Monday, December 12, 2011

Some Thoughts on Dharma Decline

Many of these blog entries have concerned my main research in political philosophy, intellectual property and technology. Now for something a little different, I thought I would write up some thoughts on another area of interest: Buddhism. For those who don't know, I've taught courses in Buddhism since I began teaching, having learned a great deal from my undergraduate advisor, Donald Hanks, and Ashok Aklujkar, a now-retired professor of Indian languages, literature and philosophy for whom I served as teaching assistant during my time at UBC. Thanks to their instruction, I developed a solid knowledge of the Indian Buddhist tradition, and I've used what they taught me to deepen and develop that knowledge to improve my teaching and my personal meditation practice.

While I don't want to write a full tutorial on Buddhist thought, I would like to discuss a notion that prevails in some traditions, and that discussion will require one to know a few basic ideas. At its core, Buddhist doctrine is directed at the liberation from suffering through a proper understanding of reality. According to the Buddha, one must investigate the causes of suffering, and once those causes are understood, one comes to understand that suffering can be prevented. There is much more to say about just these ideas, but the key thing to understand here is that the Dharma, as Buddhists refer to the Buddha's teachings, provides a roadmap to achieving these goals. The elimination of suffering can be achieved by anyone, and it does not require anything more than one's faculties of observation and analysis, strictly and carefully applied.

That being said, some Buddhist traditions contain discussions of a phenomenon known as “Dharma Decline.” The idea is fairly simple; achieving liberation (or Nirvana) is more difficult now than it was at the time of the Buddha. The argument is likewise simple. While the Buddha was alive, those who heard him and joined his assembly received instruction directly from him. He had a thorough understanding of reality and the difficulties encountered in achieving liberation, so he was capable of correcting errors in his followers. Here, the principal error is reliance on formula or ritual rather than strict observation and analysis. This error is a key concern in the Theravada tradition. Nirvana is not won through sitting a certain way of performing certain exercises alone. Instead, liberation is achieved through active critical engagement with perception, feeling, and thought. The Dharma provides exercises and encouragement to assist this engagement, but one cannot expect to simply sit and meditate in a certain way enough times and suddenly achieve liberation.

The problem is that the Dharma itself is a formula, a system. It is very easy to confuse the system for the solution, become frustrated with the practice or too absorbed in the minutia of particular exercises, and in the end fail to actively and critically analyze phenomenal reality, the reality of our experiences. While alive, the Buddha was able to steer his followers away from such errors, but after his death the assembly had to rely on those who had received direct instruction from the Buddha. Once that circle of followers had likewise died, that keen instruction and understanding is lost. Over time, as the teachings become codified, organized, and systematized, Buddhism becomes a tradition, and traditions are, in many ways, composed of forms, formula, and ritual. Followers then confuse the actual Dharma, the truth about reality and the elimination of suffering, with the rituals and traditions that accrue around the central truths. As the tradition persists, the risk grows, and the only ones capable of correcting the error are fully liberated teachers who reach the same level of understanding as the Buddha. Unfortunately, these teachers grow more rare as more time passes and the tradition becomes better established. As a result, we now live in an age of extreme Dharma Decline where fully liberated teachers are rare because only a few exceptional individuals can successfully distinguish between the formula and the truths at which the formulas are supposed to gesture.

That's the concept, and, as I said, it is endorsed by some strains of Buddhism. Notably, the Pure Land tradition teaches that Dharma Decline has become so problematic that the only route to liberation involves being reborn in the Pure Land, a special place created by the compassion of the Bodhisattva of Infinite Light (Amitabha). To be reborn in the Pure Land, one must do nothing more than call upon Amitabha for assistance.

Interestingly, Dharma Decline is an old idea in the Buddhist tradition, and it is not universally accepted. Personally, I don't think the notion of Dharma Decline holds too much water, and I'm in good company. One of the Perfection of Wisdom Sutras, the Diamond Cutter Sutra, contains a few pointed references to Dharma Decline. In that sutra, Subhuti, the Buddha's interlocutor, repeatedly asks the Buddha whether people “in the last 500 years” will be able to understand the teachings presented in the discourse. For the most part, the Buddha simply dismisses these concerns, but in one place, he gives a concrete reason. The Buddha says people in latter times “have not strengthened their root of merit under just one Buddha, or two Buddhas, or three, or four, or five Buddhas, but under countless Buddhas; and their merit is of every kind.”

I adore the Diamond Cutter Sutra, and I often tell my class that it is my favorite Sutra in the Buddhist tradition. As such, I've read that line many times, but I recently came to a clear understanding of it. In that passage, the Buddha denies the reality of Dharma Decline not because his teachings will persist, but because the Dharma will be realized by others. Liberated teachers will leave behind their instructions, their philosophy, their views on the Dharma. As more time passes more and more of these teachings will be built up, recorded, and passed along. In the time of the Buddha, only a small set of the human population had access to his teachings (for obvious reasons). Today, anyone seeking the elimination of suffering has the benefit of the Buddha's teachings as well as the teachings of Nagarjuna, Vasubandhu, Hui Neng, Dogen Zenji, Hakuin Ekaku, Alan Watts, Jack Kornfield, Ajahn Chah, Thich Nhat Hanh, and countless other wise and dedicated Buddhist teachers. In addition, we have improved our ability to communicate with one another and increased our knowledge of other cultures and their mystics. As such, we also have the benefit of Rumi, George Fox, Lao Tzu, Confucious, and countless other mystics, philosophers, and teachers of compassion, peace, and critical introspection. Contrary to the expectations of Dharma Decline, those who pursue the elimination of suffering have the benefit of so many teachers that they may more easily recognize the truths at the heart of the Dharma. At least, that's how I read those lines. I leave the rest to you.

Monday, November 21, 2011

If Money Equals Speech, Both Must Be Distributed

Given the recent Occupation evictions (and returns!) and the associated reports of police brutality (UC Davis, I'm looking at you), a few thoughts about rights and liberal democracy have been steeping in my mind. There is some symbolic merit in the rights to religious freedom, free speech, a free press, and free associated being collected at the beginning of the Bill of Rights. While I'm no Constitutional scholar, I cannot readily explain the historical reasons behind the composition and ordering of the first ten amendments to the US Constitution. I do recall that the Bill of Rights formed a package of compromises, things that the colonies demanded be added to the Constitution before ratifying it. As that is the case, one could be forgiven for thinking that the Bill of Rights consists of some non-organizational necessary conditions for a liberal democracy. Let me give an example using the First Amendment rights.

The freedom from state religion or “religious tests” is crucial for any liberal democratic government. Religious freedom establishes a principle of liberty of conscience, the ability for every citizen to decide religious or spiritual matters for his/herself. Where there is no requirement to profess any particular religion as a condition for holding public office, there is no danger of interference between the church and the state. As such, public offices are essentially open to anyone, and religious matters, matters in which authorities can hold an irrational sway over their subjects, are excluded from much of public debate. Of course, none of this is to say that we can't find ourselves in the unenlightened position where public opinion about religion does what law is not allowed to do, as it has in the US. Nevertheless, the only thing stopping us there is ignorance and sheer bloody-mindedness. We don't have any Test Acts to repeal.

Free speech, the free press, and free assembly are all ways of keeping the government accountable to the people. When a citizen disagrees with a politician or a policy, he or she can make that disagreement known, in the tavern, in the papers, and in the streets. The speech act is the most basic form of political communication, but the free press and the free assembly allow for wider distributions and recirculation of ideas, opinions, and suspicions. First and foremost, these rights are the very stuff of liberty, the tools that allow us to denounce an administration, an official, or a law, and to do so publicly. Public political discussion is key because only by making our views known can we find out that we are not alone. Other people sometimes agree with us and think that there needs to be a change. Political leaders learn of public discontent and learn that they must adjust their decision-making or risk defeat in an election. Notice something here: voting is not enough in the way of political communication. The vote is a communicative act in a fixed system; it allows for only a binary expression (this guy or that guy, yes or no). Political discourse takes more nuanced forms and must be free and flexible enough to match the flow of ideas and opinions in the individual mind. No voting system can do that alone, so communicative acts must be a key political right.

These three rights (speech, press, assembly) are crucial for a liberal democracy just because they allow unmediated communication between the citizens and those whom the citizens elect to govern. Notice that these are also the first three freedoms to suffer as a liberal democratic government slips toward the police state. No movement away from liberty of speech, press, and assembly can be tolerated. The free press becomes the corporate media, the free assembly must have a permit from the police, and free speech becomes relegated to “free speech zones” well away from the targets of the speech. The Occupy evictions and the associated police brutality are chilling and clear reminders of these principles. In a country founded by revolutionaries on revolutionary principles, it is also a disturbing one. Still, once power is entrenched, those key rights to dissent and to discuss among ourselves and with our “elected representatives” dissolve like sugar in the rain.

To my mind, the final irony is that these communicative acts have been obviated by the prevalence of corporate influence. Where winning an election depends more on funds and less on popularity, the elected do not need to pay attention to the electorate. The only meaningful political strategy has become soliciting donations and funding by appeasing the most moneyed of people, and since Citizens United the most moneyed people are corporations. Of course, the problem predates that ruling. It begins in lobbyists and the gradual takeover of public space by private interests. Even before Citizens United, money bought air time and advertising space, and corporations were still more able to purchase those things than private citizens. Most importantly, where speech is a commodity to be bought and sold, the right of individuals to make their views known is essentially neutered. Corporate ownership of media is one example. Astroturfing is another.

For those not in the know, astroturfing refers to purchasing speech acts so as to generate the appearance of a grassroots movement. A private interest, or consortium of interests, pays agents to appear at rallies, post on internet forums and social media sites, and otherwise spread the ideas that they are paid to spread. An agent can maintain multiple online personas to swell the apparent ranks of the movement, and through those personas they can co-opt political discussions to flood out any speech or discussion contrary to the ideas of the employer. In information theory terms, astroturfing inserts a great deal of interference into any communication. The signal-to-noise ratio becomes problematic, and no one knows who is really saying what anymore. The Tea Party began in just this way, and they have astroturfers trolling the internet now.

If speech can be purchased in this way, the only way to restore something like liberal democratic free speech is a redistribution of wealth so that all citizens have the same purchasing power. Sound incoherent? Good, then let's get rid of corporate personhood and get some rights back.

Friday, November 18, 2011

The Intellectual Property Arms Race

Among the many hot news items is this week is Congress's consideration of the Stop Online Piracy Act, a bill that would give private copyright holders sweeping enforcement powers. The details of the bill can be found in a variety of places (Wikipedia, as usual, has an excellent summary: ). Since I've written a dissertation around the argument for copyright reform in exactly the opposite direction of current trends in Intellectual Property law, I thought long and hard about exactly how to weigh in on this issue. Before providing my own opinion, let's be clear about some of the more problematic provisions of the bill.

For one, SOPA would make websites responsible for enforcing copyright infringements on user-uploaded content. In effect, social websites would then be liable for failure to enforce, so those sites that have become the backbone of the internet for many people will either have to institute draconian content-regulation or risk being shut down, having their financial services suspended, etc. Any website suspected of or found to be hosting copyrighted content or links to copyrighted content could be shut down. While the most obvious targets here are torrent sites such as the immortal Pirate Bay (long live the internet pirates!), any site linking to copyrighted content is a potential target. Given that news agencies such as the Associated Press have become fairly vigorous in enforcing copyright claims on their content, news aggregating sites, such as Reddit, are also in the crosshairs.

What does all of this mean for the internet as know it? Search engines will have to filter their results and DNS servers will have to remove these sites. The links from one site to another that make the internet so addictive, time-consuming, and powerful will become more and more broken and unreliable as infringement claims roll out. As the EFF, and other Free Culture supporters have pointed out, these powers make it possible for content-owners to “break the internet” by interfering too heavily with traffic routing. Clearly, I'm not happy about any of this, and I don't think anyone should be.

So what do we do? The Occupy movement has provided an excellent demonstration of the major hurdle: the United States government does not care about its citizens, what they need, or what they think. The major content-owners have a great deal of money, and since the Citizens United decision, they have a great deal of latitude to use that money to drown out the speech of anyone else through legal channels, not to mention the latitude they've always had to do so through illicit channels (let's just call them what they are, guys: bribes). As a result, intellectual property law shows no signs of reforming until the rest of government is reformed.

In the meantime, I honestly think the solution is skillful piracy as civil disobedience. Civil disobedience is a noble protest practice, defying the law in the name of a deeper moral right. In this case, we must also introduce the notion of skillful civil disobedience. We must be skillful because if we are ham-fisted and make the practice overly obvious to anyone, we will be shut down under the terms of this act. Instead, we have to employ the tactics used by internet pirates all along, strong encryption, TOR-style traffic routing, private torrent trackers, and hosting sites on foreign data havens.

Since the introduction of the DMCA and the Digital Rights Management it made possible, intellectual property has been marked by a kind of arms race. DRM technologies lock down content so that it can only be used as the content-owner desires. Nevertheless, it must be usable, or consumers will simply abandon digital content. As such, any DRM technology must leave a way to access the content. If the it can be protected, the protected can be broken. Every lock must have a key. The more restrictive the DRM gets, the more innovative the strategy for breaking it. Until intellectual property is reformed, this arms race will continue. Law will turn individuals sharing and discussing media into criminals, trespassers, and thieves. In turn, the community will abandon respect for law in favor of adhering to rational and fair standards. Hopefully, the government will figure this out before too long. I think it is high time for a full-scale review of our social institutions and how we can make them serve the public at large and not the advantaged few.

Friday, November 4, 2011

New Orleans: Occupied

Today, I spent my lunch hour at the local Occupy New Orleans encampment. The movement has established their tent city, perhaps more like a village, at Duncan Plaza, across the street from city hall. As a political philosopher and a sympathizer, I wanted to finally make way out to the front line as it has manifested here, to talk to some folks, find out what has motivated them, what they are doing, and talk about what challenges they are facing.

I was only there for an hour, but I walked through the entire camp. Being New Orleans, a city that we locals know for its apathy and cynicism, I didn't find myself surprised at the low turnout. In addition to the ones directly involved in the action, many homeless have camped out there since the NOPD cleared the homeless encampment from their camp under the overpass at Oretha Castle Haley and Calliope. I spoke to a few groups of people, some making signs, some picking up stakes to join the occupation on Wall Street, and some digging in and looking to stick it out here.

Thankfully, the consensus at the camp indicated little to no problems with the police. The dominant concern was actually internal dissent. For those who don't know or haven't been able to keep track, Occupy NOLA's online services were recently hijacked by an unscrupulous character looking to funnel donations into his personal account. Aspects of the argument are documented in comments at the now-fraudulent site here and at the new official site here.The latter site also contains listings of upcoming events and minutes from the General Assembly, so those interested in getting involved can get the relevant information there. The stage mentioned at what is still the top of the blog (the entry on November 3) was still under construction when I arrived, though word was moving through the camp that the police had informed them that the stage was illegal since they have no building permit. When I left, there was still discussion of how much to resist when or if the police followed through on a threat to tear down the stage if the occupiers did not take it down themselves.

Interestingly, media blackouts work in both directions. The local (mainstream) news sources here have essentially neglected any coverage of the occupation, and since other localities have followed suit, some of the occupiers had only scattered information about the situation elsewhere. I listened to some rumors and passed on some of my own. In addition to wanting news, the occupiers were very interested in learning from the larger and more successful movements. Those folks determined to go to New York expressed a wish to come back after a couple of weeks, in hopes of finding out how to make the local movement better organized and more successful.

One major concern was security. As I understand it, the police have essentially forbidden the occupiers from working security within the camp and handling problems internally. In essence, they have been told that they cannot kick anyone out of the camp or tell anyone to leave, even if the person has threatened or done violence. By the same token, the police are not especially interested in enforcing civil authority within the camp, so problematic individuals are essentially problems waiting to happen. Of course, the occupiers have organized security anyway in an effort to keep the peace. One of the guys who covers a night shift told me that a few fights were broken up the previous night, and he is essentially waiting for someone to be seriously injured or killed since that would provide the police with an excuse to clear the camp. These folks have been placed in a classic Catch-22, and I supposed it's only a matter of time before we find out how that dilemma plays out. Of course, I'd like to see Occupy NOLA slip right through the horns of that dilemma somehow, but only time will tell on that front.

The camp had an information booth, but the gentleman running it, whom some of the campers seemed to identify as a key organizer, was engaged in conversation, so I didn't speak to him directly. Among the booth's pamphlets and tracts was a dry-erase board with a list of needed items for the occupation. Not on that list was one essential thing: bodies. There really are not that many folks there, and they need more presence to fuel more activity, I urge locals to drop by and at least talk to some people, see what the movement is all about, and take an honest look at our economy, our government, and the things that drive them. One person expressed a wish to raise the profile of the camp. Being downtown, at the heard of the Central Business District, cars, bikes, and pedestrians pass by the camp all day and much of the night, yet many people just pass by and ignore the camp or honestly have no idea what is happening there. He thought the occupation needed some people to take positions and address people walking by, raise awareness, hand out information packets, and just get people's attention.

By and large, folks were working hard to encourage others to come by with a tent and at least spend a night at the encampment themselves. Here, I have to confront the hard economic realities. It is easy to do that when one is at the point of desperation that some people had reached. I, on the other hand, am working hard to make ends meet. I can't afford a tent, and I certainly can't drop out to join the movement without giving up what ground I do have. Nevertheless, I think this occupation, and the others, can be helped a great deal by people willing to show up, bring what they have, serve some function for a couple of hours, and then go back out to continue spreading the word. As an academic philosopher, I'm in the position to participate in scholarship, to address the demands and arguments of the movement in writing and spread the word that way. I can inform my students about the movement and encourage them to make their own decisions about involvement, as I have already done. There is a role for everyone to play, whether they are holding ground in a tent city, scraping by with a time-consuming job, or positioned within one of our society's many institutions (law, university, medicine). I honestly hope that something comes of this movement because things need to change for the better, and I mean soon.

Wednesday, July 20, 2011

Patent Part 1: The Basics

To wrap up this tutorial series on intellectual property, I will need to spend a few installments talking about patents. In short, patents are to inventions what copyright is to creative media. Nevertheless, patent has its own hornet's nest of issues, and ethical concerns, to discuss. This installment will cover the basics, providing a general look at patent law. The following installments will detail some of the thornier problems with biological patents, pharmaceutical patents, software patents, design patents, and business method patents.

Like copyright, a patent is a limited monopoly granted to an inventor for the purposes of controlling and securing a living from her intellectual labor. The invention must be something new, non-obvious, and useful, and the monopoly lasts twenty years. The holder of the patent can control the duplication, distribution, or implementation of the invention, so she can sell licenses to firms, granting access to the invention in exchange for some monetary compensation. US patent law originates in the same clause of the Constitution as copyright, and it set out to serve the same purpose: “to promote the Progress of Society and useful Arts.” As such, patents are supposed to serve as an incentive; in exchange for releasing an invention to the public, the inventor is granted a limited monopoly on the invention. The similarity to copyright, stops about there.

While copyright does not require any review, patents are granted on the basis of a lengthy application disclosing the details of the invention or innovation, and any “prior art” that may affect the judgment of originality. Once granted, these applications are public record, fulfilling the disclose requirement. As such, while a patent is technically protected against reverse-engineering, reverse-engineering is not really an issue since the details of the invention are public record. Of course, should an unlicensed firm use those details to put the invention into production, the patent-holder can sue them for patent infringement. Nevertheless, a patent infringement suit can be won by showing that the patent is invalid for some reason. For instance, the defendant might show that the patented invention is not substantially different from some older invention, now in the public domain, or he might argue that the patented article is obvious for some reason, and therefore not truly innovative.

There is no fair use for patent. Any use of the invention, including cases of independent discovery, constitute infringement of the patent. Remember that discussion of transformative use as part of a fair use defense? Such a defense in unavailable for patents. If a second inventor improves a patented invention, even to the degree that the improvement could be patented in its own right, the second inventor must still license the original invention. Combine the possibility of accidental infringement and the necessity of licenses for new inventions that might build on old ones, and you have the jungle of cross-license agreements in which many firms find themselves today. In the corporate world, and the American judicial system, it pays to be cautious. If a firm can avoid future litigation by entering into cross-license agreements with firms in the same industry, then it makes sense to enter into such deals. Even if one suspects that the other firm could not win a patent infringement suit, the cost of such suits is better avoided.

Some patent law includes “working provisions” that require the patent be put to use within the patent-granting jurisdiction. For those jurisdictions, the US not among them, there are penalties, including loss of the patent in some cases, for failing to put the invention to sufficient use, according to some criteria defined by law. Without such requirements, a patent can be held by a firm until it finds another firm releasing some product that may infringe the held-patent. At that time, the holding firm can sue for patent infringement. On the Internet, such holding firms are known as “patent trolls.” Despite not making use of their monopoly to benefit the public in any way, such firms seek to profit from other firms' success. Clearly this is region where patent law fails to maximize the public good. Supporters of patent troll practices (I really do not know a non-prejudicial term; that should tell you something, right?) argue that holding patents makes them liquid, they become valuable commodities that can be traded. I still do not see how holding back an innovation so that you can suppress the next firm that wants to release the innovation is good for the market.

Certainly, patent troll practices seem to undermine the stated purpose of patent law, to promote technological progress. Instead, such practices threaten progress by discouraging the release of new technologies without elaborate cross-license protection or costly (and sometimes futile) research into prior innovations and patents granted. Patent trolls are a sort of intellectual property landlord, seeking rents on technology that they did not develop and do not currently use. As such, they do form a potential obstacle to innovations coming to market.

To discuss any more substantial issues, I think I would have to get into specifics. Return to this site next time for an in-depth discussion of biological and pharmaceutical patents.

Monday, July 18, 2011

Trade Secrets

Now, we come to an even more obscure for of intellectual property: trade secrets. Trade secrets can be any innovation, a process or technique of manufacture, that a firm uses in its business. The most famous example is likely the formula for Coca-Cola. To be a trade secret, a firm must simply treat it as secret, limiting the number of people who know, requiring those who must be privy to the secret to sign non-disclosure or non-compete agreements. Trade secrets require no registration, and trade secret protection never expires. On the other hand, trade secrets also receive no substantial protection from the government, except in cases of corporate espionage. If a trade secret is obtained through illegal means, the victim firm can seek compensation and can get injunctions against the offender using the stolen information. Nevertheless, a firm has no such recourse in cases of reverse engineering.

Some scholars have claimed that trade secrets serve as a counterexample to Utilitarian or incentives-based justifications for intellectual property. For all other forms of intellectual property, some public good is at stake. Trade secrets serve only the firms that keep them, since there is no disclosure requirement or expiration date. While I agree that trade secret is kind of an odd man out in the intellectual property scene, I like to think about it as a recognized alternative to patents. If a firm does not want to disclose its innovations and lose control over them after a fixed term, the firm has the option of holding their innovations as trade secrets. Trade secrets can still be protected by contract law and privacy rights, but since they do not benefit the public as directly as patents, the firm cannot benefit from the patent system. Firms are then free to decide what is the best way to capitalize on their innovations.

This kind of thinking actually underlies much of my thinking about intellectual property. The government provides a carrot to get something the public wants. If intellectual property rights are too strong, the public cannot realize the benefits it hoped to get from a proliferation of creative and technological innovation. Therefore, it is important to understand how we relate to media, as consumers, creators, and potential creators, in order to understand the scope of intellectual property rights. We have to know what we need so that we know how to limit intellectual property rights. There must be a necessary balance between intellectual property rights sufficiently strong to motivate creation, but sufficiently weak to preserve desired public benefits.

Friday, July 15, 2011

The Paradox of Trademark

Much of this tutorial has concerned intellectual property issues as they relate to copyright. Copyright is, in many ways, the form of intellectual property that we discuss the most. After all, we live in a very connected media culture, so creative media is really part of our environment. Nevertheless, no discussion of intellectual property, and certainly no tutorial series on intellectual property, would be complete without at least some detailed discussion of the other major forms, namely patent, trademark, and trade secret. As such, I'll finish this series with at least one installment on each of these, beginning with trademark.

Again, we discuss copyright perhaps more often than any other form of intellectual property, but trademark may well saturate our environment even more thoroughly than copyright. We just don't seem to discuss it quite as often, and in some ways trademark isn't as fascinating as debates about file-sharing, fair use, or derivative works. Nevertheless, thanks to the 20th century arising of sophisticated marketing strategies, we are very much assaulted by brands. Trademark, of course, is the means by which those brand names, logos, mascots, and slogans are protected by law.

Trademark can be understood to serve two functions. On the one hand, trademark is a form of consumer protection against fraud. By registering its trademark, a firm gains assurance that it is the only firm legally able to use its registered mark for business purposes. Consumers are then assured that a given brand name or logo always denotes a product from a particular firm. If another firm attempts to use the registered mark in hopes of confusing consumers and capitalizing on the success of another firm, the trademark holder can sue for trademark infringement. On the other hand, trademarks also provide an incentive for firms to maintain consistency and quality of their products. Since a given mark is always associated with the same firm, it is in the firm's interest to ensure that consumers have a positive association with the mark. If the quality of the firms products is inconsistent or unacceptable, consumers know that they can avoid the firm by avoiding the firm's mark. Therefore, it is in the firm's interest to release high quality products and convince consumers that their mark is an indicator of good quality, ideal price, usw.

I suppose it then goes without saying that trademark is intimately connected with advertising. To cultivate positive associations between mark and product, firms invest heavily in marketing their brand. At base, advertising makes consumers aware of a brand and its associated product or products, but advertising is also the front line for creating positive associations with the mark. Firms need to do more than simply promote their brand. They also need to make sure that their brand is closely associated with their product, potentially so much so that consumers cannot think about the product without thinking about the brand. Of course, the strategies for realizing that goal also undermine trademark itself. If a firm is successful at making its mark “a household name,” the trademark risks entering the language as a generic description of the product. Bayer provides the most famous historical example in its loss of the trademark for aspirin.

When Bayer came on the scene, there was no way of patenting the extract of willowbark. It was a chemical found in nature, and most chemists sold willowbark extract as a pain reliever. Bayer did not have an innovative process for extraction, so it could not patent any process associated with the product. Nevertheless, it trademarked “aspirin” and began to sell its willowbark extract under that name. Once consumers got used to associating “aspirin” with willowbark extract, “aspirin” became a generic. Consumers did not ask for “willowbark extract, aspirin-brand.” Instead, they simply wanted aspirin. The term became a generic description, and as a result, Bayer lost their trademark.

Here, we have the essential paradox of trademark. A successful trademark is inevitably associated with the product, and that associated is built and sustained by advertising. Nevertheless, if the mark becomes so associated with the product that they really are one and the same to the consumer, the trademark is no longer valid. To avoid following Bayer's example, firms take a litigious approach. If a firm attempts to control its mark by actively pursuing infringement cases, it can protect its mark while at the same time undermining it through aggressive advertising. The result is our current circumstance, where one might struggle to recall that a Kleenex is actually a Kleenex-brand facial tissue, or that only Johnson and Johnson makes Band-Aid adhesive bandages.

Trademark also invites some problems with censorship. Since the mark is supposed to be associated with one and only firm, so any other use of the trademark may be an infringement. As such, if an artist depicts a ghetto cityscape with a certain recognizable fast food logo towering majestically amids the slum, the owner of the logo might decide that the depiction hurts or dilutes the brand and sue for infringement. For these reasons, as much as Disney has worked to keep Mickey Mouse in copyright, Mickey's place as Disney's mascot, and his face on so much merchandise, ensures that using the image of Mickey for the purpose of criticism of Disney will be problematic even if Steamboat Willie finally lapses into the public domain. Disney can claim that any depiction of their signature rodent dilutes the brand because Mickey is such a readily recognizable symbol of the media giant. One should note that such arguments are readily available to Disney, especially in the wake of non-conventional trademarks, such as UPS's trademark on their signature shade of brown. The firm was able to demonstrate that consumers can distinguish “UPS brown” from other shades of brown, thereby establishing that their shade of brown is associated with their business. Disney clearly has an easier argument to make with respect to the mouse.

In such arguments, we once again run into the paradox of trademark (or perhaps the paradox of advertising). A successful trademark is one that becomes a “household name,” something that everyone recognizes and knows, something that becomes part of the informational environment. No firm can do this effectively without making itself a part of the cultural environment, and as such, the firm's symbols also become part of the cultural environment. At the same time, the firm must worry about diluting its trademark, and protecting it (and itself) from criticism. The best thing that can happen to a firm is to have its trademark replace any other description of its products. The worst thing that can happen to a firm is to have its trademark become a common synonym for something undesirable, useless, disgusting, or evil. Unfortunately, to accomplish the one, a firm must risk the other.

Wednesday, July 13, 2011

Justifications for Intellectual Property Part 3: Self-Expression Justifications

The third dominant justifying theory for intellectual property rights is often called the Self-Expression justification. Most scholars attribute it to Hegel, but it ultimately has roots in Kant. While few philosophers even addressed intellectual property, Immanuel Kant discusses the sale of pirated books in Metaphysics of Morals. Kant argues that reprinting a book after first publication is a violation of the author's right to entrust his communication to a particular publisher. Viewing books as importantly communicative, not material, in nature, Kant claims that a publisher is essentially a spokesperson, someone designated by an author to communicate his ideas to others. Reprinters interrupt this process by taking it on themselves to communicate the author's idea, without his consent. Reprinting is then akin to removing the author's control over the communication of his ideas. While Kant's argument does not get you an entire system of intellectual property, he does draw an association between books, and we can broaden it to include all media, and expressive acts. A book is not simply an object; it is a vessel for ideas. It is the contents of the book, the ideas rather than the material object, that make reprinting a moral issue.

Now, the Self-Expression justification proper comes from a later German Idealist thinker, G.W. F. Hegel. Hegel viewed private property as necessary for the actualization of the will. A rational agent needs a domain in which it can exercise its will so that it can come to understand itself, its autonomy, it's place in the dialectical progression of history. Private property is this domain, so one must understand property not in terms of things owned, but in terms of what those mean to the owner. Intellectual property is an especially interesting case because creative works and inventions are specifically products of rational agency. Creative works serve as expressions of the author's will and reason, so any violation of the work must be understand as a harm to the integrity of the author.

As spooky as some of this might sound, European copyright law recognizes certain “moral rights” of an author. These rights, such as the right to receive credit for authorship, never expire, and bear no exceptions. If interpreted broadly, the Self-Expression justification is perhaps the best argument for an author retaining strong control over derivative works. A fan writing using an author's character in a story takes the character out of the author's control. Something very personal to the author has been manipulated without his knowledge or consent. If some readers confuse for the fan story for the author's own work, they might develop a distorted idea about the author's style and personality. These threats are intolerable on a strong reading of the Self-Expression justification. Now, I hold that there are other concerns at stake that override any sense of threatening the author's integrity, but that's a paper I'm currently trying to publish.

The most obvious concern with the Self-Expression justification is its failure to justify a wholesale system of intellectual property. If you don't see what I mean, think about it like this: you have a lot of furniture in your house. Some pieces you might have had growing up, some you might have gotten from friends or family members, and some you just bought because you needed them. Now, imagine that one morning, you woke up and found that your ottoman, the one that you bought for the cat to sleep on, is missing, and in its place is a pile of money, enough to buy a brand new ottoman. Substitute any personal object you own and don't really care about and mutatits mutandis if the furniture example doesn't work for you. The Self-Expression justification is very plausible when talking about the dining room table you got from your grandparents' house, but much less so when considering that ottoman.

Intellectual property is no different. Some authors pour their hearts and souls into novels, poems, musical compositions, or films. Others are just interested in making money and happen to be very good at what they do. I'm sure many authors find themselves in both categories from time to time. Nevertheless, the Self-Expression justification has the most force when the work has the most personal meaning or significance. When a creative work is an economic product, it's not clear what rights an author would have. One could treat all authors as if their works were expressions of their innermost selves unless they waived their rights somehow (though the moral rights in European intellectual property law simply cannot be waived). In that case, the practice would be instituted for a reason that does not universally apply. Furthermore, it seems bizarre to imagine an intellectual property case being decided in favor of a defendant who argued that the plaintiff “did not really care” about his works. I would hope it isn't the law's place to dictate to us what is art (though they do seem to try), so the Self-Expression justification is only a partial justification for an intellectual property system. Nevertheless, it does get employed in argument about derivative works and fair use.

Saturday, July 9, 2011

Justifications for Intellectual Property Part 2: Labor-Desert Theories

I know it's been a little while, but I want to finish this tutorial series rather than abandoning it and moving on to other topics. Of course, I would have liked to have finished it by now, but various research and teaching-related obstacles have kept me nose down in the Real rather than preparing content to be released into the internet. Nevertheless, I'm returning to routine, so I'm going to release this installment today, rather than wait for my usual MWF release schedule.

At any rate, let's pick up where we left off and talk about justifications for intellectual property rights. While the utilitarian justification discussed in the last post enjoys the status of having been enshrined in law, scholars and jurists have often brought in other property-justifying theories. Perhaps the most popular of these are Labor-Desert justifications, best exemplified by John Locke (the philosopher, not the character on Lost).

In his Second Treatise on Civil Government, Locke construes property as a natural right, an outcome of an agent's (God-given) ownership of himself. The argument goes something like this: God created humankind and put them on the Earth. As embodied beings, humans have physical needs, but the Earth is rich with the resources for fulfilling those needs. In effect, God gives the Earth to humankind in common, to use its resources to sustain themselves. Of course, in order to use those resources, an agent must remove supplies from the common for his own personal use. As such, Locke concludes that there must be a natural right to property because without it, the Earth and its resources would be useless to humankind.

For Locke, the natural right to property is nothing other than the right to appropriate common resources for personal use. In order to exercise this right, and agent must put in some work; he must actually go out into the world and gather whatever resources are required. As such, Lockean accounts of property are sometimes referred to as “Labor-Desert” account because an agent deserves a property right over those things that he has gathered or created through his labor. If one wants to minimize God's role in this system, as many contemporary scholars such as Robert Nozick do, the usual strategy is to invoke self-ownership. Since an agent owns himself (how that comes about, one typically has to leave aside because the answers wax theological), the agent owns his labor, the work that his body is capable of doing. If an agent chooses to labor over gathering food, he has created something of value, and by virtue of his labor being responsible for the value, becomes owner of the food gathered.

The property rights one generates through labor are not unlimited. Since God gave the Earth to all humankind, all agents have an equal right to appropriate. On that basic, Locke claims that the right to appropriate is limited by two conditions that scholars have come to call Locke's Proviso. The first condition is the “spoilage” or “waste” condition. Put simply, an agent is not justified in taking more than he or she can use before it spoils, rots, or is otherwise ruined. As such, agents have greater latitude in hoarding less perishable goods, with money being the least perishable. Secondly, an agent's appropriation must be such that “enough and as good” is left for others to do the same. The first part of the Proviso is often considered a very weak condition, something easy to satisfy and therefore not the subject of extensive consideration or discussion. The second part, of course, can be construed in a number of different ways. One can, at least in theory, read Locke as something of an egalitarian, or perhaps an egalitarian about opportunities. Many right-libertarian scholars follow Nozick's somewhat weaker rendering: an appropriation is only justified when it does not worsen the situation of any other agent.

To put all of that in a more condensed form: Labor-Desert justifications for property (in general) claim that property rights are justified by an agent's labor. If an agent works to create something of value, the agent deserves to own that thing in virtue of his work. Lockeans (and Neo-Lockeans like Nozick) construe some simple limits on this right, not letting the property go to waste and not worsening the status of others by the appropriation.

Labor-Desert justifications are, of course, justifications for property in general. The theory applies equally to tangible property and intellectual property. Scholars who apply these justification to intellectual property rights tend to emphasize the strong sense of ownership bestowed by a natural rights account. If I own the novel I have written because I have worked on it, then someone else infringing my copyright is an attack on myself. One would think that the strong sense of ownership would be somehow balanced by concerns about the commons, leaving enough and as good or not worsening the situation of others, but that's not often so.

The Nozickean reading, not worsening the situation of others, turns out to be a fairly weak reading of the Proviso. Nozick's reading construes the Proviso as calling for a Pareto-optimal situation. “Pareto-optimal” just means a situation that cannot be improved for any agent without worsening the situation of another. When one actually cashes out what it means to worsen an agent's situation, one finds a very different Proviso from the one that requires “leaving enough and as good.” For starters, an agent's situation is not necessarily made worse by losing the ability to appropriate a parcel of land, as long as the new owner intends to turn his land in a large farming operation by hiring hands to work the land. While the agent is no longer able to appropriate that land to make a living, he still has the opportunity to make a living by working for the other agent. It may sound like a raw deal, but Nozick and those who follow his reading claim that the agent is in the same position as before, and has essentially equivalent opportunities to secure a living.

When the Pareto-optimal reading is applied to intellectual property, one often finds a very diminished concern about the information commons. An author's copyright concerns his novel, not something already in the commons, so all other agents are still free to write their own novels. They simply have to rights to that particular novel, but they did not (and could not) have such rights before the novel was written, so the situation has not really changed. Likewise, fair use is often diminished in Neo-Lockean readings because fair use constitute exceptions to the natural property rights of the creator. Some Neo-Lockeans construe fair use and the expiration of intellectual property as extreme interference with personal property (see Adam Moore's Intellectual Property and Information Control for my favorite example).

In short, Labor-Desert justifications frame intellectual property rights as no different from rights to any other form of property. An author labors to create some product, a novel, an invention, etc, and by that labor, the author earns the right to own what he has created. Substitute “novel” for “hammer” and nothing changes. While this kind of simplicity seems desirable from the perspective of wanting a parsimonious theoretical framework, one can also justifiably ask whether treating intellectual property and tangible property the same way really makes sense. For starters, tangible goods are rivalrous; one person's use excludes another's use. Intellectual property is not the same way at all; reading one copy of a novel does not prevent anyone else from doing the same. By extension, my writing a sequel to your novel does not prevent you from doing the same, leaving the market with both an “author's sequel” and a “fan sequel.” Labor-Desert theorists treat the fan sequel as a form of free-riding, something Locke himself considers a strong violation. On the other hand, the fan has still put in a great amount of effort in writing the sequel, even if the groundwork is the product of another's labor. Why does the original author get a de facto monopoly on derivative works? One could instead say that the fan's labor entitles him to his contribution, not the original groundwork but at least the new material.

Of course, one might answer that concern from various perspectives, but to do that, we really should have all justifying theories on the table. Next time, I'll pick up with the last of the big three: the Self-Expression justification.

Friday, July 8, 2011


I have to extend apologies for my absence. I've returned to teaching, so I have been inundated with work. Rest assured that i will complete the tutorial series soon, and then move on to other topics. Hang in there for new content in just another day or so.

Wednesday, June 15, 2011

Justifications for Intellectual Property Part 1: Utilitarianism

There is no way this tutorial series would be complete without some discussion of justifications for intellectual property. While not necessarily a matter of law, some knowledge of the philosophical foundations will provide a better sense of the values at stake in intellectual property debates. Notice, for instance, that the tutorials on fair use were punctuated with appeals to values, social goods, and individual rights. Without an understanding of the moral and political framework against which the law stands, one can very easily find oneself in a stalemate, with one value pitted against another and no way of deciding which should prevail. To understand the jurisprudence around intellectual property rights, one has to have some idea of the justifying theories to which attorneys and judges appeal in their arguments and decisions. So, without further ado, let's get to the tutorial.

There are three main ways of justifying intellectual property rights: the Utilitarian theory, the Labor-Desert theory, and the Self-Expression theory. I'll discuss each in turn.

Utilitarian Justifications
The Utilitarian justification is unique among the three in that it is actually enshrined in the US Constitution. In this case, the relevant clause actually presents a simple argument, and is worth quoting in full: “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” (Article 1, Section 8, Clause 8). I don't normally employ extensive close reading, but it is merited here. The sentence opens with a clear statement of purpose: the stated goal is to encourage the technological and intellectual progress. The main clause of the sentence outlines the strategy: limited term monopolies over the products of intellectual labor. In many ways, this is a paradigm Utilitarian argument. There is a public benefit or social good that can be gained through an institution that will benefit some individuals (creators) in the short term, but everyone else in the long term.

If you're unfamiliar with Utilitarian thought, here's the basics. Utilitarianism, first articulated by Jeremy Bentham and developed significantly by John Stuart Mill, is the view that the pursuit of happiness and the avoidance of pain are foundational goods. One can then understand morality and social justice in terms of delivering, in Bentham's famous phrase, “the greatest good for the greatest number.” Utilitarian philosophers disagree about exactly how to understand “good” and how to evaluate whether it is really distributed to the greatest number, but the basic idea involves what has been called “hedonic calculus.” In other words, to determine a course of action, one evaluates how much good will arise from the action, and offset that good against the negative consequences (unhappiness, pain, etc) that it might cause. The most correct course of action is the one that produces the most net benefit.

If the notion of a hedonic calculus seems unrefined and overly simple to you, you are not alone. John Stuart Mill and other Utilitarians have spilled much ink refining Bentham's very rough, and sometime bizarre, ideas. Nevertheless, some common strains persist throughout Utilitarian thought. One of the most persistent memes is the emphasis on consequences. Bentham, and Mill after him, were very concerned with empirical evidence and the notion that one had to look to the results of an action to determine its rightness or good. This view is in contrast to thinkers like Immanuel Kant who hold that the intentions or motivations behind an action determine whether or not the action is moral. For the Utilitarian, consequences matter, and therefore, it matters whether an action actually produces the expected consequence. There is a sense that a Utilitarian may make errors in judgment based on incomplete information or inaccuracy of predictions, but there is an accompanying sense that morality and ethics are subject to empirical proof. In other words, the error in judgment is not a fatal thing; it is something one must learn from so as to avoid future mistakes.

How does this apply to intellectual property? Well, the US Constitution appears to argue that intellectual property rights are a means to a social good. We want more creative works and innovative inventions and discoveries. To get them, we offer a carrot, monopoly rights on the writing or discovery. While these monopoly rights mean that the public cannot use protected works as freely as unprotected (public domain) works, creators will be motivated to release their works, to publish books and findings, to license inventions for mass manufacture or sale, etc. Since the term of the monopoly is limited, all works will eventually make their way into the public domain, at which time they can be used, copied, distributed, etc freely, by anyone. A short term sacrifice is endured for the sake of a long term benefit.

In addition, what this should mean is that the public benefit establishes limiting conditions for intellectual property rights. If an intellectual property right would diminish public benefit too severely, it should be rejected. Under a pure Utilitarian framework, intellectual property rights are part of a balancing act, an attempt to get something by giving up something else. A move too far in either direction risks losing out on the main benefit. In this context, fair use can be understood as a compromise. Some uses are held as non-infringing because if those uses were under the exclusive control of the creator, some public benefit would be lost. If authors could suppress critical reviews of their books, some freedom of expression would be lost, and the ability to discuss the works freely would be lost. Since discussion and expression are part of the benefits expected to follow from a proliferation of creative works, such loses are untenable. To speculate on whether our current intellectual property system preserves these benefits, take a look here:

I'll leave you to chew on these issues for a while. In the next installment, I'll take up Labor-Desert justifications.

Wednesday, June 8, 2011

Fair Use Part 3: Parody and Scholarship

I alluded to this problem in the initial fair use post, but it deserves a bit more attention. While Weird Al has indeed made a fortune on parody, not all aspiring satirists are so lucky. The Air Pirates certainly did not get away with their parodies of Disney characters. While the courts have been reluctant to hear fair use cases, the cost of litigation makes the possibility of losing any challenge risky. As a result, parody, and other instances of what would appear to be fair use, is not as protected as you might think. If a copyright-holder takes exception to the material and decides to sue for infringement, the defendant must weigh his or her own resources against those of the plaintiff. For the most part, settlement often looks like a rational decision. James Boyle's The Public Domain contains an excellent example of such calculations. I won't reproduce the story in full (Boyle has released the book under a Creative Commons license, so feel free to look it up yourself), but suffice it to say that no matter how large a settlement figure may sound, in many cases the figure is still a small fraction of potential damages, legal fees, and court costs. One might well argue that those costs are unjustifiably high (and I might do so in a future post), but that's not a matter for the current tutorial.

So, given the risk of a suit, and the weak nature of fair use (an affirmative defense just isn't a right, no matter how you slice it), how does a guy like Weird Al make a career out of fair use? The not-so-secret secret is that he doesn't. Weird Al asks for permission. Before any of those much-loved parodies finds its way onto an album, Yankovic clears it with the original artist. Now, seeking permission in this way smacks of a certain amount of professional courtesy, so I don't want to criticize the practice itself. Instead, I want to call attention to the fact that the request for permission is not merely an act of professional courtesy, but also an attempt to block off any possible law suits resulting from an unhappy artist. Weird Al might win, but he also might lose any profits from the album to do so; the risk is just too great. Of course, for the most part, the original artists have been happy to allow the parodies, but occasionally, Weird Al gets a refusal (the most recent instance of such conflicts is documented here: ), but it is typically not a problem.

The key thing to note here is that even for something seemingly clearly protected by fair use, seeking permission is important. Without that shelter, a parodist may rapidly find herself at the mercy of an expensive judicial system. Again, fair use is not a right, merely a defense. While those uses specifically picked out as fair by 17 U.S.C. § 107: “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research” all fall in line with preserving some public interest in creative works, those interests are not really served by the weak version of fair use codified in law. If commenting, criticizing, or research involves any reproduction, one might run afoul of an irate copyright-holder.

Notice that academic research also makes that list. Within academia, there is a culture of openness and discourse that encourages citation and quotation, so the risks are not really all that great. Nevertheless, in Infringement Nation John Tehranian documents a problem with James Joyce scholarship. It seems that Finnegans Wake is not public domain, and the Joyce estate is especially protective in restricting quotation or analysis of Joyce's work. (for a good summary, see this: ). One would think that academic scholarship would be a paradigm case for fair use. A proliferation of creative works is far less valuable if the community of scholars is unable to incorporate the work into the cultural and intellectual discourse. Certainly, to take John Stuart Mill's view that free expression is valuable because it helps us get at truth in some meaningful way, reading a text unlocks only part of its value. To read a novel, one enters into a kind of conversation with the author. Reading a novel along with some secondary literature broadens the conversation. Producing one's own secondary literature, and submitting it for the discussion of the community at large just adds more, more engagement, more conversation. Secondary literature also serves a didactic function; it teaches one how to read texts more deeply, giving the reader access to more layers of meaning and thereby deepening engagement with the text. Nevertheless, a protective attitude on the part of a copyright-holder brings the whole process to a halt.

I just can't help thinking there's something unfair about that...

Monday, June 6, 2011

Fair Use Part 2: Subtleties

Now that you've had the time to digest the basics of fair use, it's time to talk about some common misunderstandings and problems that arise with regard to this aspect of copyright law. As you might have noticed from last time, fair use a complex issue, one in which various concerns must be weighed with no guiding standard as to how much impact each factor should have. Even more problematically, US courts have stayed away from fair use cases for the most part. Very few actually reach a judge, and only four fair use cases have been heard by the Supreme Court. As such, there is very little jurisprudence to clarify the law. As such, fair use is a ripe subject for confusion and debate. Let's begin with the most crucial clarification.

Fair Use is not a right
While one might hear talk about “fair use rights,” there really is no such thing. The National Information Infrastructure White Paper on Intellectual Property (released Sept 1995; for more information see: ) was quite keen to point out exactly that fact. Instead, fair use must be understood as an affirmative defense. So, what's the difference? Well, the real difference is a matter of presumption. If fair use spelled out a series of rights, then the audience presumably has the right to use copyrighted material under the specified conditions. In such cases, infringement suits must show that the use somehow falls outside the scope of the guidelines. As an affirmative defense, fair use is a way of excusing an infringement on legally recognized grounds. In other words, any unauthorized use is presumed an infringement, but the infringement can be excused on certain legally recognized guidelines.

If that difference is still too subtle, think about it as a difference in the burden of proof. If fair use were a right (or a collection of rights), then the copyright-holder would have to proof that the use fell outside of the scope of those rights. As an affirmative defense, any use of copyrighted material is presumed to be infringing, and the defendant would has to show that, as a matter of fact, the use falls within the guidelines. In the former case, the burden of proof is really on the plaintiff; in the latter case, the defendant must show that the use was in fact fair, and failure to do so automatically results in a finding of infringement.

While fair use is often discussed as check on copyright, something to preserve the public good against copyright monopolies, it is actually much weaker than that. As an affirmative defense, fair use has too little force to really protect any public good. While educational use is supposed to be fair, Georgia State is involved in a suit over course reserve texts (full story here: ). If anything counts as an educational use, I would expect course reserves would, but some major academic publishers disagree. Furthermore, the guidelines the publishers would like to impose (available from this story: ) are draconian, to say the least. Speaking of draconian, it's is likely high time we move on to another clarification.

Wednesday, June 1, 2011

Fair Use - Part 1: The Basics

If you read Monday's introductory tutorial on types of intellectual property, you probably noticed the conspicuous absence of several issues, fair use and first sale among them. I've discussed first sale in the context of digital media fairly extensively, so I will likely let those posts stand as a primer on first sale, unless it becomes important for another tutorial. Fair use, on the other hand, demands its own tutorial, largely because many of the most visible intellectual property conflicts involve fair use at some level. Rather than explain that assertion just now, let's begin the tutorial and return to that point once the basics have been explained.

Fair use is a part of copyright law. As explained in the previous tutorial, copyright gives the creator exclusive control over making and selling copies of the work, and authorizing the creation of derivative works (translations, adaptations, etc). These rights are often understood to be limited by fair use. In other words, a fair use is a use of copyrighted material (for instance, making and distributing copies) that would infringe on copyright were that use not defined by law as “fair.” There are four main factors that are weighed to evaluate a fair use:
  • purpose of the use – noncommercial and educational uses weigh toward fair, for example
  • the nature of the copyrighted work – if the work presents its content as fact, the copyright-holder cannot assert copyright in the facts themselves
  • the amount or substance of the copied material – in general, smaller excerpts are more likely to be considered fair
  • the potential for the use to harm the commercial market for the original – designed to protect the ability of the creator to profit from his work, while allowing some non-authorized use
The first thing to notice is that subjective evaluation plays a fairly hefty part in determining whether a use is fair or infringement. Take the first factor for example. Whether a use is educational is fairly objective. If I photocopy a poem for my class to read, that's an educational use. The same factor is invoked for excerpting a novel for the purposes of review, another objectively determinable use. The problems begin with another type of use usually evaluated under the umbrella of that first factor: parody. Use of a work or a portion of a work for the purpose of parody is supposed to weigh in favor of fair use, and Weird Al Yankovic has made quite the career on that factor. Nevertheless, parody is not a carte blanche for making use of copyrighted material. Consider the case of Walt Disney Productions vs Air Pirates in which Disney sued the producers of an underground comic strip for depicting Mickey and Minnie Mouse using drugs and having sex. While one might think that such use would clearly constitute parody of Disney's antiseptic family-friendly image, the Air Pirates ultimately lost the suit. The lesson, as it were, is that a cartoonist's parody and a lawyer's infringement can indeed be one and the same.

Likewise, the third factor poses problems for subjective evaluation. Exactly how much is too much might vary depending on the nature of the work. Excerpting a single page from a novel just does not constitute a substantial copy, but copying the entirety of a single poem certainly looks like a substantial copy. Trying to set standards, such as the percentage of the work, invites incoherence. Consider setting the limit at 1% of the work. That percentage might constitute half a page of a short novel, but a few words of a short poem. Even setting standards by medium is problematic in this regard. While 1% of Fight Club by Chuck Palahnuik might be about a page and half, the same percent of Infinite Jest by David Foster Wallace would allow one to copy ten pages. The inevitable conclusion from such a standard is that the length of the work determines the fairness of the use, posing the question as to why the length of the original should determine whether or not a use is infringing.

The nature of the original seems more straightforward. The author of a textbook cannot assert copyright in the facts described, but can assert copyright in the format of the book, the way those facts are presented. If any readers have followed the recent Dan Brown craze, you might have run across a copyright infringement lawsuit regarding The DaVinci Code. Some of the bizarre conspiracies utilized in the novel made appearances in a 1982 book Holy Blood, Holy Grail by Michael Baignet, Richard Leigh, and Henry Lincoln. When The DaVinci Code became successful, the authors of Holy Blood, Holy Grail sued Dan Brown for copyright infringement. Baignet, Leigh, and Lincoln lost the suit because their book presented those conspiracies, specifically the marriage and progeny of Jesus and Mary Magdalene, as fact. Facts cannot be controlled under copyright due to the so-called idea-expression dichotomy, but that will be the subject of its own tutorial. For now, suffice it to say that if you don't want your conspiracy theory co-opted by a bestselling novel, don't present it as fact.

The final factor concerns protecting the market for copyrighted works against derivative works or copies. Making a backup copy of a CD does not significantly harm the market for original copies. Distributing that backup, the making another and doing the same, does. In general, this aspect of fair use is designed to protect personal copies. For instance, Sony Corp of America v Universal City Studios concerned the right of individuals to record television programs. When Sony released the first home video cassette recording devices, some major studies, Universal included, were concerned at the potential for copyright infringement inherent in the devices. Using the newly created Betamax, an individual can record a broadcast, make a copy of the broadcast, using another Betamax machine, then sell the copies. The Supreme Court ultimately ruled that consumers did not purchase VCR's for the purpose of infringement, but primarily for the purpose of “time-shifting,” recording broadcasts so that they can be watched at a more convenient time. Time-shifting, as a personal and not commercial use, does not harm the market for commercial copies sold by the major studios, so such use is fair.

Now that the major factors are covered, I've realized that there is a great deal to say about the history of fair use, as well as myths and conflicts, likely enough for its own tutorial. As such, the next installment will address further issues regarding far use, not that the basics have been explained.

Monday, May 30, 2011

A Taxonomy of Intellectual Property

In the interest of adding some more substantial content to this blog, I thought I would present a tutorial series. I have already made reference to issues in intellectual property law, but some of my readers might not be familiar with the basics (let along the intricacies) of intellectual property in the US. To that end, this post will be the first in a series of tutorials on intellectual property. Let's begin with a taxonomy of intellectual property.

US intellectual property law recognizes four types of intellectual property.

Copyright concerns creative works fixed in a tangible medium of expression, including musical works, novels, poems, paintings, sculptures, etc. Since it concerns creative media, copyright is likely the form of intellectual property that people have encountered most. Copyright originated as a way to censor seditious or heretical publishers. Once enshrined in British law, from which the American statutes take their original form, copyright allowed publishers to enforce statutory monopolies on books. As of the 1998 Copyright Term Extension Act (CTEA, or the Sonny Bono Act), copyright lasts 70 years after the death of the author for works of individual authorship, and 120 years from the date of publication for works of corporate authorship. Considering the history of copyright these terms are fairly excessive. The earliest copyright term in the United States was a mere 7 years from publication. For much of the 19th century, copyright lasted for 14 years, again counted from the date of publication. Copyright began approaching such long terms only in the 20th century. No matter the term, copyright gives the copyright holder the sole right to sell the work, duplicate it (hence, copyright), and prepare derivative works (ie translations, adaptations to different media, etc). Fair use provides a loophole for certain kinds of use (for instance, reproducing an excerpt of a novel for a book review). For those curious about other such exceptions, fair use will have to be handled in its own tutorial.

In many ways, patent law is to inventions and discoveries what copyright is to creative works. Patent provides innovators, inventors, and researchers, with a temporary monopoly in their creations. Unlike copyright, patent terms are fairly short and have remained mostly unchanged throughout the 20th century. Patents last for 20 years from the date of filing. The Patent and Trademark Office clears patent applications, checking the new invention against “prior art” (previous inventions that might have led to the current invention). Innovation really is the word of the day for patents; to grant a patent, the applicant must show that the invention is both novel and useful in some fashion, not merely a new version of an existing invention. The patent application must disclose prior art, and in some jurisdictions, Europe for instance, the patent holder must actually utilize the invention, licensing it for production or industrial use. The US allows for “patent trolls” to sit on patents, holding them without licensing them until a possible infringement appears, at which time the troll files suit for patent infringement to make money. In practical terms, patent gives the rights-holder the exclusive right to license the invention, in exchange for disclosure. As such, while one might think that patents protect from reverse engineering, in practice the disclosure requirement essentially negates any need for reverse engineering. Nevertheless, the patent holder does have the exclusive right to license the invention for production or use, so patents are a way of securing a living by way of technological innovation.

Somewhat different from the other forms, trademark does not concern creative or technological innovation. Instead, the best way to think of trademark is as a kind of fraud protection. A firm can trademark its logo, name, or mascot, allowing the firm the exclusive use of the mark for the purpose of representing its business. As such, trademark lasts as long as the firm uses the brand for its business. A firm can lose a trademark if the brand becomes disassociated with the firm. The most famous example of losing trademark is likely the case of Bayer and their trademark on “aspirin.” At the time, patents were not granted on chemicals, only new processes for extraction or synthesis, so Bayer took out a trademark on “aspirin.” Nevertheless, aspirin became a household word for the extract of willowbark, so Bayer lost is exclusive claim on the word. Trademark law has evolved along with trends in marketing and advertising, requiring new rules for “non-representational” logos, such as the brown shade used by UPS and the blue/orange combination used by FedEx. Perhaps the most disturbing aspect of trademark is the ability of the mark's owner to control public display of a trademark. As such, a firm can invoke trademark law to suppress a work of art critical of the company if that work features the trademark in some fashion.

Trade Secrets
The final category is perhaps the most unusual category. Trade secrets can be any important business strategy held as confidential within the firm. There is no application for trade secret protection. Instead, the firm must take measures to keep the information confidential, such as requiring employees privy to the secret to sign Non-Disclosure Agreements or Non-Competition Agreements. Trade secrecy is not a very robust form of intellectual property. The primary protection offered is protection against corporate espionage. Once a trade secret is released to the public, there is no recourse. In cases of espionage, the victim firm can sue for an injunction preventing the offender from making use of the trade secret. If the secret is released by other means, such as an irresponsible employee, the secret is simply out. The most famous example of a well-kept trade secret is the formula for Coca-Cola. The formula has been kept secret for over a century, but should it ever find its way into a newspaper, the secrecy would come to an end.

Friday, May 20, 2011

Digital Distribution

Continuing on this week's topic of first sale and digital distribution, I thought I would discuss emerging distribution strategies for digital media. The outline below comes from my observations on new media technologies, some of which can be found in an earlier entry here. As far as I can tell, digital distribution strategies can be divided into three categories according to salient features.

  • Access-Based distribution (“cloud” based services)
    • the customer subscribes to a service
    • the subscription entitles the customer to access content stored on the provider's servers
    • content is remotely stored, though some items may be remotely cached for offline use
    • when the subscription is terminated, the customer loses access to all content
    • the content provider can exercise a great deal of control over what content is offered; the selection of content may vary over time, meaning that the customer is only guaranteed access to the cloud, not any particular item in the cloud
    • typified by
      • Hulu+
      • Netflix streaming service
      • Amazon's Instant Video service
      • Pandora
      • Napster
  • Direct Distribution
    • the customer purchases a digital file from the content provider
    • once downloaded, files are stored locally
    • the customer retains the files regardless of any relationship with the provider
      • DRM technology may or may not restrict the customer's access rights to the files
    • typified by
      • iTunes
      • Magnatune
      • Napster
  • Device-Based distribution
    • content is purchased, delivered, and consumed via a device sold by the content provider
    • the customer downloads content directly onto the device; DRM technology ensures that the files are useless without the device or software from the content provider
    • files are purchased individually, so the customer can continue to use any purchased files regardless of continued relationship with the content provider
    • content cannot be backed up or transferred to another device; once the device is abandoned, access to the content is lost
    • content provider has access to the devices, so content downloaded is not always secure from remote management by the provider (see Kindle and removal of Animal Farm)
    • typified by
      • Amazon's Kindle and other ereaders
      • PS3/Xbox 360/Wii marketplace games

These strategies are not mutually exclusive. As noted above, Napter now provides a subscription service for access to its cloud alongside offering individual songs for purchase. Netflix continues to offer rental of DVDs in addition to its online streaming service. Now, to see what implications these strategies have for first sale, we must keep in mind that first sale seems to serve two key functions. First sale makes media more available, by allowing the secondary market where copies can be bought and sold even after the original distributor has ceased production. In addition, first sale makes content more affordable by facilitating the existence of lending libraries and, once again, the secondary market. The extent to which these goals can be realized on the digital marketplace depends heavily on the distribution strategy employed.

Access-Based Distribution
There is no way to talk about first sale in the traditional sense here because there is no formal sale. The customer has merely paid for access. It is as if the customer had a subscription to a non-lending library. The subscription gives the customer the right to enter the library, peruse the collection, and read or consult any of the available books, but subscribers may have no control over the content of the library's collection. The library might remove a book from the collection before a customer gets the chance to read it, or it may be very slow to acquire new works. The lack of control makes the subscription less valuable than purchasing works individually, but subscribers may get access to more content for their money. Nevertheless, the provider's control means that content will not be available should the provider go out of business or end the subscription service, so there is no chance of archiving content.

Direct Distribution
Here, the case may be improved somewhat. In such cases, the customer has downloaded files, so access to the content is not contingent on any relationship with the content provider. In the absence of DRM, the customer can access content using any appropriate device or software, make backup copies, and convert the file into another format should changes in technology make such conversion necessary. Nevertheless, content cannot be re-distributed lawfully under the current intellectual property system. The typical means of transferring files involve simply making a copy (from the hard drive to a removable medium, from one hard drive to another across a network), so such transfers are presumed infringement under current law. Of course, content providers might also include DRM technology with such files, potentially hampering all such uses. Free culture advocates often express frustration at both DRM and the state of current intellectual property law because direct distribution of digital files should improve availability of content, both upon release and in archives. While digital files require some storage medium, transferring between media is trivial, allowing many copies to be made. Computer networks also speed distribution compared to distribution by physical medium. Even so, DRM technologies and current intellectual property law prevent making content more available and affordable. The potential of the technology is going unrealized because the law has lagged behind technology, and content owners have been very effective in lobbying legislators to protect their current business model.

Device-Based Distribution
Here, we have a mixed bag of the other two strategies. On the one hand, files are transferred to the customer, so there is no reliance on a continued relationship with the content provider to ensure access to content. On the other hand, DRM is standard for this distribution strategy, making the files more difficult for the customer to transfer, convert, or even use (since a particular device is required). Archiving is impossible since the files are tied to the device; once that device becomes obsolete, the content will be inaccessible. The possibility of transfer will depend on the content provider's DRM; the nook, manufactured by Barnes and Noble, allows limited lending of some books, but no permanent transfer, even on a “send and delete” basis. Furthermore, some content providers may choose to retain access to the customer's device storage. Amazon recently used such access to remove copies of George Orwell's Animal Farm (a public domain work) from all Kindle devices at the request of a publisher (as seen in the New York Times, among other places). As such, content stored on such devices cannot be considered entirely secure from outside interference. All told, device-based distribution is the worst for preserving any first sale benefits, unless content providers offer content at a much lower price in exchange for inherent limitations. Nevertheless, archiving of content distributed in this way is at best unreliable, at worst utterly impossible, and in any event reliant on the provider's continued support of the device.

From personal observation, Access-Based and Device-Based distribution are the strategies preferred by content providers, likely due to amenability to control. If those strategies come to dominate the market, first sale itself will become obsolete. In that event, the availability of content, and the distribution of that availability will be entirely depended on the content providers. There will be no method to archive content, resell it on a secondary market, or alter it for one's own purposes.