Richard Posner's creative suggestion about a Fair Use solution to the problem of excessive copyright extension triggers some philosophical thoughts.

Too much current debate over intellectual property focuses on cramming the arguments into existing legal pigeonholes. This approach puts things backwards. Legal rules are a derivative of a society, generated out of the culture as people work out their relationships and promote efficiency and fairness. The most famous statement of this is Oliver Wendell Holmes' "the life of the law has not been logic, it has been experience." (Not by coincidence, Judge Posner is the editor of The Essential Holmes, a compendium of Holmes' writings.)

As technology and economic change occurs, the old rules -- pigeonholes -- become inadequate and we must create some new ones. But these do not come initially out of the legal mandarinate, which tends to be locked into the old ways. Rather, new rules should come from the experience of the people who are working with the system, and who have a sense of what is possible and needed. They should be ratified by the legal system, and this may best be done by common law processes, which are more tentative and prone to revision than legislative solutions.

As a previous post noted, this bottom-up process has occurred with respect to property rights in the past, in contexts such as the American West, and is also occurring right now in the tech world.

Posner's suggestion is within this tradition. Given the computer revolution, it would be easy to make available information about those copyrights which holders care about. So it becomes unfair and inefficient for them to put potential users to the expense and trouble of ferreting out the holders at considerable expense and risk of heavy penalties for error. A common law judge, especially one imbued with the law-and-economics views of seeking the person who can avoid a problem at the least cost, then has little trouble in agreeing to convert this sense of the involved community into a legal rule, using as his clay the broad principle of Fair Use.

But this is a relatively easy case, because no one benefits from the inefficiencies and higher costs. Other issues, such as contributory infringement or the Induce Act, are far more contentious, and discerning any community consensus is far more difficult.

But not necessarily impossible. For example, producers and purchasers of software reached agreement very quickly that purchasers should be allowed to make extra copies for extra machines as long as the purchaser is not usually runnning more than one machine at a time. The bargain was ratified by contracts rather than laws, which may indeed by the best approach -- it is, again, tentative and partial rather than cast in stone, and subject to revision if producers want to begin to offer new value propositions, such as cut rates for those who do not need the extra copies.

posted by James DeLong @ 1:43 PM | General

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