Author: Viva Moffat


The purpose of copyright law

I am always interested in popular (or at least non-academic) conceptions of intellectual property law, and there’s an interesting back-and-forth going on between Matt Yglesias at ThinkProgress and Sonny Bunch on Conventional Folly.  Yglesias posts a graph showing the music industry’s declining sales — from $14.6 billion in 1999 to $6.3 billion in 2009 — and states that the purpose of copyright law is to protect consumers: “It is, of course, possible that at some point the digital music situation will start imperiling the ability of consumers to enjoy music.  The purpose of intellectual property law is to prevent that from happening, and if it does come to pass we’ll need to think seriously about rejiggering things.”  Bunch responds by claiming a very different purpose for copyright law: “The purpose of intellectual property law has very little to do with Matt Yglesias being able to enjoy a wide variety of new music.  The purpose of intellectual property law is to protect the intellectual property created by artists so they are rewarded for their efforts.  The purpose of intellectual property law is to punish people who steal that which isn’t theirs.”   Andrew Sullivan has been tracking this debate (here and here), including reader comments along the way.

Though I think there’s too much bluster on both sides, I’m often impressed at the level of the debate.  I tend more to Yglesias’ view, that copyright is (or ought to be) more about incentive than reward.  What I’d like to see is a chart about the amount of music out there and available to consumers.  What sorts of changes have there been between 1999 and 2009 that are not reflected in music sales (which is more about a particular business model than about the amount of creativity out there)?


J.D. Salinger and unauthorized sequels

J.D. Salinger, who died this week, was not only notoriously private but notoriously protective of his intellectual property rights.   Just last year, he obtained a preliminary injunction against the publication, advertising, or distribution in the U.S. of Sixty Years Later: coming through the rye, an unauthorized sequel to The Catcher in the Rye, by Fredrik Colting, writing under the pseudonym J.D. California.   Under current law, Salinger’s copyrights will not expire until 2080, so Colting’s novel will, perhaps, remain illicit until then.

One of my sabbatical projects (an admittedly self-indulgent one) is to read a series of novels (both in the public domain and under copyright) and their unauthorized sequels/retellings.  I am currently reading Jane Eyre, to be followed by Wide Sargasso Sea.  In honor of J.D. Salinger, though probably to his chagrin, next I will read The Catcher in the Rye and then Sixty Years Later.  I also plan to read King Lear and A Thousand Acres; Pride and Prejudice and Pride and Prejudice and Zombies; Gone With the Wind and The Wind Done Gone; Lolita and Lo’s Diary.   I welcome your suggestions as to other good pairings.


The surprisingly weak justifications for employee non-competition agreements

As I said in my first post, I am working on an article about employee non-competition agreements.  As you might infer from the title of this post — * spoiler alert * — I don’t think much of them.  When I practiced law, employee non-competes nearly always struck me as unfair and often unnecessary (and I worked on the both the employee and the employer side).   Many of the employee-side arguments concerning the problems with non-competition agreements cover fairly well-trod ground:  restrictions on employee mobility, unequal bargaining power, little if any negotiation of terms, nominal consideration, difficulties of enforcement, and so on. 

What has really struck me in working on the piece is the weakness of the arguments put forth to justify the imposition of non-competition agreements.  Those arguments fall roughly into three categories:  (1) freedom of contract; (2) general references to “business necessity” or some variation on that; (3) the need to protect intellectual property or IP-like assets, such as trade secrets or “confidential information.”  To my mind, each of these justifications is problematic. 

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Information overload and “connecting the dots”

This short piece by David Dalrymple (an 18 year-old PhD student at MIT — wow, that’s enough to make one feel inadequate and over the hill!),  emphasizes both the problems and opportunities created by the vast sea of information now available on the Internet.  Dalrymple writes: “. . . the majority of this information is worthless to the majority of people.  Yet anything we care to know . . . is out there somewhere.”   Just as Frank Pasquale (here and here, for a couple of examples) (and others) have discussed, the difficulty is figuring out how to wade through this information.   This is no small concern.  The national security failure to “connect the dots” concerning the Christmas Day “underwear bomber” seems to have arisen in part from information overload.  The administration has admitted that “the government had sufficient information to uncover the plot” but that it failed to “connect those dots.”  The New York Times asserts “that there were far more warning signs than the administration has acknowledged.”   While Dalrymple focuses on the individual, arguing that “filtering, not remembering, is the most important skill for those who use the Internet,”  filtering  may also be the most important skill for our national security organizations.


More media, less news?

The New York Times reported yesterday on a study of the coverage of six major stories during one week in July 2009.   According to the Times, the study found that 83 percent of the news reports conveyed “no new information” and that of the stories that did contain some new information, 95 percent came from “old media”  (emphasis mine).  I would put this into the “depressing but not surprising” category.   The Times article concludes: “the study offered support for the argument often made by the traditional media that, so far, most of what the digital news outlets offer is repetition and commentary, not new information.”   We have heard these arguments a lot; it is interesting — and useful — to see empirical evidence of the phenomenon.  I think it’s a real problem.  As a lawyer and legal academic it frustrates me that there does not appear to be a legal solution to this problem.  I wonder if there is any solution at all?


The costs of piracy and the costs of anti-piracy efforts

In that time-honored new year’s tradition, I’ve been looking at top 10 (or top 100) lists.  It turns out that five of the top ten grossing movies of 2009 are also in the top 10 most downloaded movies on BitTorrent:  Star Trek, Transformers, Harry Potter and the Half-Blood Prince, Twilight, and The Hangover.  So I think we can conclude that popular movies are popular, with downloaders and moviegoers alike (and that people don’t use BitTorrent so much to download kids’ movies — there are three in the top ten grossing movies, and none on the BitTorrent list).  I have always been skeptical of the RIAA’s and MPAA’s assertions about the effect of file-sharing/downloading on their sales.  There certainly is not a one-to-one correlation (i.e., not every pirated copy is a lost sale), and I wonder if it’s possible that anti-piracy efforts cost more than they are worth.  2009 was a good year for the movie industry.  No doubt it would have been better in the absence of piracy, but how much better?


Gearing up for “time off”

Thanks to Danielle for the very nice introduction and to everyone here at CoOp for the invitation.  This is my first foray into the world of blogging, and it coincides with my pre-tenure leave, in which I hope to get some writing done (I mean, in which I will definitely get a lot of writing done!).  In my previous work I have focused on the interactions between the various regimes and methods for protecting intellectual property, including the horizontal overlaps between trademark, copyright, and patent law, and the vertical overlaps between state and federal law.  My interest extends to the interaction between contract law and the various IP regimes, and my current project examines employee noncompetition agreements as a form of IP protection.  I conclude that such agreements are not particularly good vehicles for the protection of IP and have a slew of unfortunate collateral consequences.  I hope to blog about this (and other topics) this month.  Before I turn to that project in earnest, though, I have to finish grading — argh! — and then I am heading to New Orleans for the AALS conference.  I hope to see some of you there.