Category: Intellectual Property

Copyright Expansionism’s Colmes

The blawgosphere is abuzz over Mark Helprin’s sally into the copyright culture war, “A Great Idea Lives Forever. Shouldn’t Its Copyright?” The trouble with the piece starts with its title, since copyright protects expression, not ideas. . . . and it goes downhill from there, as Ilya Somin and James Grimmelmann expertly show. To add my 2 cents: Helprin’s essay focuses on artistic works, ignoring the wide range of ways copyright ends up influencing software, architecture, consumer product design, and the transmission of information generally.

But I’d like to focus on one aspect of Helprin’s rhetoric: the blurring of the difference between IP and real property. Here’s the crux of Helprin’s argument:

Once the state has dipped its enormous beak into the stream of your wealth and possessions they are allowed to flow from one generation to the next. . . . they are not simply expropriated. That is, unless you own a copyright. Were I tomorrow to write the great American novel (again?), 70 years after my death the rights to it, though taxed at inheritance, would be stripped from my children and grandchildren.

Helprin is attempting to expand the frontiers of a burgeoning property rights movement in the U.S. But as Peter Menell has demonstrated, deep

[P]hilosophical, functional, intellectual, and political tensions stand in the way of a stable or enduring

relationship between advocates of strong and unyielding property rights and intellectual property owners. The need for dynamism and adaptability within the intellectual property rights field may well weaken the support for absolutism in property jurisprudence and policy, reinforcing the shift away from the Blackstonian conception of property.

Here are a few of the differences Menell focuses on, in the course of critiquing Richard Epstein’s effort to parachute property rights rhetoric into IP debates:

Exclusivity in the realm of real property addresses the “tragedy of the commons.” Providing exclusive rights to land and other tangible resources limits the overuse of inherently depletable resources. By contrast, intellectual resources (knowledge) are not depletable and hence are not subject to overuse externalities.

[S]everal libertarian theorists see scarcity, and not the act of creation, as the fundamental justification for property rights. They view the recognition of property-type rights in intellectual creativity as inhibiting the freedom of others to use tangible resources and to engage in free expression.

As Menell concludes, “the Property Rights Movement is too limited and grounded in absolutist ideology to support the needs of a dynamic, resource-sensitive intellectual property system.” Can we even imagine what it would be like for Richard Loncraine to negotiate deals with the fractionated interests of descendants of the Shakespeare estate in order to do Richard III? Or to think that one errant heir of, say, dozens, could veto the production?

Perhaps Helprin is just trying to push the debate on the expansion of copyright terms toward longer protection by advancing a outlandishly uncompromising position. But given the absurdity of his argument, perhaps he’s more like copyright expansionism’s Colmes (of Hannity & Colmes); a token voice given a forum merely to humiliate his ostensible allies, or to put their case in the most unconvincing way possible.

Anything New Under the Sun?

Jonathan Lethem’s justly celebrated Harper’s article on the pervasiveness of plagiarism is featured in the WaPo:

After 10 pages of carefully constructed argument against “those who view the culture as a market in which everything of value should be owned by someone or other,” Lethem reveals that just about every line in his piece is something he “stole, warped, and cobbled together” from the work of others. He then annotates his borrowings, reporting, for example, that the “culture as a market” quote derives from “The Tyranny of Copyright?,” by Robert Boynton, in the New York Times Magazine.

The idea of making a case for originality based on copying appears charmingly novel. But after twice being asked by law review editors to provide a citation for the thesis statement of an article (can the article cite itself?), I’m beginning to think that perhaps even Lethem’s idea is not all that unprecedented. We lawyers are forced to disclaim our originality all the time. . . . even in a medium like the article, where novelty is supposed to be a sine qua non. I have to wonder what other writings would look like if all the borrowing had to be as transparent (or were as valued) as ours.

Here’s one more celebration of Lethem’s essay:

It’s a passionate salvo in the copyright wars, a crowd of voices coralled together to say, basically: without borrowing, stealing, cribbing, remixing, mashing-up, collaging and compiling — without influences great and small, in other words — there is no “creating.” No hip hop, sure, but also no blues, no Disney, no Shakespeare. No Lolita or “I have a dream.” We’d be reduced to staring at campfires and barking at one another.

Woof! [approvingly]

The Right to Delete’s Infrastructure

clippy.jpgShould every keystroke you ever enter into your computer be preserved for inspection forever? Worry over that possibility has led to some very interesting scholarship, including Paul Ohm on the right to delete. Ohm has suggested that a right to delete is akin to the property right to destroy what one owns, for “when an owner loses control of a copy of her data, she loses the ability to dispose of or alter that data.” By contrast, Ohm notes Orin Kerr ‘s “worries that during the time after [data is captured] and before it is analyzed, the Fourth Amendment may not apply since the owner of the original drive has not been deprived of a possessory interest.”

I don’t know enough about the relevant Fourth Amendment law to comment on that dispute, but I do find Google’s recent commitment to deleting personally identifiable data from search history records (after about 2 years) to be an interesting development. Jack Balkin has noted various “infrastructural requirements” for the enjoyment of certain rights. He states:

[A]n infrastructure of free expression. . . . includes government policies that promote the creation and delivery of information and knowledge. It concerns government policies that promote transparency and sharing of government created knowledge and data. It involves government and private sector investments in information provision and technology, including telephones, telegraphs, libraries, and Internet access. It includes policies like subsidies for postal delivery, education, and even the building of schools.

The right to delete appears to require commitment by search engines and other massive databases to allow some “cataloguee” discretion over what to retain and what to delete from records. The big question is whether the market will ultimately reward or punish search engines that put that infrastructure in place. As Elizabeth van Couvering has noted, current trends do not bode well for the development of public-minded search engines:

Resources in search engine development are overwhelmingly allocated on the basis of market factors or scientific/technological concerns. Fairness and representativeness, core elements of the journalists’ definition of quality media content, are not key determiners of search engine quality in the minds of search engine producers.

As with digital music, we may need Europe to lead the way. But perhaps there is one powerful constituency fully behind the right to delete:

From 2001 to 2004, the RNC’s highly unusual “document retention” policy was to intentionally destroy all e-mails that were more than 30 days old. In the summer of 2004, due to “unspecified legal inquiries,” the RNC changed its policy by allowing — but not mandating — the indefinite retention of e-mails sent and received by White House staffers on their RNC accounts.

Perhaps eventually technology to preserve data will become more transparent.

Milking The Secret

It looks like pressure from the Physicians Committee for Responsible Medicine (via the Federal Trade Commission) has gotten the Dairy Industry to stop touting milk as a diet food. They need to provide more substantiation of the link between “dairy consumption and weight loss.”

So what about The Secret? For those unfamiliar with this self-help phenomenon, here’s a nice summary from Emily Yoffe:

There are now 5.3 million copies of the book in print in the United States. . . .[i]t is a No. 1 best seller in Australia, England, and Ireland, and it is scheduled to be translated into 30 languages. . . There’s no secret to The Secret. The book and movie simply state that your thoughts control the universe. Through this “law of attraction” you “manifest” your desires. “It is exactly like placing an order from a catalogue. . . . You must know that what you want is yours the moment you ask.” “See yourself living in abundance and you will attract it. It works every time, with every person.”

Even Oprah is buying it . . . despite the fact the book contains such extraordinarily irresponsible claims as “You cannot ‘catch’ anything unless you think you can, and thinking you can is inviting it to you with your thought.”

Could the FTC do anything to stop the marketing of The Secret? At first this case reminded me of the not-so-clairvoyant Miss Cleo, but it turns out her transgressions were mainly of rules regarding 1-900 numbers. A quick perusal of Rebecca Tushnet’s fantastic blog led me to this post about a big fine against makers of the Q-Ray bracelet for “infomercials . . . falsely representing that (1) the bracelet provides immediate, significant or complete pain relief and (2) scientific tests prove the pain-relief claims.”

Perhaps The Secret lacks the “immediacy” prong of that accusation. But it does rely pretty heavily on both scientific and religious rhetoric. Consider this little tidbit from Yoffe, describing its author:

She asserts that “the discoveries of quantum physics … are in total harmony with the teachings of The Secret.” To prove this, she explains, “I never studied science or physics at school, and yet when I read complex books on quantum physics I understood them perfectly because I wanted to understand them.”

And I want to devise a perpetual motion machine! I’ll just envision it working and it’ll come true, right?

A few more thoughts beneath the fold….

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Limits of Performance Enhancement

antlers.jpgImagine it’s 2020, you’ve begun working at a firm, and you’re having trouble keeping up. All the other employees are working 75 hours a week, take no vacations, and seem both alert and happy all the time. You ask some confidantes there “how do you do it?” All mention some variety of cognitive enhancement: one takes modafinil to concentrate, another uses chemicals that were originally designed for fighter pilots. Do you take the pills to keep up?

That was one of a few hypos posed yesterday during a presentation I made to the Yale Information Society Project. Though I thought the problematic nature of that situation pretty intuitive, I got pushed to specify exactly what was wrong. So here are some ideas, from different perspectives:

1) Safety: What if the drug shortens lifespan? Surely that’s a problem that would make this scenario pretty analogous to steroids in sports. I hope no one seriously thinks that we want to allow athletes to risk terrible consequences in the future to compete better today. I also think that even a small increase in risk to health ought to render the “super worker” pills problematic. . . . though I admit it’s hard to specify how much. Shortening life expectancy by a month? a year? 10 years? I’ll admit that the choice between those options is an inevitably ideological one.

But let’s assume for now these pills are as safe as caffeine. What’s the harm then? Four takes below the fold…

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Social Justice Symposia

I just wanted to quickly recommend two outstanding recent law review symposia:

U.C. Davis Symposium on Intellectual Property and Social Justice. I’ve seen Bartow, Cohen, and Fisher present on their article topics, and highly recommend those pieces. I look forward to reading many of the rest.

St. Louis University Health Law Symposium, “From Risk to Ruin: Shifting the Cost of Health Care to Consumers.” A very timely topic. As Tim Jost states in the introduction to his piece, “Of all developed countries, the United States is the one country where obtaining basic health care is most likely to result in financial ruin.”

Three Views of Education as an Associative Good

The Posner-Becker blog had a good discussion of education rankings 2 months ago. I was particularly struck by Posner’s observations on the self-fulfilling prophecy aspect of rankings:

The effect of college ranking on the education industry is unclear, but my guess is that it is negative. . . .Given the high costs of actually evaluating colleges, employers and even the admissions committees of professional and graduate schools are likely to give weight to a school’s rank, and this will give applicants an incentive to apply to the highest-ranking school that they have a chance of being admitted to (if they can afford it). The result will be to increase the school’s rank, because SAT scores and other measures of the quality of admitted students are an important factor in a college’s ranking. That increase in turn will attract still better applicants, which may result in a further boost in the school’s rank. The result may be that a school will attract a quality of student, and attain a rank, that is disproportionate to the quality of its teaching program.

Henry Hansmann wrote an interesting piece on this phenomenon, calling education an “associative good,” since, “when choosing which producer to patronize, a consumer is interested not just in the quality and price of the firm’s products, but also in the personal characteristics of the firm’s other customers” (emphasis added). Hansmann concludes by wondering if “the increasing technological sophistication of our society, which is fueling the trend toward stratification among the elite educational institutions, will someday produce technologies that make it less important for elite higher education to be a residential experience, and hence remove much of the associative character of higher education.” Franklin Snyder offers evidence that blogging is one such technology.

But don’t underestimate dominant interests’ passion for rankings, cautions McKenzie Wark (whose bookpage for the source I’m quoting interestingly fails to mention it was published by Harvard University Press). He claims that “Education is organized as a prestige market, in which a few scarce qualifications provide entree to the highest paid work, and everything else arranges itself in a pyramid of prestige and price below. Scarcity infects the subject with desire for education as a thing that confers a magic ability to gain a ‘salary’ with which to acquire still more things.” In other words, the rankings are the purest form of artificial scarcity. . . . a precious commodity in an era when the diminishing scarcity of resources that meet basic needs limits their contribution to economic growth. Wark worries that education will “split[] into a minimal system meant to teach servility to the poorest workers and a competitive system offering the brighter workers a way up the slippery slope to security and consumption.”

I’ll expressly disclaim endorsement of any of these three theories. I just find it interesting how the staid and sober observations of a Posner can resonate with Wark’s radical theory, once we interpose the “associative goods” concept.

Is MySpace Exploiting You?

MySpaceGreaseMonkey.jpgThe Web 2.0 backlash has begun. From the right, Andrew Keen voices a cultural conservatism uneasy with the new egalitarianism of networked media, claiming that the “media and culture industries’ [purpose] . . . is to discover, nurture, and reward elite talent.” He laments the “Napsterization” of old gatekeepers and their replacement by new context providers like FaceBook, MySpace, Google, and ochlocratic intermediaries. I see where he’s coming from, though I think Keen is way too quick to conflate media conglomerates and nonprofits as guarantors of quality.

On the left, Trebor Scholz worries that these new intermediaries recapitulate old patterns of exploitation. The labor of millions on their MySpace page results, most often, in nothing paid to them, and vast sums going to Rupert Murdoch. Scholz questions whether Web 2.0 really brings the decentralization its proponents hope for:

The most central sites of the World Wide Web create massive surplus value and small startups are frequently bought out by the Walmarts of the Internet (NewsCorp, Yahoo, Google) the very moment that they attract sufficient numbers of page views. People spend most time on the sites of these giants and not in the “mom and pop stores.” Almost 12 percent of all time spent by Americans online is spend on MySpace.

Scholz admits that “The picture of net publics being used is . . . complicated by the fact that participants undeniably get a lot out of their participation. There is the pleasure of creation and mere social enjoyment. . . . They share their life experiences and archive their memories. They are getting jobs, find dates and arguably contribute to the greater good.” Nevertheless, he’s raising some interesting questions about the very nature of labor and “just enrichment” in the digital age.

So are social media megasites exploitative?

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Unnaturally Made Killers

After a week of media coverage of the Virginia Tech tragedy, we can compare how different outlets have shaped our view of events there. Megan McCardle notes:

I haven’t found a single editorial addressing one factor we know creates these mass murders: reporting on the mass murders. In the next few weeks and months, even over the next few years, expect to see copycat killings inspired by Cho’s actions. The more saturated the media coverage, the more such events we are likely to get.

Of course, it’s impossible to fully assess causation here, an issue that has vexed media reformers for decades. But Thomas de Zengotita has weighed in on how deeply mediated this killer’s self-conception was, and how the whole event quickly became polarized between different “scripts,” or ways of making sense of a terrible reality. Many criticize the media for airing so much of the shooter’s “media kit,” for complicity in fulfilling (if posthumously) a disturbed soul’s demand for the world’s attention.

Some respond that competitive pressures made the decision by NBC to share the materials inevitable. The Canadian Broadcasting Company decided not to air the Cho videos….but they are under less ratings pressure than American broadcasters, and at the time it aired the tapes, NBC was losing share to ABC.

Is there a role for law to deter an arms race of sensationalism? Fred Yen has mentioned a possible copyright issue here, but it’s hard to imagine the shooter’s family being capable of putting such a suit at the top of its concerns….especially immediately in the aftermath of the murders.

Could a ban on broadcast of such materials work? Perhaps, but I imagine would-be celebrity killers would simply upload their rants into the BitTorrent and YouTube ether. Blogs would quickly jump on disseminating it, eager for the fame & links that it could bring.

So despite my occasional dirigisme, I can’t see a role for law here. The public’s insatiable appetite for sensationalism, and predictably ensuing frenzies for renown, appear to be a durable aspect of a decentralized and link-driven web. Technology + Competition > Values.

Self-Defeating Savings Strategies

cost balloon.jpgYesterday I did a CLE presentation for lawyers in pharmaceutical firms, focusing on the interaction between the new Medicare Part D and companies’ patient assistance programs (PAPs). The PAPs try to provide very-low-cost drugs to low-income individuals who fall through the cracks of existing insurance programs. Astonishingly, a complex web of Medicare “fraud and abuse” law could actually lead to criminal (and civil) sanctions for such programs if they offer financial assistance designed to get someone through the “donut hole” gap in coverage; as the Office of the Inspector General (OIG) of the U.S. Dep’t of Health and Human Services put it, “Pharmaceutical manufacturer PAPs that subsidize Part D cost-sharing amounts present heightened risks under the anti-kickback statute.”

After extraordinary controversy, the Centers for Medicare and Medicaid Services backed down a bit, claiming merely to insist that PAPs exist outside Part D coverage. This helped a bit, but when one reads the advisory opinions the OIG issues, they are not exactly perfect safe harbors. They contain pretty contradictory language, only purport to assess risk probabilistically, and raise the possibility that conduct that does not present a high risk of liability under the Anti-Kickback statute may well implicate other state and federal laws. (Ahh, the joys of guidance documents in admin law.)

According to the agency, it wants to put pharma under fraud & abuse scrutiny in because they might “increase the number of beneficiaries using the manufacturer’s product who reach the catastrophic benefit in any given coverage year,” steering people away from cheaper drugs. But one has to wonder if this particular obsession with cost-saving is really all that helpful to the program. Consider the following research on “meat-ax” rationing in the New Hampshire Medicaid program:

Jerry Avorn and his colleague at Harvard, Steve Soumerai, were responsible for showing that, when New Hampshire put a cap on the monthly number of prescriptions that welfare recipients would get for free, the result was an increase in nursing home admissions that probably cost the state government as much as it saved on drug costs.

In other words: one part of the bureaucracy may avoid paying for $200 of diuretics, but other parts may well end up having to cover a hospital admission due to congestive heart failure that runs to tens of thousands of dollars. Squeeze one part of the medical cost balloon, and it may just start bulging in some other area.

This is one reason why I’m happy Jason Furman’s recent report on cost-consciousness in health care reform does acknowledge this “big picture,” and proposes little to no cost-sharing for especially helpful interventions, especially preventive care. The OIG might want to focus less on new applications of fraud and abuse laws to Part D, and more on the type of economic analysis that allows us to see the true costs of denying drugs to the elderly.

Photo Credit: PingNews/Flickr.