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05.20.2008

U.S. Implementation of the Making-Available Right

CSDP just released a new paper addressing a question that has attracted much recent attention: Does posting a copyrighted work on a website or “sharing” it over a peer-to-peer file-sharing network like KaZaA infringe the exclusive rights that U.S. law grants to copyright owners? In other words, does the U.S. Copyright Act provide the “making available” right required by the WIPO Copyright Treaty, the WIPO Performances and Phonograms Treaty, and at least six bilateral or multilateral Free Trade Agreements?

This paper raised one of the more vexing legal issues that I have encountered in some time. The problem was not so much the difficulty of the underlying substantive issue. (Indeed, as the paper indicates, I think there is a very powerful case for recognizing a making-available right by adopting a plain-meaning interpretation of “to authorize” the phrase used to define the scope of all the exclusive rights granted by the Act.) Rather, the problem was that I have always thought it important that Congress and the President had both expressly and necessarily interpreted the Copyright Act to provide a making-available right when they enacted the implementing legislation for the WCT, the WPPT, and the six FTAs.

Many others with whom I have discussed this issue did not agree that these interpretations were particularly important. Our disagreements centered on a question that, does, at least in the context of international law and at the Supreme-Court level, seem to be open. Since the 1804 case Charming Betsy, the Supreme Court has held that courts should adopt any possible interpretation of a U.S. statute that would avoid a conflict with the international agreements and obligations of the United States. Nevertheless, to date, almost all cases invoking the Charming-Betsy interpretive principle seem to involve efforts to construe statutes that were enacted after a given treaty or international agreement had imposed some sort of obligation upon the United States.

The case of the making-available right reverses the temporal relationship between the relevant domestic statute and international agreements: The WCT, WPPT and the FTAs all postdate the Copyright Act of 1976 by at least thirty years. Many people found it odd that the terms of international obligations should influence the interpretation of a statute enacted about 30 years earlier. I could neither deny that such arguments had some force nor that I still found them unpersuasive, though for reasons that I could never quite articulate.

I hope that this paper can explain the source of these disagreements. I happen to have a longstanding interest in administrative law. Consequently, when I look at the Copyright Act of 1976, the implementing legislation for the WCT, WPPT, and the FTAs, and cases like Barker, I think that the resulting situation raises a question about the need for judicial deference analogous to that raised and resolved in cases like Chevron v. NRDC.

In the typical Chevron case, a governmental entity (usually a federal agency) must interpret an existing statute in order to determine how best to exercise lawfully acquired law-making powers. In such cases, courts accord so-called Chevron deference to statutory interpretation adopted by the agency: Regardless of whether the reviewing court might think some other interpretation more persuasive, it will defer to any reasonable interpretation that the agency adopted during the exercise of its law-making powers.

To be clear, I do not contend that Chevron is literally binding precedent in cases like Barker, but neither do I see why it is distinguishable as a matter of law and logic. The same factors that justify Chevron deference in the administrative-law context seem to recur here: To implement international agreements, Congress and the President must exercise their constitutionally delegated law-making powers, and to do so, they must interpret the meaning of existing statutes. Indeed, the interests in predictability and comity that justify Chevron deference seem to be both present and heightened in international-agreement implementation context. It is not clear why a case-or-controversy-bound judge should conclude that the President and Congress seven times executed the international obligations of the United States incompetently or duplicitously if a permissible interpretation of the Copyright Act would avoid the need to draw such conclusions.

Questions about the existence or scope of a U.S. making-available right will clearly be occupying many minds as the summer progresses. For the reasons set forth in the paper, I suspect that as courts begin looking closely at these questions, they will realize that their answers are less difficult to discern than they might seem at first glance.

posted by Thomas Sydnor @ 3:40 PM | DMCA , DRM & Watermarks, etc. , Enforcement & Remedies , Free Culture Movement , General , International , Internet: P2P, Search Engines... , Legislation and Legislators

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02. 7.2008

Harm to Innovation

PFF Senior Fellow and Director, Adam Thierer praises Professor Ed Felten's remarks on the legal mud-slinging between Microsoft-Google.

Whatever one thinks of the merits of the Microsoft-Yahoo merger and Google’s immediate and vociferous opposition to it, Ed Felten is 100% right when he says of Google’s actions:
“Complaining has downsides for Google too — a government skeptical of acquisitions by dominant high-tech companies could easily boomerang and cause Google its own antitrust headaches down the road.”
...On the days their own butts are on the line, they (corporations) tell us the antitrust authorities are villainous scum that must be defeated at all cost! The next day—when their competitors are in the crosshairs—the antitrust officials are regarded as benevolent knights possessing Solomonic wisdom, and we’re told that we should trust them to guide us to an economic promised land called “perfect competition.”

While I agree that corporations may fall on their own swords when running for government regulators' offices seeking help against the competition, I find other sources potentially more harmful in their incitement of government market intervention: self-ordained consumer advocates such as EFF and PK and what I call their private sector war on creators.

When innovation in the digital economy is essential for improved economic activity and consumer welfare, these consumer advocates want a piece of the action too. As Professor Lee Hollar has stated on the over-zealousness of some commentators- The buzzword du jour is “innovation,” which will be “chilled” by just about anything done."

These new consumer advocates may well find badgering successful commercial entities as its own reward.

But hyping up mole-hills, created by IPRs or dominant firms like Microsoft, as injurous to society would do substantial harm. For one, government officials would be invited to impose regulations where no harm has occurred. Second, innovators may be vilified after risking investments and face undue consumer or government scrutiny. And while many purported consumer advocates claim to be free market libertarians, one must ask whether they see themselves as replacements for the state. Market regulation, at the least, has some basis in democratic systems of political economy.

posted by Noel Le @ 11:58 AM | General

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10. 2.2007

The Copyright Alliance will host an expo on October 11, 2007. Alliance members, including the RIAA and MPAA, will exhibit creative works and discuss issues in copyright policy. The Hon. Howard Berman will also be in attendance.

Cannon Caucus Room, Cannon House Office Bldg in Washington, D.C
11 a.m. to 1 p.m.
RSVPs should be sent to info@copyrightalliance.org

posted by Noel Le @ 1:37 PM | General

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09.27.2007

Even Before Code, There Was Law

Professor Joel Reidenberg has a new article on technological challenges to intellectual property- The Rule of Intellectual Property Law in the Internet Economy, Houston Law Review, Vol. 44, No. 4, 2007.

The adaptation to the Internet economy of intellectual property law in general, and copyright law in particular, is at the center of a profound power struggle for governance that places democratically chosen legal rules against technologistdefined network rules. This essay argues that many of the technological challenges to intellectual property rights such as peer-to-peer software are a movement against democratically chosen intellectual property rules. These challenges reflect a basic defiance of the Rule of Law.

In making this argument, the essay first maintains that intellectual property rights have an important public function in democracy marking political, economic and social boundaries. Next, the essay shows that the public law, as enacted by democratic government, has re-allocated intellectual property rights to adapt to the information economy. While many aspects of the new allocation of rights have been controversial such as the scope of copyright’s anti-circumvention provisions, these decisions nevertheless emanate from duly constituted public authorities. The essay then analyzes the rejection of those rules by technologists and their fight to take control of rule-making.

In essence, the technical community seeks to replace the state’s decision on public intellectual property law with the community’s own private preferences in subversion of democratic choices. The essay concludes with the normative prediction that public law prevails over network rule-making.

The technological community (as well as the FOSS community) could not exist without our public system of political economy. They should be deterred from depriving others of it.

posted by Noel Le @ 9:08 AM | General

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07.25.2007

Harper's War on Innovators

Jim Harper from the Cato Institute recently wrote-

I don't care one whit about the thousands of companies around the world that own software patents. I devote the small measure of care to people. Companies, and the patent system, exist to produce things for people. If they are producing less than they should, I wouldn't hesitate a moment to change things so that they produce more.

Harper's statement is consistent with what I have called a private sector war on creators, that can be more injurious to innovation than any government interference with the market. If creators fail to innovate, the market naturally drives them out. The free market process has proven itself the most effective system for innovation. On the other hand, this constant badgering of creators on the part of "consumer advocates" like Harper is little better than demanding creative works and inventions for free, and benefits neither consumers, producers nor innovation.

Update- previously, Harper commented, "Microsoft's high and persistent profitability signals likely inefficiency and a lack of competition... [with the goal of consumer welfare]." Big profits as a per se indication of consumer harm? It appears Harper takes the simple approach that weakening innovators will help consumers.

posted by Noel Le @ 5:15 PM | General

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07. 3.2007

MBA's Have Good Ambitions

The most desired positions for this year’s MBA grads are at: 1) Google, 2) McKinsey & Company, 3) Goldman Sachs. Is anybody surprised?!

posted by Noel Le @ 5:25 PM | General

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05.31.2007

Farewell

May 31 is my last day at PFF, and this is my last entry on IPCentral.Info.

It has been a tremendous pleasure to participate in this blog, seeking diverse, cogent, and entertaining ways to pound the point that intellectual property rights and markets are crucial to all of us, that problems created by the onslaught of IT technology are problems shared by the entire community, not just by the content producers, and that getting the legal, policy, and technological institutions right will result in a cornucopia of creative riches. (Whereas, getting them wrong . . . . )

Solveig, Noel, and others will keep the torch burning.

The usual relocation emails will go out soon with full information, but I will be Special Counsel with the DC office of the Denver law firm of Kamlet Shepherd Reichert (where former PFF President Ray Gifford is a partner) and Vice President and Senior Analyst at the Convergence Law Institute, a nascent organization about which you will learn more as soon as we give it legal and Internet corporeality. Here is a preview.

My new email will be jdelong@ksrlaw.com. Emails to PFF will also be forwarded.

Best to all,
Jim DeLong

posted by James DeLong @ 11:00 AM | General

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Innovation, IP, and Entrepreneurs

Act Online released a video to celebrate the recent World IP Day.

posted by James DeLong @ 9:21 AM | General

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05.11.2007

YES!

C|Net News Editor-at-Large Michael Kanellos sums up the case for IP:

Although it's not a really popular sentiment these days, I think patents, trademarks and copyrights are simply fantastic and a primary, necessary driver of the world economy. Without them, the rapid pace of technological innovation around the world would slow to a crawl. And frankly, without them, most open-source projects would rapidly wither away: without an intellectual property behemoth like Microsoft to fight, what would be the point?
Why all the frothy sentiment? Intellectual property provides one of the most dependable means toward wealth and independence in the world today. In the Dark Ages, one could obtain wealth by raising an army and burning someone else's kingdom to the ground. In the Gilded Age, those on the fast track had a secret weapon of success: they bribed state legislators to obtain canal and railroad contracts.

Unfortunately, those career options just aren't as viable as they once were. Instead, we have to invent stuff, and thus people should get compensated for the effort.

Continue reading YES! . . .

posted by James DeLong @ 9:11 AM | General

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05. 7.2007

Plug

Wikipedia gets the press, largely because of its appeal to ideology, but for information I prefer How Stuff Works, with named authors who sign their work.

posted by James DeLong @ 8:00 AM | General

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04.29.2007

The Cultured Elite

posted by Noel Le @ 8:01 PM | General

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04.27.2007

Senate & High Tech

posted by James DeLong @ 10:37 AM | General

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