maybe we shouldn’t have said it was so big. We focused on RAM copies, not paying attention to the expansion of copyright into a general use right. In 1976, nobody would have said there was this general use right. Ray Patterson was right — we need to see copyright as a narrow set of exceptions to the general rule of freedom, rather than a “damage to bottom line therefore prima facie infringement” view.

Tushnet: Larry’s move — this has always happened — can always be countered with Mark’s move — scale matters. But people didn’t always make vids. To say that this has always been going on is in some respects wrong. Things like this have been going on, filling the same social purpose. But vids are new. This makes Mark’s move more attractive.

Neil Netanel: You say one reason copyright should not extend to prohibit fanfic is that fans as consumers give value to the work. I wonder about that — generally in property law, the value of consumers for a product is not a reason to limit rights in property. Value does not imply a weaker right, does it?

Tushnet: I think that’s implicit in the piece, but I’m worried about embracing it in those terms.l The value is emergent in the interaction. Belinging to one side or the other doesn’t fully describe the situation. Think back to Econ 101 — consumer surplus. Who should get it? (Not “who created it?”) We face a policy choice about who gets the most benefit from this undefined, emergent value. That’s why we should allocate it to lots of different people.