The End of Ownership Perzanowski, Aaron; Schultz, Jason
2016, 20180316, 2016-10-28, 2016-11-04
eBook
Odprti dostop
If you buy a book at the bookstore, you own it. You can take it home, scribble in the margins, put in on the shelf, lend it to a friend, sell it at a garage sale. But is the same thing true for the ...ebooks or other digital goods you buy? Retailers and copyright holders argue that you don't own those purchases, you merely license them. That means your ebook vendor can delete the book from your device without warning or explanation -- as Amazon deleted Orwell's 1984 from the Kindles of surprised readers several years ago. These readers thought they owned their copies of 1984. Until, it turned out, they didn't. In The End of Ownership, Aaron Perzanowski and Jason Schultz explore how notions of ownership have shifted in the digital marketplace, and make an argument for the benefits of personal property.Of course, ebooks, cloud storage, streaming, and other digital goods offer users convenience and flexibility. But, Perzanowski and Schultz warn, consumers should be aware of the tradeoffs involving user constraints, permanence, and privacy. The rights of private property are clear, but few people manage to read their end user agreements. Perzanowski and Schultz argue that introducing aspects of private property and ownership into the digital marketplace would offer both legal and economic benefits. But, most important, it would affirm our sense of self-direction and autonomy. If we own our purchases, we are free to make whatever lawful use of them we please. Technology need not constrain our freedom; it can also empower us.
The shift from a market built around the sale of tangible goods to one premised on the licensing of digital content and services has done significant and lasting damage to the notion of individual ...ownership. The emergence of blockchain technology, while certainly not necessary to reverse these trends, promised an opportunity to attract investment and demonstrate consumer demand for marketplaces that recognize meaningful digital ownership. Simultaneously, it offered an avenue for alleviating worries about hypothetical widespread reproduction and unchecked distribution of copyrighted works. Instead, many of the most visible blockchain projects in recent years-the proliferation of new cryptocurrencies and the NFT craze, chief among them-have ranged from frivolous opportunities for speculation to outright fraud. Rather than sewing technological seeds that might have yielded a workable proof-of-concept for digital property interests in consumer goods, exploitative blockchain schemes have salted the earth, threatening to discredit the broader, and fundamentally more important, project of constructing a legal framework for digital ownership.
Behind the scenes of the many artists and innovators flourishing beyond the bounds of intellectual property laws Intellectual property law, or IP law, is based on certain assumptions about creative ...behavior. The case for regulation assumes that creators have a fundamental legal right to prevent copying, and without this right they will under-invest in new work. But this premise fails to fully capture the reality of creative production. It ignores the range of powerful non-economic motivations that compel creativity, and it overlooks the capacity of creative industries for self-governance and innovative social and market responses to appropriation. This book reveals the on-the-ground practices of a range of creators and innovators. In doing so, it challenges intellectual property orthodoxy by showing that incentives for creative production often exist in the absence of, or in disregard for, formal legal protections. Instead, these communities rely on evolving social norms and market responses--sensitive to their particular cultural, competitive, and technological circumstances--to ensure creative incentives. From tattoo artists to medical researchers, Nigerian filmmakers to roller derby players, the communities illustrated in this book demonstrate that creativity can thrive without legal incentives, and perhaps more strikingly, that some creative communities prefer, and thrive, in environments defined by self-regulation rather than legal rules. Beyond their value as descriptions of specific industries and communities, the accounts collected here help to ground debates over IP policy in the empirical realities of the creative process. Their parallels and divergences also highlight the value of rules that are sensitive to the unique mix of conditions and motivations of particular industries and communities, rather than the monoculture of uniform regulation of the current IP system.
The mismatch between the expanding administrative and regulatory obligations of the United States Copyright Office and its limited institutional expertise is an emerging problem for the copyright ...system. The Office's chief responsibility-registration and recordation of copyright claims-has taken a back seat in recent years to a more ambitious set of substantive rulemakings and policy recommendations. As the triennial rulemaking under the Digital Millennium Copyright Act highlights, the Office is frequently called upon to answer technological questions far beyond its plausible claims of subject matter expertise. This Article traces the Office's history, identifies its substantial but discrete areas of expertise, and reveals the ways in which the Office has overstepped any reasonable definition of its expert knowledge. This Article concludes with a set of recommendations to better align the Office's agenda with its expertise by, first, reducing the current regulatory burdens on the Office, and second, building greater technological and economic competence within the Office, better equipping it to address contemporary questions of copyright policy.
The public figure doctrine has become an anachronism. Current First Amendment protections for defamation' defendants are centered on a simplistic and antiquated conception of the communications ...environmentone that would appear quaint were it not so pernicious. This outmoded view of communications media cannot account for the dramatic democratization of the means of mass communication spurred by modem technology. The dissimilarity between the contemporary communications environment and the media landscape that informed the public figure doctrine renders current First Amendment protections insufficient and reveals them as inconsistent with the very rationale that demanded their creation.
DIGITAL EXHAUSTION Perzanowski, Aaron; Schultz, Jason
UCLA law review,
04/2011, Letnik:
58, Številka:
4
Journal Article
Recenzirano
As digital networks emerge as the dominant means of distributing copyrighted works, the first sale doctrine is increasingly marginalized. To the extent the use and alienation of copies entails their ...reproduction and adaptation to new platforms, the limitations first sale places on the exclusive right of distribution decrease in their legal and market impact. This fact of the modem copyright marketplace has led to calls for statutory clarification of digital first sale rights. Acknowledging the obstacles to legislative intervention, this Article argues that courts are equipped to limit copyright exclusivity, enabling copy owners to make traditionally lawful uses of their copies, including resale through secondary markets. We argue that first sale is not simply an isolated limitation on the distribution right. Instead, it is a component of a broader principle of copyright exhaustion that emerges from early case law preceding the U.S. Supreme Court's foundational decision in Bobbs-Merrill v. Straus. This context reveals a common law of copyright exhaustion that embraces a set of user privileges that include not only alienation but renewal, repair, adaptation, and preservation. Despite congressional recognition of exhaustion in sections 109 and 117 of the Copyright Act, this Article concludes that courts have ample room to apply and continue to develop common law rules that preserve the many benefits of the first sale doctrine in the digital marketplace. PUBLICATION ABSTRACT
The mismatch between the expanding administrative and regulatory obligations of the United States Copyright Office and its limited institutional expertise is an emerging problem for the copyright ...system. The Office’s chief responsibility—registration and recordation of copyright claims—has taken a back seat in recent years to a more ambitious set of substantive rulemakings and policy recommendations. As the triennial rulemaking under the Digital Millennium Copyright Act highlights, the Office is frequently called upon to answer technological questions far beyond its plausible claims of subject matter expertise. This Article traces the Office’s history, identifies its substantial but discrete areas of expertise, and reveals the ways in which the Office has overstepped any reasonable definition of its expert knowledge. This Article concludes with a set of recommendations to better align the Office’s agenda with its expertise by, first, reducing the current regulatory burdens on the Office, and second, building greater technological and economic competence within the Office, better equipping it to address contemporary questions of copyright policy.
ABANDONING COPYRIGHT Fagundes, Dave; Perzanowski, Aaron
William and Mary law review,
11/2020, Letnik:
62, Številka:
2
Journal Article
For nearly two hundred years, U.S. copyright law has assumed that owners may voluntarily abandon their rights in a work. But scholars have largely ignored copyright abandonment, and case law on the ...subject is fragmented and inconsistent. As a result, abandonment remains poorly theorized, owners can avail themselves of no reliable mechanism to abandon their works, and the practice remains rare. This Article seeks to bring copyright abandonment out of the shadows, showing that it is a doctrine rich in conceptual, normative, and practical significance. Unlike abandonment of real and chattel property, which imposes significant public costs in exchange for discrete private benefits, copyright abandonment is potentially costly for rights holders but broadly beneficial for society. Nonetheless, rights holders--ranging from lauded filmmakers and photographers to leading museums and everyday creators--make the counterintuitive choice to abandon valuable works. This Article analyzes two previously untapped resources to better understand copyright abandonment. First, we survey four decades of U.S. Copyright Office records, exposing both the motivations for abandonment and the infrequency of the practice. Second, we examine every state and federal copyright abandonment case, a corpus of nearly three hundred decisions. By distilling this body of law, this Article distinguishes abandonment from a set of related doctrines and reveals the major fault lines in judicial application of the abandonment standard. Finally, we highlight the potential of abandonment to further copyright's constitutional aims by suggesting a series of reforms designed to better align copyright holder incentives with the public good.
Behind the scenes of the many artists and innovators flourishing beyond the bounds of intellectual property laws
Intellectual property law, or IP law, is based on certain assumptions about creative ...behavior. The case for regulation assumes that creators have a fundamental legal right to prevent copying, and without this right they will under-invest in new work. But this premise fails to fully capture the reality of creative production. It ignores the range of powerful non-economic motivations that compel creativity, and it overlooks the capacity of creative industries for self-governance and innovative social and market responses to appropriation.
This book reveals the on-the-ground practices of a range of creators and innovators. In doing so, it challenges intellectual property orthodoxy by showing that incentives for creative production often exist in the absence of, or in disregard for, formal legal protections. Instead, these communities rely on evolving social norms and market responses-sensitive to their particular cultural, competitive, and technological circumstances-to ensure creative incentives. From tattoo artists to medical researchers, Nigerian filmmakers to roller derby players, the communities illustrated in this book demonstrate that creativity can thrive without legal incentives, and perhaps more strikingly, that some creative communities prefer, and thrive, in environments defined by self-regulation rather than legal rules. Beyond their value as descriptions of specific industries and communities, the accounts collected here help to ground debates over IP policy in the empirical realities of the creative process. Their parallels and divergences also highlight the value of rules that are sensitive to the unique mix of conditions and motivations of particular industries and communities, rather than the monoculture of uniform regulation of the current IP system.
Personal property occupies a precarious position in the digital marketplace. In the analog world, they have relied on stable, predictable property interests in their documents, media, and devices to ...guarantee them a reasonable degree of control over those objects and a reasonable degree of autonomy in their interactions with them. But in their increasingly digital environment, a cluster of interrelated developments have conspired against meaningful property interests in the digital stuff that makes up so much of their lives. As a result, rather than making their own choices about how they use and dispose of those digital objects, they often find themselves dependent on the permission and good will of IP rights holders, technology platforms, and service providers. First, as both mass media distribution and personal record keeping shift away from shipping and storing hardcopies to shuffling bits around the network, the things they've grown accustomed to owning -- physical copies -- are disappearing.
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