Monday, August 15, 2005

Notice to the PFF

Just e-mailed this to James DeLong at the Progress & Freedom Foundation:


I enjoy the tussle you and you colleagues at the PFF have with the folks over at the EFF over the issue of IP, and copyright in particular, in the digital age. One aspect of the issue you keep harping at is that both for moral and economic reasons property rights should be defended against those who might use another's property without their permission. You argue that this should apply to intellectual property as well even though it is a non-rivalrous good.

However, as you know, the right to use one's own property can and has been circumscribed by law and statue. Although you may be able to own a gun that does not give you the right to bring it into a school. Although you may own a car, you must obey speed limits. Although a man's house is his castle, he cannot blast loud music all night long.

What I am getting at is the principle that communities have the right and obligation to set up rules on how one can use one's property even if it conflicts with the wishes of the property owner and even if it causes the value of the property to fall or be unrealized. Of course, the laws and regulations set forth can always be influenced by property owners, but property owners do not get a carte blanche say in creating the rules without input from the public or their representatives.

So for instance, I am sure you have heard that the MPAA is laying out to electronics manufacturers what types of DRM and other restrictions need to be in the new HD DVD technologies in order to gain the approval of Hollywood. As you also know, consumer groups or Congress have not been consulted in this process. Now, if you feel that they have no business mettling in what private groups do together, then I guess you'd also have to agree that your local town council has no business restricting what a private developer can do with the property he bought next to your cul de sac should he wish to install a noisy, polluting factory.

But of course developers can't just willy nilly build anything on THEIR land, that is what zoning laws are for. Zoning laws were enacted to give local communities a strong say or even outright veto in shaping what kinds of uses are appropriate for a particular property because it is important to uphold their values in how it impacts their environment and sensibilities. Even if it causes extreme economic hardship, a developer cannot build a fast food joint on land zoned as residential. He must find land elsewhere, possibly in a more isolated part of town that costs more, that is appropriately zoned for the establishment he wants to erect.

What I am getting at is that I believe there needs to be enacted zoning laws for intellectual property that explicity describe what kinds of restrictions the government--as a proxy for the community--can IMPOSE on intellectual property owners. This would go beyond fair use, which is only a defensive mechanism to a lawsuit, and spell out where the interests of the public lie versus the property owner. Moreover, there would be specific prohibitions, just as in zoning ordinances, on what an owner could do with his property unless it was properly zoned. I am not laying out any specifics on how the law would be shaped, but I'd give consumers a prominent seat at the table whenever issues affecting their downstream use (as opposed to the creators) of intellectual property came up.

Smart Optical Illusion

via MarginalRevolution

Monday, August 01, 2005

IP Needs Zoning Laws Meme

I hope to spread the meme of "IP needs zoning laws" to everyone on both sides of the copyfight debate.

You can buy pins and t-shirts here.

Copyfighters are...

Donna Wentworth over at Copyfight tries to define what "copyfighting" is and who "copyfighters" are and what is their agenda vis a vi intellectual property law. As she puts it: "the 'copyfight' is the battle to keep intellectual property tethered to its purpose, understanding that when IP rights are pushed too far, they can end up doing exactly the opposite of what they're intended to do." She links to Cory Doctorow, who defines copyfighters as those who are "fighting for reforms to intellectual property" because as he sees it global organizations like the World Intellectual Property Organization (WIPO) advocate ever greater IP rights, benefiting developed nations, which have more mature IP industries, over less well developed nations. Unfortunately, neither definition satisfies me.

Wentworth doesn't explain what she means by intellectual property's "purpose" except to caution proponents of tougher IP laws that their efforts can backfire against them if the public feels the laws enacted are too draconian. Note to Hollywood: "be careful of what you wish for." The declining music sales over the past five years in the face of well publicized legal battles over Napster and its successors by the RIAA can be seen as testament of this logic.

Doctorow with the EFF and other groups like Creative Commons do a good job of explaining what IP reforms they'd like to see, but a poor job of putting it in terms that a layman would understand. This leads to confusion and conflict between them and those who take the other side of the debate such as The Progress & Freedom Foundation. The copyfighters blame rights-maximalists for stifling technological progress and hurting the poor in Third World countries due to restrictive licensing of pharmaceutical patents and IP defenders accuse "copylefties" of being anti-capitalist and supporting widescale piracy of IP goods as typified by services like Kazaa.

To rectify this confusion it would be better to think of copyfighters as the "zoning boards" of intellectual property. Zoning boards overseeing real property evaluate and decide whether a particular use of a property by an owner is appropriate for that community in accordance with that jurisdiction's zoning ordinances. Zoning laws and building codes limit what an owner can do with his property and in effect reduce its potential value without restrictions. While an owner might want to build a factory in a residential cul de sac most zoning laws forbid it because it conflicts with the structure and values of the community. The US Supreme Court recognized in Euclid v. Ambler Realty Company (1926) and reaffirmed in Nectow v. Cambridge (1928) that zoning laws must benefit the community if property rights are to be restricted.

If zoning laws can be enacted and be accepted as a part of the bargain of owning real property, then copyfighters theorize: "Why can't IP zoning laws be enacted and be accepted as a part of the bargain of owning intellectual property?" Fair use as it is currently constituted is a vague and weak shield against an infringement claim by IP owners. While there are exceptions that allow unauthorized uses such as criticism and time-shifting, defending one's fair use rights is not cheap. As Larry Lessig, Stanford Law professor and author of "Free Culture," puts it: "fair use is the right to hire a lawyer."

If IP laws going forward are enacted with the same sort of consideration of the community impact versus the property owner's rights as zoning laws are then most copyfighters would feel that their David v. Goliath struggle is worth it.