SOPA and PROTECT IP chill free speech

There’s a lot of outcry over how pending copyright legislation (SOPA (PDF), formerly known as E-PARASITE, in the House, and PROTECT IP (PDF) in the Senate) would “break the Internet”. Hyperbole aside, the bills would enable the Attorney General and rights holders to go after payment processors, domain name registrars, and the like to disable access to “foreign” websites that infringe U.S. intellectual property rights.

My concern is that the bills are overbroad. They take down too much non-infringing speech in order to get at the stuff that does infringe upon copyright. I’m not sure whether the Supreme Court would hold that the bills abridge free speech rights under the First Amendment, but they would have a serious chilling effect upon free speech.

For example, suppose that the Russian equivalent of Google’s Blogger service hosts infringing content — say, at blogger.ru/piratedmovies. Suppose also that this is the only piece of infringing content and that the vast majority of content on blogger.ru is stuff like critiques of Dostoyevsky and recipes for borscht. Under Sec. 102 of SOPA, the Attorney General can obtain a court order to block off all U.S. access to blogger.ru. While the Russian operators of blogger.ru could, in theory, appear in a U.S. court to dispute the Attorney General’s actions, it’s unlikely that the operators of a Russian language website are going to go to that effort for the handful of American users interested in its Borscht recipes. Collectively though, this would block off Americans from a lot of “foreign” Internet account. It would, in effect, create a “Great Firewall of America”.

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Proposal: A Public Domain Fund

Quick idea

Google and various other Silicon Valley entities should create a Public Domain fund. Basic idea is that you submit some creative work (a song, image, etc.) and through the magic of up-down voting, the top X entries win some Y dollars. Only catch is that if you take money from the fund, your work must now be in the public domain.

Rationale

A large number of people and groups depend on there being a robust public domain (or at least things easily redistributable via Creative Commons) — from lip dubs to remixes to fan fiction to mere inspiration, a substantial amount of creative expression takes the form of a derivative work. Whenever I feel the need to Photoshop (or GIMP) something together, I often spend a lot of time on Google Image Search or Flickr looking for source material. I imagine I’m not alone. Much of the derivative work out there gets by on fair use, but there’s definitely a good chunk of it doesn’t (or hovers in some gray area).

Furthermore, obtaining licensing and permissions from the original right holders is a tremendous hassle. There’re legal documents to be signed, dollars to be transferred, and hours to be wasted while you wait for someone to respond to your e-mail. Furthermore, the market value for a lot of these mash-ups is uncertain and probably not worth any licensing fee. More often than not, I’d bet that the creators of derivative works do one of two things: (1) give up on the current project or (2) use the source material without permission.

These derivative work creators would benefit from a large body of public domain works available for use. Now I’m not saying there isn’t already stuff out there. I certainly am usually able to find what I need given enough time, but it’d definitely make things a lot easier if public domain / less restrictive licensing were the norm. A Public Domain Fund would provide an economic incentive for creators to use less restrictive licensing.

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What's the right length of time for copyright and patents?

One of my issues with copyrights and patents are setup is how arbitrary their length is. Copyrights lasts for your entire life + 70 years. A patent lasts for 20 years. That seems odd to me. The end result of billions of dollars worth of product development can be under protection for a shorter amount of time than some doodle you scribbled on a napkin one afternoon.

Ideally, the length of time a copyright or patent lasts should be tied to market behavior by producers. I’m not sure how’d you make this work, but as a starting point, the market value of a copyrights or patent should correspond roughly to your sunk costs in producing the relevant intellectual property. One you account for those, I feel the law shouldn’t offer any additional protection. You are of course, entitled to try to earn a profit, but your profits should come not from a monopoly but from making a better product than your competitors — and I mean competitors in a very narrow sense. For example, I’d like to choose between book publishers based on factors like the quality of the paper or which ones offer digital copies, as opposed to which one of them managed to snag the exclusive rights to a book first.

I really can’t justify sunk costs as a barometer of the ideal value of a copyright over say, sunk costs + 20%, but it seems to jive from from the standpoint of putting the original content producer on a level playing field with the copycats. If anyone has thoughts on this, I’d be interested in hearing them.