Just how lost PFF is
I continue to be astonished at how far PFF has moved from its roots. The group has issued a press release demanding Supreme Court review of Grokster, buttressed with supporting blog entries by Bill Adkinson and a "grid" by Solveig Singleton with a six (yes, count them, six, with some including italics) factor test that courts are to apply to decide whether a technology is legal or not.
I can well understand New Dealers racing to craft multifactored tests to regulate innovation. But I thought the whole point of the conservative (economic) movement was to teach us how harmful such regulation was to innovation and growth. Any test that cannot be applied on summary judgment guarantees that federal judges will be forced into a complex balancing to decide which innovation should be allowed. And thus, any industry threatened with competition can then use the courts to extort from these new competitors payment before they are permitted to compete. That is precisely what Valenti says the VCR case was about. He didn't want to stop the VCR, he tell us. He wanted only to force VCR manufacturers to pay for the right to sell consumers VCRs.
Courts, and lawyers, have ruled Silicon Valley long enough. The great hope of the Grokster opinion was that it would return us to the time when entrepreneurs could invent without seeking a permission slip from a federal court (to borrow from the President) . It is simply bizarre to see PFF now call for a return to the days of industrial policy regulated by federal judges. Especially bizarre when you consider how taxing this policy will be to many of the "supporters" of PFF. Many (e.g., Apple, Microsoft, Intel), but alas not all (EMI, Vivendi, BMG). Thus the danger of putting principle up for bid.
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Comments (10)
Frankly, I find Solveig Singleton's grid quite amuzing.
When I was taking business law at Berkeley, the book we used had two decision trees, one on contract law and one on securities law. These were educational in nature accompanied by mountains of text and legal citation. If law is perceived as "digital" like Singleton's table, with no ambiguities, then I'm afraid there may be no point in it.
Finally, putting innovations in legal shackles, which Grokster takes a step to open, is no way of controling property rights.
I usually find charts and checklists useful tools for evaluating choices, but it seems that to fill this one out, you need to already have made your decision. Are lockpicks really used more for legal means than Grokster? Most uses of the iPod technology are 'mixed' but most uses of copying machines are legal? Maybe the chart is right, but it's not exactly clear cut. This issues does not lend itself to an 'at a glance' chart at all.
The PFF say they are "a market-oriented think tank that studies the digital revolution and its implications for public policy". Well, if they really were market oriented, they would permit all new digital technology, and let the market decide which technologies and business model s succeed or fail.
But they don't do this. Are they, I wonder, merely a shill for their corporate backers, like the Alexis de Tocqueville Institution?
I'm glad that judges, in theory, aren't supposed to work like these guys do. It appears that the choice was made to allow Sony, but not Grokster, and a test was devised to do the job (from the first blog entry linked to):
That kind of change should come from Congress, not the courts. A court is supposed to walk in and decide a case based on the facts and the law as it existed when the judge walked in and sat down. A judge is not supposed to ask "what kind of test should I create so I can find this guy guilty?"
In a newer entry on the same blog, a quote from Tim Wu (who was quoting from the court decision) is disected:
This implies that no balance can be struck between the interests of hard-working (but starving) artists, not-so-hard-working (but much better off) distributors, and a freeloading public. That's not accurate, if I understand the Coase theorem correctly (it's the last half of the article).
For those too lazy to click the link, the important part is "When the parties can bargain successfully, the initial allocation of legal rights does not matter."
It seems to me that the solution to the problem is to start meaningful negotiations so that the proper allocation can be discovered. Under the current negotiating model, I don't think the end-user has enough clout to negotiate effectively.
But I thought the whole point of the conservative (economic) movement was to teach us how harmful such regulation was to innovation and growth. - lessig
Well, if they really were market oriented, they would permit all new digital technology, and let the market decide which technologies and business models succeed or fail. - phil hunt
c'mon guys. you cannot make these linear arguments.
the issue is that innovation and growth of technology can stifle innovation and growth on axes orthogonal to technology (e.g., the creative arts.)
focusing only on the technology, and not also on the impact this technology may or may not have on these orthogonal industries does not seem like the best way to craft rational economic policy. singers and songwriters may not spend much time contributing to slashdot, but they are are citizens too.
thoughtful conservatives (if there are any left) do not advocate the removal of all government and all regulation, rather they warn against the risks of unnecessary and excessive government and regulation.
in other words, too much regulation can be as bad as too little.
in this regard conservative opposition to the Grokster decision seems perfectly consistent with conservative economic thought.
moreover, conservatives generally support property rights and oppose public confiscation of private property which the Grokster decision seriously undermines.
How does Grokster allow "confiscation" of private property? The property remains in the hands of the original owner.
three blind mice wrote: "moreover, conservatives generally support property rights and oppose public confiscation of private property which the Grokster decision seriously undermines."
Ignoring, for the moment, your implication that copyright is a private property right (as opposed to the time-limited monopoly the Constitution describes), how would conservatives feel if the same logic some wish to apply to the creators of tools that can be used to infringe copyright, were to be applied to the creators of tools that can be used to kill people?
Or is copyright really that much more deserving of the law's protection than someone's life?
Or more important than free and fair elections?
as these problems began with the invention of the printing press and sound recording, let's make ALL recording technology illegal. this will address the worries of the publishing industry and stimulate creativity at the same time.
oh have i overlooked something?
:>
Readers should be aware that Three Blind Mice
always put all tangible and intangible things
under the amoeba word called "property". In
reality, tangible and intangible things work
differently and it is very misleading to think
that what is appropriate for one is also
appropriate for the other.
Three Blind Mice's statement saying that the
conservatives opposing the public confiscation
of private property shows the bias in their
thinking. That bias has blinded themselves
to the effect of property rights on the freedoms
of speech and press. Expanding the intellectual
property rights has detrimental effects on
the freedoms of speech and press. True
conservatives would worry about that but as
usual, Three Blind Mice refuse to see
that the true conservatives would balance
the intellectual property rights against
the freedoms of speech and press and reducing
or limiting the intellectual property rights
is not a public confiscation but a support
for the freedoms.
Joseph Pietro Riolo
<riolo@voicenet.com>
Public domain notice: I put all of my expressions
in this comment in the public domain.