Very Little New Perspective

Perhaps I had too large of expectations, but I must say I was rather disappointed when I finished the book.  While his arguments were well reasoned for the most part, I felt that all of his arguments were ones I had heard before.  Furthermore, I'm pretty sure I have been hearing these arguments since the 90's, when the real discussions of IP rights and technology really began.  While this may be valuable for people who know little about these debate, I expected someone on the forefront of the field to give me more than IP rights are moral rights, and new technology changes nothing.   

Especially on that last point, it's hard not to view Mr. Merges as having his head in the sand.  Because even if the internet is really no different from the radio or the telegraph (which is already extremely silly), it does not follow that technology policy should not be adapting to deal with this new medium.  Because the internet is making IP rights more difficult to enforce whether he likes it or not, and collaboration and digitization of media is making it more difficult to identify who and what deserves rights in the first place.  Merges, although he discussed these problems superficially, did not really state how he thinks the industry should deal with it, except to say that original work should win.  Not a novel statement. 

I think his discussion on what constitutes originality was the most frustrating.  When he discussed sample artists, he seemed to paint the work that they do as somehow less original than other musicians, and therefore less deserving of protection.  But it isn't really that this work is less original, it's just that the kind of originality that goes into sampling and remixes doesn't work into the structure that he is trying to reinforce.  Furthermore, his statements that sample artists can just go to the public domain to get their samples and they rarely need a particular song to make it work is like telling a painter she can only use certain colors.  Sure, she can make something, but it doesn't mean there is no impact on her creativity or the quality of her work.  

His solution to pretty much all of the problems created by new technology is to rely on creators not actually using their right to enforce because it is too expensive.  This is not a satisfying solution, nor is it a new one.  Artists and other creators should be able to have a set of rules that apply to the time they live in and the technology they use, not the shifting whims of creative professionals.  As we discussed in class, this amorphous enforcement does have a chilling effect on artists that fear their work will be taken down or they will be sued if they include even a snippet of a copyrighted work.  Those people deserve real rules and real standards to work under.

I actually agree with Mr. Merges that IP rights need to be protected, both from a deontological and utilitarian perspective.  However, unlike Menges, I think the rules we establish for this protection need to adjust as our society and culture adjust.  This could mean shortening the amount of time it takes for a work to enter the public domain, adjusting the fair use doctrine, or even making copyrights easier to enforce (though I would be against the last option without first dealing with the first two).  It does not mean that we just continue with things the way they were before and let private enforcement fill in where the law is lacking.  

 

Comments

[Meredith Filak Rose]

I agree wholeheartedly with your point about Merges omitting sampling artists because they don't fit into his paradigm - he seems so eager to grasp onto a unified philosophical framework that he tosses all contrary evidence out the window.

Regarding your point about secondary creators needing more firm guidelines to work under - do you think procedural obligations on the rights-holder (such as a 90 day statute of limitations for bringing suit) would be more or less useful than a clearer legal definition of "derivative works" protected by the original copyright? I personally think the onus should be on copyright holders to police this sort of activity if they actually find if objectionable, but that's my bias talking.