Sunday, August 03, 2008

pessimism in copyright law

bill patry, long time copyright law scholar and blogger, has decided to end his personal blog. his many devoted readers will miss him, but his reasons are fair and hard to argue with. [even had bill not given a reason, i wouldn't have blamed him, but i'm not exactly a role model for blogging dedication.] i sympathize with his pessimism over the state of copyright law, in particular. i went to law school to do technology law and policy, and certainly the foremost area i had in mind to work on was copyright law and its extensions, such as the DMCA. but over the first couple years of law school, including writing a paper about the errors of Grokster and taking a summer internship at the EFF, i started to turn away from it. in part that was because i saw a reasonable wealth of copyright law scholars and activists and a shortage of scholars and activists in the telecommunications side of technology law and policy, and i wanted to move into a less crowded field. but in larger part, the progress and momentum of copyright law and policy discouraged and disappointed me too much.

some are not so pessimistic, such as tim lee. he suggests his youth, but i don't buy that, in part because i think i am a year or more younger than him.
i think it's more likely the second reason, that tim isn't a lawyer. i don't like the sound of that because i don't feel that it gives tim enough credit; i think he knows the legal background as well as i do. but the difference could be that, as he says, he isn't afraid of the gap between the letter of the law and its enforcement. i am very afraid of that gap, because it imposes a chilling effect on people, at least at the margins. also, i don't think the gap is as big as tim portrays it. i think that the RIAA and MPAA and others aren't letting their efforts wane at all; i perceive it instead as a gradual picking off of victims at the edges. they are starting with the large format uploaders and the universities

regardless of any possible reasons for our difference of opinion in this matter,
i'm with bill - in the negative camp. maybe it's going too far to say that the war has been lost, but that's how i have felt before. lessig tried to overturn the CTEA, and it didn't work; challenges to the DMCA through judicial and legislative branches have similarly failed to achieve significant benefits. for every Lexmark there's at least one Blizzard v. BnetD. we can come back, i think; i just don't see the light yet.

[update: it's like the judges were reading! today's 2nd Circuit decision on Cablevision's DVR is a rare and significant victory for balance in copyright law.]


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