What we are witnessing is an intellectual property land grab.
The content distributors are continuing to the ever increasing duration
of copyright (regulatory capture) to increasing it's scope.
The scope is from controlling the commercial distribution of copyright
material, to controlling it's consumption. Although for the moment they
will settle for controlling all distribution. Having failed at
controlling all distribution (Napsterization) they now talk of
controlling casual copying (thanks Prof Feltham).
As we all know from our youth, "Home Taping is Killing Music", they have
never controlled casual copying, and now they don't control wider
non-commercial distribution by computer network (Napsterization).
Jessica Litman almost gets it right in her book, you can read chapter
two online here:
http://www.msen.com/~litman/digital-copyright/ch2.html
""They couldn't mean that [control of every instance of a copy of a
work], right? But they did. And, as a practical and political matter, it
turned out to be a brilliant legal argument. Copyright owners who want
to ensure that they control -- and can charge money for -- any
appearance of their works in any computer anywhere, argued that Congress
gave them that right twenty years ago, and that all they were asking for
now was some support for their efforts to enforce it."
[...]
"Copyright is now seen as a tool for copyright owners to use to extract
all the potential commercial value from works of authorship, even if
that means that uses that have long been deemed legal are now brought
within the copyright owner's control. In 1998, copyright owners
persuaded Congress to enhance their rights with a sheaf of new legal and
technological controls. Armed with those copyright improvements,
copyright lawyers began a concerted campaign to remodel cyberspace into
a digital multiplex and shopping mall for copyright-protected material.
The outcome of that effort is still uncertain. If current trends
continue unabated, however, we are likely to experience a violent
collision between our expectations of freedom of expression and the
enhanced copyright law."
Let me highlight the most relevant sentence:
"If current trends continue unabated, however, we are likely to
experience a violent collision between our expectations of freedom of
expression and the enhanced copyright law."
It is only right that the copyright owners should extract all commercial
(and non-commercial) value right ?
Wrong, Macauley knew this in 1841.
"The system of copyright has great advantages and great disadvantages;
and it is our business to ascertain what these are, and then to make an
arrangement under which the advantages may be as far as possible
secured, and the disadvantages as far as possible excluded."
http://www.baen.com/library/palaver4.htm
Mark A Lemley explains the some economic theory in detail in the article
"Property, Intellectual Property, and Free Riding".
"But the externalities in intellectual property are positive, not
negative, and property theory offers little or no justification for
internalizing positive externalities. Indeed, doing so is at odds with
the logic and functioning of the market."
http://ssrn.com/abstract=582602
And I still have to read:
Copyright as Tort
Avihay Dorfman & Assaf Jacob
The conclusion is promising...
"More dramatically, these considerations demand, on pain of glaring
inconsistency, a substantially weaker protection for copyright."
http://ssrn.com/abstract=1599440
I would take serious issue with some of the aspects in Mark Lemley
paper, but like Macauley, it recognises that copyright should be a
balance between public and private interests.
A balance in copyright interests that has been long abandoned as a
result of regulatory capture, logical fallacies, increases in scope and
enforcement (like the ability to control every copy, and control all
non-commercial distribution) and the extra-judicial enforcement by machine.
On a brighter note:
The Enterprise Act 2002,
Cartel Offense 188
"2) The arrangements must be ones which, if operating as the parties to
the agreement intend, would—
(b) limit or prevent supply by A in the United Kingdom of a product or
service,"
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