Some pleasantries to start off with… this blog has been real great fun… at least for me it was. The discussions we had in class were, as far as I am concerned, perceived as terrific. And in this final post I am glad that, not only I, but also Ryan feels like he stood up of IP rights during the quarter… cudo’s!
This being said… I want to start by saying that I did not like the book one bit. But that hardly comes as a surprise I think. And the pity of it all is that it is not only one I don’t like because of the ideas put forward, but also because of the way in which they are put forward. But then again that is me.
Now, to my post for this week. Although I think Ryan feels, just like I do, that we should protect IP holders (at least a bit), I found Ryan’s following comment rather interesting:
“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).”
Interesting, but in my opinion (and please, don’t be offended), not very precise. At least, that is what I think… and I may be wrong. When reading this provision (http://www.law.cornell.edu/uscode/text/17/109), I find a moment of fond remembrance to theories we have in the EU. Still, for me this provision means a different thing than it does for Ryan I guess, at least when comparing it to his quote.
In my opinion we should restrict the application of this provision to purely commercial matters. Limit, in other words, the altering of copyrighted work to situations of “fair use”. Put it differently, this provision should only be intended to stop the exclusivity held by an IP holder (in this case a copyright holder) to spill over to secondary commercial markets. This provision, just like the theory of exhaustion in the EU, exists for the reason to make sure someone does not invoke his/her IP rights to prevent parallel import or re-sales that might undermine minimum resale prices and the like.
For example… I am a cosmetics company from France. By definition my product is of so-so quality for a high price ( J ). I want to penetrate the Romanian market. You know how that’s like, it’s a new member state of the EU, and I want a presence there. What I do is, is that I consider the fact that people who live in Sofia do not have the same purchasing power as Parisians (just like New Yorkers and other people I guess J). And then, you get this smartass distributor who buys cheaply in Romania and sells cheaply in Paris. I cannot, in the EU, invoke my IP rights to stop this sale. And that is all this provision in the copyright act should actually mean.
In other words, it is in fact splitting the intellectual property and the physical property, which are often packaged goods. It is saying that one can dispose of the physical property of an IP-protected thing but not dispose of the IP-protection as such. And in my opinion, that is just the way it has to stay.
And then Ryan goes on and basically extrapolates the theories to more highly sophisticated technological products and instances… and then of course… given the reality in which we live today… a hard-liner theory like the one I described above is a bit backward. I remember being nerdly obsessed with playing Flight Simulator. What I did back then, was to download new airplanes into my game. Don’t ask me how, I don’t remember at all… And if you think of it, given the abovementioned theories this is a fringe case. Well at least I did not sell my improved FS, right? But what if I did… The question I am really asking, and so I oppose Ryan, is to know if I should stay a hardliner on this? Yes I will…
When I read Cohen at page 247… well I am shocked actually. Because in my opinion her argument makes no sense at all for different reasons which I will try to highlight here:
- First of all I think we should always try to distinguish between physical property and IP on a copyrighted work. I can buy Prof. Picker’s reader for antitrust and perhaps resell it if I think it is of lesser quality (did I really? J). That is disposing of the property sold to my by the Professor. No problem, right? Of course not. But let us not forget that the very way in which he presents the readings for his class is his own choice. He chooses how to sell them to us, and rightfully protects that way of presenting. Are we to alter it? In fact, any copyrighted sale is in my opinion a package sale of the physical property and the IP protected property. IP should be taken as a given and not be changed. That has been the backbone of IP protection for decades. As a matter of principle I think we should not change that.
- A second set of, more economically oriented, critiques that I have look at the feasibility of it all. Can you list what is allowed to be exclusively protected in advance? Aren’t you excluding away elements that might be of economic interest? Are you making the right choices? Why fanwork and not other works? Are we in a position to judge? All questions that in my opinion make enumerations utterly burdensome and inefficient. Secondly, working on an ex post basis gets you in endless fait-accompli discussions that are not very helpful either. Thirdly, if we would even allow remixing for example, to be commercialized. Let us assume we throw all the above overboard and follow suit with what Cohen is respectfully proposing, how do we allocate commercial profits. Or are we just going to neglect that if I pimp Prof. Picker’s reader with fancy highlighting and witty comments, and I resell them for double the price I get all of the profits? And if you don’t accept that, and see that some of it must go to the Professor… that of course is the only correct thing to do, how will you account for that? Just think the transaction costs this would implicate…
- And let me just add what I think of the idea of having courts check if the rights of IP holders have been safeguarded on an ex post basis… Well do I really need to say it?
Our current system is not good at all, it is not equipped for our Tech Era… but again I do not see the satisfying alternative either. I am sorry… but I don’t.
Comments