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 Home All the theory that fits. This is Lawrence Solum's legal theory weblog. Legal Theory Blog comments and reports on recent scholarship in jurisprudence, law and philosophy, law and economic theory, and theoretical work in substantive areas, such as constitutional law, cyberlaw, procedure, criminal law, intellectual property, torts, contracts, etc. RSS Legal Theory Links --Email me --My Home Page --Legal Theory Annex (All the theory that does not fit.) --Legal Theory Lexicon (Basic concepts in legal theory for first year law students.) --My Publications on SSRN Noteworthy Posts Getting to Formalism Water Wells and MP3 Files: The Economics of Intellectual Property Do Humans Have Character Traits? Naturalistic Ethics The Case for Strong Stare Decisis, or Why Should Neoformalists Care About Precedent? 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Solum University of San Diego School of Law 5998 Alcala Park San Diego, CA 92110-2492 USA 
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Friday, April 02, 2004
Legal Theory Bookclub: Free Culture by Lawrence Lessig Part One Two Three Four Five Six Seven Eight
On Saturday, Legal Theory Bookworm recommended Larry Lessig's new book Free Culture, which can be downloaded for free from Lessig's site FreeCulture.org (also available in hardcopy from Amazon and Barnes & Noble). This is the fifth of eight posts on Lessig's book--a sort of blogospheric book club. There is still plenty of time to catch up; Lessig's book is a great (and fast) read. You are invited to read along, and to send your comments on the book, my posts, or on the comments of other readers. Property Chapter Ten is titled property, and it begins with the story of Jack Valenti's relentless and successful lobbying effort to give copyright holders property rights that are the equal of property rights in tangible resources. Lessig quotes Valenti, and the quote is worth repeating: No matter the lengthy arguments made, no matter the charges and the counter-charges, no matter the tumult and the shouting, reasonable men and women will keep returning to the fundamental issue, the central theme which animates this entire debate: Creative property owners must be accorded the same rights and protection resident in all other property owners in the nation. That is the issue. That is the question. And that is the rostrum on which this entire hearing and the debates to follow must rest. Lessig calls this position "extremist," but I would make a different point. Valenti (and many other IP absolutist) simply ignore the crucial differences between information and tangible resources. Consumption of tangible resources is rivalrous; when I drink a glass of Ridge Zinfindel, you cannot drink that same glass of wine. But Consumption of information is nonrivalrous; my copy of an MP3 file does not make yours disappear. With tangible resources, property rights need to be thick and perpetual or the resource will fail to go to its highest and best use. With information, thick and perpetual property rights prevent the resource from going to its highest and best use. Lessig's strategy is different. He focuses on history, not economics. He wants to convince us that thick and perpetual property rights in information are outside our tradition--they would be new, radical, a break with history, an innovation, outside the norm, unusual, unprecedented. The first piece of evidence that Lessig offers is the Constitution: In the clause granting Congress the power to create ?creative property,? the Constitution requires that after a ?limited time,? Congress take back the rights that it has granted and set the ?creative property? free to the public domain. Yet when Congress does this, when the expiration of a copyright term ?takes? your copyright and turns it over to the public domain, Congress does not have any obligation to pay ?just compensation? for this ?taking.? So, Lessig concludes, Valenti's call for thick and perpetual property rights in information goes against our constitutional tradition: The Constitution thus on its face states that these two forms of property are not to be accorded the same rights. They are plainly to be treated differently. Valenti is therefore not just asking for a change in our tradition when he argues that creative-property owners should be accorded the same rights as every other property-right owner. He is effectively arguing for a change in our Constitution itself. Four Modalities of Regulation At this point, Lessig shifts gears and pulls out a model. There are, he says, four modalities of regulation: Law--the constitution, statutes, regulations, and common law. Market--the operation of property and pricing. Norms--social attitudes enforced through informal sanctions and rewards. Architecture--the software or hardware that determines what is technologically possible (speed pumps and the layered nature of the Internet are both "architecture" in this sense. And of these four, law play a special role to play: While these four modalities are analytically independent, law has a special role in affecting the three.3 The law, in other words, sometimes operates to increase or decrease the constraint of a particular modality. Thus, the law might be used to increase taxes on gasoline, so as to increase the incentives to drive more slowly. The law might be used to mandate more speed bumps, so as to increase the difficulty of driving rapidly. The law might be used to fund ads that stigmatize reckless driving. Or the law might be used to require that other laws be more strict?a federal requirement that states decrease the speed limit, example?so as to decrease the attractiveness of fast driving. The Internet Changes the Modalities Lessig then deploys the model to explain the how the Internet has affected the way law, market, architecture, and norms interact to regulate copying: The law limits the ability to copy and share content, by imposing penalties on those who copy and share content. Those penalties are reinforced by technologies that make it hard to copy and share content (architecture) and expensive to copy and share content (market). Finally, those penalties are mitigated by norms we all recognize?kids, for example, taping other kids? records. These uses of copyrighted material may well be infringement, but the norms of our society (before the Internet, at least) had no problem with this form of infringement. And Lessig argues that pre-Internet the four modalities were is some sort of rough balance, but the Internet upset that balance: Enter the Internet, or, more precisely, technologies such as MP3s and p2p sharing. Now the constraint of architecture changes dramatically, as does the constraint of the market. And as both the market and architecture relax the regulation of copyright, norms pile on. The happy balance (for the warriors, at least) of life before the Internet becomes an effective state of anarchy after the Internet. So it is not surprising that the content industries argued that all four modalites should be brought to bear to reinforce copyright in response to the Internet: In response to the changes the Internet had effected, the White Paper argued (1) Congress should strengthen intellectual property law, (2) businesses should adopt innovative marketing techniques, (3) technologists should push to develop code to protect copyrighted material, and (4) educators should educate kids to better protect copyright. At this point in the Chapter, Lessig makes a transition, riffing from the unintended consequences of DDT for the physical environment to the point that changes made to protect copyright from P2P might have unintended consequences for the ecology of creativity (my phrase, not Lessig's): No doubt the technology of the Internet has had a dramatic effect on the ability of copyright owners to protect their content. But there should also be little doubt that when you add together the changes in copyright law over time, plus the change in technology that the Internet is undergoing just now, the net effect of these changes will not be only that copyrighted work is effectively protected. Also, and generally missed, the net effect of this massive increase in protection will be devastating to the environment for creativity. Back to the Constitution I must admit that the next move took me by surprise. Lessig darts back to the Constitution and quotes what he calls the Progress Clause: Congress has the power to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. The early history of the clause is illuminating. Terms were short by today's standards (14 years, plus one renewal term of an additional 14 years if the author was living). Most works weren't copyrighted and most copyrights were not renewed. And then . . . In the first hundred years of the Republic, the term of copyright was changed once. In 1831, the term was increased from a maximum of 28 years to a maximum of 42 by increasing the initial term of copyright from 14 years to 28 years. In the next fifty years of the Republic, the term increased once again. In 1909, Congress extended the renewal term of 14 years to 28 years, setting a maximum term of 56 years. Then, beginning in 1962, Congress started a practice that has defined copyright law since. Eleven times in the last forty years, Congress has extended the terms of existing copyrights; twice in those forty years, Congress extended the term of future copyrights. Initially, the extensions of existing copyrights were short, a mere one to two years. In 1976, Congress extended all existing copyrights by nineteen years. And in 1998, in the Sonny Bono Copyright Term Extension Act, Congress extended the term of existing and future copyrights by twenty years. Not only are terms longer, but the scope of protection is much thicker (or broader): While the contours of copyright today are extremely hard to describe simply, in general terms, the right covers practically any creative work that is reduced to a tangible form. It covers music as well as architecture, drama as well as computer programs. It gives the copyright owner of that creative work not only the exclusive right to ?publish? the work, but also the exclusive right of control over any ?copies? of that work. And most significant for our purposes here, the right gives the copyright owner control over not only his or her particular work, but also any ?derivative work? that might grow out of the original work. In this way, the right covers more creative work, protects the creative work more broadly, and protects works that are based in a significant way on the initial creative work. Longer terms and thicker protections--Lessig's point is that the copyright law of today represents a massive increase in protection as compared to the first copyright law adopted by Congress. Back to Architecture And then Lessig flips back over to the relationship between law and architecture. And I think that this next point is very important. Lessig argues that the architecture of the Internet (or digitalization, because the same effect would have occurred without the Internet) is to change the relationship between use and copying. Pre-internet use did not equal copying; post-internet, due does equal copying: Before the Internet, if you purchased a book and read it ten times, there would be no plausible copyright-related argument that the copyright owner could make to control that use of her book. Copyright law would have nothing to say about whether you read the book once, ten times, or every night before you went to bed. None of those instances of use—reading— could be regulated by copyright law because none of those uses produceda copy. But the same book as an e-book is effectively governed by a different set of rules.Now if the copyright owner says you may read the book only once or only once a month, then copyright law would aid the copyright owner in exercising this degree of control, because of the accidental feature of copyright law that triggers its application upon there being a copy. Now if you read the book ten times and the license says you may read it only five times, then whenever you read the book (or any portion of it) beyond the fifth time, you are making a copy of the book contrary to the copyright owner’s wish. If you are reading this blog, you are reading a new copy. If you save the blog to disk, you make another copy. If you open that copy, your computer creates yet another copy. Digitalization multiplies copies. Everytime a digital copy is used, another digital copy (or two or three) is produced. And digitalization creates the possibility that the creators of digital works can build control in the work itself. Lessig gives the frightening example of the permissions that can be built into an Adobe E-book: the Adobe eBook Reader calls these controls “permissions”—as if the publisher has the power to control how you use these works For works under copyright, the copyright owner certainly does have the power—up to the limits of the copyright law. But for work not under copyright, there is no such copyright power. When my e-book of Middlemarch says I have the permission to copy only ten text selections into the memory every ten days, what that really means is that the eBook Reader has enabled the publisher to control how I use the book on my computer, far beyond the control that the law would enable. The control comes instead from the code—from the technology within which the e-book “lives.” Though the e-book says that these are permissions, they are not the sort of “permissions” that most of us deal with.When a teenager gets “permission” to stay out till midnight, she knows (unless she’s Cinderella) that she can stay out till 2 A.M., but will suffer a punishment if she’s caught. But when the Adobe eBook Reader says I have the permission to make ten copies of the text into the computer’s memory, that means that after I’ve made ten copies, the computer will not make any more. The same with the printing restrictions: After ten pages, the eBook Reader will not print any more pages. It’s the same with the silly restriction that says that you can’t use the Read Aloud button to read my book aloud—it’s not that the company will sue you if you do; instead, if you push the Read Aloud button with my book, the machine simply won’t read aloud. Encryption and digital rights management plus the anti-circumvention provisions of the Digital Millenium Copyright Act give the proprietors of digital works the power to control fair use--to make fair use imposible without the deployment of illegal circumvention technologies. This point, while familiar to copyright scholars, has not yet sunk in with the public. Lessig does a fabulous job of making this point vivid and real. Bravo! Lessig then goes on a riff about media con (the concentration of media ownership, which leads him to the BIG POINT of Chapter Ten: Never in our history have fewer had a legal right to control more of the development of our culture than now. In other words, the architectural and legal changes made in response to P2P and the threat posed by digitalization to copyright are like DDT in the ecology of creativity. DRM plus the DMCA plus media con threaten the vibrancy of our cutlure. Well, as Lessig himself says, Chapter Ten was long. I'm going to think over the weekend, and we will get back together on Monday. For now, all I can say is that I haven't done this Chapter justice. It is a tour de force. One of the most effective pieces of legal writing I have read. Monday The book club will resume on Monday with Chapters Elevent and Twelve. The Schedule Friday Calendar
Larry Alexander, University of San Diego, School of Law, Laurie Claus, University of San Diego, School of Law, Dean Stanley Fish--University of Illinois at Chicago, Dagfinn Follesdal--Stanford University, Department of Philosophy, Elizabeth Garrett, University of Southern California Law School, Jeffrey Goldsworthy, Monash University School of Law, Australia, Kent Greenawalt, Columbia University School of Law, Mark Greenberg, Princeton University Department of Philosophy, Steven Knapp, Provost, The Johns Hopkins University, Matthew McCubbins, University of California, San Diego, Political Science Department, David McGowan, University of Minnesota, School of Law, Miranda McGown, University of Minnesota, School of Law, Walter Benn Michaels, University of Illinois, Chicago, Department of English, Michael Moore, University of Illinois College of Law, Dennis Patterson, Rutgers school of Law, Camden, Sai Prakash, University of San Diego, School of Law, Michael Ramsey, University of San Diego, School of Law, Michael Rappaport, University of San Diego, School of Law, Dan Rodrguez, University of San Diego, School of Law, Connie Rosati, University of California at Davis, Department of Philosophy, Frederick Schauer, Harvard University, JFK School of Government, Maimon Schwarzschild, University of San Diego, School of Law, Scott Shapiro, Yale Law School, Walter Sinnott-Armstrong, Dartmouth College, Department of Philosophy, Steve Smith, University of San Diego, School of Law, Adrian Vermuele, University of Chicago School of Law, Keith Whittington, Princeton University, Department of Politics, Matt Zwolinksi, University of San Diego, Department of Philosophy Larry Alexander has outdone himself! I am looking forward to this exciting event. And, it is a very good day for legal theory events, as John Gardner's visit to the University of Texas continues today with the Leon Green '15 Lecture in Jurisprudence. Thursday, April 01, 2004
Raz on Exclusive Naturalism Joseph Raz (Oxford) has posted Exclusive Naturalism (forthcoming Oxford Journal of Legal Studies) on SSRN. Here is the abstract:
Legal Theory Bookclub: Free Culture by Lawrence Lessig Part One Two Three Four Five Six Seven Eight
On Saturday, Legal Theory Bookworm recommended Larry Lessig's new book Free Culture, which can be downloaded for free from Lessig's site FreeCulture.org (also available in hardcopy from Amazon and Barnes & Noble). This is the fourth of eight posts on Lessig's book--a sort of blogospheric book club. There is still plenty of time to catch up; Lessig's book is a great (and fast) read. You are invited to read along, and to send your comments on the book, my posts, or on the comments of other readers. Founders Chapter Six tells a historical story about the emergence of what Lessig calls the "Progress Clause," the clause in the United States Constitution that grants Congress legislative power over copyright and patent. This part of the story will be very familiar to copyright scholars and lawyers, but Lessig's retelling is concise and informative--from the royal printing monopolies through the Statute of Anne to the Lessig's climax, the decision in Donaldson v. Beckett, which effectively abolished perpetual copyright terms: “The public domain.” Before the case of Donaldson v. Beckett, there was no clear idea of a public domain in England. Before 1774, there was a strong argument that common law copyrights were perpetual. After 1774, the public domain was born. For the first time in Anglo-American history, the legal control over creative works expired, and the greatest works in English history—including those of Shakespeare, Bacon, Milton, Johnson, and Bunyan—were free of legal restraint. And what was the effect: Culture in England was thereafter free. Not in the sense that copyrights would not be respected, for of course, for a limited time after a work was published, the bookseller had an exclusive right to control the publication of that book. And not in the sense that books could be stolen, for even after a copyright expired, you still had to buy the book from someone. But free in the sense that the culture and its growth would no longer be controlled by a small group of publishers. As every free market does, this free market of free culture would grow as the consumers and producers chose. English culture would develop as the many English readers chose to let it develop—chose in the books they bought and wrote; chose in the memes they repeated and endorsed. Chose in a competitive context, not a context in which the choices about what culture is available to people and how they get access to it are made by the few despite the wishes of the many. I was a bit suprised by the lack of attention to the founding era in Chapter Six. But maybe that is still ahead of us?. Recorders Chapter Seven is titled "Recorders." It begins with the story of Jon Else's attempt to get clearance for 4 1/2 seconds of a Simpson's episode that appeared on a television set in one scene of a documentary about the making of a Ring Cycle in San Francisco. In the end, Else was told that it would cost $10,000 to use the four seconds. Of course, these four seconds were undoubtedly fair use. But if Else were sued, it would cost even more than $10,000 to successfully assert the fair use defense. So Else had to use special effects to replace the Simpson's in the 4 1/2 seconds of his documentary. Well that story got my juices flowing! As I was thinking about the story, it occurred to me that there is a very good case for fee-shifting for successful fair-use defenses--perhaps with a bonus to give adequate incentives for contingency fair-use defense representation. Else had another option, of course--a declaratory relief action. This has a nifty advantage over asserting the fair use defense from a defensive posture. If you lose the declaratory relief action, then the party that is unreasonably contesting fair use cannot recover anything against you--because you haven't yet copied. The conclusion to the Chapter makes it clear what the point of the Else story is: In theory, fair use means you need no permission. The theory therefore supports free culture and insulates against a permission culture. But in practice, fair use functions very differently. The fuzzy lines of the law, tied to the extraordinary liability if lines are crossed, means that the effective fair use for many types of creators is slight. The law has the right aim; practice has defeated the aim. Amen! Transformers Chapter Eight is titled "Transformers." It tells the story of Alex Arben's success in getting clearances for many, many Clint Eastwood clips for a retrospective DVD on Eastwood's career. It took a huge effort, but not only was Arben successful in getting permission, he also was able to convince all the other actors who appeared in the clips to take the nominal day-rate for their performances. Does this story contradict the lesson drawn in the previous chapter? Alben worked for a big company. His company was backed by some of the richest investors in the world. He therefore had authority and access that the average Web designer would not have. So if it took him a year, how long would it take someone else? And how much creativity is never made just because the costs of clearing the rights are so high? Lessig's rhetorical question underemphasizes his point. The cost of clearances and permissions makes compilation works based on films virtually impossible for almost everyone. Collectors Chapter Nine is titled "Collectors." It begins with the story of the Internet Archive and its famous Way Back Machine. What a tremendous resource! And what a contrast with television, where no comparable archive exists and access to most of the history of television is virtually impossible to obtain. My friend and fomer colleague Sheila Kuehl (now a California State Senator) played Zelda on the Dobie Gillis Show. I remember how fortunte Sheila felt that she had been able to obtain copies of two episodes of the show, because in many cases even television actors and directors have no means of obtaining copies of their own work--if it was done before the VCR. The point of the chapter is that a tremendous public good could be created if works are allowed to into the public domain: Perhaps the single most important feature of the digital revolution is that for the first time since the Library of Alexandria, it is feasible to imagine constructing archives that hold all culture produced or distributed publicly.Technology makes it possible to imagine an archive of all books published, and increasingly makes it possible to imagine an archive of all moving images and sound. Reflections Today's three chapters were light--a good thing since I'm still preparing for the Interpretation Roundtable here at USD tomorrow. Reflecting on the three chapters together, it strikes me that transaction costs and litigation costs play a hugely important role in Lessig's argument. Strong entitlements for copyright owners plus high transaction costs create tremendous inefficiencies! Tomorrow I will continue tomorrow with Chapter Ten. The full schedule of posts is set out below. The Schedule Thursday Calendar
At Florida State University, Randy Barnett, Boston University Law School, presents Lawrence v. Texas and Justice Kennedy?s Libertarian Revolution and Chapter 10 of Restoring the Constitution. At the University of Texas, Brian Leiter's outstanding law and philosophy program is hosting John Gardner, the Professor of Jurisprudence at Oxford University. Gardner will deliver the Leon Green '15 Lecture in Jurisprudence and participate in the Berman/Sager Colloqium in Constitutional and Legal Theory. Today Gardner presents Backwards and Forwards with Tort Law. At UCLA's tax policy series, Steve Sheffrin, UC Davis Economics Department, presents Understanding Public Attitudes Toward Taxation: 1. Are Surveys of Taxpayers' Honesty Honest? 2. Can Brute Deterrence Backfire--Perceptions and Attitudes in Taxpayer Compliance. and 3. Perceptions of fairness in the crucible of tax policy. At Michigan's Olin series, Dean Lueck, Arizona, presents Property Law. At George Mason, Giuseppe Dari Mattiaci, Nancy 2 University and GMU School of Law, presents Voluntary Slavery. At Boston University, John Coffee is presenting. Shaw on the New Constitutional Treaty for the EU Jo Shaw (University of Manchester, School of Law) has posted Flexibility in a 'Reorganised' and 'Simplified' Treaty - A Practical Proposal on SSRN. Here is the abstract:
Scott & Stephan on Self-Enforcing International Agreements Robert E. Scott and Paul B. Stephan III (University of Virginia School of Law and University of Virginia School of Law) have posted Self-Enforcing International Agreements and the Limits of Coercion on SSRN. Here is the abstract:
We argue that, in spite of the obvious differences between state and individual decisionmaking, enough similarities exist to make the inquiry worthwhile. Using analytic moves worked out in the context of private contracts, we make two general claims about international agreements, one conventional and one controversial. First, we maintain that one usefully can evaluate efforts to frame and implement international agreements in terms of optimal enforcement structure. Choosing from a broad range of normative criteria, one still can distinguish between better and worse enforcement strategies. Second, we argue that the optimal enforcement structure for any particular international agreement will depend on both the goals of the agreement and the context in which it designed and implemented. Because these goals and contexts are diverse, the set of optimal enforcement structures is heterogenous. Some optimal enforcement structures will depend largely on self enforcement, while others will not. Central to our claim is an appreciation of the interaction of self enforcement and third-party coercion including binding arbitration, use of international courts, and enforcement by domestic actors. We maintain that in a far from trivial number of instances subject to international agreement, self enforcement and coercive enforcement may be rivalrous and the optimal enforcement structure would preclude or limit coercive enforcement. In particular, we argue that good theoretical arguments buttress the general tendency of domestic courts not to extend their coercive powers to implement an international agreement without a clear signal from the framers of the agreement that this coercion is desired. Philipson and Dai on Patent Competition Tomas Philipson and Carolanne Dai (University of Chicago and University of Chicago) have posted Between- vs. Within-Patent Competition (Regulation, Vol. 26, No. 3, pp. 42-48, Fall 2003) on SSRN. Here is the abstract:
Wasserman on Section 1983 Procedure Howard M. Wasserman (Florida International University College of Law) has posted Civil Rights Plaintiffs and Joe Doe Defendants: A Study in Section 1983 Procedure (Cardozo Law Review, Vol. 25, No. 793, 2003) on SSRN. Here is the abstract:
Concluding that procedure should not unduly hamper the vindication of substantive rights in this manner, Professor Wasserman considers four changes that might resolve the dilemma. The first is to simply require the plaintiff to commence the action earlier, with more time to use to discovery to learn the defendants' names and amend the pleading before the limitations period has expired. The second is to alter substantive Section 1983 and Bivens law to establish governmental respondeat superior liability. This obviates the need to identify and sue the individual officers, because the government entity is the primary responsible defendant. The third solution is a reinterpretation or amendment of Rule 15(c)(3), permitting relation back where there has been a mistake or lack of knowledge or ignorance concerning the identity of the proper party. The final, and most important suggestion, is the creation of a limited pre-filing discovery procedure modeled on Fed. R. Civ. P. 27, through which a Section 1983 plaintiff could, prior to commencing the lawsuit by filing a Complaint, formally depose a government entity in order to learn the names of the officers whose conduct violated her rights, which officers then could be sued by name in a timely filed Complaint. McNamar on New Technology & Enron R.T. McNamar (Cato Institute) has posted New Technology Can Help Avoid A Second Enron (Regulation, Vol. 26, No. 3, pp. 62-67, Fall 2003) on SSRN. Here is the abstract:
Willis on Corporate Reporting in the Information Age Mike Willis (PricewaterhouseCoopers LLP) has posted Corporate Reporting Enters the Information Age (Regulation, Vol. 26, No. 3, pp. 56-60, Fall 2003) on SSRN. Here is the abstract:
Conference Announcement: The Second Amendment
"The Second Amendment and the Future of Gun Regulation: Historical, Legal, Policy and Cultural Perspectives" Tuesday, April 13, 2004 New York City A conference jointly organized by the Fordham University Law Review, Fordham University School of Law, & The Second Amendment Research Center at The John Glenn Institute for Public Service and Public Policy, The Ohio State University SCHEDULE AND TOPICS Tuesday, April 13, 2004 8:30 CHECK IN BEGINS 9:00 - 9:20 WELCOME & INTRODUCTORY REMARKS 9:30 - 11:00 SESSION I, "Historical Perspectives" Chair: Carol Berkin, CUNY Baruch Presenter: Saul Cornell, The Ohio State University Presenter: Nathan DeDino, The Ohio State University Commentator: David T. Konig, Washington University in St. Louis Commentator: James A. Henretta, University of Maryland 11:00 - 11:15 BREAK 11:15 - 12:45 SESSION II, "Legal Perspectives" Chair: Robert J. Kaczorowski, Fordham University School of Law Presenter: Michael C. Dorf, Columbia University Commentator: Calvin R. Massey, University of California Hastings Commentator: Raymond T. Diamond, Tulane University Law School 12:45 - 2:00 LUNCH 2:00 - 3:30 SESSION III, "Public Policy Perspectives" Chair: Jan Dizard, Amherst College Presenter: Philip J. Cook, Duke University Presenter: Jens Ludwig, Georgetown University Commentator: John J. Donohue, Stanford University Commentator: Deborah Azrael, Harvard University 3:30 - 3:45 BREAK 3:45 - 5:15 SESSION IV, "Cultural Perspectives" Chair: Robert J. Spitzer, SUNY Cortland Presenter: Bernard E. Harcourt, University of Chicago Commentator: Kristin Goss, Georgetown University Commentator: Deborah Homsher, Cornell University 5:15 - 6:00 COCKTAIL HOUR 6:00 - 7:00 KEYNOTE SPEECH Speaker: Erwin Chemerinsky, University of Southern California Registration deadline: April 2, 2004 Conference fee: $100.00 Conference papers will be published by Fordham Law Review in Fall 2004. This conference has been approved for CLE credit by the Ohio State Commission on CLE. Call for Papers: Bull Moose Republicans
Authors are invited to interpret these two values - rule of law and free trade - philosophically and/or historically, and apply them in defense of or opposition to the specific immigration policy proposal of the Bush administration." More information is available at http://www.bullmooserepublicans.com/submissions/. While the analysis does not need to be explicitly legal, it certainly can be, and as two of the editors are law students, that perspective on the issue will certainly be appreciated. Wednesday, March 31, 2004
Felten on Mark and Trace Digital Rights Management Check out Ed Felten's post on a supposedly new Mark & Trace DRM scheme. Here is an excerpt:
First, the mark must really be indelible. If an adversary can remove the mark, the resulting "scrubbed" copy can be redistributed with impunity. Nobody has figured out how to make marks that can't be removed from music or video. Past attempts to create indelible marks have failed miserably. A notable example is the SDMI watermarks that my colleagues and I showed were easily removed. Second, blaming the buyer of an original for all copies (and copies of copies, etc.) made from it just isn't practical. To see why, suppose Alice has a big collection of music on her laptop. Then her laptop is stolen, or somebody breaks into it electronically, and all of her songs end up on millions of computers all over the Net. What then? Do you take all of Alice's earthly possessions to compensate for the millions of infringements that occurred? (And if that's the policy, what sane person will buy music in the first place?) Or do you let Alice off the hook, and allow burglars to defeat your entire DRM scheme? Nobody has a plausible answer to this question; and the Fraunhofer people don't offer one. Domain Name Expansion CNN reported that ICANN's latest round of domain name expansion is underway:
Each organization paid $45,000 to apply for suffixes that are to be set aside for specific industries and interest groups. The deadline for applications was Tuesday. WTO Action Henry Farrell over at Crooked Timber recently reported:
Wednesday Calendar Just one talk today:
Legal Theory Bookclub: Free Culture by Lawrence Lessig Part One Two Three Four Five Six Seven Eight
On Saturday, Legal Theory Bookworm recommended Larry Lessig's new book Free Culture, which can be downloaded for free from Lessig's site FreeCulture.org (also available in hardcopy from Amazon and Barnes & Noble). This is the third of eight posts on Lessig's book--a sort of blogospheric book club. There is still plenty of time to catch up; Lessig's book is a great (and fast) read. You are invited to read along, and to send your comments on the book, my posts, or on the comments of other readers. Pirates Chapter Four is called “Pirates.” Lessig expresses the thesis of the chapter as follows: If “piracy” means using the creative property of others without their permission—if “if value, then right” is true—then the history of the content industry is a history of piracy. Every important sector of “big media” today—film, records, radio, and cable TV—was born of a kind of piracy so defined. The consistent story is how last generation’s pirates join this generation’s country club—until now. He begins with film, telling the story of motion-picture production companies that fled the east coast for California in order to avoid the Edison companies patents. A bit more complicated is the story of the sound-recording industry. Lessig points out that in the early days of the technology, it wasn’t clear whether sound-recordings infringed the copyrights of the owners of the sheet music. And of course, a battle over the content of the law ensued, pitting content proprietors against the purveyors of the new technology: The innovators who developed the technology to record other people’s works were “sponging upon the toil, the work, the talent, and genius of American composers,” and the “music publishing industry” was thereby “at the complete mercy of this one pirate.” As John Philip Sousa put it, in as direct a way as possible, “When they make money out of my pieces, I want a share of it.” These arguments have familiar echoes in the wars of our day. So, too, do the arguments on the other side. The innovators who developed the player piano argued that “it is perfectly demonstrable that the introduction of automatic music players has not deprived any composer of anything he had before their introduction.” Rather, the machines increased the sales of sheet music. In any case, the innovators argued, the job of Congress was “to consider first the interest of [the public], whom they represent, and whose servants they are.” “All talk about ‘theft,’” the general counsel of the American Graphophone Company wrote, “is the merest claptrap, for there exists no property in ideas musical, literary or artistic, except as defined by statute.” We know how the conflict was resolved—the Copyright Act was amended, extending protection to sound recordings—but this protection was limited in a way that is extremely important to Lessig’s argument against a permission-based system of intellectual property: But rather than simply granting the composer complete control over the right to make mechanical reproductions, Congress gave recording artists a right to record the music, at a price set by Congress, once the composer allowed it to be recorded once. This is the part of copyright law that makes cover songs possible. Once a composer authorizes a recording of his song, others are free to record the same song, so long as they pay the original composer a fee set by the law. And this precedent has been appropriated by a variety of scholars as the basis for proposals to set up a similar scheme for P2P. Neil Netanel, Jessica Litman, Bill Fisher and others have argued that the benefits of P2P can be preserved by establishing a tax on hardware (mp3 players and computers, for example) and then paying out the proceeds to the copyright owners based on their pro rata share of downloads (which would be sampled or monitored). Lessig continues his story about piracy, pointing out that in the early days of radio, royalties were not paid to the owners of copyrights in the sound recordings played over the air. Similarly, early cable television providers did not pay for the right to retransmit broadcase signals. Lessig wraps the argument together at the end of the Chapter: These separate stories sing a common theme. If “piracy” means using value from someone else’s creative property without permission from that creator—as it is increasingly described today19— then every industry affected by copyright today is the product and beneficiary of a certain kind of piracy. Film, records, radio, cable TV. . . . The list is long and could well be expanded. Every generation welcomes the pirates from the last. Every generation—until now. The set of stories in the piracy chapter certainly pumps a set of intuitions. “That’s not fair"—I think in response to the concluding paragraph—if piracy was allowed for film, recorded music, radio, and cable, then it ought to be allowed for P2P. But why? “Two wrongs don’t make a right.” We might use the same stories to pump quite a different intuition. Copyright owners have been wronged before—by the recording industry, the broadcast industry, and the cable television industry—and the time has come to put this pattern of piracy to an end! In a more consequentialist vein, we might ask Lessig the counterfactual question: “What would have happened if copyright had been respected (or extended at an earlier stage) in each of these prior eras of piracy?” I don’t know whether Lessig is claiming that our history of piracy has made us better off, but I am just a bit worried that he is implying this without offering evidence. Piracy Chapter Four was “Pirates,” and Chapter Five is “Piracy.” Lessig’s strategy in this chapter is to distinguish two forms of piracy, commercial and noncommercial. Commercial piracy, i.e,, the wholesale illegal duplication and sale of DVDs and CDs, is bad. Noncommercial piracy is a different story. Although Lessig consistently insists that commercial piracy is wrong, he can’t seem to resist dropping the arguments that undermine his own conclusion: We could, for example, remind ourselves that for the first one hundred years of the American Republic, America did not honor foreign copyrights.We were born, in this sense, a pirate nation. It might therefore seem hypocritical for us to insist so strongly that other developing nations treat as wrong what we, for the first hundred years of our existence, treated as right. That excuse isn’t terribly strong. Technically, our law did not ban the taking of foreign works. It explicitly limited itself to American works. Thus the American publishers who published foreign works without the permission of foreign authors were not violating any rule. The copy shops in Asia, by contrast, are violating Asian law. Asian law does protect foreign copyrights, and the actions of the copy shops violate that law. So the wrong of piracy that they engage in is not just a moral wrong, but a legal wrong, and not just an internationally legal wrong, but a locally legal wrong as well. Lessig doesn’t ask the next logical question. Even if foreign commercial copying is legally wrong, is it really morally wrong? LDC’s prohibit copying of U.S. works in large part because of the enormous economic pressure the U.S. can place on them—through the WTO and other mechanisms. The fact that LDCs have formally acquiesced to these pressures doesn’t really answer the double-standards argument—that the U.S. is asking LDCs to meet a standard that the U.S. itself did not meet. Moreover, Lessig’s history of piracy arguments from Chapter Four seem to based on a similar sort of double-standard argument. Lessig knocks down a few more arguments made to justify commercial piracy and then turns to P2P: Peer-to-peer sharing was made famous by Napster. But the inventors of the Napster technology had not made any major technological innovations. Like every great advance in innovation on the Internet (and, arguably, off the Internet as well), Shawn Fanning and crew had simply put together components that had been developed independently. The result was spontaneous combustion. Launched in July 1999, Napster amassed over 10 million users within nine months. After eighteen months, there were close to 80 million registered users of the system. Courts quickly shut Napster down, but other services emerged to take its place. (Kazaa is currently the most popular p2p service. It boasts over 100 million members.) These services’ systems are different architecturally, though not very different in function: Each enables users to make content available to any number of other users.With a p2p system, you can share your favorite songs with your best friend— or your 20,000 best friends. Lessig’s next move is to divide the world of P2P users into four categories: Type AThere are some who use sharing networks as substitutes for purchasing content. Type B There are some who use sharing networks to sample music before purchasing it. Type C There are many who use sharing networks to get access to copyrighted content that is no longer sold or that they would not have purchased because the transaction costs off the Net are too high. Type D Finally, there are many who use sharing networks to get access to content that is not copyrighted or that the copyright owner wants to give away. What struck me immediately about this list was Type C. Lessig lumps together two different groups: (i) There are many who use sharing networks to get access to copyrighted content that is no longer sold or (ii) that they would not have purchased because the transaction costs off the Net are too high. Given Type A—those who use P2P as a substitute for purchasing, Lessig’s categorization implies that Type C(ii) and Type A exhaust the possibilities not covered by Categories B, C(i), and D. But that isn’t the case. This part is tricky, so watch my argument carefully. Both Type A and Type C(ii) are defined counterfactually. Type A consists of those who would purchase off the internet, if they could not get the content for free over P2P. Type B consists of those would purchase off the internet, if the off-internet transaction costs were the same as the on-internet transaction costs. But this leaves another logical possibility, Type E (added to Lessig’s A through D) consists of those who would not purchase off or on the Internet even with zero transaction costs, so long as the price includes the royalty charged by the copyright owner. Roughly speaking, Type E consists of those who will not even pay $1 to download from iTunes(or perhaps 50¢, if half of the iTune price is transaction costs). Let’s go back to Lessig’s argument: From the perspective of economics, only type A sharing is clearly harmful. Type B sharing is illegal but plainly beneficial. Type C sharing is illegal, yet good for society (since more exposure to music is good) and harmless to the artist (since the work is not otherwise available). So how sharing matters on balance is a hard question to answer—and certainly much more difficult than the current rhetoric around the issue suggests. This is a very fast argument. Let’s try to upack it—step by step. Notice that in describing Type C in the argument, Lessig says “since the work is not otherwise available.” That statement is accurate for Type C(i), but not for Type C(ii). Type C(ii) works are available, but the P2P user is simply not willing to pay the transaction costs. Type E works (not included in Lessig’s typology) are available, but the P2P users would be unwilling to pay the monopoly rent (royalty), even if transactions costs were zero. Now things get really interesting. What should is the optimal policy for P2P users of Type A, Type C(ii), and Type E: Lessig’s essential point is that there is a dead welfare loss if we allocate the entitlement to the copyright holder as against Type C(ii) and Type E P2P users. Copyright owners do not benefit from holding the entitlement against users of either type, because these users won't pay for CDs. Type C(ii) and Type E users lose (if the entitlement is assigned to the copyright owner), because they forgo consumption of music that they would enjoy. So far, so good, but Lessig’s version of the argument is incomplete. I’ve been going along with Lessig and treating Types A, C(ii), E are distinct categories, but this is misleading. A more illuminating story would make it clear that we all are willing to pay different amounts for different content. If I am Type A with respect to a given song (or collection of songs), this means that the price I am willing to pay for the content exceeds the market price of the CD. If I am Type C(ii), then the price I am willing to pay is below the market price of the CD but above the zero transaction cost price. If I am Type E, then the price I am willing to pay is below the zero transaction cost royalty. We might add Type F, those who would only accept the file if they were paid to do so. Any given song (or content file, more generally) will likely have consumers of Type A, C(ii), E, and F. Price and Enforcement Discrimination The fact that different consumers are willing to pay different prices for any given good does not create a problem for the allocation of tangible resources. The market establishes a price for the tangible resource, and those who derive the greatest utility from the resource purchase it. (I am setting the problem of wealth effects to the side.) But with information (the pattern of bits that make up the MP3 file), there is no need to get the file to the consumers who will derive the greatest benefit. That’s because consumption of information is nonrivalrous. Everyone can have a copy. So, in the best of all possible worlds, everyone who derives any positive utility form the content would have a copy. But we do not live in the best of all possible worlds. Our world has the defect that price and enforcement discrimination on the basis of demand curves is not feasible. Boy, that was a mouthful, what do you mean? In an ideal world, copyright owners would sell copies to each potential buyer at a price the buyer was wiling to pay. If I am willing to pay $50 for a copy of the Furtwangler recording of Bruckner’s Seventh Symphony, I would be charged $50 or less. But if you were only willing to pay $1 for the same recording, your price would be $1 or less. That is, the owner of the copyright in the recording would be able to engage in price discrimination on the basis of our demand curves—our willingness to purchase a different prices. In the actual world, however, this kind of price discrimination is difficult or impossible for two reasons. First, the owner of the copyright doesn’t know how much you or I are willing to pay; so the owner doesn’t know to charge you a lower price than she charges mes. Second, even if the owner somehow did know how much we were willing to pay, it would be difficult for her to prevent you from selling your copy to me at a price that was higher than you were charged but lower than the price that I would be charged. The same point could be made about enforcement. In a better world, we could enforce the copyright laws against Type A P2P users, but not against Type C(ii) or E users. But the legal system, like the copyright owner, lacks the information as to which users are which. And even if the legal system had this information, it would be difficult to prevent Type E users from selling their free copies to Type A users. So the impossibility of price and enforcement discrimination means that we must choose between giving the copyright owner the entitlement (the right to prevent copying) against Types A, C(ii), and E P2P users or giving all P2P users the entitlement to copy. Another Wrinkle: What if there were no free P2P? There is one more wrinkle that we need to add to Lessig’s story. If P2P filesharing were effectively eliminated by some legal regime, then the economics of for-pay downloading services would change. Demand would increase, economies of scale would kick in, and hence we would expect the price per download to fall. In other words, some users who are Type C(ii) or E given the availability of free P2P filesharing would become Type A if lower cost for-pay downloading were available. This is not a criticism of Lessig’s argument, but simply a supplement to it. Balancing Now that we’ve filled in the gaps, we can see that Lessig’s version of the argument, although highly compressed, was essentially correct. Free P2P filesharing has both costs and benefits. When we ask ourselves how entitlements should be allocated, we need to look at both sides of ledger: [T]he question we should be asking about file sharing is how best to preserve its benefits while minimizing (to the extent possible) the wrongful harm it causes artists. The question is one of balance. The law should seek that balance, and that balance will be found only with time. Of course, we all know where Lessig will go next. He will argue that the benefits of filesharing exceed the costs. He begins with the argument that filesharing actually stimulates demand for CDs. Type B users sample new songs, and buy more music: We start to answer this question by focusing on the net harm, from the standpoint of the industry as a whole, that sharing networks cause. The “net harm” to the industry as a whole is the amount by which type A sharing exceeds type B. If the record companies sold more records through sampling than they lost through substitution, then sharing networks would actually benefit music companies on balance. Coincidentally, as I was thinking about this portion of Lessig’s argument, I came across a story in yesterday’s Washington Post: Internet music piracy has no negative effect on legitimate music sales, according to a study released today by two university researchers that contradicts the music industry's assertion that the illegal downloading of music online is taking a big bite out of its bottom line. Songs that were heavily downloaded showed no measurable drop in sales, the researchers found after tracking sales of 680 albums over the course of 17 weeks in the second half of 2002. Matching that data with activity on the OpenNap file-sharing network, they concluded that file sharing actually increases CD sales for hot albums that sell more than 600,000 copies. For every 150 downloads of a song from those albums, sales increase by a copy, the researchers found. Of course, the RIAA disputes this study, but Lessig provides another argument that the RIAA cannot dispute: In the same period that the RIAA estimates that 803 million CDs were sold, the RIAA estimates that 2.1 billion CDs were downloaded for free. Thus, although 2.6 times the total number of CDs sold were downloaded for free, sales revenue fell by just 6.7 percent. The RIAA does not argue (and could not plausibly argue) that without P2P, sales would have tripled from 1999 to 2001. So it looks like the gain to consumers from free P2P far exceeds lost sales. Of course, we have not yet taken into account the reduced incentive to invest in the production of new music, but the RIAA’s own figures establish a fairly massive welfare gain from illegal P2P copying. The decline in investment would have to be very significant to outweigh that gain. Would Out-of-Print Have Become Available Without P2P? Lessig identifies other benefits of P2P. Type C(i) involves P2P filesharing of music that is no longer for sale. Lessig argues that all of category C(i) should be counted as a benefit of P2P. I don’t think Lessig is right about this. Why not? Because in the absence of free P2P filesharing, it is highly likely that for-pay downloading services for out-of-print records and CD’s would have emerged. These services could not get off the ground given that they had to compete with free P2P. (Free is better than cheap.) But cheap for-pay downloads would likely have competed quite effectively with relatively expensive (and increasingly scarce) used copies of out-of-print records and CDs. Lessig reinforces his argument that Type C(i) filesharing is a benefit of P2P by asking this rhetorical question: Or put differently, if you think that type C sharing should be stopped, do you think that libraries and used book stores should be shut as well? This question is partially illuminating and partially misleading. Yes, it is true that Type C(i) filesharing is like the used book and record market in some respects, but there is an important difference. Gearing up record plants or printing presses involved relatively high fixed costs. So, the effective choice was between a used record or book and no copy at all. Gearing up a download site for out-of-print CD’s and records involves very low fixed costs—so low that people are willing to do it for no compensation at all. In the absence of free P2P, used CDs of out of print records would compete with low-cost downloads. So one might well believe that type C sharing should be stopped, but libraries and used book stores should remain open. Lessig then turned to Type D filesharing. Type D works are either in the public domain or the owner of the copyright has consented to free copying. In either case, the elimination of Type D copying should count as a cost of the legal prohibition of P2P filesharing. Why Not Legalization? When I arrive at this point in Lessig’s argument, I was thinking to myself that Lessig has made an effective case for legalization. Even with all my quibbles and qualifications, it seemed to me that two of Lessig’s arguments (if correct on the facts) were compelling. If P2P actually increases demand for CDs, then there is no reason to restrict P2P—unless it could be shown that the optimal level of investment in music production requires an even greater monopoly rent from music and sound recording copyrights than was afforded by the pre-P2P regimes. (And that seems doubtful.) And independently, if Lessig is correct, that the net welfare gains from free P2P to Type A, C(ii), and E users far exceeds the costs to copyright owners, then it seems highly likely that we should siimply legalize P2P. If both arguments are correct, then the case for legalization is overwhelming. But this does not seem to be the direction in which Lessig is heading. After making a compelling case for legalization, Lessig seems to be preparing the way for some sort of compromise solution. He ends the Chapter by noting that we have a “tradition” of compromise between the interests of copyright owners and consumers. When the courts ruled that cable television operators had no obligation to pay for free broadcast signals, Congress created a mandatory license scheme. When courts ruled that the music recording industry had no obligation to pay sheet music copyright owners a royalty, Congress created a mandatory licensing scheme. I am puzzled. Why does Lessig seem to back off from the radical implications of his arguments? I will need to read on to answer this question. Comments David McGowan (University of Minnesota) writes: [A] couple of comments on your blog of Larry Lessig's new book. 1. A lot of the dispute concerns why and how nonrivalrous consumption is ethically significant. On a Lockean view, it strengthens the case for strong IPRs by suggesting that the common is not diminished by those who draw on it. If one views property rights as justified only to prevent the harm of deprivation, however, then the fact of nonrivalrous consumption points strongly the other way. Is it yours because you made it, or mine because I do not deprive you of it when I take it? The anecdotal approach of the book makes it hard to analyze this issue as rigorously as one might like. One answer in the book--that US law has traditionally been utilitarian not Lockean--is not very satisfying, especially when you start asking the hard questions of utilitarianism. 2. F/OSS production rests squarely on copyright. Without copyright, there is no copyleft. On some issues, such as whether and when dynamic linking creates a derivative work, the FSF takes a fairly aggressive pro-author position. It is also not clear that large F/OSS projects are less hierarchical than commercial projects. 3. I know you know this, but there are always transaction costs, not just in p2p. The utilitarian question is whether the costs are so high that bargaining is less likely to approximate the optimal outcome than some other approach, such as compulsory licensing. If one believes Congress deals badly with IP issues, then pointing out that there are transaction costs (which are lower than they used to be, which is why F/OSS exists at all), may not make a strong comparative point insofar as institutional analysis is concerned. And over at Copyfight, Ernest Miller writes: Jeff Jarvis has an excellent idea for another use of Larry's work - the annotated version (Free debate). Those familiar with my writings know that I am a huge fan of annotations, which I also call recipe files or client-side remixes. Jeff asks, But wouldn't it be great to take a book and break it open at the spine for some back-and-forth? Why not turn a book into a conversation? Why not, indeed? Lessig would certainly favor such a concept, I believe. And if he didn't, too bad, the book is already licensed for such a thing. Poor arguments can be pointed out, but so can additional evidence on behalf of particular arguments. In a way, Solum's work is a step in this direction. Who will be the first to add Solum's book club to an edition of Lessig's book? (I don't see a license on your blog, Solum, is that okay with you?) Wouldn't it be great, also, to append all the reviews, negative and positive, as well as Lessig's promotional interviews to the book for easy future reference. I'd better get a license up! For now, I give permission for use of all posts on Lessig's book in any form so long as the original source of the posts is clearly identified. Joseph Savirimuthu at Cyberbug has a series of posts up: C.E. Petit (Scriviner's Error) writes: I'm getting very irritated at the childish refusal on _both_ sides of the fence to treat differing types of copyrighted material on their own terms, rather than under a monolithic regime that eventually serves nobody very well. As I've mentioned before, I agree that "life plus 70" is too long a term; I don't agree with the various "5" or "14" year proposals. My modest proposal is to essentially trash the WFH concept. One need only look at the actual identity of the parties in copyright infringement suits to see the problem. If we can't get rid of WFH, I instead propose splitting the baby: Allow works controlled by the natural-person creators to have a SUBSTANTIALLY longer period in copyright than those controlled by "investors." The difference between "life + 70" and "flat 95" is statistically insignificant, given the median life expectancy of authors of trade books from the moment of publication. Instead, I propose that the "super short" period be assigned to WFH, leaving the "natural persons" period pretty much alone. This allows continued compliance with international trends, while also allowing the US to have its expansive (and excessive) WFH system--but for only 14 years (or maybe 25 at the outside). In other words, since the IP Clause contemplates economic motivation for creative works, USE economic motivation as the tool to adjust the "kind" of works created to enhance the progress of the sciences and useful arts. Tomorrow I will continue tomorrow with Chapters Six, Seven, Eight, and Nine. The full schedule of posts is set out below. The Schedule Tuesday, March 30, 2004
Legal Theory Bookclub: Free Culture by Lawrence Lessig Part One Two Three Four Five Six Seven Eight
On Saturday, Legal Theory Bookworm recommended Larry Lessig's new book Free Culture, which can be downloaded for free from Lessig's site FreeCulture.org (also available in hardcopy from Amazon and Barnes & Noble). This is the second of eight posts on Lessig's book--a sort of blogospheric book club. There is still plenty of time to catch up; Lessig's book is a great (and fast) read. You are invited to read along, and to send your comments on the book, my posts, or on the comments of other readers. "Mere Copyists" Chapter Three of Free Culture is called "Mere Copyists," and it begins with a doozy of a story--George Eastman's development of the roll-film camera. Lessig's important point is about the legal environment that was essential for photography to flourish: What was required for this technology to flourish? Obviously, Eastman’s genius was an important part. But also important was the legal environment within which Eastman’s invention grew. For early in the history of photography, there was a series of judicial decisions that could well have changed the course of photography substantially. Courts were asked whether the photographer, amateur or professional, required permission before he could capture and print whatever image he wanted. Their answer was no. And we can see why this example is important to Lessig's argument against a regime that requires permission for copying in the P2P context. As I was reading this section of Free Culture, Ronald Coase and his famous theorem inevitably came to mind. The Coase Theorem predicts that in an environment of zero transaction costs, the initial allocation of entitlements will not affect how resources are used. In the photography case and in the case of P2P copying of music or video, the zero transaction costs assumption does not hold. And hence the choice of entitlement assigning rules may determine whether the efficient outcomes are reached. Photography is a very clever example for Lessig. Copynorms concerning photography are well established. The photographer may rightfully photograph people, places, and things without obtaining permission from the subject or owner. There are limitations, to be sure, but the basic norm is that copying is o.k., socially and legally. The Chapter meanders through a story about a school in San Francisco, but then it turns sharply, to the contrast between the way that 9/11 was covered by television as opposed to the Internet. Here is the key passage: Around the same time [as 9/11], a form of communication that has grown dramatically was just beginning to come into public consciousness: the Web-log, or blog. The blog is a kind of public diary, and within some cultures, such as in Japan, it functions very much like a diary. In those cultures, it records private facts in a public way—it’s a kind of electronic Jerry Springer, available anywhere in the world. But in the United States, blogs have taken on a very different character. There are some who use the space simply to talk about their private life. But there are many who use the space to engage in public discourse. Discussing matters of public import, criticizing others who are mistaken in their views, criticizing politicians about the decisions they make, offering solutions to problems we all see: blogs create the sense of a virtual public meeting, but one in which we don’t all hope to be there at the same time and in which conversations are not necessarily linked. The best of the blog entries are relatively short; they point directly to words used by others, criticizing with or adding to them. They are arguably the most important form of unchoreographed public discourse that we have. And here I am blogging about Lessig writing about blogging. The next section of the chapter is a riff on the virtues of blogging--familiar stuff, including the famous Trent Lott was brought down by the bloggers story. Lessig then moves on to what I think is the real point of the chapter--the open source software movement: FS/OSS is software whose source code is shared. Anyone can download the technology that makes a FS/OSS program run. And anyone eager to learn how a particular bit of FS/OSS technology works can tinker with the code. This opportunity creates a “completely new kind of learning platform,” as Brown describes. “As soon as you start doing that, you . . . unleash a free collage on the community, so that other people can start looking at your code, tinkering with it, trying it out, seeing if they can improve it.” Each effort is a kind of apprenticeship. “Open source becomes a major apprenticeship platform.” In this process, “the concrete things you tinker with are abstract. They are code.” Kids are “shifting to the ability to tinker in the abstract, and this tinkering is no longer an isolated activity that you’re doing in your garage. You are tinkering with a community platform. . . . You are tinkering with other people’s stuff. The more you tinker the more you improve.” The more you improve, the more you learn. This same thing happens with content, too. And it happens in the same collaborative way when that content is part of the Web. As Brown puts it, “the Web [is] the first medium that truly honors multiple forms of intelligence.” Earlier technologies, such as the typewriter or word processors, helped amplify text. But the Web amplifies much more than text. “The Web . . . says if you are musical, if you are artistic, if you are visual, if you are interested in film . . . [then] there is a lot you can start to do on this medium. [It] can now amplify and honor these multiple forms of intelligence.” The lesson of chapter two is that copying (and remixing) content can be a powerful engine of creativity. Lessig ends the chapter with a note of pessimism: We’re building a technology that takes the magic of Kodak, mixes moving images and sound, and adds a space for commentary and an opportunity to spread that creativity everywhere. But we’re building the law to close down that technology. What does Lessig have in mind? The Digital Millenium Copyright Act? I think so, but we will have to wait to find out. Catalogs The next chapter is called "Catalogs" and it begins with the compelling story of Jesse Jordan, a student at Rensselaer Polytechnic Institute, who developed a very effective search engine for the files on RPI's network. That search engine listed all the files on the searchable portions of the network--including, of course, mp3 (and other music) files--hundreds of thousands of them. Of course, the catalog of files also included lots of other stuff--about 75% other stuff, but nonetheless the RIAA was not amused and Jesse Jordan received a demand letter and the RIAA wanted all of his savings in exchange for dropping the suit against him. A great story! This is an example of the filesharing phenomenon where all of the equities and most of our moral intuitions are on the side of the defendant! Where will Lessig go with this? Chapter three was short and sweet. It certainly got my intuitions pumping wildly in favor of P2P users and against the RIAA. Comments from Hither and Yon Archie Mazmanian writes: You don't have to go to Japan. In the 1930s and early 1940s here in the U.S. there were the "Tijuana Bibles" involving parodies of U.S. comic strips in a pornographic manner: Dick Tracy, Moon Mullins, Gasoline Alley, etc, engaging in all sorts of things. Just Google Tijuana Bibles for background. I don't know if any copyright infringement actions were brought. A lot of us teenagers in those days learned alot from these "Bibles". Nick Morgan of DeNovo has a nice post. Here's an excerpt: I myself was a bit uneasy with these sweeping contrasts between "anarchy" and "control," but I find myself more tolerant of the ambiguity than Solum. The notions of freedom Lessig contrasts are certainly not (yet) rigorous, but I think they adequately pinpoint the basic concerns of the anti-IP movement. The freedom so far articulated is the freedom that makes progress possible--open and flowing speech, expression, self-determination, and invention. There's no need to bring down the barrier that makes this beer mine, and not yours, but Lessig is setting us up to be critical of barriers that we don't, in fact, generally want, and that haven't, in fact, been part of our cultural traditions of creativity. Barriers that his book has so far suggested arise from big money and corrupt politics are apparently barriers that interfere with freedom as we like it. Tomorrow I will continue tomorrow with Chapters Four and Five. The full schedule of posts is set out below. The Schedule Tuesday Calendar
At Columbia's IP series, David O. Carson, Esq., General Copyright Office, presents The Anti-Circumvention Provisions in 17 U.S.C. §1201: What is the appropriate balance between technological protection, and copyright exceptions and limitations? Monday, March 29, 2004
Joel Feinberg Christopher Maloney writes:
Professor Feinberg retired from the University of Arizona Philosophy Department in 1994 after 17 on the faculy. Prior to his appointment at Arizona, Professor Feinberg taught at Brown University, Princeton University, UCLA and Rockefeller University. He held the B.A., M.A. and Ph.D. from the University of Michigan. Professor Feinberg was internationally distinguished for his research in moral, social and legal philosophy. His major four volume work, *The Moral Limits of Criminal Law,* was published between 1984 and 1988. Professor Feinberg held many major fellowships during his career and lectured by invitation at universities around the world. He was an esteemed and highly successful teacher, and many of his students are now prominent scholars and professors at universities across the country. Professor Feinberg is survived by his wife, Betty, daughter, Melissa, and son, Ben. The family is planning a memorial to be held later this week on a date to be determined. Professor Jules Coleman of Yale University is presently composing a proper professional obituary for Professor Feinberg. You are welcomed to forward this message to others. Weekend Wrap Up On Saturday, the Download of the Week was What's So Bad About Legal Paternalism? (Or What's So Good About Autonomy?) by William Talbott. The Legal Theory Bookworm recommended Free Culture by Lawrence Lessig--and today an eight part session of the Legal Theory Bookclub on Lessig's book begins. Also on Saturday, the regular feature on the top downloads on SSRN. Sunday, the Legal Theory Calendar previewed this week's workshops, talks, and conferences, and the Legal Theory Lexicon entry was on Public and Private Goods. Allen Buchanan's Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law Is Out I recommended this important book by Buchanan months ago. There is a long story about a badly formatted edition being recalled by the publisher, but the real thing is out now. My thanks to Jacob Levy for the news! Legal Theory Bookclub: Free Culture by Lawrence Lessig Part One Two Three Four Five Six Seven Eight
On Saturday, Legal Theory Bookworm recommended Larry Lessig's new book Free Culture, which can be downloaded for free from Lessig's site FreeCulture.org (also available in hardcopy from Amazon and Barnes & Noble). This is the first of eight posts on Lessig's book--a sort of blogospheric book club. You are invited to read along, and to send your comments on the book, my posts, or on the comments of other readers. What Is Free Culture About? So what is Free Culture about? As I begin to read the book, I've got quite a few preconceptions. Lessig's work in the Eldred case, challening the Copyright Term Extension Act which retroactively extended most copyright terms for 20 years, was all about the effect of copyright extensions on the "public domain," works that are outside the protection of copyright. So I'm expecting a book about the value of the public domain. In the Preface, Lessig gives a hint about what is to come: [W]e come from a tradition of “free culture”—not“free” as in “free beer” (to borrow a phrase from the founder of the freesoftware movement), but “free” as in “free speech,” “free markets,” “free trade,” “free enterprise,” “free will,” and “free elections.” A free culture supports and protects creators and innovators. It does this directly by granting intellectual property rights. But it does so indirectly by limiting the reach of those rights, to guarantee that follow-on creators and innovators remain as free as possible from the control of the past. A free culture is not a culture without property, just as a free market is not a market in which everything is free. The opposite of a free culture is a “permission culture”—a culture in which creators get to create only with the permission of the powerful, or of creators from the past. (xiv) And he clarifies his position: [A]n argument for free culture stumbles on a confusion that is hard to avoid, and even harder to understand. A free culture is not a culture without property; it is not a culture in which artists don’t get paid. A culture without property, or in which creators can’t get paid, is anarchy, not freedom.Anarchy is not what I advance here. Instead, the free culture that I defend in this book is a balance between anarchy and control. A free culture, like a free market, is filled with property. It is filled with rules of property and contract that get enforced by the state. But just as a free market is perverted if its property becomes feudal, so too can a free culture be queered by extremism in the property rights that define it. That is what I fear about our culture today. It is against that extremism that this book is written. If you are a frequent reader of Legal Theory Blog, you know that I have a certain intellectual style. I have a strong affinity for intellectually rigorous, carefully formulated arguments. Lessig is a brilliant guy. I am a great admirer of his work on the relationship between Code and law--but Lessign's style is much looser, more free flowing, and less linear than I usually admire. As I start to read to Free Culture, I begin to get must a bit antsy. I can see where Lessig is going, but I am worried about precision. "Free will" and "free markets" aren't really free in the same sense. "A balance between anarchy and control"--that's a nice phrase, but what does it really mean? Of course, we are very early in the book and patience is a virtue. So I press on. The Introduction: "Cujus est solum ejus est usque ad coelum et ad inferos” A maxim of the common law went: "Cujus est solum ejus est usque ad coelum et ad inferos"--"To whomsoever the soil belongs, he owns also to the sky and to the depths." But this rule gave way in face of the new technology of air travel in U.S. v. Causby (1946), in which Justice Douglas wrote: [The] doctrine has no place in the modern world. The air is a public highway, as Congress has declared. Were that not true, every transcontinental flight would subject the operator to countless trespass suits. Common sense revolts at the idea.To recognize such private claims to the airspace would clog these highways, seriously interfere with their control and development in the public interest, and transfer into private ownership that to which only the public has a just claim. “Common sense revolts at the idea.” Common Sense Revolts at the Idea Lessig is telling stories that are designed to pump certain intuitions--to put us in the right frame of mind for what is to come. I am reading the book as I write these posts, so I am not sure what is coming next, but I have a suspicion. I think that the Internet is going to play a role vis a vis intellectual property law that is similar to the role that air travel played vis a vis traditional property law. "Common sense" is going to tell us that IP must give way to the new reality, if the public interest is to be served. Chapter One tells another story--that of Edwin Howard Armstrong--who invented FM radio. Lessig tells us about Armstrong's battle with RCA, which attempted to surpress Armstrong's superior technology in order to protect its market position in AM radio. Another good story, and again Lessig is making vivid a general point about law and technology. Stakeholders in the status quo will use the law--both fairly and unfairly--to protect their interests, even at the expense of progress that is manifestly in the public interest. Lessig ties some of these ideas together towards the end of the introduction: I have become increasingly amazed by the power of this idea of intellectual property and, more importantly, its power to disable critical thought by policy makers and citizens. There has never been a time in our history when more of our “culture” was as “owned” as it is now. And yet there has never been a time when the concentration of power to control the uses of culture has been as unquestioningly accepted as it is now. The puzzle is,Why? Is it because we have come to understand a truth about the value and importance of absolute property over ideas and culture? Is it because we have discovered that our tradition of rejecting such an absolute claim was wrong? Or is it because the idea of absolute property over ideas and culture benefits the RCAs of our time and fits our own unreflective intuitions? Piracy "Free Culture" is divided into Parts, and the first Part is titled "Piracy." In this introductory interlude, Lessig takes aim at the rhetoric of those who campaign against Peer-to-Peer (P2P) in order to protect copyright. Of course, we are familiar with the rhetorical moves. P2P users are thieves and pirates. But Lessig thinks that this rhetorica is built on an implausible assumption: Creative work has value; whenever I use, or take, or build upon the creative work of others, I am taking from them something of value.Whenever I take something of value from someone else, I should have their permission. The taking of something of value from someone else without permission is wrong. It is a form of piracy. Lessig then makes a crucial move. This move has been made before, but Lessig makes it deftly and clearly. Here it is: [There is] a distinction that the law no longer takes care to draw—the distinction between republishing someone’s work on the one hand and building upon or transforming that work on the other. Copyright law at its birth had only publishing as its concern; copyright law today regulates both. Before the technologies of the Internet, this conflation didn’t matter all that much. The technologies of publishing were expensive; that meant the vast majority of publishing was commercial. Commercial entities could bear the burden of the law—even the burden of the Byzantine complexity that copyright law has become. It was just one more expense of doing business. But with the birth of the Internet, this natural limit to the reach of the law has disappeared. The law controls not just the creativity of cotmmercial creators but effectively that of anyone. The cassette tape recorder empowered everyone with modest means to create their own new works--compilation tapes. The photocopy machine empower ordinary instructors to produce their own new works--course materials. P2P goes one giant step further--it empowers everyone to publish works in digital form. P2P publishing reaches the whole world, and the copies that are distributed can be recopied and redistributed with almost zero loss of fidelity to the original. This is truly a revoluationary change--one that upsets the basic premises upon which copyright law and copynorms are predicated. Creators Chapter One of "Free Culture" is titled "Creators." This chapter tells two, very compelling, stories about the value created by copying. The first story, familiar from Lessig's prior work, is about Walt Disney. Lessig argues that the early history of Disney's creative output was based on derivative works. Early Disney cartoons borrowed form, parodied, and mimiced a variety of works. Some were in the public domain (Snow White, others were relatively new works, still in copyright--(Steamboat Willie ripped Steamboat Bill, Jr., a Buster Keaton film). The second story is about doujinshi--a form of Japanese comic book in which a source comic is reworked and tranformed. Japanese copyright law is not so different than the copyright laws of the United States. So, quite naturally, Lessig asks, why don't the owners of the originals sue? It may well be that the market as a whole is better off if doujinshi are permitted rather than banned, but that doesn’t explain why individual copyright owners don’t sue nonetheless. If the law has no general exception for doujinshi, and indeed in some cases individual manga artists have sued doujinshi artists, why is there not a more general pattern of blocking this “free taking” by the doujinshi culture? I spent four wonderful months in Japan, and I asked this question as often as I could. Perhaps the best account in the end was offered by a friend from a major Japanese law firm. “We don’t have enough lawyers,” he told me one afternoon. There “just aren’t enough resources to prosecute cases like this.” Maybe. But I think that something else is going on. If just some of the producers of doujinshi comic books were sued or prosecuted, this might have a deterrent effect. You don't have to bring a suit against each and every infringer to enforce the law. I suspect that that the doujinshi phenomenon is better explained by copynorms, i.e. by the informal social attitudes that create expecations about what is ok and what is socially unacceptable. Doujinshi are permitted by Japanese copynorms. Because these norms are internalized, the question that Lessig asked, "Why don't you sue?," is not a question that even arises from within the culture. Copynorms are the sea we swim in when we think about copyright law. We don't see them, except when they begin to break down or change. Doujinshi are "ok;" they are within the accepted bounds of behavior. P2P filesharing is a bit different though. P2P did not creep up on us, alterning norms as it went. P2P exploded; it was a "big bang" transformation of copybehavior. In one segment of the culture, college dorms and teenage bedrooms, the copynorms went one way. "This is just sharing. It's like sharing compiliation cassette tapes." In the IP industry, the copynorms went another way. "This is just theft. It's like running an pirate CD pressing plant." Let's return to Lessig's theme: Creators here and everywhere are always and at all times building upon the creativity that went before and that surrounds them now. That building is always and everywhere at least partially done without permission and without compensating the original creator. No society, free or controlled, has ever demanded that every use be paid for or that permission for Walt Disney creativity must always be sought. Instead, every society has left a certain bit of its culture free for the taking—free societies more fully than unfree, perhaps, but all societies to some degree. The hard question is therefore not whether a culture is free. All cultures are free to some degree. The hard question instead is “How free is this culture?” How much, and how broadly, is the culture free for others to take and build upon? Is that freedom limited to party members? To members of the royal family? To the top ten corporations on the New York Stock Exchange? Or is that freedom spread broadly? To artists generally, whether affiliated with the Met or not? To musicians generally, whether white or not? To filmmakers generally, whether affiliated with a studio or not? So far, Free Culture is a great read and provocative. I still don't know how Lessig will tie this all together, but I am eager to find out. Tomorrow I will continue tomorrow with Chapters Two and Three. The full schedule of posts is set out below. The Schedule Monday Calendar
At New York University, Eleanor Fox presents Taming Unruly Horses: The Laboratory of Global Antitrust. Here is a taste: There are now nearly 100 national systems of antitrust. There are many systems clashes. There are many circumstances of unnecessary and overlapping regulation. There are also many cases in which a global vision is more coherent than a nation-centered one. The antitrust community is relatively far advanced in grappling with the problems of coherence and sovereignty; yet numerous questions remain. This essay explores four specific antitrust problems of globalization. The first two are case-specific problems of external effects of national decision-making: the Empagran case, now pending before the U.S. Supreme Court, and the Microsoft case, decided by the European Commission on March 24, 2004. The third is less a problem than a description: how the world community is handling the proliferation of pre-merger filing laws; convergence has been championed by the business community and a process is under way. The fourth and final episode describes the plight of developing countries vis-à-vis an emerging world system, and identifies this problem as least amenable to a common understanding, least understood, and least under control. The paper draws some conclusions regarding methodologies likely to succeed, circumstances congenial to success, and indeed what is success. Posner & Yoo on International Adjudication Eric A. Posner and John C. Yoo (University of Chicago Law School and University of California at Berkeley School of Law) have posted A Theory of International Adjudication on SSRN. Here is the abstract:
Hoofnagle on FTC Privacy Efforts Chris Jay Hoofnagle (Electronic Privacy Information Center) has posted Privacy Practices Below the Lowest Common Denominator: The Federal Trade Commission's Initial Application of Unfair and Deceptive Trade Practices Authority to Protect Consumer Privacy (1997-2000) on SSRN. Here is the abstract:
Vranas on Doris Peter Vranas (Iowa State, Philosophy) has posted a review of John Doris's Lack of Character. Here is a taste:
I agree with all four of the above theses, but I will argue that some of Doris’s arguments need improvement. I will deal only with arguments in defense of the thesis that situationism is true. Sunday, March 28, 2004
Legal Theory Calendar
At the University of Chicago's law and philosophy series, Lauren Berlant, University of Chicago English Department, is presenting. At New York University, Eleanor Fox is presenting. Tuesday, March 30 At Vanderbilt, Lisa Bressman presents Judicial Review of Agency Inaction. At Columbia's IP series, David O. Carson, Esq., General Copyright Office, presents The Anti-Circumvention Provisions in 17 U.S.C. §1201: What is the appropriate balance between technological protection, and copyright exceptions and limitations? Wednesday, March 31 At NYU's legal history series, Harold Forsythe, Professor of History, Fairfield University, presents Red River Blues: From Race War in Grant Parish, Louisiana to the Supreme Court. Thursday, April 1 At Florida State University, Randy Barnett, Boston University Law School, presents Lawrence v. Texas and Justice Kennedy?s Libertarian Revolution and Chapter 10 of Restoring the Constitution. At the University of Texas, Brian Leiter's outstanding law and philosophy program is hosting John Gardner, the Professor of Jurisprudence at Oxford University. Gardner will deliver the Leon Green '15 Lecture in Jurisprudence and participate in the Berman/Sager Colloqium in Constitutional and Legal Theory. Today Gardner presents Backwards and Forwards with Tort Law. At UCLA's tax policy series, Steve Sheffrin, UC Davis Economics Department, presents Understanding Public Attitudes Toward Taxation: 1. Are Surveys of Taxpayers' Honesty Honest? 2. Can Brute Deterrence Backfire--Perceptions and Attitudes in Taxpayer Compliance. and 3. Perceptions of fairness in the crucible of tax policy. At Michigan's Olin series, Dean Lueck, Arizona, presents Property Law. At George Mason, Giuseppe Dari Mattiaci, Nancy 2 University and GMU School of Law, presents Voluntary Slavery. At Boston University, John Coffee is presenting. Friday, April 2 At the University of San Diego, Adrian Vermeule presents The Judiciary Is a They, Not An It: Two Fallacies Of Interpretive Theory. At the University of San Diego, the Institute for Law and Philosophy is hosting a Roundtable on What Is Legal Interpretation. The participants include Dean Stanley Fish ? University of Illinois at Chicago, Dagfinn F?llesdal ? Stanford University, Department of Philosophy, Elizabeth Garrett, University of Southern California Law School, Jeffrey Goldsworthy, Monash University School of Law, Australia, Kent Greenawalt, Columbia University School of Law, Mark Greenberg, Princeton University Department of Philosophy, Provost Steven Knapp, The Johns Hopkins University, John Manning, Columbia University, School of Law, Matthew McCubbins, University of California, San Diego, Political Science Department, Walter Benn Michaels, University of Illinois, Chicago, Department of English, Michael Moore, University of Illinois College of Law, Dennis Patterson, Rutgers school of Law, Camden, Frederick Schauer, Harvard University, JFK School of Government, Scott Shapiro, Yale Law School, Walter Sinnott-Armstrong, Dartmouth College, Department of Philosophy, Adrian Vermuele, University of Chicago School of Law, Jeremy Waldron. Columbia University School of Law, Barry Weingast, Stanford University, Department of Political Science, and Keith Whittington, Princeton University, Department of Politics. Larry Alexander has outdone himself! John Gardner's visit to the University of Texas continues with the Leon Green '15 Lecture in Jurisprudence. Legal Theory Lexicon: Public and Private Goods
One of the most powerful ideas that legal theory borrows from economics is the idea of a "public good." Sooner or later law students learn that within the framework of contemporary neoclassical economics, the standard line is that public goods (e.g. national security) should be provided by government whereas private goods (automobiles) ought to be provided by markets. For legal theorists, the line between public and private goods tracks one of the important fault lines in the law--between the private law fields of property, contract, tort, and so forth and public law fields such as environmental law, administrative law, and constitutional law. This post provides a basic introduction to the economic distinction between public and private goods for law students (especially first year law students) with an interest in legal theory. It may be helpful to quickly preview the basic idea. So here goes: We use markets to provide goods like laptops (that excludable and rivalrous), but government provides goods like national defense (that are nonexcludable and nonrivalrous). A Note on Terminology: "Public Goods" versus "Public Interest" versus "Public Resources." Before we go any further, let's make sure we agree about how we are using the phrase "public good." This is important because the same phrase is used for different purposes in different contexts. So let's stipulate to the following: We could use the phrase "public good" to refer to the public interest or to public resources, but for the purposes of this post, let's stipulate that "public good" shall be reserved for the economic sense of the phrase. The Criteria for Public Goods There are two criteria by which public goods and distinguished from private goods. A good is public only if it is both nonrivalrous and nonexcludable. A good is private only if it is both rivalrous and excludable. (We will deal with the mixed cases in just a bit.) "Rivalrousness" is a property of the consumption of a good. Consumption of a good is rivalrous if consumption by one individual X diminished the opportunity of other individuals, Y, Z, etc., to consume the good. Some goods are rivalrous because they are "used up." If I drink a glass of Heitz Martha's Vineyard, then you cannot drink that same glass of wine. If set off a firecracker, you cannot set off the same firecracker. Other goods are rivalrous because of crowding effects. If I am using the free internet terminal at the student lounge, then you cannot use the same time slice of the terminal--because only one person can sit in front of the screen at the same time. "Excludability" is also a property of consumption of a good. It is helpful to distinguish two forms of excludability: (1) excludability through self help, and (2) excludability through law. If I want to exclude you from my land, I can build a fence--the exclusion results from self help. But if I want to exclude you from copying a novel that I've written and I want to make the novel generally available for sale, self help will not work. (It would be ridiculously expensive to hire a guard to monitor each copy or every photocopy machine.) Government, however, can make unauthorized copying a criminal offense or actionable civil wrong, thereby creating exclusion through law. Markets and Government The conventional view is that markets should provide private goods and government should provide public goods. The case for market provision of private goods relies on the idea of Pareto efficiency. The weak Pareto Principle is the simple idea that if some action would make at least one person better off and no one worse off, then that action is good. If we have a private good, e.g. a widget, and a willing buyer and seller, then allowing the sale is Pareto efficient: the buyer prefers the widget to the money and the seller prefers the money to the widget. If we assume that the transaction has no external costs (harms to third parties), then allowing the transaction makes buyer and seller better off and hence is required by the weak Pareto principle. But when we come to public goods, markets simply don't work. Why not? Most simply, because if a good is nonexcludable, then no one will pay for it. Suppose someone goes into the business of cleaning the air with a pollution removal machine. I won't voluntarily pay for this service, because I will be able to breathe the air even if I don't pay. If a private firm offered to defend me against foreign invaders, I won't voluntarily sign on. My individual payment would have a negligible effect on the size of the armed force. If others pay, I don't need to. If others don't pay, then my payment won't do any good. Of course, you will recognize that I am describing the free rider problem, a form of the Prisoner's Dilemma. Because markets cannot provide public goods, governments should. As you might expect, the argument for government provision of public goods and market provision of private goods is controversial. Socialists argue that governments may do a better job of providing private goods, because government planning can create welfare benefits that cannot be realized by markets. Libertarian legal theorists argue that markets can provide most if not all private goods for various reasons, including arguments that nonexcludability can often be overcome by ingenious market solutions. I won't get into either the socialist or the libertarian critique of the argument for market provision of private goods and government provision of public goods, but you should know that these criticisms have been extensively developed. The Expanded Typology: Public, Private, Toll, and Common Pool Goods So far, we have been assuming that excludability and rivalrousness go together and hence that there are only two categories, public goods and private goods. In fact, it is possible to have a good that is rivalrous but nonexcludable or one that is nonrivalrous but excludable. So there are four categories, not two: Table One shows the four categories as a two-by-two matrix: Table One: Public, Private, Common Pool, Toll, and Club Goods. __________________________Excludable___________Nonexcludable___ _______________________________________________________________ ____________________|____________________|____________________| ____________________|____________________|____________________| ____________________|____________________|____________________| ____________________|_____Pure___________|_____Common_________| __________Rivalrous_|_____Private________|_____Pool___________| ____________________|_____Good___________|_____Good___________| ____________________|____________________|____________________| ____________________|____________________|____________________| _______________________________________________________________ ____________________|____________________|____________________| ____________________|____________________|____________________| ____________________|_____Club Good______|____________________| ____________________|____________________|_____Pure___________| _______Nonrivalrous_|____________________|_____Public_________| ____________________|_____Toll Good______|_____Good___________| ____________________|____________________|____________________| ____________________|____________________|____________________| _______________________________________________________________ We've covered the first two categories, but we need to consider categories three and four. So let's do that now. Toll Goods and Intellectual Property A toll good is characterized by nonrivalrous consumption but excludability. Suppose we have a highway in a rural area, where the capacity of the highway would never be approached even if access were free. Nonetheless, use of the highway can be limited by the installation of toll booths. This means that we can charge for access to the highway. Economists call goods that are nonrivalrous but excludable "toll goods." One of the most important applications of the concept of a toll good in legal theory arises in the context of intellectual property. A simplified version of the conventional story goes something like this. Without intellectual property rights created by law, the information (e.g. the invention or composition) would be a pure public good. In a world without intellectual property, for example, the first copy of a new book could be copied by the first purchasers. This copy could then be copied by others. Eventually, the "free" copies would dominate the market. And this would destroy the incentives of authors to write! (More on the question whether this is right towards the end of this post.) Intellectual property law comes to the rescue. By enforcing patents and copyrights through legal sanctions, intellectual property law transforms information from a public good to a toll good. Intellectual property law creates excludability, but not rivalrousness. For more on this, see Water Wells and MP3 Files: The Economics of Intellectual Property. Common Pool Goods and the "Tragedy of the Commons" Common pool goods are rivalrous but non excludable. An example might be the fish resource in those portions of the ocean that are outside national waters (the high seas). This resource is rivalrous, because over fishing can result in a reduction of the stock of fish. But excludability is difficult to establish. Self-help would work for a localized fishing area where the fish population does not range over a large area; in theory a patrol boat could establish a virtual fence. But this solution won't work if the fish population ranges over a wide area of the high seas. Unless some international treaty regime can establish enforceable quotas, the result may be a "tragedy of the commons." Each fisher has an incentive to take the most she can, but the result of all fishers doing this is a depletion in the stock of fish that harms everyone. (Once again, we have a version of the Prisoner's Dilemma.) Club Goods We are almost done, but we have one or two more ideas to pick up. One is the idea of a "club good." A club good is a good where the utility of each individual's consumption of the good is a function of the number of others who consume the good. Take a golf course. If too many people try to use the course simultaneously, then the utility that each derives from the experience goes down. Golfers have to wait for tee times, the course is crowded, and so forth. In other words, there are "crowding" problems. One solution to such problems is to form a "club," which limits the number of persons with the right to use the golf course. Private Goods and the "Tragedy of the Anticommons" And finally, we should note the flip side of the tragedy of the commons, dubbed by Frank Michelman, "the tragedy of the anticommons." This refers to the phenomenon where ownership in a resource has been divided among so many owners that transaction costs and holdout problems prevent Pareto efficient transactions from occurring. For example, when property was "privatized" in the former Soviet Union, a single apartment building might end up with many, many fractional owners, including ownership interests by various government entities and the residents of the building. In theory, every owner must agree before a transaction involving the building could take place. Given the large number of owners, the costs of completing the transaction and paying off the holdouts (those who withhold consent in order to increase their share of the profits) can make the transaction economically unattractive. This is a case where the market is incapable of efficiently allocating a pure private good. Conclusions The public/private goods distinction is basic to a variety of topics in legal theory. Whenever you encounter a resource allocation problem, ask yourself, "Is this resource a public, private, toll, or common pool good?" And then ask, "Could a change in the legal rules governing this resource change its status?" Although the terminology may be daunting at first, they are really very simple and straightforward. Saturday, March 27, 2004
APA Pacific Division: Saturday Afternoon Here are some of the programs of particular interest to legal theorists:
1:00-4:00 p.m. Chair: Jeffrey Barrett (University of California-Irvine) Critics: James M. Joyce (University of Michigan) Joshua Epstein (Brookings Institution and Santa Fe Institute) J. McKenzie Alexander (London School of Economics) Author: Brian Skyrms (University of California-Irvine) Author Meets Critics: Laurie Shrage, Abortion and Social Responsibility: Depolarizing the Debate 1:00-3:00 p.m. Chair: Ann Garry (California State University-Los Angeles) Critics: Christine Littleton (Law and Women's Studies, University of California-Los Angeles) Meredith Michaels (Smith College) Author: Laurie Shrage (California State Polytechnic University- Pomona) Invited Symposium: Aristotle's Nicomachean Ethics 1:00-3:00 p.m. Chair: Nicholas D. Smith (Lewis & Clark College) Speaker: Paula Gottlieb (University of Wisconsin-Madison) "Aristotle and Moral Dilemmas" Respondents: Susan Sauvé Meyer (University of Pennsylvania) Christopher Rowe (University of Durham) Colloquium: Moral Rules 4:00-5:00 p.m. Chair: Peter Tan (Mount Saint Mary's College) Speaker: Jeffrey C. Brand-Ballard (George Washington University) "Rules That Bend Without Breaking" Commentator: Larry Alexander (University of San Diego) 5:00-6:00 p.m. Chair: Darryl Wright (Harvey Mudd College) Speaker: Betsy C. Postow (University of Tennessee) "Valid Competing Moral Codes" Commentator: Bruce Landesman (University of Utah) 6:00-7:00 p.m. Chair: Laurence Houlgate (California State Polytechnic University-San Luis Obispo) Speaker: Rebecca Stangl (University of Notre Dame) "Dancy's Particularism and the Point of Moral Principles" Commentator: Leonard Kahn (University of California-Irvine and Oxford University) Special Session Arranged by the APA Committee on Philosophy and Law and the Society for Philosophy and Public Affairs 4:00-7:00 p.m. Topic: Women and the U.S. Constitution Chair: Carol Gould (Stevens Institute of Technology and Columbia University) Panelists: Sibyl Schwarzenbach (Graduate Center, City University of New York) Tracy Higgins (Fordham University) Judith DeCew (Clark University) Carol Gould (Stevens Institute of Technology and Columbia University) Colloquium: Causation 4:00-5:00 p.m. Chair: Kyle Stanford (University of California-Irvine) Speaker: Michael Tooley (University of Colorado-Boulder) "Counterfactual Analyses of Causation" Commentator: Anjan Chakravartty (University of Toronto) 5:00-6:00 p.m. Chair: Doug Hill (University of California-Irvine) Speaker: Ana C. Sartorio (University of Wisconsin-Madison) "Disjunctive Causes" Commentator: Brad Armendt (Arizona State University) 6:00-7:00 p.m. Chair: John Stopple (University of California-Irvine) Speaker: Jonathan M. Schaffer (University of Massachusetts-Amherst) "Contrastive Causation" Commentator: Margaret Schabas (University of British Columbia) Mini-Conference on Global Justice A mini-conference on global justice is being held in conjunction with the APA Pacific Division. The program can be found here. Speakers include Charles Beitz, Michael Blake, Ryoa Chung, Daniel Wikler, Soran Reader, Larry May, Elizabeth Ashford, and many others. APA Pacific Division: Saturday Morning Here are some of the programs of particular interest to legal theorists:
9:00 a.m.-12:00 p.m. Chair: Sarah Buss (University of Iowa) Speakers: Jonathan Lear (University of Chicago) Martha Nussbaum (University of Chicago) Anthony Long (University of California-Berkeley) Richard Moran (Harvard University) Symposium: Race and Capital Punishment 9:00 a.m.-11:00 a.m. Chair: Talia Bettcher (California State University-Los Angeles) Speaker: Michael J. Cholbi (California Polytechnic University- Pomona) "Race, Capital Punishment, and the Cost of Murder" Commentators: Deirdre Golash (American University) Elizabeth A. Linehan (St. Joseph's University) Invited Symposium: Moral Psychology in Actual Social Worlds 9:00 a.m.-12:00 p.m. Chair: Victoria McGeer (Princeton University and Australian National University) Speakers: Peggy DesAutels (University of Dayton) "Moral Mindfulness" James Lindemann Nelson (Michigan State University) "Austen's Emma and Ethical Formation" Catherine Wilson (University of British Columbia) "Evolutionary Psychology and the Preferences of Women" Claudia Card (University of Wisconsin-Madison) "Torture in Ordinary Circumstances" Invited Symposium: Encountering Evil 9:00 a.m.-12:00 p.m. Chair: Pamela Hood (San Francisco State University) Speaker: C. Robert Mesle (Graceland University) Respondents: John Roth (Claremont McKenna College) Stephen Davis (Claremont McKenna College) D. Z. Phillips (Claremont Graduate University) Commentators: Marilyn Adams (Yale Divinity School) Phillip Quinn (University of Notre Dame) Invited Symposium: Philosophical Perspectives on Cultural Property 9:00 a.m.-12:00 p.m. Chair: Julie Van Camp (California State University-Long Beach) Speakers: Elizabeth Coleman (Center for Cross Cultural Research, Australian National University) "Ownership, Property and Rights" Claire Lyons (Getty Research Institute) "The Universal Museum? Antiquities in the National and International Perspective" Geoffrey Scarre (University of Durham) "Human Remains and Cultural Property" Daniel Shapiro (School of Law, Columbia University; and President, International Cultural Property Society) "Philosophy and Cultural Property" James O. Young (University of Victoria) "Cultures and Cultural Property" Author Meets Critics: Allen Buchanan, Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law 9:00 a.m.-12:00 p.m. Chair: Eric Cavallero (University of Arizona) Critics: Brian Barry (Columbia University) David Miller (Oxford University) Author: Allen Buchanan (Duke University) Author Meets Critics: Christine Swanton, Virtue Ethics: A Pluralistic View 9:00 a.m.-12:00 p.m. Chair: Maria Merritt (College of William & Mary) Critics: Julia Driver (Dartmouth University) Robert Solomon (University of Texas) Linda Zagzebski (University of Oklahoma) Author: Christine Swanton (University of Auckland) Legal Theory Bookworm The Legal Theory Bookworm recommends Larry Lessig's new book Free Culture. The whole book can be downloaded for free from Lessig's site FreeCulture.org (also available in hardcopy from Amazon and Barnes & Noble). I am going to be posting my thoughts on Free Culture, beginning on Monday, March 29 and continuing over the next several days. If you would like to read along with me, here is the schedule for my posts:
Download of the Week This week the Download of the Week is What's So Bad About Legal Paternalism? (Or What's So Good About Autonomy?) by William Talbott (University of Washington, Philosophy). Here is a taste:
After a right to religious freedom, the second most important step in the development of a right against legal paternalism is the development of the rights that guarantee the necessary background conditions for autonomy, especially the rights to civil liberties. In addition to being essential background for autonomy, rights to freedom of expression, freedom of association, and freedom of the press are important steps in the development of rights against legal paternalism, because they involve a recognition that those in authority should not be deciding which ideas it is bad for people to be exposed to or to think about or to discuss. With all these rights in place, there are many potential pathways to a more robust right against legal paternalism. The typical pathway involves the recognition of other choices that, like the choice of a religion, are deeply personal choices, the effects of which are borne primarily by the person making the choice. In spite of opposition from almost all major religions and in spite of laws to the contrary, in the U.S., a right against legal paternalism has gradually developed around personal choices concerning sex, love, and death. SSRN Top Recent Downloads The Social Science Research Network compiles lists of top ten downloads by subject matter. Here are some of the categories of interest to legal theorists:
Friday, March 26, 2004
Julia Annas, Presidential Address at the American Philosophical Association Pacific Division At 6:00 p.m., this evening, Julia Annas (University of Arizona) will deliver her Presidential Address at the Pacific Division meeting in Pasadena, California. Her title is "Being Virtuous and Doing the Right Thing." APA Pacific Division This Afternoon Here are some events of particular interest to legal theorists:
1:00-4:00 p.m. Chair: Deen Chatterjee (University of Utah) Speakers: Lionel McPherson (Tufts University) "The Moral Agency of Combatants" Kai Draper (University of Delaware) "Noncombatant Liability" Virginia Held (Graduate Center, City University of New York) "Legitimate Authority in Non-State Groups Using Violence" Invited Symposium: Virtue Epistemology 1:00-4:00 p.m. Chair: Jay Wood (Wheaton College) Speakers: Christopher Hookway (Sheffield University) "Epistemic Virtues and Reasons for Belief" John Greco (Fordham University) "Holding Defeat to the Fire: Virtue Epistemology and the Problem of Defeating Evidence" Christine McKinnon (Trent University) "Hypocrisy and Some Related Vices: Lessons for Virtue Epistemologies?" Commentator: Jay Wood (Wheaton College) Author Meets Critics: Fred D'Agostino, Incommensurability and Commensuration: The Common Denominator 1:00-4:00 p.m. Chair: S. A. Lloyd (University of Southern California) Critics: Christopher MacMahon (University of California-Santa Barbara) Gerald Gaus (Tulane University) Author: Fred D'Agostino (University of New England, Australia) Author Meets Critics: Martha Nussbaum, Upheavals of Thought 1:00-4:00 p.m. Chair: Rosalind Hursthouse (University of Auckland) Critics: John Deigh (University of Texas-Austin) Ronald deSousa (University of Toronto) Jerrold Levinson (University of Maryland-College Park) Author: Martha Nussbaum (University of Chicago) Colloquium: Moral Duties 1:00-2:00 p.m. Chair: Geoffrey Sayre-McCord (University of North Carolina-Chapel Hill) Speaker: Steven Sverdlik (Southern Methodist University) "Acting from Duty and Self-Interest" Commentator: Mitch Avila (California State University-Fullerton) 2:00-3:00 p.m. Chair: James Anderson (University of San Diego) Speaker: Sergio Tenenbaum (University of Toronto) "Conventionalism about Promise Keeping" Commentator: Adam Moore (University of Washington) 3:00-4:00 p.m. Chair: Hans Seigfried (Loyola University-Chicago) Speaker: Willem F. Bakker (Washington University) "On the Supposed Duty to Promote Others' Perfection" Commentator: Susan M. Purviance (University of Toledo) Invited Symposium: Moral Realism 4:00-6:00 p.m. Chair: John Devlin (Arizona State University) Speaker: James Dreier (Brown University) Commentators: Nadeem Hussain (Stanford University) Robert Johnson (University of Missouri-Columbia) Symposium: Blame 4:00-6:00 p.m. Chair: Bryan Benham (University of Utah) Speaker: Pamela Hieronymi (University of California-Los Angeles) "The Fairness of Blame" Commentators: Michael McKenna (Ithaca College) Christopher Ciocchetti (Centenary College of Louisiana) Endowment Effects Will Baude has a nice post on endowment effects based on the experiences of co-blogger Amanda Butler at the Newdow arguments. Here is a snippet:
Then I asked her whether she would have sold her place in line for $100. No, she said, she wouldn't. Economists will recognize this as the psychological "endowment effect". That is, the effect that causes us to refuse to sell things we have, even when we would refuse to buy them if we did not. It drives pure economists nuts, even though it's a part of how we frequently live our lives. My own suspicion is that the vexing "endowment effect" could be more effectively labelled as a "transaction aversion." APA Pacific Division Today Here are some of the programs at the APA Pacific Division in Pasadena This Morning:
9:00 a.m.-12:00 p.m. Chair: Sara Goering (University of Washington) Speakers: Eva Kittay (State University of New York-Stony Brook) "Planning to Go to Italy and Winding up in Holland - The Delusion of Choice in Planning a Family" Carolyn McLeod (University of Western Ontario) "Triggering a Temptation for Control: The Move to Single Embryo Transfer in In Vitro Fertilization" Claudia Mills (University of Colorado) "Children and Culture: Some Questions about Transcultural Adoption" Author Meets Critics: Paul Bloomfield, Moral Reality 9:00 a.m.-12:00 p.m. Chair: Albert Flores (California State University-Fullerton) Critics: John Doris (University of California-Santa Cruz) Don Loeb (University of Vermont) Russ Shafer-Landau (University of Wisconsin-Madison) Author: Paul Bloomfield (University of Connecticut) Author Meets Critics: Brad Hooker, Ideal Code, Real World 9:00 a.m.-12:00 p.m. Chair: Thomas Carson (Loyola University-Chicago) Critics: Alison McIntyre (Wellesley College) Richard Arneson (University of California-San Diego) Author: Brad Hooker (University of Reading) Colloquium: Liberalism 9:00-10:00 a.m. Chair: Simon Roberts-Thomson (University of Arizona) Speaker: Steven P. Scalet (Binghamton University) "Liberalism's Bind" Commentator: Walter Schaller (Texas Tech University) 10:00-11:00 a.m. Chair: Michael White (Arizona State University) Speaker: Robert B. Talisse (Vanderbilt University) "Problems with Galston's Pluralist Liberalism" Commentator: Craig Duncan (Ithaca College) 11:00 a.m.-12:00 p.m. Chair: Rodney Peffer (University of San Diego) Speaker: David Reidy (University of Tennessee) "Reciprocity Confronts Reasonable Disagreement: From Liberal to Democratic Legitimacy" Commentator: John Christman (Pennsylvania State University) More to come this afternoon! Friday Calendar
At the University of Texas's law and philosophy program, there is a Conference on "Methodology in Legal Philosophy" with papers by Liam Murphy (Law & Philosophy, New York University), Nicos Stavropoulos (University Lecturer in Legal Theory, Oxford University), and Benjamin Zipursky (Law, Fordham University). Yale Law School is hosting Digital Cops in Virtual Environment--CyberCrime and Digital Law Enforcement Conference today through March 28, 2004. At Michigan State, starting today and continuing Saturday, a conference entitled Intellectual Property, Sustainable Development, and Endangered Species: Understanding the Dynamics of the Information Ecosystem. At Indian University (Bloomington), Rick Hasen presents Buckley is Dead, Long Live Buckley. Be there or be square! At SUNY Buffalo, Elisabeth Clemens, Chicago, presents Making a Market in Education? Arizona's Charter Schools as an Experiment in Institutional Change. At the University of Pennsylvania's philosophy series, Philip Kitcher, Columbia ends his series of Seybert Lectures. The third is The Evolution of Values. At Vanderbilt today, there is a Law and Business Conference entitled Executive Compensation. At Oxford's faculty of law, there is a program on Guantanamo Bay. At the University of Pittsburgh's series on Classics, Philosophy and Ancient Science, Tony Long (University of California at Berkeley) presents Eudaimonism, Rationality, and Divinity in Greek Ethics. At Tulane's philosophy series, Jon Riley, Tulane, presents Rousseau's Social Contract. Conference Today at Yale: Digital Cops in Virtual Environment--CyberCrime and Digital Law Enforcement Conference Yale Law School is hosting Digital Cops in Virtual Environment--CyberCrime and Digital Law Enforcement Conference today through March 28, 2004. Here is the description:
This ground-breaking conference will bring together policy makers, security experts, law enforcement personnel, social activists and academics to discuss the emerging phenomena of cybercrime and law enforcement. The conference will question both the efficacy of fighting cybercrime and the civil liberties implications arising from innovations in law enforcement methods of operation. During this weekend-long conference, a distinguished group of experts will discuss how a shift to a digital environment: (1) changes the crime scene; (2) facilitates the commission of new types of crimes; (3) leads to radical changes in law enforcement methods; (4) equips law enforcement with new tools of surveillance, technological design and risk sorting systems; (5) presents challenges for the legal process; and (6) introduces new forms of social resistance through hacktivism and counter-surveillance. Hemphill on the ATSB Thomas A. Hemphill (George Washington University - Department of Strategic Management & Public Policy) has posted Can a Libertarian Accept the ATSB? (Regulation, Vol. 26, No. 1, pp. 10-11, Spring 2003). Here is the abstract:
Thompson on Human Form Michael Thompson has posted Apprehending Human Form. Here is a taste:
Confrence Announcement: New Sources of Norms in International Law
Diversity or Cacophony?: New Sources of Norms in International Law Overview: The symposium will examine one of the defining problems for the future of international law, namely the interplay between the current fragmentation of the international legal system and the simultaneous move of that system away from its traditional status as the exclusive realm of States. As the global legal system moves away from the traditional view of international law as purely the interaction of sovereign States, there has been a growing multiplicity of sources of international legal norms. For example, States have voluntarily bound themselves within supranational organizations at the same time as non-state actors are gaining access to international legal fora. Moreover, the traditional international legal system is increasingly encountering problems from jurisdictional overlap, as bodies and organizations designed to regulate limited areas of international law are being forced to recognize the relevance to their own deliberations of areas traditionally seen as outside their realm of concern. However, difficulties also arise when these "merging" tendencies are ignored, and specialized organizations develop rules while only paying attention to their limited brief. Since the international system remains essentially horizontal and decentralized, there is no agreed upon hierarchy of binding norms, and hence no established mechanism through which to resolve conflicts between bodies that have reached inconsistent views due to their differing areas of interest. This lack of structural unity also means that violations of international law can now be challenged in multiple tribunals, with different procedural rules, different remedies, and possibly different results, allowing important issues to be determined simply through forum shopping by States and/or individuals. These "problems" resulting from the fragmentation of the international legal order are intensified by the fact that sub-State actors (individuals, groups, corporations, etc.) are increasingly gaining access to fora traditionally reserved to States. Although individuals and organizations could, of course, always act internationally, they were nonetheless traditionally acting within boundaries set out by agreements between States. With the increasing access of sub-national entities to international law bodies, however, non-State groups have begun to gain the power to shape the international legal system directly, rather than by domestically influencing States. As a result, States may end up bound by decisions put forward by bodies they created as part of a traditional State-based system, but based upon reasoning put forward by a non-State. The goal of the Symposium is to present important contemporary work on this continuing trend in international law, addressing both its positive and negative aspects, as well as to serve as a gathering point for scholars from various disciplines who are interested in the future of international law. Call for Papers Symposium attendees will be invited to submit short (approximately 2-5 pages) response pieces to the views presented, for potential publication accompanying the articles by the Speakers (plus, of course, any response the Speaker may wish to make). These responses should be a sustained argument addressing a single point made by a Speaker. An attendee is allowed to submit more than one response, and may also have more than one such published in the Journal. This invitation is open to all symposium attendees, whether faculty, students, or the general public, and pieces will be selected based solely upon whether they make an argument the Journal feels should be presented alongside the views of the Speaker. All final publication determinations are at the discretion of the Journal staff. Responses will not be returned unless a stamped, self-addressed envelope is included with the submission. Schedule: Friday Afternoon 5.00 - Opening Address Iulia Motoc (Professor of Public International Law, University of Bucharest) 5.45 - Plenary Panel: Fragmentation and the Resolution of Public International Disputes John H. Jackson (University Professor, Georgetown University Law Center) Charles Koch (Dudley Warner Woolbridge Professor of Law, William and Mary School of Law) Joost Pauwelyn (Associate Professor of Law, Duke University School of Law) P.S. Rao (Member, International Law Commission) Moderator: William Burke-White (Lecturer of Public and International Affairs, Woodrow Wilson School of Public and International Affairs, Princeton University) Saturday 9.00 - First Talks: The Role of the State in International Law Daniel Philpott (Assistant Professor of Political Science, University of Notre Dame) Gunther Teubner (Professor of Private Law and Legal Sociology, University of Frankfurt) Moderator: Andreas Paulus (Assistant Professor of Law, Ludwig-Maximilians-University Munich; Visiting Assistant Professor of Law, University of Michigan) 10.30 - First Panel: The Creation of Supra-National Sovereignty Stephen Krasner (Graham H. Stuart Professor of International Relations, Stanford University) Dan Sarooshi (Herbert Smith University Lecturer in International Economic Law, Faculty of Law, University of Oxford) Saskia Sassen (Ralph Lewis Professor of Sociology, University of Chicago; Centennial Visiting Professor, London School of Economics) Karel Wellens (Professor of International Law, Catholic University of Nijmegen) Moderator: Daniel Halberstam (Assistant Professor of Law, University of Michigan Law School) Lunch: 12.30-1.30 1.30 - Second Panel: Non-State Actors and the Contemporary Legal Order Thomas Carbonneau (Samuel P. Orlando Distinguished Professor of Law, Dickinson School of Law) Francesco Francioni (Professor of International Law and Human Rights, European University Institute) Robert L. Howse (Alene and Allan F. Smith Professor of Law, University of Michigan Law School) Jordan Paust (UH Law Foundation Professor of Law, University of Houston Law Center) Moderator: Michael Barr (Assistant Professor of Law, University of Michigan Law School) 3.30 - Second Talks: Internal Fragmentation: Partial Sovereignty of Culturally Distinct Minorities Montserrat Guibernau (Reader in Politics, Open University) Olli Lagerspetz (Docent, Philosophy, bo Academy) Moderator: Margaret Moore (Professor of Political Science, Queens University) 5.00. Concluding Address Kalypso Nicolaidis (University Lecturer in International Relations, University of Oxford) Banquet: 6.30 Banquet Address Ambassador Emilio Cardenas (Adjunct Professor of Law, University of Michigan Law School) Registration will cost $35 for the Symposium, and $40 for the optional banquet on Saturday night with the Speakers. Participants interested in attending the banquet will be requested (though not required) to express an interest in a particular subject area of the Symposium, so that seating at the Banquet can be arranged to facilitate discussion. Official registration forms will be available from the Journal's website in early December. http://www.law.umich.edu/JournalsAndOrgs/mjil Any inquiries can be made to Tony Cole (ancole@umich.edu), Symposium Editor, Michigan Journal of International Law. Sandefur & Lynch Debate Plea Bargaining
Plea bargaining, like all government activities, is liable to abuse. Yet the mere fact that a process can be abused does not necessarily make that process unconstitutional, or immoral. Plea bargaining is rife with unfair prosecutorial tactics, and it needs reform. But the process itself is not unconstitutional, nor does it violate a defendant's rights. Timothy Lynch (Cato Institute) has posted The Case Against Plea Barganing (Regulation, Vol. 26, No. 3, pp. 24-27. Fall 2003). Plea bargaining has come to dominate the administration of justice in America. Even though plea bargaining pervades the justice system, I argue that the practice should be abolished because it is unconstitutional. There is no doubt that government officials deliberately use their power to pressure people who have been accused of crime, and who are presumed innocent, to confess their guilt and to waive their right to a formal trial. Thursday, March 25, 2004
Lash on the Ninth Amendment and the Proposed FMA I posted yesterday on the relationship between the text of the Ninth Amendment and the text of the proposed FMA, which reads:
Retained rights under the Ninth are either collective or personal. If personal, they are either natural, positive or both. For the purposes of the FMA, it does not matter which of these is the case. All retained rights referred to in the Ninth Amendment are subject to being delegated by the people to their respective state governments. The same is true for reserved powers under the Tenth Amendment--they too may be delegated by the people to their respective state governments. Both the Ninth and Tenth Amendments leave to the people control over non-delegated rights and powers. So, suppose that a retained right of the people is the right to marry, including the right to marry regardless of sex. The people retain the right to delegate control of marriage, including the right to marry regardless of sex, to their respective state government. Since the FMA basically allows the people to delegate control of such rights to their state government, the FMA is not in conflict with the Ninth. Even if this right is considered a natural right, and therefore not a matter legitimately delegated to state governments, it still remains under the control of the people of the several states. The people may assert such a right, and the enumeration in the federal constitution of certain rights shall not be contrued to deny or disparage such retained rights. But even if the federal constitution is not to be construed to deny or disparage such rights, this does not answer whether the people of a state have decided to deny regulatory power over marriage to the federal government, but delegate control over the same to state governments. It simply becomes an issue of state law. The clearest example of this is James Madison's arguments against the Alien and Sedition Acts. Madison believed that speech was a retained natural right of the people. His argument against the Sedition Acts, however, was that Congress had both violated the retained rights of the First Amendment and the reserved sovereignty of the states. In the alternative, suppose that the Ninth Amendment refers to collective as well as personal rights. For example, the people retain the colective right to regulate marriage at a local level. In this case, the FMA actually defends a retained right of the people. In this case, it defends the people's right to local control over marriage against interference by federal courts and their construction of the constitution. In fact, under this approach, the FMA becomes an example of how the Ninth Amendment was meant to be applied. If the Ninth, like the rest of the Bill of Rights, was meant to control federal interference with matters thought best left to the people of the several states, then the FMA could be placed directly after the Ninth and prefaced by the words "for example . . . Thursday Calendar
At U.C. Berkeley's GALA series, William Talbott (University of Washington, Philosophy) presents What's So Bad About Legal Paternalism? (Or What's So Good About Autonomy? At Oxford's Faculty of Law, Douglas Baird presents The New Face of Chapter 11. At Oxford's Public International Law Discussion Group, Ryszard Piotrowitz presents The Emerging International Regime on People Trafficking . At UCLA's legal history series, David Konig, Washington University in St. Louis, presents The Color of Money and Color of Law: Credit, Law, and the Forming of a Property Regime in Seventeenth-Century Virginia. At Princeton's public law colloquium, Jeffrey Staton (Florida State University) presents When Judges Go Public: Building the Judiciary through Media Relations. At UCLA's tax policy series, Al Harberger, UCLA Economics Department, presents Top Ten Lessons from Public Finance At University College, London, Gisela Striker (Harvard) presents Mental Health and Moral Health: Moral Progress in Seneca's Letters. Emens on Compulsory Monogomy Elizabeth F Emens (University of Chicago - Law School) has posted Monogamy's Law: Compulsory Monogamy and Polyamorous Existence on SSRN. Here is the abstract:
The article asks why polyamorous relationships face such severe normative censure. After considering various objections, the article concludes that one key component of the censure is, paradoxically, the ability of most people to imagine themselves having sex with someone other than a primary partner-in other words, a paradox of prevalence. Despite the widespread desire for more than one sexual partner, however, and despite relatively widespread nonmonogamy, most people do not engage in polyamorous relationships. But neither do most people affirmatively choose monogamy: Laws and norms exert strong pressure on people to promise monogamy, and most people simply succumb to this pressure. The article argues that although monogamy is a sound choice for many, polyamory is a sound choice for others. Building on this premise, the article considers some ways that information-forcing principles of contract law might be used to help encourage people to make active, reflective choices about monogamy. Marmor on Constitutional Interpretation Andrei Marmor (University of Southern California - Law School) has posted Constitutional Interpretation on SSRN. Here is the abstract:
Mann on the Software Patent Thicket Ronald J. Mann (University of Texas at Austin - School of Law) has posted The Myth of the Software Patent Thicket: An Empirical Investigation of the Relationship Between Intellectual Property and Innovation in Software Firms on SSRN. Here is the abstract:
This paper focuses on innovation in the hundreds of small venture-backed firms that form the bulk of the population of the industry. After a brief description of the history of the industry in Part II, Part III discusses the evidence on which the paper relies: a set of about 50 interviews of industry executives - diversified geographically, by size of company, and by role in the industry (software developers, venture capitalists, lenders, etc.). Relying on those interviews, the paper provides a detailed explication of the role that intellectual property plays in the industry. Parts IV through VI of the paper organize the information from the interviews and situate it in the extensive literatures on venture capital investing, the economics of innovation, and patents. The first substantive topic of the paper (Part IV) is the features of startup firms that attract investment by venture capitalists - generally something about the startup that suggests a sustainable differentiation of the firm from its competitors. The second substantive part of the paper (Part V) discusses the role of copyright. The major point of this part is that copyright protection is of little value to startup firms. Copyright protection is designed to protect expression, and not functionality. Thus, it provides little of the protection for which venture investors are looking. On the other hand, copyright protection does provide important protections in other areas, most obviously in protecting the later-stage firm's products from piracy. Generally, this part of the paper tells a story of unsuccessful efforts to stretch the copyright regime to do something it never was intended to do. The final substantive part of the paper (Part VI) discusses the role of patents. Because patents do protect functionality, they have at least the theoretical potential to provide the sustainable differentiation for which investors are looking. The problem, however, is that in many sectors of the software industry innovation is not of a character that a typical patent can protect a firm from competitors: often competitors would be able to design a competing product that works around a firm's patent. Thus, despite significant increases in patenting in the industry, about 80% of venture-backed software firms do not obtain patents during the early years of their existence. The question, then, is what benefits patents do provide to those firms. This part explores several benefits, including the classic benefit of excluding competitors. In this industry at least, that benefit accrues primarily to small firms, protecting them from the competitive depredations of incumbents. Incumbents, by contrast, rarely use patents to exclude smaller firms from the industry. The part also discusses a series of less conventional benefits small firms gain from software patents: as barter in cross-licensing arrangements, in signaling their technical competence to third parties, in converting tacit knowledge into a verifiable and transferable form, and in making the firm attractive to potential acquirers. The paper closes by discussing the implications of the patent analysis for recent debates about the value of patents in the software industry. The paper presents evidence about existing practices in the industry suggests that technology in fact is readily available, rebutting the prominent claims of a patent thicket that is supposedly stifling innovation in the industry. On the contrary, I argue, to the extent patents have an important effect in the industry, it is an effect that inures primarily to the benefit of the smaller firms trying to find a foothold from which they can compete. |