In which I read the proceedings of the 2009 Fordham IP conference

Intellectual Property Law &; Policy, Vol. 12, ed. Hugh Hansen: Proceedings from a 2009 conference by a high-protectionist, with occasional interventions from people who don’t believe that more IP is always better. Confirms my belief that it’s a bad idea to make predictions; five years later they may be very embarrassing. The AP predicted that it would be out of the news business soon if new protections for it weren’t enacted. A Paramount VP told us that “no one is going to be making a special-effects film or a film with famous talent for a YouTube market where there is little or no revenue.” Time Warner’s representative told us that, as the internet matured, people were going to stop making their own mashups or “blogs” and instead just “Twitter” and comment on favorite scenes from a movie; users were more interested in consuming works and interacting with each other than in “expending the effort and the energy needed to interact with a work creatively in a very deep way.” (Your condescension is returned with interest, Time Warner!) Best of all, I learned that ACTAwas a done deal and that, once enforcement was taken care of, IP was going to fade away from business and political discussions. “And who can be against enforcement? It is a question of logic.”

I also learned that the reason that the term “three strikes” was abandoned for copyright infringement notices from ISPs, in favor of “graduated response,” was that people outside the US “do not understand that ‘three strikes and you’re out’ refers to baseball and not violence.” Other things I had not thought of: copying levies on equipment, imposed in many countries outside the US, have trouble dealing with the fact that now one consumer may have multiple copies—on her phone, her laptop, her car, etc.—but the economic effect/value of those copies is not really different than the single copy she would’ve had many years ago. Also, other intermediaries in the value chain oppose making the levies transparent to consumers, because they believe, not without reason, that a consumer who understands that she’s already paid a fee for copying music when she buys an empty hard drive will not want to pay again for a music service.


Separately, when IP’s proponents argue that developing countries should strengthen IP laws so that there’ll be improved tech transfer, that’s actually a pretty colonialist treatment, in that they don’t suggest that increased IP rights would lead to increased innovation from within the country. Peter Yu also made some excellent points about China—piracy rates in the US and other high-income countries are 20-40% for software; they’ve had strong IP rights for decades, so is it really more distressing that China has an 80% piracy rate? Meanwhile, the high-protectionists claimed that there’s so much piracy in developing nations that there was no need for exceptions and limitations to copyright, only for more robust rights. Jamie Love responded quite well, pointing out that if there’s a lot of outright copying there’s not much need for exceptions and limitations; only if there’s enforcement do the needs for exceptions and limitations become clear. Jessica Litman has eloquently made a related point: it’s kind of strange to think that you can expand copyright law to vast new fields while not expanding the limitations that were always part of copyright law, as if a child were growing up while its eyes and nose remained the same size.

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