Freedom to Tinker

Tim Wu, guest-blogging over at Larry Lessig’s site, reports:

So today copyright scholar Joe Liu at Boston College asked a room full of law professors an interesting question. What did we think copyright would look like in 8 years? Here were some of the main categories of predictions (some contradict):

1. Primarily a criminal regime (remember when copyright was considered civil law?)
2. Focused on control of the design of hardware & software (in the model of the Broadcast Flag) to prevent infringement ex ante;
3. A regime dedicated to preserving the retail market and revenue streams for 4 discs: (CDs, DVDs, Software CDs, and Video-Game CDs), having given up on nearly everything else;
4. Made in WIPO or the FCC as often as the U.S. Congress;
5. Gone (not a good bet).

This list is interesting in several ways. (1) There’s no mention of alternative compensation systems. I would have expected them to rank, at least, above the no-copyright outcome. (2) The first option, copyright as a criminal regime, seems implausible, given the limited prosecutorial resources available. How much of our public law-enforcement resources will we really be willing to spend to defend copyright? Will this become another drug war? (3) The presence of the second item, copyright as regulation of technology design, is disconcerting. As I have written at length before, such a policy would be a major drag on innovation, while failing to prevent infringement. The lawprofs are not endorsing this outcome but are merely predicting it; but the fact that they find it likely is troubling. (4) The fourth item, copyright law being made in the bodies like the FCC and WIPO rather than in Congress, may already be happening. And it’s bad news. Lately, pro-innovation forces have had reasonable success in influencing Congress, and less success with other bodies.

UPDATE (August 6): Tim Wu writes, in a comment below, that the lawprofs did in fact discuss alternative compensation systems.

Tim Wu, guest-blogging on Larry Lessig’s site, asks hypothetically whether President Kerry would veto the Induce Act. Tim, quoting some vague pro-technology language from Kerry’s website, suggests that Kerry might veto the Act.

This is wishful thinking. The fact is that the record of Kerry, and the Democrats in general, on the copyright/innovation issue is not good at all. Consider, for instance, the 2002 Senate hearing on the Hollings CBDTPA, in which Intel’s Les Vadasz faced a phalanx of entertainment-industry witnesses. According to Declan McCullagh’s Wired News story, the committee’s Democrats, including Kerry, spoke in favor of the dangerous CBDTPA bill, while Republicans were more skeptical. (I attended the hearing, and my memory is consistent with Declan’s story.)

Many people here in the copyright/innovation blogosphere are enthusiastic Democrats. It’s only natural to project your good policy ideas onto the politicians you support, and skilled politicians helpfully provide boilerplate policy language to help supporters do this.

If you’re on the pro-innovation side of the copyright wars, though, most of your natural allies on these issues are Republicans. Your arguments – against regulation, and in favor of market solutions rather than government picking winners – will resonate better on the political right than on the left. And so far, Republicans (with the exception of Orrin Hatch) have been better on these issues than Democrats. True, neither party has been good on this issue; but the Republicans have not been nearly as bad, and they seem more amenable to persuasion.

So if you’re pro-innovation, and you want to go beyond complaining to actually change things in Washington, then my advice is to take a conservative to lunch, and explain why they should support your side of the copyright battles.

As to John Kerry, by all means encourage him to change his mind and make a clear statement of principle on this issue. But don’t hold your breath waiting for that to happen.