Throughout this seminar I have repeatedly found myself standing up for copyright holders and generally defending intellectual property rights. In my opinion, copyright law does a good job at incentivizing creators and I personally feel that if we were to do away with it in favor of creating a "remix" culture that our artist culture as a whole would suffer. It might come as a surprise then that I am a huge supporter of Cohen's "Right to Hack/ Right to Tinker" argument. Although holding these two views might initially appear contradictory, I feel there is a way to reconcile them.
Much like the first sale doctrine in copyright, once a product is sold, I do not think a company should have the right to tell you how to use it (with an exception for products like computer software in which the market would collapse without such a right). A law to the contrary seems both economically inefficient, in that it prevents future innovation, and personally invasive. While I respect a company's right to declare my warranty void if I tamper with a product in ways they did not intend it to be used such as unlocking an IPhone or overclocking a computer, I cannot think of a strong reason to make such tampering illegal. For example, many of my friends in college would hack their Xbox's so they could play foreign video games and watch movies burned to their hard drive using a DVD ripper. It is important to note that they actually owned these movies but did not want to bring them to college. From what I understand, they were able to do this simply by removing some protections placed on the Xbox by Microsoft. It was as if they had bought a sports car with a speed limiter installed and instead of paying the dealership to remove it, they took it home and did it in their own garage. Although one might question if these modifications were actually valuable and worth protecting, even Microsoft has realized with that user "hacks" can actually be "exciting" and rewarding when applied to the Kinect and the Windows Phone. The reason Microsoft is willing to allow these hacks is that they are actually increasing the value of the products they affect by expanding their potential uses. Furthermore, even if a hacker decided he wanted to make money on his work and patented his improvement, he would not be able to sell it without Microsoft's permission under current patent law. While it is true that Microsoft also would also not be able to use the improvement, it is this relationship of an original inventor being able to block a secondary inventor and vice versa that ensures a market forms and the improvement finds its way into the hands of consumers. Thus hacking increases invention and improvement at no loss to the original inventor assuming the hackers would not have bought other devices from the original inventor to meet the needs their hacking provided.
Applying the blocking-patent example above to the "remix" dilemma in copyright suggests that as transactions costs continue to decrease a similar market might form. For example, a given artist might remake a song and then contact the original artist(s) to obtain their permission to sell it. Likely the two parties will make a deal, in which case the original artist(s) will gets some of profit. Given low or no transaction costs and reasonable actors, the only time a market might not form is if the "remixed" work is somehow critical of the original work or is a type of work the original author finds not in his best financial interest to have released. While the doctrine of fair use can take care of the former cases, the law should just side with the original author in the later, as it would side with Microsoft in the patent example above. Since the law has to arbitrarily pick a winner, it makes sense for the tie to go to the original creator, be it patentee or artist as in most cases the original work is likely worth more than the improvement.
I have a paper about some of these product degradation questions if you are interested. Yon can download it at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=690901
Posted by: Randy Picker | February 16, 2012 at 10:37 AM