Copyright: a debate at Cato Unbound

In what I hope has (or will) become a tradition of providing more thoughtful topics to chew on over the weekend (if there aren’t any bitchmemes to kick around, that is), I wanted to point to a fascinating debate underway at the Cato Institute’s blog Cato Unbound. It’s about copyright — an issue that I think is at the heart of many disputes involving new media, with the recent Associated Press flap being just the latest example (for info on some others — including the recently proposed Canadian copyright law — you can check here).

The Cato Institute is a libertarian-oriented (or “classically liberal”) think tank, and it describes Cato Unbound as “a state-of-the-art virtual trading floor in the intellectual marketplace, specializing in the exchange of big ideas.” The first shot in the copyright debate was fired by Rasmus Fleischer, a Swedish historian and writer most notable for being a co-founder of the Piracy Bureau, an organization aimed at abolishing (or at least heavily modifying) copyright, and one that is loosely affiliated with The Pirate Bay. Among other things, The Pirate Bay maintains one of the largest indexes of copyright-infringing material in the world, and is currently the subject of a massive lawsuit by the record and movie industries. Fleischer begins with a question:

“How relevant is it to declare oneself to be “for” or “against” copyright? Neither the stabilization nor the abolition of the copyright system seems within reach. All we see is a seemingly endless assembly line of new extensions to the law being proposed and enacted.”

Fleischer goes on to talk about how “every broken regulation brings a cry for at least one new regulation even more sweepingly worded than the last” and says that copyright law in the 21st century “tends to be less concerned about concrete cases of infringement, and more about criminalizing entire technologies because of their potential uses” — something that Canada’s proposed legislation demonstrates in spades, as Michael Geist notes. Fleischer also quotes Kevin Kelly, saying: “When copies are superabundant, they become worthless, while things which can’t be copied become scarce and valuable. What counts in the end are ‘uncopyable values,’ qualities which are ‘better than free.'” Mike Masnick of Techdirt made similar comments during his recent mesh 2008 presentation about “the economics of abundance.”

Speaking of Techdirt, the followup to Fleischer’s post comes from Tim Lee, who is both an occasional writer at Techdirt and member of the Techdirt Insight Community, but also an adjunct fellow at the Cato Institute. In his post, he argues that copyright isn’t really that broken:

“It is important not to overstate the magnitude of the change. It is often supposed that giving individuals more freedom to share copyrighted materials with one another will amount to the abolition of copyright. But this is far from true.”

Lee goes on to propose that, instead of abolishing copyright, all we really need is to reconfigure copyright so that instead of applying to all forms of copying, it would only apply to commercial copying — allowing individuals to use content for whatever purposes they might like, provided they don’t make money from doing so. “The copyright policies of the last decade have been based on the idea that copyright is about controlling unauthorized copying,” he says, but “an alternative is to treat copyright as a limitation on commercial exploitation of creative works.”

Mike Masnick has since jumped in with his own contribution to the debate on the Techdirt blog, saying that while he agrees with Lee to a certain extent, he’s not sure why copyright needs to apply to commercial uses either. For one thing, he says, “the distinction between ‘personal use’ and ‘commercial use’ is extremely blurry. Is my personal blog ‘personal’ or ‘commercial’ if I put Google ads on it? What if I don’t have ads, but use it to get a job or promote my company?” In the AP flap, for example, there were arguments that Drudge Retort should be considered commercial because it has ads. Tim responded to Mike here.

Next to come in the Cato debate are essays from UCLA law professor and copyright expert Douglas Lichtman, who has taught and published extensively on copyright in the digital age, and Chapman University law professor and intellectual-property expert Tom W. Bell, who is writing a blog called Intellectual Privilege to go along with the book he is in the process of writing, which is entitled Intellectual Privilege: Copyright, Common Law, and the Common Good.

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