Could You Replace Copyrights And Patents With A Fairness-Based Legal Liability?

from the fairness-and-liability dept

Earlier this year, I recommended the book No Law by David L. Lange & H. Jefferson Powell. I still keep meaning to get around to writing a full review, but the book makes a very compelling argument that copyright law is a clear violation of First Amendment principles. However, rather than wiping out copyright law, the book suggests something of an alternative. In noting that the claim of "exclusive rights" has been bastardized from the original "exclusive rights to profits," they suggest that no one be barred from using the content of others, with the requirement that profits due to those uses must then be shared with the originator. I have some issues with that conclusion, but it looks like others are investigating that concept as well.

Andrew F alerts us to the latest work by Marshall van Alstyne, who we've mentioned before concerning his views on journalism business models and who did a great job at The Free Summit put on by Tech Policy Central, and emceed by me. His most recent paper, co-authored with Gavin Clarkson, explores both how strict intellectual property rights lead to socially inefficient outcomes, and how "fairness" principles could be much more efficient. The paper uses a combination of real world examples, previous research and game theory to make a rather compelling case.

Basically, it explains all the reasons why intellectual property leads to hoarding of information that slows innovation:
Property rights provide incentives to create information but they also provide incentives to hoard it prior to the award of protection. All-or-nothing rights, in particular, limit prior sharing. An unintended consequence is to slow, not has- ten, forward progress when innovation hinges on combining disparately owned private ideas.
As to why this happens, it's due to the injunctive ability of intellectual property holders to not just stop the specific use of their expression or invention, but effectively everything else built on top of it:
Infringement of copyright provides injunctive relief as remedy. This permits copyright owners the use of take-it-or-leave-it offers as strategy. The trouble that results from such a hold-up strategy is that it allows the injunctive rights owner, when bargaining with a non-owner, to extract nearly the full value of any transaction (with full information it is full value.) For recombinant works, this affords the last negotiating rights holder undue influence much as the last negotiating landowner exercises undue bargaining power relative to other landowners in any effort to develop a multi-parcel tract of indistinguishable parcels of land. For works of modest value, such as a single sample of a song, image, or video, negotiation costs can vastly exceed market value. For transformative works, insignificant inclusions of lesser material can retard or reduce the progress of more valuable material as when the release of the movie 12 Monkeys was enjoined due to the appearance in several scenes of a copyrighted chair.
From there, they make the case models that follow on "fairness" and "liability" work much better than a strict "property rights" setup. Along the way, they discuss the study we mentioned in the past about how people view fairness and relative compensation, as well as debunk the myth that if one person can take advantage of another they absolutely will.

The end result is a suggestion not unlike the one in No Law: that rather than setting up a system of artificial property-like rights called copyright and patents, there may be more social and economic efficiency in allowing unfettered usage of expression and inventions, with a system that then requires some sort of attribution and payment for a fair share of any of the profits. That would then actually encourage much greater sharing of ideas and inventions in an effort to get those concepts included more widely.

It's definitely interesting to think about, and I agree that in many ways it would likely lead to great net benefit than an IP regime, but it could also generate many other problems, especially in situations of independent generation or incidental copying -- as well as long, and drawn out legal fights over these situations as well as a determination of what is, in fact, fair. The paper does try to address the latter point with three responses, but I'm sure this won't be enough for some.

Either way, this is certainly an interesting paper that contributes to this ongoing discussion.


Reader Comments (rss)

(Flattened / Threaded)

  •  
    identicon
    Anonymous Coward, May 24th, 2010 @ 8:05am

    the error is to assume that the same amount of innovation would occur without financial reward, specifically a financial reward big enough to cover the expense of the development. i think that alone is the reason why a purely social system (as attempted in many communist and socialist countries) pretty much fails to achieve results at the same speed and same breadth that happens under the current system.

    the first amendment doesnt trump all. that is why there are actually property rights that limit what others can do. if you dont think so, go try to walk into a random house in texas. just make sure you are wearing a bullet proof vest (darn second amendment).

     

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      keven sutton, May 24th, 2010 @ 8:30am

      Re:

      "i think that alone is the reason why a purely social system (as attempted in many communist and socialist countries) pretty much fails to achieve results at the same speed and same breadth that happens under the current system."

      I think this has more to due with the economics of the area than quality of innovation. For example, if you look at the emergence of Dadaism and expressionism from Germany (which is arguably the root of all artistic movements after it) you'll find a depth of creativity that is difficult to find in contemporary art.

      I'd say that the slow innovation of most socialist and communist states had more to do with poor economic choices such as Isolationism.

       

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        Anonymous Coward, May 24th, 2010 @ 8:34am

        Re: Re:

        socialist systems often do very well in narrow areas of focus, considering russia and the space race. but in order for that to happen, they fail as an overall system, which is the key for most citizens. in the end, any system should be about the overall quality of life of its citizens over the longer run, not a short run of political self-interest.

         

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          Dark Helmet (profile), May 24th, 2010 @ 9:04am

          Re: Re: Re:

          "considering russia and the space race"

          Hmm, probably not the best example. The USSR's success in the space race was largely due to the totalitarian way they operated with their share of the German scientists we and they both exported. While that might be seen as a strength in that case, it didn't involve much in the way of actual Russian innovation...

           

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            angry dude, May 24th, 2010 @ 9:19am

            Re: Re: Re: Re:

            ?????????????

            The german scientists were dead and buried in siberian camps long before Sputnik was launched

            Better read some history, punk

             

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              Dark Helmet (profile), May 24th, 2010 @ 9:40am

              Re: Re: Re: Re: Re:

              "The german scientists were dead and buried in siberian camps long before Sputnik was launched

              Better read some history, punk"

              There's something so delicious when people who are ignorant of history tell others to "read some history". So how about a quick history lesson from this punk, goofball?

              Beginning in the tail end of WWII, the Soviets and Americans began exporting Nazi scientists to their respective nations. The American version of this was called Operation Paperclip, the most famous product of which was probably Wernher Von Braun. The name for the Russian version eludes me at the moment. In any case, both sides used these scientists to develop rocket technology, both for weapons and space exploration.

              Specifically, the Russians initially housed their share of the Nazi scientists in a Moscow suburb called Khimki. They were initially kept from direclty working on rocket design, instead being used solely as outside consultants to Soviet rocket scientists until 1953, at which point all of these scientists were repatriated.

              It was Sergey Korolev in 1953 who was responsible for the grandfather of all space rockets with the R-7 Rocket, a progression of his R-1 rocket, which was basically a carbon copy of the Nazi V-2 rocket. Gee, I wonder where he got that information from? Surely it couldn't be all of those pleasant goose-steppers in Khimki....

              In late 1957, Sputnik launched on the back of a (you guessed it) R-7 rocket. But yeah, German scientists didn't have anything to do with it....

               

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                Anonymous Coward, May 24th, 2010 @ 10:56am

                Re: Re: Re: Re: Re: Re:

                Nice!

                 

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                Richard (profile), May 24th, 2010 @ 10:57am

                Re: Re: Re: Re: Re: Re:

                No actually it really was Korolev who did most of it - the Germans weren't really in the frame for very long.

                In fact it really was a bit of a one man band. Once Korolev died the Russians more or less stopped. They still use his design for all manned spaceflight.

                The reality of the space race was that two very motivated individuals (Von Braun and Korolev) used the cold war as a lever to obtain funding for their own pet projects (Von Braun did the same to the Nazis in the 30's). Neither was motivated by money in the conventional sense and BOTH operated in a more or less "socialist" environment throughout their careers. (The US military was just as much a planned economy as the USSR in the cold war period - still is really).

                 

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                  Dark Helmet (profile), May 24th, 2010 @ 11:11am

                  Re: Re: Re: Re: Re: Re: Re:

                  "No actually it really was Korolev who did most of it - the Germans weren't really in the frame for very long."

                  Er, what? Korolev's R1 was a COPY of the V2. You're suggesting that he and other Soviet engineers didn't utilize their captured German scientists in their work, when that work was essentially built directly upon German science? If that was the case, then why would Soviet Russia have been so adamant about importing the scientists at all? After all, the majority of them were ROCKET scientists....

                  I'm not sure that passes the smell test....

                   

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      SteelWolf (profile), May 24th, 2010 @ 8:42am

      Re:

      I think the error in article's proposal is to assume that the so-called "original" creator deserves any kind of payment from somebody else's efforts.

       

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        ChurchHatesTucker (profile), May 24th, 2010 @ 9:31am

        Re: Re:

        "I think the error in article's proposal is to assume that the so-called "original" creator deserves any kind of payment from somebody else's efforts."

        Yeah, once they started to protect 'derivative rights' they got away from the original idea of protecting a particular work, and started protecting ideas.

         

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      Richard (profile), May 24th, 2010 @ 10:47am

      Re:

      a purely social system (as attempted in many communist and socialist countries) pretty much fails to achieve results at the same speed and same breadth that happens under the current system.

      Got any actual evidence to back up this statement?

       

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    identicon
    Anonymous Coward, May 24th, 2010 @ 8:13am

    Any time you try to base compensation on profits (rather than revenue) there will be creative accounting to make it seem like profits are zero...

     

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    pr, May 24th, 2010 @ 8:22am

    I think the big problem is that the content industries have started to think of unauthorized use as an offense rather than a use. They think of their works as their children and feel the need to protect them from the evil doers of the world. Injunctive relief feeds the control freaks.

    It would be a big step to simply recognize would be that the value of the protected content is only a small fraction of the value of the product sold. Even if it's an enabling patent central to the operation of the device, it's still not more than a few percent of the total value of the device. Or for that matter, a recorded song track is still only a small fraction of the value of the sale.

     

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    out_of_the_blue, May 24th, 2010 @ 8:45am

    The Rich oppose all fairness.

    I refute the notion that "the current system" produces anything of greater value than a "socialist" system does with Britney Spears, Miley Cyrus, N'Sync, Justin Bieber, Lady Gaga, and similar, all contrived, all without noticeable talent, mere products of a publicity machine that's designed to extract money from teenage girls. Previous poster is likely basing judgment on his own tastes, *not* what's most popular.

    In any case, "the current system" is moving from more or less free and fair to absolute *control* by Big Content, with statutes written by them after bribing politicians.

     

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    Just Another Moron in a Hurry (profile), May 24th, 2010 @ 8:50am

    What is Fair?

    What were the three responses brought up in the book in response to this question?

     

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    identicon
    angry dude, May 24th, 2010 @ 8:59am

    Mikey is beating the dead horse again

    C'mon man

    the horse is already stinking

    Don't you have better things to do with your time ?

    Everyone and his brother is tired of your nonsense

     

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      Gwiz, May 24th, 2010 @ 9:04am

      Re: Mikey is beating the dead horse again

      This horse isn't dead - it's galloping off with innovation and personal freedoms on it's back.

       

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      identicon
      Anonymous Coward, May 24th, 2010 @ 9:13am

      Re: Mikey is beating the dead horse again

      Hi Michial!

       

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      identicon
      Anonymous Coward, May 24th, 2010 @ 10:09am

      Re: Mikey is beating the dead horse again

      i tend to agree. it seems like every month or so mike feels the need to stick the first amendment flag up to see who salutes. even the die hard techduhs arent stupid enough to fall for this intellectual masturbation.

       

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        identicon
        Anonymous Coward, May 24th, 2010 @ 11:49am

        Re: Re: Mikey is beating the dead horse again

        Blah blah the masnick blah. Yada yada yada [look at my shocking words!] Ickety ackety oop [ad hominem].

         

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        identicon
        Anonymous Coward, May 24th, 2010 @ 12:26pm

        Re: Re: Mikey is beating the dead horse again

        The Masnick Sidekick Strikes Again!!!

         

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    NAMELESS ONE, May 24th, 2010 @ 9:53am

    ok

    society grants you a limited monopoly such that you can invent again
    thats what its for
    not sit in malibu on a beach drinkin latees and doing nothing for 80 years

     

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    just someone, May 24th, 2010 @ 9:58am

    What about moral rights?

    I can see how this model would work with anglo-saxon IP law, which focuses on money. I would be interested in seeing how concepts of moral rights, which are found in continental Europe, could be expressed in this model.

     

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    Michael Kay, May 24th, 2010 @ 10:26am

    50% of zero is zero

    >no one be barred from using the content of others, with the requirement that profits due to those uses must then be shared with the originator

    This allows anyone to scan my book and put a copy of it for free on the web. They make no profit, so the compensation I get from them is zero, so the income I can make from writing the book is so low that I think I won't bother writing it, thank you very much.

    There's a lot wrong with copyright, but this seems a rather poorly thought out answer to the problem.

     

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      Just Another Moron in a Hurry (profile), May 24th, 2010 @ 10:41am

      Re: 50% of zero is zero

      The answer is to adjust your business model. Don't focus on selling infinite goods(like digital books). That's a losing strategy. Instead, come up with ways to use the infinite goods to make your finite goods more valuable. You make your money off of the finite goods.

      CwF + RtB = Profit

       

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      Richard (profile), May 24th, 2010 @ 11:03am

      Re: 50% of zero is zero

      o the income I can make from writing the book is so low that I think I won't bother writing it, thank you very much.

      Well if that is the level of your intellectual analysis then we haven't lost much.

      Abolishing IP would be a good first step in improving the average quality of content by eliminating the dross created by those who work only (or mainly) for financial reward and lack the imagination necessary to survive in a truly free system.

       

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    Technopolitical (profile), May 24th, 2010 @ 10:52am

    "but the book makes a very compelling argument that copyright law is a clear violation of First Amendment principles."

    but the book makes a very compelling argument that ****copyright law is a clear violation of First Amendment principles.****

    Like dividing by zero. Looks nice , but the court would spit it out , and tell you to get a real job.

    Copyright Law was in the constitution before the 1st adment.

    No one in legal history has ever raised this--- frankly because it is looney.

    It does though , get discussed in political theory classes as an academic exercise.

     

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      Just Another Moron in a Hurry (profile), May 24th, 2010 @ 11:21am

      Re: "but the book makes a very compelling argument that copyright law is a clear violation of First Amendment principles."

      What makes you say it's looney? Just because it came first doesn't make it better, does it?

      I would think that if it gets discussed regularly in an academic setting, then it at least has enough basis to merit serious consideration.

       

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        Mike Masnick (profile), May 24th, 2010 @ 11:28am

        Re: Re: "but the book makes a very compelling argument that copyright law is a clear violation of First Amendment principles."

        What makes you say it's looney? Just because it came first doesn't make it better, does it?


        Also worth pointing out: because it was an amendment to the constitution, it takes precedences over the original statements in the Constitution. In other words, First Amendment trumps the patent/copyright clause.

         

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          Anonymous Coward, May 24th, 2010 @ 12:58pm

          Re: Re: Re: "but the book makes a very compelling argument that copyright law is a clear violation of First Amendment principles."

          What's worth noting is this. The constitution says that

          "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

          http://en.wikipedia.org/wiki/First_Amendment_to_the_United_States_Constitution

          In other words, no law may abridge the freedom of speech. Now, regarding copyright, what does the constitution say?

          "The Congress shall have Power To ... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;"

          It doesn't say that congress MUST secure a monopoly. It doesn't say that congress MUST promote the progress. it doesn't say that congress MUST promote the progress by securing a monopoly. It says that congress has POWER to do so, now that it must. and that if it does, it must ONLY do so to the extent that it promotes the progress. However, Congress can not restrict free speech, it MUST not restrict free speech. In other words, to the extent that it MAY grant copyrights, it MUST NOT do so in a manner that restricts free speech. The two are not necessarily mutually exclusive, congress MAY grant monopoly power (it doesn't have to) but it MUST NOT restrict free speech (in the process). and the granting of monopoly power must be for a limited time (ie: perpetual copyright extensions are not acceptable).

           

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            Anonymous Coward, May 24th, 2010 @ 12:59pm

            Re: Re: Re: Re: "but the book makes a very compelling argument that copyright law is a clear violation of First Amendment principles."

            not that it must *

             

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            Anonymous Coward, May 24th, 2010 @ 1:01pm

            Re: Re: Re: Re: "but the book makes a very compelling argument that copyright law is a clear violation of First Amendment principles."

            and that's the whole idea behind fair use. It's to strike a balance between allowing congress to grant monopoly power while disallowing it to restrict free speech in the process.

             

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            Anonymous Coward, May 24th, 2010 @ 1:30pm

            Re: Re: Re: Re: "but the book makes a very compelling argument that copyright law is a clear violation of First Amendment principles."

            you didnt even read your own quote?

            "by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries" - exclusive rights means a monopoly, aka, only one with rights.

            the rest of your speech makes the first amendment geegaws look intelligent, and they need to get out more and enjoy the sun.

             

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              Anonymous Coward, May 24th, 2010 @ 4:22pm

              Re: Re: Re: Re: Re: "but the book makes a very compelling argument that copyright law is a clear violation of First Amendment principles."

              "you didnt even read your own quote?"

              Yes I did.

              "by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries" - exclusive rights means a monopoly, aka, only one with rights.

              It MAY secure for limited times these legal rights, it doesn't HAVE to.

               

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          identicon
          Anonymous Coward, May 24th, 2010 @ 2:24pm

          Re: Re: Re: "but the book makes a very compelling argument that copyright law is a clear violation of First Amendment principles."

          Interesting perspective on constitutional law.

           

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    Anonymous Coward, May 24th, 2010 @ 12:11pm

    there"s nothing wrong with copyright except...

    there's nothing wrong with copyright itself- it's supposed to be a very limited monopoly, and greedy oppressive people have turned it into an unlimited monopoly, while virtually no one was looking.

    we know that copyright is harmless because for most of this country's time it's been harmless. patents have ruined the lives of the very inventors who should hold them, but until 1976 most things were not even undercopyright- that's a recent screwup. so is making the term longer. so was making derivative works (movies, fanfics, artwork) "protected" (silenced, stomped, stopped.)

    establish a new "tool" for creating "incentives" or "protection" and it won't be good for the 21st century, it will be corrupted by the media companies that will exploit it like they exploit copyright. we don't need a new tool for monopolies- the old one was just fine.

    until the mid 90's you could sample. home-copying was fair use. the world needs the fair parts of copyright law that we're getting rid of. but for most of american history, copyright wasn't oppressive. get rid of it, i don't care- but what in its place? it was fine when it had limits- it just needs limits again, more than ever. want to change it? change it back. it would be alright.

     

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    Anonymous Coward, May 24th, 2010 @ 12:53pm

    Almost anything would be better than the nonsense system we have now.

    Nothing ever makes it to the public domain (retroactive extensions), works go out of print and often die in history before making it to the public domain. Only popular works, popular enough to make its way to the LOC or into some library, may end up surviving the test of time.

     

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    identicon
    staff, May 25th, 2010 @ 8:05am

    better substitution

    "Could You Replace Copyrights And Patents With A Fairness-Based Legal Liability?"

    Here's a better substitution...you with someone not on the take.

    Patent reform is a fraud on America. It is patently un-American.
    Please see http://truereform.piausa.org/ for a different/opposing view on patent reform.

     

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