Boyle - The Public Domain Exzerpt

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Allgemeine Anmerkungen

• Während das Buch sowohl Patent- als auch Urheberrecht behandelt, hat es einen sehr starken US-Fokus und klammert die internationale Dimension fast völlig aus. Dies gilt insbesondere für die Diskussion des DMCA und die entsprechenden Auseinandersetzungen, die in keinster Weise die vorhergehenden Weichenstellungen auf internationaler Ebene berücksichtigen
• Über weite Strecken argumentiert Boyle mit Jefferson und bezieht sich generell sehr stark auf die US Constitution
• Interessant ist der Ansatz, die Verschärfung von IP auf den dominanten Frame der "Internet Threat" zurückzuführen.
• Vier Fallstudien:
  • Chapter 6 versucht die Geschichte eines Songs (Ray Charles "I got a women" / Kanye Wests "Gold Digger" / Legendary K.O.s "Bush doesn't like Black People") nachzuvollziehen; spannender Gedanke dabei: auch urheberrechtlich geschützte Melodien lassen sich dann ohne urheberrechtsverletzung "kopieren", wenn sich nachweisen lässt, dass sie ebenfalls auf früheren, bereits gemeinfreien Werken beruhen.
  • Softwarepatente und Copyright
  • Biotechnologie
  • EU Database directive wird einer vernichtenden Kritik unterzogen (chapter 9)

Exzerpt

• "The vast majority of this material, perhaps as much as 95 percent in the case of books, is commercially unavailable." (p. 9; Anm.: es geht um das Material im Library of Congress catalouge)
• "For most works, the owners expect to make all the money they are going to recoup from the work with five or ten years of exclusive rights. The rest of the copyright term is of little use to them except as a kind of lottery ticket in case the work proves to be a one-in-a-million perennial favorite." (p. 11)
• "Even if natural right does create the ground for the property claim, it is "social law" that shapes its contours and guarantees its stability." (p. 28)
• "Even within the droits d'auteur tradition, we see a recognition that the continuing progress of enlightenment and the sacred genius of authors might both require a certain level of freedom in knowledge inputs and a certain level of control over knowledge outputs. We see also the recognition that these two requirements are in fundamental tension. When it comes to reconciling that tension we must turn in part to utilitarian effects." (p. 34; Herv. i. Orig; Fett L.D.)
• "From the early days of intellectual property as we know it now, the main objection raised against it were framed in the language of free trade and "ant-monopoly." (p 36)
• "Look at the structure of these comments; they are framed as criticisms of intellectual property rather than defenses of the public domain or the commons, terms that simply do not appear in the debates. There is no real discussion of the world of intellectual property’s outside, its opposite. Most of these critics take as their goal the prevention or limitation of an “artificial” monopoly; without this monopoly our goal is to have a world of—what? The assumption is that we will return to a norm of freedom, but of what kind? Free trade in expression and innovation, as opposed to monopoly? Free access to expression and innovation, as opposed to access for pay? Or free access to innovation and expression in the sense of not being subject to the right of another person to pick and choose who is given access, even if all have to pay some flat fee? Or is it common ownership and control that we seek, including the communal right to forbid certain kinds of uses of the shared resource? The eighteenth and nineteenth-century critics brushed over these points; but to be fair, we continue to do so today. The opposite of property, or perhaps we should say the opposites of property, are much more obscure to us than property itself. For the most part, the antimonopolist view of intellectual property makes a simple case. Monopolies are bad. Have as few as possible and make them as narrow and as short as possible. This is a fine principle, but it falls short of an affirmative explanation and defense of the role of the public domain or the commons in enabling creativity, culture, and science. That is a shame because just as intellectual property is different from tangible property, so too is its opposite, its outside. What are those opposites? The two major terms in use are “the public domain” and “the commons.” Both are used in multiple ways—probably a good thing. The public domain is material that is not covered by intellectual property rights. Material might be in the public domain because it was never capable of being owned. Examples would be the English language or the formulae of Newtonian physics. Alternatively, something might be in the public domain because rights have expired. The works of Shakespeare or the patent over powered flight are examples. Some definitions of the public domain are more granular. They focus not only on complete works but on the reserved spaces of freedom inside intellectual property. The public domain would include the privilege to excerpt short quotations in a review. This vision is messier, but more instructive. (...) In the granular view, the map is more complex. (...) In popular discussion, we tend to use the absolutist view of both property and the public domain. (...) The term “commons” is generally used to denote a resource over which some group has access and use rights—albeit perhaps under certain conditions. It is used in even more ways than the term “public domain.” The first axis along which definitions of the term “commons” vary is the size of the group that has access rights. Some would say it is a commons only if the whole society has access. That is the view I will take here. The other difference between public domain and commons is the extent of restrictions on use. Material in the public domain is free of property rights. You may do with it what you wish. A commons can be restrictive. For example, some open source software makes your freedom to modify the software contingent on the condition that your contributions, too, will be freely open to others. I will discuss this type of commons in Chapter 8. So these are working definitions of public domain and commons. But why should we care? Because the public domain is the basis for our art, our science, and our self-understanding. It is the raw material from which we make new inventions and create new cultural works. Why is it so important? Let us start with the dry reasons. (pp. 38-39; Herv. L.D.)
• "When we commodify too much we actually undermine creativity, since we are raising the price of the inputs for future creations. (...) Our markets, our democracy, our science, our traditions of free speech, and our art all depend more heavily on a public domain of freely available material than they do on the informational material that is covered by property rights. The public domain is not some gummy residue left behind when all good stuff has been covered by property law. The public domain is the place we quarry the building blocks of our culture. It is, in fact, the majority of our culture. Or at least it has been." (p. 40-41, Herv. i. Orig.)
• "Like most criticisms of the enclosure movement, the poem depicts a world of rapacious, state-aided "privatization", a conversion into private property of something that had formerly been common property or perhaps had been outside the property system altogether." (p. 43; Herv. L.D.)
• "This faith in enclosure is rooted in a correspondingly deep pessimism about the possibility of managing resources that are either commonly owned or owned by no one. (...) To say that some social resource is not owned by an individual, that it is free as the air to common use, is automatically to conjure up the idea that it is being wasted." (p. 47, Herv. i. Orig.)
• "More property rights, even though they supposedly offer greater incentives, do not necessarily make for more and better production and innovation - sometimes just the opposite is true. (...) Using a nice inversion of the idea of the tragedy of the commons, Heller and Eisenberg referred to these effects - the transaction costs caused by myriad property rights over the necessary components of some subsequent innovation - as "the tragedy of the anticommons." (...) The baseline - intellectual property rights are the exception rather than the norm; ideas and facts must always remain in the public domain - is still supposed to be our starting point. It is, however, under attack." (p. 48-49)
• "The expansion is more than a formal one. It used to be relatively hard to violate an intellectual property right. The technologies of reproduction or the activities necessary to infringe were largely, though not entirely, industrial. Imagine someone walking up to you in 1950, handing you a book or a record or a movie reel, and saying "Quick! Do something the law of intellectual property might forbid."" (p. 50)
• Consuming the illegal vs. legal uncertainty: "Intellectual property is now in and on the desktop and is implicated in routine creative, communicative, and just plain consumptive acts that each of us performs every day. Suddenly, the triggers of copyright—reproduction, distribution—can be activated by individual footsteps. Of course, we would hope that in your daily actions you scrupulously observed the rights—all the rights—of the companies that have interests in the texts, tunes, images of celebrities, trademarks, business method patents, and fragments of computer code you dealt with. Did you? Can you be sure? I teach intellectual property, but I admit to some uncertainty. (p. 52, Herv. L.D.; Anm.: im Buch finden sich an dieser Stelle eine Reihe von Beispielen für derartige "legal uncertainty".
• "Costless copying brings both costs and benefits" (p. 62)
• "All of the threats posed by any new technology—the player piano, the jukebox, the photocopier, the VCR, the Internet—are seen with extraordinary clarity. The opportunities, however, particularly those which involve changing a business model or restructuring a market, are dismissed as phantoms. The downside dominates the field, the upside is invisible." (p. 63; Anm.: vgl. auch das Problem, dass sich nicht messen lässt, welche Innovationen wg. IP nicht stattfinden)
• "Normally, the marketplace is supposed to provide correctives to this kind of myopia. Upstart companies, not bound by the habits of the last generation, are supposed to move nimbly to harvest the benefits from the new technology and to outcompete the lumbering dinosaurs. In certain situations, though, competition will not work: - if dinosaurs are a cartel strong enough to squelch competition; - if they have enlisted the state to make the threatening technology illegal; - if ingrained prejudices are simply so strong that the potential business benefits take years to become apparent; - if the market has "locked in" on a dominant standard. In those situations, markets cannot be counted on to self-correct. Unfortunately, and this is a key point, intellectual property policy frequently deals with controversies in which all of these conditions hold true." (p. 64-65)
• "In fact, the novice’s questions shed light on all of the exceptions, limitations, and defenses to proprietary rights—the holes in the cheese of intellectual property. The scholar’s urge is to find one theory that explains all the possible applications of the fair use doctrine, to arrange all of the cases like targets and shoot a single arrow through all of them. Perhaps fair use is designed to reduce the difficulty of clearing rights when it would be uneconomical or impossibly complex to do so: to reduce the paperwork, hassle, delay, ignorance, and aggravation that economists refer to under the sanguine name of “transaction costs.” (p. 67)
• "The variegated and evolving limitations on intellectual property are as important as the rights they constrain, curtail, and define. The holes matter as much as the cheese." (p. 69)
• "The Sony Court declared that becaus video recorders were capable of substantial noninfringing uses, the manufacturers of those devices were not guilty of contributory infringement." (p. 71)
• "A decision does not need to make an activity illegal in order to impede it. It only needs to make it uncertain. (...) Lots of new communications technologies will remain undeveloped because of the uncertainties left by this ruling." (p. 79; Anm.: danach folgt als fiktives Beispiel ein Vergleich zwischen Grokster und Apples iPod)
• "In a famours article, Saltzer, Reed, and Clark providing the argument that an "end-to-end" network that is "dumb" and leaves processing to the "ends - the smart terminals at either end of the wires - will be stable and robust. But it will also be remarkably uncontrolled and it will lower global copying costs close to zero for digital content." (p. 81)
• "Inellectual property rights over digital technologies affect not only speech, but the framework of competition and markets as well(.)" (p. 110)
• "It is the law that draws the line between competition and theft, between virtuous competitive imitation and illicit “piracy.” Sometimes we need to give innovators property rights that allow them to prevent second-comers from free riding on their efforts. We have to do so because it is necessary to encourage future innovation. On the other hand, sometimes we not only allow the second-comer to free ride, we positively encourage it, believing that this is an integral part of competition and that there are adequate incentives to encourage innovation without the state stepping in. Intellectual property policy, indeed a large part of the policy behind all property rights, is about drawing the line between the two situations. Too far in one direction and innovation suffers because potential investors realize good ideas will immediately be copied. Too far in the other direction and monopolies hurt both competition and future innovation. (p. 113)
• "Copyright had a well-developed set of exceptions to deal with anticompetitive behavior. Where the existing exceptions did not function, courts tended to turn to fair use as the universal method for patching the system up—the duct tape of the copyright system." (p. 120, Herv. L.D.)
• "One wonders whether jazz, blues, R&B, gospel, and soul would have been possible as musical styles if, from their inception, they had been covered by the strong property rights we apply today." (p. 130)
• "Year after year academics, critics, and historians pay fairly substantial fees (by our standards) to license tiny fragments of songs even though their incorporation is almost certainly fair use. Many of them do not know the law. Others do, but want to avoid the hassle, the threats, the nasty letters. It is simpler just to pay. Unfortunately, these individual actions have a collective impact. One of the factors used to consider whether something is a fair use is whether or not there is a market for this particular use of a work. If there is, it is less likely to be a fair use to quote or incorporate such a fragment. As several courts have pointed out, there is a powerful element of circularity here. You claim you have a right to stop me from doing x—quoting two lines of your three-verse song in an academic book, say. I say you have no such right and it is a fair use. You say it is not a fair use because it interferes with your market—the market for selling licenses for two-sentence fragments. But when do you have such a market? When you have a right to stop me quoting the two-sentence fragment unless I pay you. Do you have such a right? But that is exactly what we are trying to decide! Is it a fair use or not? The existence of the market depends on it not being a fair use for me to quote it without permission. To say “I would have a market if I could stop you doing it, so it cannot be a fair use, so I can stop you” is perfectly circular. (p. 132; Anm.: performativity!)
• "As Jessica Litman points out, building in the intellectual space is different from building in the physical space. We do not normally dismantle old houses to make new ones." (p. 138)
• "Does Charles, or his record company, have a valid copyright in the musical composition? One huge problem in copyright law is that it is remarkably hard to find this out. Even with the best will in the world, it is hard for an artist, musician, or teacher to know what is covered by copyright and what is not." (p. 142; Anm.: uncertainty again!)
• "But they conclude that a clear “one-note rule” will do, because if the costs of licenses are too high, samplers can simply recreate the riff themselves, and this will tend to keep prices reasonable. This is an interesting idea. Why does this not happen more often? Why do samplers not simply recreate James Brown’s drumbeat from “Funky Drummer,” or George Clinton’s solo from “Get Off Your Ass and Jam”? Musicians offer lots of different answers. They do not understand the distinction the court is drawing, so the market never develops. The samples themselves cannot be replicated, because the music has all kinds of overtones from the historical equipment used and even the methods of recording. Fundamentally, though, the answer seems to be one of authenticity, ironically enough. The original beats have a totemic significance—like the great standard chord sequences in jazz. One cannot substitute replicas for James Brown’s funkiness. It just would not be the same. As Walter Benjamin pointed out long ago in “The Work of Art in the Age of Mechanical Reproduction,” cheap copying actually increases the demand for authenticity." (p. 150)
• "Finally, as more and more people can create and distribute culture, they are less likely to understand, believe in, or accept rules that are strongly at variance with their asthetic and moral assumptions." (p. 156)
• "A system that can only function well through repeated lawbreaking is an unstable and dangerous one. (...) It blurs civil disobedience and plain old lawbreaking." (p. 157; Anm.: hier trifft sich Boyle mit Lessigs Argumentation in Remix; entscheidend ist aber wohl, eingedenk des Zusammenhangs von Regel und Ausnahme, der Grad bzw. das Ausmaß des "lawbreaking")
• Concrete Suggestions: "One solution is to extend that system to the world of mashups and derivative works. If you merely copy the whole of my work and circulate it on file sharing networks or on CDs, we apply the current rules and penalties. If, on the other hand, you make a “derivative” work, mixing your work with mine, then there are two alternatives. If you stay in the world of nonprofit exchange, you get a heightened presumption in favor of fair use (perhaps administered through a quicker and cheaper system of arbitration). If you move into the for-profit world, then you must pay a flat licensing fee or percentage of profits to the copyright holder. A second solution would be to curtail the hypertrophy of protectionism that made all this happen in the first place. The copyright term could be shortened or we could require renewal every twenty-eight years. (There are international treaties that currently forbid the latter alternative.)" (p. 158)
• "Yet there is a ray of hope. It is getting harder and harder to pretend that the rules ostensibly designed to encourage creativity are actually working. At the same time, more and more people are creating and distributing cultural objects - becoming "subjects" of intellectual property law in the process, often to their dismay and irritation." (p. 159)
• "Behind the abstract words "innovation" or "technological development" there are lives saved or lost, communicative freedoms expanded or contracted, communities enabled or stunted, wealth generated or not." (p. 161)
• "In fact, we want people to copy the businesses of others, lowering prices as a result. The process of copying business methods is called "competition" and it is the basis of a free-market economy." (p. 169, Herv. i. Orig.)
• "The Registry of Standard Biological Parts or the BioBricks Foundation can simply put all their work into the public domain immediately. (This, indeed, is what they are currently doing.) Such a scheme lacks one key feature of open source software: the right to force subsequent innovators to release their code back into the commons. Yet it would make subsequent patents on the material impossible, because it had already been published." (p. 177)
• "My point here is that Creative Commons licenses or the tools of free and open source software—to which I will turn in a moment—represent something more than merely a second-best solution to a poorly chosen rule. They represent a visible example of a type of creativity, of innovation, which has been around for a very long time, but which has reached new salience on the Internet—distributed creativity based around a shared commons of material." (p. 184)
• On motivations for contributing to the commons: "Yochai Benkler and I would argue that these questions are fun to debate but ultimately irrelevant. Assume a random distribution of incentive structures in different people, a global network—transmission, information sharing, and copying costs that approach zero—and a modular creation process. With these assumptions, it just does not matter why they do it. In lots of cases, they will do it." (p. 189, Herv. i. Orig.)
• "In fact, all the mottos of free software development have their counterparts in the theory of democracy and open society; “given enough eyeballs, all bugs are shallow” is merely the most obvious example. Karl Popper would have cheered. The importance of open source software is not that it introduces us to a wholly new idea. It is that it makes us see clearly a very old idea." (p. 193, Herv. L.D:
• On patent pools: "Twentieth century culture will largely remain off-limits for digitization, reproduction, adaptation, and translation. No series of private contracts or licenses can fix the problem because the relevant parties are not in the room and might not agree if they were. Even when the parties are available and agree to share, the benefits may not flow to all equally. Beset by a multitude of vague patents of questionable worth and uncertain scope, large information technology firms routinely create patent pools. IBM tosses in thousands of patents, so does Hewlett or Dell. Each agrees not to sue the other. This is great for the established companies; they can proceed without fear of legal action from the landmine patents that litter the technological landscape. As far as the participants are concerned, the patent pool is almost like the public domain—but a privatized public domain, a park that only residents may enter. But what about the start up company that does not have the thousands of patents necessary for entry? They are not in as happy a situation. (p. 203)
• "I argue that we need to make visible the invisible contributions of the public domain, the "ecosystem services" performed by the underapprecitated but nevertheless vital reservoir of freedom in culture and science." (p. 242)

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