Saturday, January 29, 2005

A new approach to fighting draconian IP laws

Robert Boynton, a professor at my alma mater has written one of the clearest explanations of the current copyright wars I have read.

It's a long essay, but well worth reading. In case you don't, though, let me highlight one key point:

Recent stirrings in legal theory may give some comfort to the activist wing of digital environmentalism. Taking for granted the fact that the problem is less the letter of intellectual property law than the spirit in which it is interpreted, Richard Posner, a federal appeals judge and prolific legal theorist, and others have suggested some ways to remedy this problem.

Foremost among them is the doctrine of "copyright misuse." In his California Law Review article "Fair Use and Statutory Reform in the Wake of Eldred," Posner argues that it is more valuable, and feasible, to strengthen fair-use practices than to lobby for new copyright laws. The problem with the current system, according to Posner, is that copyright owners systematically make improperly broad claims to their rights. The book, DVD, or baseball-game broadcast that comes with a notice stating that no part of the work may be copied without permission is, in fact, in violation of the doctrine of fair use (for which one doesn't need permission). Posner argues that when a copyright holder affixes a warning on copies of his work that "grossly and intentionally exaggerates the copyright holder's substantive or remedial rights, to the prejudice of publishers of public-domain works, the case for invoking the doctrine of copyright misuse" has been made.

So if nothing else, remind yourself that just because someone says you can't do something doesn't mean you legally can't do it.