Last weekend there was a very interesting IP conference at Tulane Law. Here are a few highlights.
Raizel Liebler, Political Economy and Intellectual Property of User-Created Content
Owners of distribution means, and owners of original works, often take extreme measures to protect their works/sites. LiveJournal’s Strikethrough incident: LJ, a blogging platform, received pressure from allegations that “child pornography” was present on the site. Instead of informing users and groups, LJ just did a keyword search and removed journals that contained targeted words. There was no way for people to retrieve or back up their journals. Some materials LJ removed were indeed related to child pornography, but they also deleted a discussion group on Nabokov’s Lolita and support groups for survivors of sexual assault. There was ultimately some restoration of the journals, but the site’s relationship with users was badly damaged.
Comments from Brian: Abuses like this show a real need for both data portability and some affirmative rights for creators of User Generated Content.
Where do we go from here? As users become economically significant producers, we need to think about these kinds of disputes. What happens when the site goes down or changes its model? Traditional IP models don’t fully address this type of interaction between users and platforms. Companies are unlikely to change their ToS. Is partial user-ownership a solution? Contributing content ought to give you a share of some type in the property.
Rebecca’s thoughts: The work of Viviana Zelizer on the social meaning of money is incredibly important here. Money is funny stuff; I don’t want UGC to keep us poor, but maybe there’s a way to manage a gift economy that interpenetrates a monetary economy that works without assimilating everything to the market. I have some initial thoughts in User-Generated Discontent.
Brian’s Thoughts: UGC can be economically beneficial in many ways from gifts to selling commercial rights to offering rivalrous products based on UGC. Giving users a property stake in the companies that use UGC is a bad idea. Property rights create transactional cost and often stifle competition or harm efficiency.
Alina Ng, Authorial Rights in the Copyright System
Are rights things to be tolerated in a utilitarian system? It’s impossible to calibrate them in utilitarian terms.
Her proposal: conceptualize copyright as a natural right, but not a Lockean or Hegelian right. We should base author’s rights on creativity, not something tolerated to promote progress. When we base author’s rights on the fact of creation, we naturally put in limitations to those rights. For example, Locke’s proviso of as good and enough left over for others, and a prohibition on waste. (emphasis added)
What follows: separation of economic rights and authors’ rights. No separation between idea and expression; what is creative ought to be protected. Less emphasis on the market.
Comment Brian: The debate over incentive based rights verses natural rights is mostly academic. I see no reason to remove the expression idea division in a natural rights context. Ideas need to be left unprotected in copyright to assure that enough is left in common for others to compete no matter how creative the expression. Inherent in the US incentive based system there are also limits created by competing free speech rights that can over come market concerns. Reconceptualizing IP as natural rights would not be as useful as strengthening exceptions like fair uses or added orphaned works exceptions.
Rebecca Tushnet posted 6 great blog posts covering the conference each of the above quotes are from her posts. I strongly recommend checking them out they are all under the “conferences” tag.
