I wrote the last post when I was tired and stressed, in part because I want to keep up the blog regularly. I imagine there will be more tired and stressed posts in the fall when I will be a 1L...
The post may read in such a way as to suggest that I advocate the complete destruction of all legal precepts for intellectual property, thinking that all ideas should be inherently free and unownable. In a pinch I think that paradigm is preferable to the hyper-greedy legal paradigm being touted by the RIAA, MPAA, SCO, et. al., but my overall point is that there's a sane way to draw intellectual property legalities that allows for idea originators to profit from the commercialization of their ideas while not completely undermining society's inherent dependency on a freer exchange of ideas in order to grow, develop, and remain cohesive.
Every new advance in technology seems to send shivers up the spine of any business who depends on the commercialization of ideas. And as such they routinely push the government and the courts to change intellectual property laws to specifically protect what they believe their interests to be. These efforts need to be resisted because
a) frequently they are incorrect about what their economic interests actually are (for instance, the MPAA failed famously in its quest to destroy the home video and has since profited handsomely by their failure) and
b) it's unnecessary. Intellectual property laws based on strong and socially generous principles DO scale in such a way that both society and idea "owners" benefit. Overly-manipulated laws do not because they lose sight of the principles the Founding Fathers incorporated into the Constitution, a tradition that recognizes that openness in idea exchange best achieves a balance between social and commercial interests.
McBride and Oppenheim et. al. seek to quash that openness, to undermine that balance, by supplanting that legal tradition with a new paradigm which treats intellectual property as any other property. This would be a mistake, and as I wrote in the previous post, if McBride and Oppenheim et. al. succeeded in gaining what they (think they) want, their commercial interests will be harmed along with everyone elses.
Comments (1)
Nice Blog,
After reading your argument, which appears to suggest that it is against the pecuniary interest of the recording industry to advocate laws which uphold their stranglehold on IP, I think you're selecting a flawed and incorrect argument. Even in the example you site (the MPAA trying to block VCRs and home recording) it isn't logical to assume that if they had won their legal claims their pecuniary interests would have been hurt - what evidence is there to say that they wouldn't have been better off the recording industry didn't have complete control over recording televised content? By citing this example I think you only show that the leading corporations in the recording industry had the resources and flexibility to leverage the changes VCR's and recording technology and not go out of business. I think you’re better off making the argument that it is better for (a) innovation, and (b) the national economy as a whole, to have a freer distribution of IP and innovation, and not make the much more tough argument that it is in the financial interests of media companies to have less control over licensing, IP, and content.
Also, business has changed substantially in the last few decades since the advent of the VCR. Presently, corporate consolidation and control over the streams of commerce seems more tied to business profit and stability than it was just 20 years ago. [Insert huge, 1000 page thesis here to prove point] Therefore, in the new corporate paradigm, maintaining tight controls on property and distribution of commodities (or entertainment media) is even more tied to success for the world's largest corporations.
Anyway, just some thoughts...
Posted by Dr. Random | June 16, 2003 10:40 AM
Posted on June 16, 2003 10:40