Having dealt with Mr. Masnick's self-immolating attack on my analysis of Thomas, I must now even more emphatically reject Mr. Masnick's absurd claim that he "proved" that my paper on Free Culture mischaracterized the views that Professor Lawrence Lessig expressed in Code, a deplorable book advocating government control of the Internet and lawsuits against programmers. Frankly, mischaracterizing Lessig is pointless: quoting him suffices. Nevertheless, Mr. Masnick claimed, "The worst was when a variety of others pointed out Sydnor's out of context comments [sic] and put them back into context--and Sydnor still stood by the paper, refusing to admit he took a single comment out of content."

Nonsense: I stand by my paper because Mr. Masnick and "others" failed to quibble successfully even about details wholly tangential to its main argument. As Mr. Masnick's post indicates, his quibbles claimed that I had unfairly portrayed Lessig as a "communist sympathizer." But my paper said:

To be clear, I do not think that Lessig, Fisher, or other Free-Culture-Movement academics and interest groups are literally 'communists' or 'socialists....' But they do still display the flaws that made communists and socialists dangerous to themselves and others: Inherent distrust of and contempt for the utility of bilateral private exchange conjoined with boundless, unshakeable faith in the potential wisdom, foresight, and benevolence of vast and coercive governmental power.

Continue reading TechDirt's Backfiring Defense of the Thomas Decision--and the "Effective Freedom" of Totalitarian Terror (Part II). . . .

posted by Thomas Sydnor @ 11:10 AM | Academia , Economics, Game Theory & Public Choice , Enforcement & Remedies , Free Culture Movement , Internet: P2P, Search Engines... , Liberty and IP

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YouTube assures the court in their copyright case that it will be installing the latest filtering technology.

Is this a civil liberties issue? Some time back, Fred VL argued--even assumed--that it was. Looking at the issue closely, though--and the case law--it seems that it

Continue reading YouTube Filter Update--and Civil Liberties . . .

posted by Solveig Singleton @ 10:01 AM | DRM & Watermarks, etc. , Enforcement & Remedies , Liberty and IP , Privacy and Security

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Hayek coined the term "fatal conceit" to refer to the errors of economic central planners, particularly socialists. The idea is that central planning suffers from a misplaced faith in rationally designed human institutions, as opposed to evolved, decentralized orders. (A similar point is made by leftist James C. Scott in his book, Seeing Like A State: How Certain Schemes to Improve the Human Condition Have Failed; and others have previously worked the same turf, though without the historic importance of Hayek's particular application, which of course considerable predates his last book).

After a while, one starts seeing fatal conceits everywhere. Occasionally, they even crop up in libertarian circles. One example: some libertarian critiques of intellectual property lean heavily on the importance of contract as a possible substitute for copyright. Where's the problem here? Considerable faith in the institution of

Continue reading Fatal Conceits I . . .

posted by Solveig Singleton @ 8:33 AM | Books , Liberty and IP

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From within the libertarian camp, one of the stronger anti-copyright arguments is the point that it is hard to prove empirically that copyright in fact fosters creativity, especially as compared to some of the alternatives to copyright. How does one go about showing that in the absence of copyright, there would be fewer created works or fewer quality created works or a lesser range of types of created works? To show this conclusively, one would need to know what would have happened in the absence of a market. For the same reason, though, it is hard to show that copyright (or related laws) do any harm; one would need to know what would have happened in the the absence of copyright.

Continue reading The Empirical Case for Copyright . . .

posted by Solveig Singleton @ 2:48 PM | Liberty and IP , Markets: Business, Investment & Innovation

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Years ago Jim Delong started to write a book on property rights--the physical ones. His publisher insisted on discussions of intellectual property. He resisted. Surely, he thought, these things are very different. But he reports his surprising conclusion that the significance of the differences for policy is less than is often thought. Intellectual property, like physical property, must be protected, for the good of consumers and everyone else, doing as little harm as possible. As for the details, "tech" and "content" each raise valid concerns and the results of experimentation and give-and-take impossible to foresee. But a functioning market is in everyone's interest.

During his tenure at CEI, he debated these issues often with Fred Smith. At first I was on Fred's side, my own views on IP strongly influenced by Tom Palmer. Over the years, though, I began to see the issue as more difficult than my philosophy could answer by reference to the standard repertoire, even Hayek and Leoni.

Questions about IP arise in a context of hard problems in philosophy of law, difficult questions of empirical economics, and the hard question of how closely law in an advanced economy must resemble primitive law. And a blinding pace of technological and economic change that makes throws existing legal institutions completely out of wack. Particularly enforcement, the aspect of law taken entirely for granted in most policy discussions. In this environment, what are the odds that we can derive the answers we need to practical problems from first principles and get it right the first time?

Thanks Jim. Come back and see us.

posted by Solveig Singleton @ 8:55 AM | Liberty and IP

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This site tracks the value of some "black market" goods from pirated movies to body parts and human trafficking. Missing: Murder for Hire, though Kidnapping is represented.

One ought to distinguish at least two types of markets represented here; a) those in which the goods being sold do indeed "belong" to the seller who wishes them to "belong" to the buyer. Markets for illegal drugs for example. "Belong" is in quotes because from a legal standpoint there are no "property rights," rather, the rights are those that would exist at law just as with any other planted produce or chemical stew if it were not for regulatory bans. Then there is b) the rights in question have been wrested away unlawfully from a third person and appropriated by the seller, who then transfers them to the buyer. Human trafficking, for example, and piracy.

Continue reading Site Tracks Black Markets . . .

posted by Solveig Singleton @ 7:44 AM | Accounting , Counterfeit , Economics, Game Theory & Public Choice , International , Liberty and IP , Markets: Business, Investment & Innovation

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The professor writes, on Digg and civil disobedience:

...there are some laws that individuals will appropriately conclude that they should disobey, laws that while enacted pursuant to the extant applicable procedures, are nonetheless beyond the scope of what should be law in a well-constituted society. In those circumstances, civil disobedience will be appropriate and we should be grateful to those who are willing to suffer the consequences of disobeying illegitimate law.

I wouldn’t think that not being able to play an encrypted high-definition DVD on your platform of choice would fall into that category. I understand fully that people disagree about whether digital rights management and the Digital Millennium Copyright Act are good copyright policy. I also understand that users can be frustrated by limitations imposed by DRM (I’ve run into those myself). But I think the DMCA (and the DRM that it makes possible) is a long, long way from the sorts of laws for which civil disobedience is an appropriate response. Simply not liking the law is not enough. There must be more, something that recognizes the nature of reasonable disagreement over law, and the range of possible legitimate variations about those laws.

Yesterday, Digg probably made a business decision: it can litigate tomorrow but it was going to lose customers today. I doubt that it made a decision about the need for civil disobedience, and as I have suggested already, I am skeptical that it could justify its decision in those terms...

posted by Solveig Singleton @ 2:27 PM | DMCA , DRM & Watermarks, etc. , Liberty and IP

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in actual or imminent violence, the depiction of violence is protected speech. It must be, for free speech to mean anything; conflict is the stuff of human history, stories, and debate. Certainly, the depiction of a mindless murder for amusement could spark a copycat, but it is no more likely to spark real violence than someone inspired by a screed against abortion, by "Das Kapital," by PETA, by Thomas Paine, and so on. "Violence," is humor, it is news, it is revolutionary politics, it is comedy, it is Shakespeare.

Continue reading Imminent Virtual Violins: Games, Acting, and Speech . . .

posted by Solveig Singleton @ 2:06 PM | Liberty and IP

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There's a whole genre of libertarian thought about things that can and can't be property. Other people, for example.

Then we get to intellectual property arguments. Can ideas and images be property? Some say no, because it amounts to making a claim on a thought in someone else's head. I don't see why not, so long as the right is defined in such a way that one stays out of other's heads, and focuses on their behavior (making copies for example).

Continue reading Things that Can't be Property . . .

posted by Solveig Singleton @ 10:37 AM | Liberty and IP

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I can resist no longer.

For nearly a week, a letter by CEA's Gary Shapiro has been bouncing around the ether. It responds to remarks made by Warner Bros. Entertainment Chairman and CEO Barry Meyer at a luncheon last week; I praised Meyer here. Gary's response shows, once again, a fundamental difference in his view of creative works from most creators of those works. Below the jump I'll explain where he is erring with his definition of "freedom," but I'll begin by pointing out the very misleading way in which CEA put Gary's letter out there.

Continue reading Redefining 'Freedom' . . .

posted by Patrick Ross @ 2:06 PM | Access: Commons, Fair Use, Orphan Works, Public Domain , DRM & Watermarks, etc. , Free Culture Movement , Liberty and IP , Media: Video, Music...

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posted by Noel Le @ 7:00 AM | Academia , General , Liberty and IP

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posted by Solveig Singleton @ 9:16 AM | Access: Commons, Fair Use, Orphan Works, Public Domain , DRM & Watermarks, etc. , Liberty and IP

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posted by Solveig Singleton @ 11:56 AM | Liberty and IP , Patents

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posted by James DeLong @ 12:33 PM | Liberty and IP

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posted by Patrick Ross @ 10:25 AM | Access: Commons, Fair Use, Orphan Works, Public Domain , DRM & Watermarks, etc. , Internet: P2P, Search Engines... , Legislation and Legislators , Liberty and IP

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posted by Patrick Ross @ 3:15 PM | Academia , Free Culture Movement , Liberty and IP

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posted by Solveig Singleton @ 8:33 AM | Academia , Biotech , Liberty and IP , Markets: Business, Investment & Innovation , Patents , Supreme Court

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posted by Solveig Singleton @ 8:00 AM | Liberty and IP , Markets: Business, Investment & Innovation , Pharma

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posted by Solveig Singleton @ 12:42 PM | Academia , Antitrust , Big Tent , Liberty and IP , Supreme Court

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posted by Solveig Singleton @ 12:32 PM | Academia , Big Tent , Liberty and IP , Software

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posted by Solveig Singleton @ 10:28 AM | Academia , Big Tent , Free Culture Movement , Liberty and IP , Patents

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posted by Solveig Singleton @ 11:02 AM | Academia , Liberty and IP , Patents , Physical Property

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posted by Solveig Singleton @ 1:43 PM | Art , Big Tent , Liberty and IP , Markets: Business, Investment & Innovation

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posted by James DeLong @ 8:58 AM | Liberty and IP

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posted by Solveig Singleton @ 9:03 PM | Big Tent , DRM & Watermarks, etc. , General , Liberty and IP , Physical Property

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posted by James DeLong @ 9:22 AM | Liberty and IP

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posted by Solveig Singleton @ 8:28 AM | Economics, Game Theory & Public Choice , Liberty and IP , Physical Property

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posted by Solveig Singleton @ 7:51 AM | Internet: P2P, Search Engines... , Liberty and IP

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posted by Solveig Singleton @ 4:03 PM | General , Internet: P2P, Search Engines... , Liberty and IP

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posted by Solveig Singleton @ 8:17 AM | DRM & Watermarks, etc. , Liberty and IP

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posted by Solveig Singleton @ 12:13 PM | Access: Commons, Fair Use, Orphan Works, Public Domain , DRM & Watermarks, etc. , Liberty and IP

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posted by Solveig Singleton @ 2:38 PM | Liberty and IP

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posted by Solveig Singleton @ 11:24 AM | Comments from Readers , Liberty and IP

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posted by Solveig Singleton @ 1:40 PM | Liberty and IP

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posted by James DeLong @ 9:19 AM | Liberty and IP

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posted by Solveig Singleton @ 3:20 PM | Comments from Readers , Liberty and IP

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posted by Solveig Singleton @ 8:46 AM | Academia , General , Liberty and IP , Physical Property

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posted by Solveig Singleton @ 12:54 PM | General , Internet: P2P, Search Engines... , Liberty and IP

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