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Here we'll explore the nexus of legal rulings, Capitol Hill policy-making, technical standards development, and technological innovation that creates -- and will recreate -- the networked world as we know it. Among the topics we'll touch on: intellectual property conflicts, technical architecture and innovation, the evolution of copyright, private vs. public interests in Net policy-making, lobbying and the law, and more.

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April 6, 2012

Copyright Official Fails, Techdirt Foams

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Posted by Alan Wexelblat

Let's start with a couple things we agree on: Maria Pallante, the Register of Copyrights, is a copyright maximalist. As you can see from her public background, she's worked for organizations like the National Writer's Union and the Guggenheim Museum that consistently hold a maximalist, and author-centric view of copyright. It's also clear that she believes the purpose of copyright is to help people make money, and that exceptions to copyright monopolies should be narrowly drawn.

Why this is surprising, or why it causes Techcrunch's Mike Masnick positively to foam at the mouth is beyond me. Masnick notes that in two recent talks she's taken a retrograde and maximalist position, and then goes on to rant that this means she "doesn't understand her job" and that holding such views should be "grounds for termination."

Beg pardon? Since when has the Copyright Office been any bastion of progressive viewpoints, or even vaguely friendly to "the copyleft agenda" - whatever that might be.
Masnick's major point seems to be that he thinks the purpose of copyright is to promote some nebulous social value. If the head of the Copyright Office seems to think the purpose of copyrights is to make money for the rights-holder that's kind of disappointing and unenlightened, but hardly a shock. Masnick seems to be referring to what I've been calling "The Breyer Test", but hasn't noticed that Breyer was writing a minority opinion.

It's an opinion I happen to agree with, but it's still the minority opinion. What Pallante is reflecting is the majority opinion, which is to say the settled law of the land. So we have a high government official saying she agrees with the law of the land, and this is cause for ranting... how? I dunno, Techdirt is a better (or at least more popular) blog than Copyfight, so maybe I should write more rants and less reasoned posts.

Comments (8) + TrackBacks (0) | Category: Counterpoint


1. john e miller on April 6, 2012 4:52 PM writes...

Well, I am not going to comment one way or another on copyright law or Ms. Pallante's copyright agenda. I personally have been called a 'statist' for wanting to work with or maybe stretch the limits of copyright exception as it exists today. Changing the law itself I will leave to others.

I used to subscribe to the TechDirt email summary but cancelled after counting that a TechDirt daily brief may contain up to 6 mentions of the word 'insane' -- shorthand I guess for those who disagree with Mr. Masnick.

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2. Androgynous Cowherd on April 7, 2012 3:52 PM writes...

Masnick's major point seems to be that he thinks the purpose of copyright is to promote some nebulous social value.

Actually, Masnick's major point is that according to the Constitution of the United States of America, the purpose of copyright is to promote the progress of science and the useful arts. If "the progress of science and the useful arts" is "some nebulous social value", then I suppose you are correct, but Masnick is then in distinguished company -- the others being names like Washington and Jefferson. :)

Further, it is well known that US courts have rejected "sweat of the brow" arguments for copyrights and similar monopolies, e.g. in striking down attempts to copyright phonebooks and databases. This seems to mean the courts reject the notion that the purpose of copyright is to make money for authors. Making money for authors is just a means to the end of promoting the progress of science and the useful arts.

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3. john e miller on April 7, 2012 8:26 PM writes...

One of Mr. Masnick's recurring claims is that IP Rights holders do not lose revenue through unauthorized reproduction & distribution as those persons on the receiving end were not ever likely purchasers of the materials.

He may be right that many or most of the unauthorized downloaders are never potential customers; then again, it is unlikely that there are none who would fit that category.

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4. Alan Wexelblat on April 8, 2012 7:14 AM writes...

@Anonymous: I'm aware of the Constitutional language; as I said, it's the basis on which Breyer's opinion rests. That said, Breyer uses this language to promote what ought to be a functional value calculus. Masnick, by contrast, seems to think that the language automatically means that copyright isn't there to make money for creators. "Promote the useful progress..." doesn't say for whom. Thus, nebulous.

@John: the studies I've seen on freeloaders generally are too simplistic and don't analyze the full network of effects. He may be right in that those who get illegal copies would never be purchasers of that specific product, but the more interesting (and complicated) question is whether the taking for free leads to increased paid consumer behavior later on, or over time.

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5. john e miller on April 8, 2012 2:38 PM writes...

Dr. AW -- The discussion in which I am directly involved regards via WIPO giving copyright exemption to persons who are blind or with other reading disabilities. The argument there, also, is that such persons would not be likely purchasers of a book.

However, once you say that a large component of the world's population is eligible for free renditions of a copyrighted work, a 'balance' of rights is created whereby there may be far more free copies in circulation by virtue of exception to copyright than through the 'normal exploitation of the work' or paid distribution channels... And everyone says they are for a balance of rights.

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6. Androgynous Cowherd on April 15, 2012 7:11 AM writes...

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7. Alan Wexelblat on April 16, 2012 1:02 PM writes...

@A.C. Thanks. I still think he's wrong. If I get a break in my supposed-to-be-busy week I'll write a response.

Permalink to Comment

8. Androgynous Cowherd on April 21, 2012 4:52 AM writes...

Its sole official purpose, as stated in the Constitution, indubitably is to benefit the public. Of course, others do have other purposes for it, and some of those peoples' other purposes for it are at odds with the official purpose, but those latter people are misusing it, more or less by definition.

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