Douglas Lichtman, Professor of Law at the University of Chicago, has written a series of blog entries over at Crescat Sententia. His topic, self-help and copyright. He starts with a basic overview of self-help (and remember these are blogs entries; to read them in order start from the bottom entries up). He includes a definition: "[self-help is] any unilateral action taken without the assistance of a government official in an effort to defend perceived self-interest." He then proceeds to navigate through self-help topics such as the V-chip, caller ID, the National Do-Not-Call Registry, trade secrets, and finally copyright.
In the copyright arena, he offers some insights into both the copyright holders and the "college students" perspectives. On the one hand copyright holders possibly over use self-help [DRM] to expand their rights. On the other hand, "college students" and hackers use their own self-help [p2p technologies] to shrink those rights. Somewhere in the middle, the default package of rights assigned by copyright law comes into play.
That play comes in the form of penalties and checks on both sides of the law. Over-enforcement faces the doctrine of copyright misuse. Infringement faces statutory fines and criminal penalties. While he believes the misuse doctrine should be effective for over-enforcement, he opines that deterrence on the individual infringer has been and will be ineffective. Furthermore, the penalties on infringement are already quite high; any higher penalties would simply "lack credibility".
The real arena where the copyright battles should be played out is in that of secondary liability - the technologies and services that enable copyright infringement and the companies that provide them. The litigation is already ongoing and revolves around the Napster, Grokster, and Aimsters of the world. Their involvement in copyright damage is analogous to that of Sony and the VCR; the technologies in both cases are enabling technologies; neither are illegal in and of themselves, but they both may be used in an illegal manner. Should the manufacturer of the enabling technologies then be held liable for the illegal use? In Sony's case the answer was no.
Professor Lichtman, while not criticizing result of that decision, does criticize the reasoning behind it. His criticisms are similar to those of Judge Posner in the Aimster decision. He notes that the Sony holding read literally "fails to account for the costs and benefits of the technology at issue, excusing from liability even a product for which expected harms fully overwhelm expected benefits." He suggests that the costs [illegal uses] to society must be weighed against the benefits [legal uses] of a technology. Furthermore, those benefits must be discounted against alternate methods of achieving them. I.e. you might decide to distribute your favorite recipes through a p2p network, but you could just as easily do so by putting them on a website.
However, as Derek Slater, points out at A Copyfighter's Musings, applying such a balancing approach adds another cost in the form of uncertainty. Future technologies and future uses of existing technology can prove impossible to predict. "Costly litigation, without any ability to win with a motion to dismiss or summary judgment, poses a significant threat to all innovators. In targeting clear 'bad actors,' I think this approach would sweep much further." The implication being, the simple uncertainty of litigation dampens progress, which is actually worse for society.
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