After finishing the book, and even though I appreciated Professor Cohen’s incredible and enviable knowledge of technologies, I confirmed my critics formulated last week. The only thing that continuously puzzled me was the lack of concreteness that I mentioned. Maybe, what I perceived as a defect of the book was its precise objective.
For a foreign lawyer, who studied and practiced in a Civil Law country, heavily influenced by nineteenth century classic legal thought; Professor Cohen’s legal structure for Intellectual Property Rights seems, at least, intentionally inefficient. For me, “[t]he understanding of rights as narrow entities with fixed limits”[1] is precisely what gives certainty, clarity and foreseeability to the legal system. If certainty is an “irrational” goal for Professor Cohen, I am unquestionably a supporter of “irrationality”. From my point of view, we can discuss where to fix the limits and when to change them, but not the existence of the brightest line possible.
Without a clear rule of copyright, wherever the society decides to fix the limits, the economic incentives to create are diluted, the creativity of derivative works might be over-deterred, and the cost of court errors may increase. Uncertainty only implies costs, no benefits. If as a society we decide to establish a new standard, or reinforce the current one, we cannot rely on a continuous extension or shrinkage of the rights or in the grey area of the practical limitations of copyright enforcement, as Merges proposes[2]. With fixed limits and a clear rule, economic creators will know how much to rely in their rights in order to recoup their investments, derivative creators will “play” freely within the boundaries of the playfield that the law provides –without worrying about prosecution-, and courts will know how to rule under the specific facts of a case.
Following the example used by the author, it may be true that “[y]ou ‘really’ understand torts or constitutional law or whatever when you can explain why a particular right ‘really’ extends to cover situation in which it has never before been applied”[3] but it is also true that you really understand a legal field when you can explain vigorously and persuasively that the right holder is trying to improperly extend the well justified limits of a right. That is also what lawyers do, and it is also a powerful skill and a “key indicator of professional and intellectual excellence”[4]. True knowledge and good lawyering may also be on the other side of the table sometimes. Even under the common law method, at least according to my understanding, the “flexible incrementalism” also has limits.
Even when I have a clear opinion on where the limits of Intellectual Property should be established, is not my decision… is our decision as a society.
[1] Julie E. Cohen, Configuring the networked self : law, code, and the play of everyday practice (New Haven: Yale University Press, 2012), 245.
[2] Robert P. Merges, Justifying Intellectual Property, Kindle Edition, 2011.
[3] Cohen, Configuring the networked self : law, code, and the play of everyday practice, 245.
[4] Ibid.
Comments