This is a coincidence. I was just listening to their interview on Hearsay Culture on my drive to the office today morning. The podcast is at:
http://cyberlaw.stanford.edu/podcasts/20100804_Levine_119_Penalver.mp3 For those interested in IP and related issues, I'd heartily recommend the excellent podcasts at: http://www.hearsayculture.com/ These interviews are around 30 minutes each. Perfect for my daily commute. Venky On Wed, Dec 1, 2010 at 9:11 AM, Udhay Shankar N <[email protected]> wrote: > Something of interest to the lawyers, and those who play them on the > internet. > > This touches upon an interest of mine. I have long felt that the law > relating to "intellectual property" is deeply broken, and needs > significant rebuilding. > > One of the authors, Sonia Katyal, is a friend, and is in fact on this > list, though in deepest lurkspace. Let's see if I can draw her out to > post on this... > > Thoughts from others? > > Udhay > > > http://www.concurringopinions.com/archives/2010/09/book-review-penalver-katyals-property-outlaws.html > > Book Review: Peñalver & Katyal’s Property Outlaws > posted by Gordon Hull > > Eduardo M. Peñalver & Sonia K. Katyal, Property Outlaws: How Squatters, > Pirates, and Protesters Improve the Law of Ownership (Yale University > Press 2010). > > As they open one of the late chapters in their Property Outlaws, Eduardo > Moisés Peñalver and Sonia K. Katyal speak of a “conflicting divergence” > in intellectual property law: “is a pirate an outlaw or a freedom > fighter? The law asks, unable to offer a comprehensive answer” (212). > Property Outlaws is an ambitious and rigorously argued explanation of > why this ambiguity is a good thing. The book also responds to a > pressing problem. Intellectual property law, as it is currently > developing under intense pressure by property owners, is moving rapidly > toward the “outlaw” answer, and in this development, Peñalver and Katyal > see cause for concern. It is not, as they emphasize, that all acts of > trespass are good things, or that most of the college students on Bit > Torrent have any ideal in mind more elevated than seeing movies for > free. It’s that, when one takes a step back and looks at the > development of property law more generally, “property outlaws” have > served a very important social function in pushing property law, which > tends to ossify, in the direction of needed reforms that reflect > shifting social norms, pressing issues of social justice, or other > normatively important concerns. To illustrate this larger point, they > embed a discussion of the development of intellectual property law in an > innovative account of the social dynamics of property law more generally. > > Property Outlaws thus makes the descriptive and normative case for what > one might call a dialectical understanding of the development of > property. Specifically, “the apparent stability and order provided by > property law owes much to the destabilizing role of the lawbreaker in > occasionally forcing needed reform and in generating a series of > important legal shifts along the way” (11). The descriptive case is met > by showing a series of examples where deliberate disobedience of > property regimes has been a significant catalyst in generating legal > reform. Peñalver and Katyal identify two kinds of property outlaw. The > first, the “expressive” outlaw, acts to protest the current legal > system, but not to obtain property for herself. The protestors of the > Greensboro lunch counter sit-ins, whose trespassing was a major catalyst > to the civil rights movement, were paradigmatic expressive outlaws. The > second, “acquisitive” outlaw violates others’ property rights, and > expects to gain personally. The case for acquisitive outlaws is harder > to make because of their “profit motive,” but urban squatters in > developing countries seem both to have available a necessity defense and > to point to a widespread social justice problem. > > The situation with intellectual property law is somewhat different, > because IP law is considerably less specific than real property law: not > only is the domain of the entitlement more ambiguous (which parts of the > work are copyrighted?), but so is its scope (is that fair use?). > Peñalver and Katyal thus propose that intellectual property violators > can sometimes be seen as outlaws, but sometimes as “altlaws,” whose > “conduct at least arguably falls within the boundaries of legality and, > at the same time, who do[] not reject out of hand the concept of > intellectual property” (77). Citing Robert Cover, Peñalver and Katyal > propose that the altlaw is engaged in an attempt to “convert legal > interpretation into legal meaning,” i.e., to get the law to recognize > her interpretation as correct. Altlaws can also be expressive or > acquisitive. An example of the former is the Swarthmore students who > defied cease and desist letters to publicize embarrassing internal > documents that cast serious doubt on the integrity of Diebold’s voting > machines. An example of the latter is the revolt in several developing > countries against the high prices for AIDS anti-retroviral drugs. > Despite apocalyptic warnings from the pharmaceutical industry, those > countries insist they respect patent rights generally, and that they are > using existing TRIPS provisions to obtain lifesaving medicines in the > face of a public health catastrophe. > > Peñalver and Katyal are not just interested in the fact of property > outlaws. They are also interested in showing that “certain categories > of property outlaws are less culpable … than ordinary criminals” (126). > From a utilitarian perspective, not all outlaw behavior should be > deterred, because property outlaws can generate socially useful > information (that many individuals find a property regime unjust) and > useful redistribution (as, for example, in cases of adverse possession). > Deontologically, property outlaws can seem less culpable than other > kinds of criminals both because their behavior does not directly injure > other people, and because breaking unjust laws is at least less > blameworthy than breaking other laws, if not justified outright. These > arguments apply most easily to expressive outlaws, since they do not > intend to gain personally from their actions. But even in the case of > acquisitive outlaws, there are good reasons to extend necessity defenses > and to excuse or limit culpability for “self-help beyond the extreme > case of, say, immanent starvation” (136). > > None of this is to say that outlaw behavior should be legalized: not > only is maintaining the property system itself important, but expressive > outlaw behavior would lose its expressive value if it were legalized > (139). Rather, the point is to notice that legislative responses to > outlaw behavior tend to try to stamp it out by ratcheting up penalties. > However, against a normative background urging reduced culpability, > that approach is at least sometimes exactly backwards: greater social > benefit would be obtained by “ratify[ing] widespread property > disobedience through targeted legal accommodation” (145). To be sure, > such accommodation is not always socially optimal – in the case of a > highly unjust property distribution, changes in the tax code are > generally more efficient than legal rules – but that does not mean that > legal accommodation is worse than the status quo. > > Peñalver and Katyal devote the last section of the book to responses to > intellectual property outlaws. Here, one might think, the case for > targeted accommodation might be strongest: intellectual property is > legally underspecified compared to real property; the IP system has > always included specific provisions (limited durations, fair use, etc.) > for the public good; and property altlaws can in any case colorably > claim to be upholding the law, not violating it, and so fears of a > general decline in respect for the law seem most distant. > Unfortunately, the tendency in IP law is the opposite: to so severely > penalize behavior found to be illegal that no rational agent could risk > such a result. Property owners correctly claim that technology has made > infringement easier, but Peñalver and Katyal remind us that it has also > made enforcement easier by allowing continual surveillance of infringing > actions and by enabling various digital rights management schemes that > make copying against the owner’s wishes physically difficult. These > combine with legal developments, such as a general prohibition on > technologies that break copy protection schemes (§1201 of the DMCA) and > a decline in the availability of fair use defenses. Meanwhile, > intellectual property owners frequently overclaim both the scope and > domain of their rights and launch public relations campaigns that > declare all those who act against their wishes “pirates.” These factors > add up. For example, even traditional fair use defenses become > difficult to muster because of the very high cost not just of losing, > but of litigating. Peñalver and Katyal thus propose to reduce the > stakes for those claiming fair use by reducing penalties for copyright > violation, and by penalizing property owners for overclaims, as for > example by resuscitating such doctrines as copyright misuse.. > > Property Outlaws thus both makes a substantial intervention in property > theory, and proposes a series of practical interventions to better > calibrate the legal regime to appropriate the benefits of property > outlaw behavior. In the remainder of this review, I’d like to remark > briefly on three implications of their work. First, in mounting a > defense of the property outlaw, Peñalver and Katyal will no doubt be > accused of anarchism and encouraging disrespect for the law. This > accusation will be completely unjust. They are acutely aware of the > treacherous terrain they are negotiating; they note that property law is > already regarded as more violable than other forms of law (30-2); and > they are very careful to point out that accommodations for outlaws > should be both targeted and limited. Indeed, they specifically bracket > from consideration the arguments of those who would do away with > intellectual property entirely (89). They also note that outlaw > behavior, in its own way, affirms the rule of law: protestors accept and > even plan on being arrested (141-2). More broadly, Peñalver and Katyal > argue that property regimes tend to be too stable, lagging behind social > norms, and that the status quo, with its overclaimed intellectual > property rights, itself ends up undermining respect for the law: > “excessive assertions of ownership can end up being self-defeating > insofar as they undermine the public’s identification with property > norms and increase the public’s tendency to identify with opponents of > those norms” (181). In other words, respect for IP law is declining > now; targeted accommodations of outlaws are better than allowing that > decline to continue. > > Second, many of the stories that Peñalver and Katyal tell will be > familiar, particularly to those who work in property law and theory – > the Greensboro lunch counter sit-ins, developing nations’ pushback > against the high price of anti-retroviral drugs, the efforts to > publicize flaws in Diebold’s voting machines, the legal case against > 2600.com for linking to code that bypassed the DVD copy control system, > and others of their examples – are all well-known. This, however, is > the point. Peñalver and Katyal tell these stories well, and by telling > them all in the same book, they present a compelling picture that > something is not right in the law’s approach to IP outlaws, and > especially not in its approach to IP altlaws. Most people intuitively > think the Greensboro protesters got something right. If their behavior > is analogous to that of IP outlaws or altlaws, then our intuitions about > IP out/altlaws may need to be reset. In other words, the book performs > useful rhetorical labor in that it pushes back against the universal > application of the “pirate” label. This pushback also performs useful > argumentative work; if one is to treat like cases alike, then it matters > a lot whether a fair use defendant is more like a lunch counter > protestor or a high seas pirate. Sometimes the defendant will be a > pirate. But not always. > > Finally, Peñalver and Katyal devote a few pages near the end of their > text to the proposed Google Books settlement, which “is, in many ways, > the worst of all possible worlds” (205). By abandoning fair use claims > and instead licensing orphan works, “Google ratifies the content owners’ > most expansive proprietary claims.” (205). Google then gets a monopoly > license, which is extended by the magic of class action to all orphan > works whose owners don’t opt-out in time. Of course, since the works in > question are orphan, it is highly unlikely that very many owners will > show up to opt-out. Google thus ends up with a de facto monopoly > license, a state of affairs that Peñalver and Katyal argue derives > directly from “the absence of a doctrine like abandonment in copyright > to provide a clear and safe harbor to downstream appropriators of unused > and apparently unwanted intellectual property” (206). Whatever the > ultimate merits of their argument, this is a good example of the sorts > of policy-thinking enabled by Property Outlaws. On the face of it, the > Google settlement appears to enable public access to works while > preserving the rule of law. However, a statutory protection for the > property outlaw who can claim that the work(s) in question were > abandoned and ought to revert to the public domain might do a better job > of serving the values that the rule of law purports to uphold. > > _____________________________________________________________________ > > Gordon Hull is a professor of philosophy at the University of North > Carolina Charlotte. > > September 12, 2010 at 9:37 pm > -- > ((Udhay Shankar N)) ((udhay @ pobox.com)) ((www.digeratus.com)) > >
