KOL411 | IP Law Tutorial, Part 2: Copyright Law

okay hey this is Stephan kinsella this will be kinsella on Liberty episode 411

and I think in 409 I did part one of this what probably will end up being a

series of talks on intellectual property law and I’ve almost never given this

talk except to other attorneys in the past I’ve always talked to Libertarians and others

about policy um you know whether we should have copyright patent law

but I figured it would be helpful to people who actually have a might have a practical desire to understand these

laws or who want to understand it better to understand the policy arguments better so I’ve already covered patent

law in the first one I do realize that in the first talk there was a chat

window open which let me see if I can open that now which I missed last time

I’m going to say hello in the chat message to make sure it’s working can everybody see my what I just typed okay because I didn’t

see that last time but I got the um Zoom had saved it okay good zoom it

saved it so before we get started let me just briefly mention there was two questions I didn’t I didn’t see uh but I

saw it in the log um okay and it was uh Matt Brandon

Brandenburg asked am I am I saying

that boat hole designs are a separate category from patent copyright and trade secret well it’s part of the copyright

it was an amendment to the copyright law uh I think with the dmca the Digital Millennium Copyright Act of the 90s but

it’s it’s sort of different than copyrights it’s it’s sort of the way the the front of a boat or the hole is

shaped or designed so it’s similar to copyright but it’s got its own its own rules which I don’t know much about but

anyway um and then Scott asked uh should a goal in this type of law be to maximize the

incentive to be creative now in this lecture I’m only talking about how the law Works uh

really I did talk a little bit about the history and in my policy talks I talk about the

bad Arguments for IP one of which is the incentive to create um yeah that is one of the that is one

of the arguments given for IP law especially for patent and copyright um for trademark it’s more about

um um helping you sell your goods on the

market and identify them as coming from you something like that but for patent and trademark sorry patent and copyright

they both come from um in the US anyway uh uh Congress is authorized to make

copyright patent because of the the copyright clause and the constitution of 1789 which says to promote the progress

of Science and the useful Arts Congress can take make patent and copyright law so the whole purpose was to promote the

progress yeah so to give incentive to creators by giving them some kind of property right and what they creatively

produce so as to incentive so they can make more money off of it because they can sell their stuff at Monopoly price

if they can stop competition so yeah one of the arguments is that um this is sort

of a temporary or or a special uh derogation from the common law rules or

private property it’s a temporary um Monopoly privileged Grant

um designed as a policy tool to try to encourage or stimulate Innovation like inventions for patents and artistic

works for copyright so that is the argument I think the argument is bad which I’m not going to get into here

because that’s more of the policy issue

uh but you can consult my other writings on this for example on my website

um uh c4sif.org go to the against IP page and you’ll see a post about the

empirical case against intellectual property and Greg has joined us now

um okay so those are the two questions I had from last week but let’s let’s go to turn a copy right now so I talked about

copy patent last time and then copyright and now and last time I gave an overview

of the different types of Ip law um I forgot to mention I I am a

electrical engineer background that’s how I got into patent law and I’ve been practicing patent law and and other

types of Ip law like copyright and lawsuit licensing and some litigation support like that um since uh 19

um 93 basically so 20 30 years um and again I talked last time about

types of Ip there’s copyright and patent and we’ll talk about copyright today those are the two big ones those are the

two worst the most damaging ones in my view there’s also trademark and trade secret and I may do another

lecture where I talk about all the other types trademark trade secret and then there’s others like boat hole designs

and semiconductor mask works and database rights and moral rights and Geographic designations which is sort of

a type of trademark and special protections and things like that

um and again I’m on page three of my slides and there’s other um other resources there

now let’s talk about the history of modern copyright law so modern copyright

law has been basically in the world um I’d say in two phases since the

statute of Anne of 1710 in England and then in the U.S and then in Western

countries since around the beginning of the U.S around 1790 after the first

Copyright Act in 1790 in the U.S and then other acts like that and Europe followed soon after that

um and that was in the U.S based upon the 1789 Constitution which authorized Congress to to enact such a law but if

we go back a little bit further in history before modern copyright um so you basically before the printing

press you you had the only way that copies of things could be made was by hand so you had scribes who would like

copy things by hand and because this was laborious and it was usually done by you know religious monks or Scholars of they

could be there what they could copy could be controlled by the church or the state or the church in the state working

together um but when the printing press in the 1400s and 1500s started becoming more

popular it became an obvious threat to these to the state and the Church of

their ability to control what people could see like you know Protestants might not Protestant rulers might not

want the Catholic Bible printed or vice versa um or they might not want heresy printed

you know or things that people shouldn’t be reading so what they did was um uh remember printing was still

difficult you couldn’t print at home you still had to go to a printing company so the the government in England gave the

stationers company which was then a kind of an emerging printing firm um a royal Charter in 1557.

and that lasted for I don’t know a little over 100 Years or or so and

during that time of course the the state could control what the what the stationers company would approve to be

printed so they still had to control our Monopoly over over ideas

um so it served as a form of censorship now when it’s Charter expired in in the late

I think late 1600s um there was a debate about renewing the charter and keeping this going but but

by that time um there was agitation against renewing it and instead replacing it with a

different system which would give the copyright in Works to authors and so that’s what they did with the statute of

Anne in 1710 so it gave the copyright to authors and they sold it by saying oh this is going to help the authors but of

course all it meant was the authors had to go to the printer the publishing companies

still to get their Works printed and that was still controlled by the start the church in the state especially the

state um and they had to assign their copyrights and so you know it looked

like it gave a right to to authors now what does that look like that looks like today you know many book publishers

um uh have to assign their copyright to a publisher to get it published uh just

like for patents uh you know most inventions come from employees engineers and corporations who buy the virtue of

working for them as an employee or signing an agreement um uh have to assign their inventions their

patent interventions patentable inventions to their corporations so you know you still end up having the

corporations control copyrighted works and um

and uh patentable inventions that is starting to break down now in the in the

at least for for copyright because of self-publishing in the internet and digital technology and you know print on

demand and things like that and online publishing printing digital copies writing a Blog sub stack things like

that um as we’ll maybe get to them a bit but in any case that’s the history so you can see that the history

um of um of copyright you know it emerged from the desire of of the powerful

institutions the rulers the state basically to control thought and to censor speech or the censor the Press

basically um now and you could think about this we still have in addition to this this

publishing system where up until recent times most authors were subject to the

um the whims of the publisher so for example I published several novels and I might make a royalty from the publisher

for each each copy sold but they own the copyright usually and so the book goes out of print and

the publisher doesn’t want to renew it then the book just disappears and I can’t do anything about it because even

I as the author or my heirs don’t own the copyright so they would be infringing copyright to republish it

right um and um um you know it’s led to the orphan Works

problem where you know Works disappear because uh you don’t know who the author was and no one is everyone’s afraid to

republish this this out of print book um Etc so so it led to that but also

like it’s led to this whole thing of academic publishing where you know most of the uh scholarly type work is done by

academics and Scholars in the past who are employed by universities and they

tend to publish their Works in scholarly journals or in books with academic presses and

the reason they do that is to and they don’t usually get paid for this right they’re doing it just to advance their careers and to get their the ideas out

there and they publish in these journals and these Publications even though they’re priced at a very high price

because that’s how they get tenure in promotions uh that’s how their universities grade them basically so they they give their

work for free to these academic presses which then print the books and sell them to libraries at colleges and

Universities at exorbitant prices which the university libraries can afford so it’s like an Unholy alliance between you

know the taxpayers or or forced to subsidize the universities quite often

that money pays teachers salaries and it also funds Library budgets which are

used to buy books at inflated prices from academic presses but what this means is these books just gather dust in

these libraries which the average person or the person from a poor country you know can’t afford to to get to and they

can’t and even nowadays they can’t afford to buy the book because it’s too expensive um so it’s led to basically uh you know

a stifling of the spread of information so you have this professor who he might get a promotion or academic um uh tenure

or something from this but his ideas don’t really get spread except to other academics um

and again this may be breaking down as more and more open source journals come online and things like this

um so that’s that’s where we are right now um and if you want to read into this more I have a couple of links here which

is a great article by Carl Fogle about this and uh some others I’ve linked here too Eric Johnson

um as Eric Johnson wrote wrote um in a law review article about 10 years ago

the monopolies now understood as copyrights and patents were originally created by Royal Decree

bestowed is a form of favoritism and control as the power

of the monarchy dwindled these chartered monopolies were reformed and essentially by default they wound up in the hands of

authors and inventors but again as I said they they welled up in the hands of authors and inventors nominally but in

practice they ended up being reassigned back to the Publishers or to the employers um by the way

I want to make sure uh someone just say something or type in the chat make sure everyone’s hearing me correctly correct

yep okay and feel free to interrupt you by the way when I’m speaking I will do a

q a at the end but if you if you see something you really want me to address right now feel free to interrupt me um as long as it’s not too much and I will

try to get to the questions in the chat I see there are some here um Matt writes

Matt Brandenburg I think the arbitrariness of the subdivisions of Ip law show that it’s just a made-up

concept not based upon any real world type of property that can be owned that is true and the arbitrariness Not only

of the different types but of each type so the boundaries of you know like for

example the term of patent is about 17 years totally arbitrary the term of copyright is now it’s life of the author

plus 70 years it used to be the life of the octopus 50 years and before that it was um

in the beginning of the country which Tom Bell calls the founders copyright which we may get back to it was about 14

years extendable once if you applied for it by another 14 years so 28 years Max

but basically in the founding at the beginning of the country patents lasted about 17 years and I think they lasted

17 years I actually can’t remember but something like that and copyrights were 14 usually and the reason that the

14-year copyright term came about was the theory is I’m not sure if this had been proved but this is the theory

um because it’s an arbitrary number how do you pick the right you know if Congress is going to make up a brand new copyright law how long did they make it

last for they didn’t want to make it last forever because that would obviously be harmful just like a 100 minimum wage is obviously harmful so

they can get away with a 14 one because it doesn’t hurt too much it’s not too visible it’s the same thing with copyright you know so they came up with

a 14-year term uh and the theory goes that um back in those days it was common to have

apprenticeships like indentured servitude and apprentices someone who would serve under I don’t know what they

call the the the master or the employer um and learn the trade but they would serve

them while they were learning they were kind of learning on the job and the terms of apprenticeships were seven years and usually there would be you

would have two terms or you’d have two Apprentice maybe one apprentice and then another one follow him so the idea was

that someone who is teaching his craft to his his Apprentice should be protected from competition from them

when they leave his apprenticeship and they go they start

competing with them he should be protected for the length of two apprenticeship terms you know so yeah it’s completely arbitrary

um so it’s funny when you see these critics of patent and copyright who pretend to be radical uh reformers and

fire Brands uh who none of them favor patent and copyright abolition but they

want to put they want to pose as like or some Maverick or there’s some radical reformer like uh say Alex tabarak who’s

this uh allegedly free market guy from from mercatus or George Mason and you

know he draws this thing I think I’ve got a a a a link to I’ve got a blog post

on this on c4sif.org called something like patent policy on the back of a napkin and he draws this sort of

gaussian curve showing the benefits of of patents given their term and if you

start at zero like you don’t have patents at all there’s no benefit but then the benefit goes up and up and up

to a peak and then it goes down if you have too long of a term and he just draws that gaussian curve and says oh

we’re on the other side of the of the of the optimum so patent patent terms are too long or copyright terms I can’t

remember which one and so we need to shorten it but how does he know what the optimum is it’s just totally arbitrary and there’s no reason given whatsoever

uh it’s like he wants to say we should lower the term but he has no basis for that because if you think there’s a peak

maybe we’re on the left side of the peak maybe we should increase patent terms in copyright terms uh now if you believe

the optimal term is zero like me then it’s easy to see that the lower the term the better we are because it’s like

taxes the if you believe in no taxes at all then if we have 40 then 30 is even better and then 20 is better than that

all the way down to zero but if you believe in this sort of a peak somewhere or an Optimum like like most you know

State many status do like you know or Arthur Laffer had the laugher curve saying tax revenues are too high we’re

killing the cow we’re killing the goose that lays the golden egg we need to lower taxes and we’ll get even more Revenue out of the people that was under

Reagan you know this lapper curve idea so this is what some of these these reformers say is we have a laugh or

curve type thing for intellectual property but we’re on the far side of it but they don’t know so it’s all

arbitrary all right so done with that little question let me return to where I was now I’m gonna slide seven

okay I’m going to talk about U.S law mostly and most other countries laws are similar due to treaties which require

all the countries who are members which are most countries in the world to have similar minimum standards and the US was

either the first or one of the first and it’s been emulated by a lot of countries anyway so the US is a good model so as I

mentioned earlier so uh in the patent law lecture the Constitution which was ratified in 1789 the reason I keep

mentioning that is because the first patent Act was was made the very next year in 1790 but also because in 1791

under the next Congress because every two years there’s another Congress in the U.S under the next Congress the Bill

of Rights was was ratified the first 10 amendments to the Constitution and the First Amendment

restricts says Congress can’t enact a law that abridges freedom of the press right

uh which is clearly in conflict with the Copyright Act of 1790 which was which

was enacted a year before based upon the 1789 copyright clause

and the Supreme Court has recognized that as common sense shows there’s an obvious tension between or conflict

between a law that prevents you from publishing A Book Like copyright law says you cannot print this book

because it copy it’s it’s it would be a copy of someone else’s book or a derivative work

so copyright law literally prevents people from publishing books which you would think is an abridgement of freedom of the press

which the the First Amendment prohibits so there’s a conflict between these laws now under under principles of statutory

interpretation and constitutional interpretation um these are called canons c-a-n-o-n-s

of of interpretation um when you have two laws in Conflict the

later one is the one that prevails because that’s how laws get overturned is you pass another law later that

overturns the earlier law if the later law didn’t have priority then you could never overturn a law in America the

Constitution had an amendment prohibiting alcohol in 1923 or something and then 1933 another amendment was

enacted overturning the earlier one so the when you have a later amendment to a

constitution that that is in conflict with an earlier one then the later one is the one that has to win

so you could make an argument that the entire copyright law is unconstitutional because it’s outlawed by the First

Amendment but unfortunately the Supreme Court doesn’t do that they say well we have to balance them because they were

enacted so close in time we can’t assume that Congress meant to overturn copyright law blah blah blah but in my

view an originalist understanding of the Constitution and and a liberty loving and a liberty leaning and Liberty

presumptive Supreme Court ought to say listen unfortunately um copyright can’t survive in the face

of the First Amendment so we have to choose we’re going to choose the first amendment I wish they would do that but they haven’t and not only the First

Amendment also the Eighth Amendment for cruel and unusual punishment because the damages of the damages that can be

awarded under statutory damages for copyright infringement are insane 150 000 dollars

per infringing act which is no relationship to actual Damage Done Etc so I think that violates the Eighth

Amendment it probably violates the Fifth Amendment on due process it violates uh maybe some other Provisions as well

um in any case Constitution authorized it the next year Congress passed the Copyright Act which

is now the modern Act is now on title 17 of the United States code U.S code

um the copyright office is what runs and handles um the copyright system in this country

at least for registrations and oddly enough it’s part of the Library of Congress which is

a kind of like a Library of Congress which is the legislative branch of the

U.S government which is odd right because you have an executive you know when laws are enacted by

Congress they’re executed by the executive the executive branch and yet the copyright

um office is in the Library of Congress it’s kind of a weird fluke of History

um for example patents and trademarks Federal trademarks in the patent system which are also Federal

laws enacted by Congress they’re administered by an executive agency the Department of Commerce right which makes

more sense so it’s not clear to me why copyright wouldn’t be under the Department of Commerce but I guess they

thought when you had to register works and people still do register them sometimes they had to be held somewhere

so they were held in this repository which is the Library of Congress which keeps other records of the of the federal government so it’s just kind of

odd all right now there’s a there’s a ton of other U.S laws that touch upon copyright I won’t

get into detail I’ve got them listed here with some links um but there’s the the net act the new

Electronic Theft Act which has criminal criminal fines and 250 000 in fines and

criminal uh possible prison term uh uh the Sonny Bono copyright extension act

called sometimes called the Mickey Mouse extension act uh protection act because the theory is that Disney Corporation

has a lot of its capital or its value in its copyrights in Mickey Mouse and its

other creations and every time Mickey Mouse’s copyright is about to expire they Lobby Congress to tackle on another

20 years to the to the system so it used to be life of the author plus 50 years and then in 1998 right

when Mickey Mouse was about to enter the public domain 20 years were tacked on to it um

so you know I think I’ll get to this later but in the U.S system in most of

the world it’s life of the author plus 50 it’s 70 in some countries but the US is more aggressive of course

um now in the case of a work for hire where the author is a corporation and I’ll get to that in a bit the term is 95

years or 120 years depending upon when it was published um now in the 90s the dmca the Digital

Millennium Copyright Act was passed and uh part of it is called Ocilla the online copyright infringement limited

liability limitation Act that’s the Safe Harbor provision people uh

you probably heard people talking lately about section 230 of the CDA the communication decency act that is a safe

harbor for internet service providers to not be liable for defamatory comments of

their users like if you have a a website and you have a comment section and someone posts something in the comment

that is defamatory that defames someone then they’re liable if you can find them but the the publisher or the the the the

platform that hosts that is not liable under the CDA under Section 230 this is

what a lot of conservatives and even some post-libertarians want to uh change to

make the tech companies which they now hate more liable for the comments of their users which is a bad idea as I’ve

written on some posts um and and the dmca had one like that for copyright it

was a little bit different it’s not as broad as the well it’s not as unrestricted as the CDA section 230 for

defamation the copyright says you’re uh you’re you’re isolated from um

um liability for copyright infringing acts of your users who use it on your pla like you you

can’t be sued for uh say a secondary infringement liability for your users posting a copyrighted work on your

website as long as you take it down when you get a notice this is why all these

big Publishers like YouTube they instantly take down anything if there’s any threat even if it’s an

unsubstantiated Threat by a robot um they take it down because they don’t

want to take the chance that they lose their Safe Harbor protection and it might be an actual copyright infringement if they

don’t take it down then they could be secondarily liable because they lost their Safe Harbor under the DMC so the

dmca has made these platforms like Google and uh you know websites with

comments sections uh publishing platforms um and

um YouTube just have a trigger trigger finger just take things down as soon as they get

um a takedown notice and there’s almost no liability for for posting a takedown notice if you’re wrong so uh so you have

all these media companies they have these robots that just search and they just send a notice out and I think I’ve

read that let me go to page I don’t know where it is but I think there’s something like one point up to

1.5 billion takedown notices sent to YouTube every year it’s it’s insane

um I know they take down millions of videos per year because of this

um so

oh the dmco I think I mentioned earlier it also that’s what added the vessel hole the boat hole designs uh protection

uh now I talked about this last time too I’ve got some blog posts just outlining all these mountain of Ip legislation

both domestic and all and international treaties so the major International bodies that sort of administered these

things or promote these things or or the WTO the World Trade Organization which tries to liberalize trade but when they

do so they they require companies to have strong IP rights it makes no sense trade literally has nothing to do with

um um with internal property rights so for example if China doesn’t have strong

property rights because you have to get license a license you have to get permission from different layers of

government to open a factory there or to start a business there uh that is not that is not a free market and that’s not

good but it’s got nothing to do with free trade like however that country makes Goods they can ship it to the US

if there’s free trade between these countries so free trade agreements like bilateral investment treaties uh uh well

let’s just talk about the free trade free trade agreements really have nothing to do with the internal property

rights in in different countries but they use the leverage like they say if you’re going to open up free trade with

the us if you want access to our markets you need to have American style IP rights then there’s the wipo the world

intellectual property organization which is a UN agency which also deals with intellectual property now the major

treaties some of which are administered by these these these bodies um for for copyright the major treaties the burn

convention which was person acted in 1886 by European countries and the U.S

oddly enough resisted joining until 1989. the reason part of the reason was because you know

um well we didn’t want to put we didn’t want to have the moral rights Provisions which the burn treaty tried to impose on

countries that joined we didn’t mind the minimum copyright provisions and giving reciprocity respecting the rights of

foreign authors although at first we didn’t want to do that because you know in the fledgling days of the country uh

we protected American Authors but for foreign books could be pirated left and right and so there was some opposition

to losing that freedom to do that we finally gave into that and I think we gave in to the burn convention in 89

because we were able to uh to not have to be subject to sorry that’s my poodles

um to not have to be subject to the um to the moral rights Provisions moral rights is sort of this weird European

thing where in addition to being able to stop people from copying your work which by the way you can sell that right

you can assign it or get rid of it like so if I sell you a book then I’ve given you a license for that

copy and you can do whatever you want with the book you can resell it under the first sale Doctrine and stuff like that or if I if I’m an author and I

assign my copyright to a publisher I’ve lost my copyright like you can sell it it’s alienable but moral rights in in

Europe or things that are called considered inalienable and that they’re related to copyright but they’re not

they’re not copyrighted self they’re related to your your act of creating a copyrightable work and those rights are

things like attribution like the right to always be given attribution or credit be accredited is the one who made it

um and those are inalienable you can’t even sign that away and the other one would be the right to like prevent your

work from being defaced or destroyed I mean there’s these crazy cases where you know like some some artists paint some

mural on a refrigerator or he has an apartment where he painted a mural and he sells the apartment to

someone or he sells a refrigerator to someone and then he learns 15 20 years later that you know the owner of the

apartment wants to demolish that wall or to paint over it or they want to paint over the refrigerator he can like get a

court order to stop them from doing that because he has this inalienable moral right to not have his work defaced uh

there’s a there’s a lawsuit going on in some Museum somewhere where the museum they can’t destroy the mural but they

don’t want to show it anymore so they they’re putting up these big banners in front of it and the question is is that defacing it or something so it’s crazy

and so the US that was one impediment to the US joining now so the burn convention imposes

minimum standards like you have to recognize the types of works like you know artistic Works paintings writings

um Motion Pictures audio recordings and it also abolished

um also minimum terms like I think it’s life of the author plus 50 is the minimum term in there or something like that the US has gone beyond that to 70.

um it also abolished formalities which was one of the worst things it did um before the burn convention or before

the U.S exceeded to the burn convention um under U.S copyright law you used to have to get a copyright you had to do

two things you had to put a copyright notice on it to tell the world I’m the author so so then everyone knows who to

contact if you want permission so the author is the person who stamped their name on the copyright notice and then you know the date because you put

copyright you know 1972 so you know the date which could be useful for um for attribution and for for no and

knowing when it’s going to expire under the old regime and also you had to register it so you had to send a copy to

the Library of Congress or the copyright office and register it so then there’s a record of what the copyright work was

what you’re claiming that was abolished in the burn convention so that’s why you still see copyright notice because there

are some advantages to doing it but you don’t have to um and also because it’s just a legacy or a

relic from the old days and most people are clueless about copyright law they don’t understand it so you’ll have

Layman say to me for example kinsella as an author who has a copyright notice on some works

and I do it for a certain reason um but they say Okay sella you’re against copyright but you’re a hypocrite

because you’re copyrighting your work they don’t understand they’re they’re ignorant copyright is not a verb anymore

copyright is a noun you have a copyright in a work and it’s automatic as soon as you write something and you put it down

on a piece of paper or you type it on your computer as soon as it’s fixed in a tangible medium of expression you have a

federal copyright whether you want it or not so um this has led to all kinds of problems

like the orphan Works problem Etc okay you also have the Gat the general agreement on tariffs and trade the 1994

round covered IP which resulted in trips the agreement on trade related aspects of Ip that’s trips

and that also has been on standards too and then there’s the universal copyright convention which was an alternative to

the burn but the burn has sort of won out as far as I know I’ve got other links here for I think

people are interested in there’s also the practice in the last 40 or so years

of countries implementing what’s called bilateral investment treaties there’s a web of

thousands probably tens of thousands of these things around the world because they’re bilateral so the US has

bilateral investment treaties with with dozens if not over a hundred countries in the world which is like a little mini

free trade agreement with those countries and then France might have one with with with UK and so like all these

dyads or pairs of of agreements there’s there’s I think thousands of them maybe maybe over ten thousand in the world

um a lot of them follow the same model but a lot of the western ones especially the American ones basically impose on

the other country like I mentioned earlier they impose uh requirements that this other country uh beef up their IP

system and start enforcing it better or have stronger penalties or have terms similar to the US so basically they’re

doing this at the behest of the American the three of the strongest lobbies in America uh and the driving force behind

intellectual property rights being spread around the world to countries that don’t benefit from it but they have

to do it because the U.S basically coerces them to do it or or extracts it as a price of doing business with us

through a bilateral investment treaty or some other way um uh and these lobbying Industries

would be probably to today’s role primarily the pharmaceutical industry and that beef patents they fight tooth

and nail to have strong patent protection and then the um you know the music industry in Hollywood

um publishing industry for copyright um so in a sense the Hollywood and the music industry and the in the

pharmaceutical industry primarily in the U.S have driven IP policy all around the world and what I call uh intellectual

property imperialism I’ve got some links here at the bottom of page slide 10 um about how um like Japan during the the

trans-pacific partnership which Trump killed for the wrong reasons he should have been killed because it had a strong

IP chapter in it and again a trade agreement should have nothing to do with the local the local countries

internal domestic patent or copyright law has is there that’s their own property right system has nothing to do

with trade um but uh I think actually Canada during just to get a seat at the table for the

TPP negotiations which ended up falling apart but during that process Canada like actually added 20 years to their

50-year life of the author plus fifth year term for some of some copyright works just to appease the United States

so you see have this effect um anyway I call this IP imperialism

okay so let’s talk about how copyright law works and what it is um

okay so the scope that is what is what does copyright law protect so patents patent law protects inventions that’s

practical machines or processes right trademarks protect marks which identify

the source of goods you know like Coca-Cola something like that uh Trade Secrets is just a kind of a way to

protect uh proprietary information that you keep secret a company keeps Secret

uh that they try to keep secret that gives them a competitive Advantage so they’re

different um uh copyright protects basically creative

works okay um let me go to slide

yeah I’m gonna go to slide 14 for a second so the requirements are copyright it has to be a work we call it a work

it’s a thing that you an author produces from his mind his intellect

um it’s got to be original I have a some some small spark of creativity and it doesn’t have to be big because that’s

why photographs there was a debate about where the photograph should be copyright because they’re just like a factual

representation of what the world is like you know the light rays bounce off objects go through a lens and

mechanically hit uh you know a photographic you know plate or a CMOS

sensor or something and it just records what’s out there so what’s the creativity in that so the you know

photographers of course say oh no it’s very creative the lighting the aperture the the timing blah blah and so you know

even a very small degree of creativity and same thing with software code I mean software code it was there was a debate

about whether um source code for a software program which is functional right because it

just tells a machine how to work um whether that would be copyrightable too

um because is there any creativity and just telling a machine how to do something but then of course you know

the argument is well there’s a little bit of creativity so there’s just a smidgen and that’s enough um so you have to have some originality

and by the way you have to be the author that’s why people are also confused about copyright they’ll say well I have to copyright my stuff which is confused

because you don’t copyright anything it’s automatic but they’ll say well you have to copyright your stuff because if you don’t someone else might copyright

it what but that’s not true you can’t you can’t get a copyright on someone else’s

work even if you copy it because you’re not the author so you have to be the author it has to be your original work

of authorship you have to fix it so you can’t just like have a chorus or you can’t talk and just say you have a

copyright what you said because it’s not recorded it’s not fixed you got to write it down or you got to record it somehow

um it’s also going to be you get a protection on the expression of your ideas but not only underlying ideas themselves so we’ll come back to that

with something called the merger of ideas and expression Doctrine okay I’m going back to

um slide 11. so the types of things that can be covered by copyright have now been recognized either under the statute

or under judicial decisions to be writings like a book whether fiction or non-fiction

photographs paintings you know your painter you make a painting um software code musical compositions

sound recordings which are different than the composition right there are two different things two different copyrights which is why sometimes

getting permission for a song is difficult because you have to get two sets of permission

um I’m not an expert on this but that’s that’s good enough uh Motion Pictures like movies

film um and Architectural works and probably some other things too like boot hole designs which are sort of like not

exactly the same but someone now in the beginning of the country 1790 the found this 14-year copyright which

had to have a notice and had to be registered only covered Maps charts and books that’s it

didn’t cover movies which didn’t exist yet didn’t cover photographs which didn’t exist yet didn’t cover painting I

don’t think it covered paintings or sculptures or plays music

sound recordings weren’t sound recordings yet didn’t cover architectural Works didn’t cover both hole designs didn’t cover software there

wasn’t software yet um that’s why Tom Bell who’s a Libertarian law professor um uh he’s also not an

abolitionist but he he supports reform as well but he he I have a case that we returned to the founders copyright which

would be granted admittedly um commit someone here it would be

admittedly a big um um a big Improvement let me let me check the chat real quick see if there’s

anything I need to address um oh the inventor has an advantage because

they start producing for everyone else yeah the first mover Advantage is is a big advantage that’s true

uh collages barely create anything new that’s true but it’s probably enough because you have to have some artistic

choice in where you put the little picture so yeah you can get a protection on that

um I’m not going to get into the first mover Advantage because that’s more about the policy that’s more about rebutting the bad Arguments for IP that

without IP you wouldn’t have you wouldn’t have people produce things which is clearly false because

expect let’s say copyright uh in today’s world although there is copyright law because of uh piracy because it’s so

easy to Pirate now with with the internet and with uh with uh that and all the terms tour browsers and

uh encryption and all this stuff um piracy is rampant and widespread so

every time you make something you know you’re doing it when people can copy and pirate it and yet people still make tons

of stuff and they make lots of money off of it so it’s clearly possible um anyway going on to slide um

12. I’m not gonna this just shows a a

when um win different types of Works uh started being protected you know books maps and

charts in the beginning and then later on in time other things started being added um

1790 I think some of my formatting is off here but uh you can see how um over time more

and more things were added to the scope of copyright uh now you can you cannot get copyright

in things covered by other types of Ip like inventions patents are for that

um or for slogans trademarks or for that or private information that’s not because it’s not published it’s got to be it’s

got well it doesn’t be published but it hasn’t it’s got to be fixed in a in a um yeah this might actually be wrong I’m

gonna have to adjust that private information can be copyrighted if you write it down

um but if you’re keeping it something is a trade secrets there’s a proprietary information that’s trade secret it’s not necessarily copywritable

um you can’t get a copyright in Mirror ideas only in their expression so you

know if someone writes a book explaining um some Theory they have

then someone else is free to re to write their own book elaborating or even

restating that theory in their own words but they can’t copy the way it was expressed by the first author uh you

can’t get a copyright in facts mere factual information which is why the photographs were it wasn’t clear with the photographs were copyrightable in

the beginning short phrases can’t be copyrighted just because they’re just too short and they would limit how people can use language same thing with

titles like titles of movies or books um you can’t get a copyright on that which is why there’s you’ll quite often

see the same title used for multiple copies of of some work like a same novel

the same word like I there’s like four or five movies out there with the with the title

nefarious there’s a brand new one called nefarious sometimes the producer will add a subtitle to distinguish it but

everyone’s free to use the same title just like people could name their kid John you know there’s a million Johns in

the world so what um now go back to that first one ideas

you can’t get a copyright and ideas and so if there’s a certain type of idea

that can only be expressed in one way or in a very limited number of ways then you can’t get a copyright on the

expression either because it’s so they’re said to be called a so-called merger of ideas and expression in other

words if you were to give someone a copyright in the way that they express this idea you’re effectively giving them

a copyright in the idea because there’s no other way to explain it or to describe it so one example would be like

a recipe for food maybe or the rules of a game like how many ways are there to

explain the rules of a certain simple game you have to use language to explain it

and anyone explaining the rules of a well-known game they’re probably going to use very similar language so if you

had a copyright on the language on the ways expressed no one could explain the rules of this game except for you and

that’s not prohibitive that’s not that’s not what copyrights for for also there’s no copyright in public domain works

works that are very old or works that are in the US published by the federal government like there’s a

statute saying the federal government um disclaims or cannot own or have copyright anything that the federal

government produces that’s why there’s no copyright in say statutes enacted by the federal government which makes sense

right the government and passes things that affect us all we should have a right as Citizens to copy them so that

we can spread the word about what what policies of the government um affect us right

although I believe some states of the US do not have that rule so they they can copyright things which I think is

bizarre I’ve already went through the requirements for copyright earlier okay 15. now what are the copyright rights

though so what copyright covers it covers the right to copy that is you

can you can stop someone from making a copy of your copyrighted work uh or something substantially similar so

the exact duplication would be called literal and literal copyright infringement uh but you also can’t just

make minor changes and get a get it get out of it that would be called substantially similar copying uh it also

covers derivative works that is like so if I have a copyright in a novel like

Jaws um well I don’t know if that’s a good example I don’t know if Jaws was a novel

first let’s say it was a novel um and then someone can’t someone can’t

someone were to make a movie based upon Jaws that would be a derivative work it’s not a copy of it but it’s a

derivative work it’s based upon the original and that is also an exclusive right of the author and also there’s

performance and distribution rights and things like that so the bundle of Rights themselves uh would be the right to reproduce or

copying the right to make pair derivative Works to distribute companies to perform them publicly to display them

publicly and and there’s a special one that’s fairly recent in the last decade or two the right to perform publicly

sound recordings by digital audio transmission okay this just makes all this stuff just makes jobs for copyright

lawyers because it’s hard to understand this stuff so if you’re in the business you have to go to one of us to help you out

now there’s also so basically violating a

copyright right is called infringement and this is the bottom of this page 16 slide 16. especially it’s you know most

people call it informally they’ll say ripping off someone or stealing their work when you commit copyright

infringement but that’s technically incorrect um under the law it’s simply called

infringement it means you have done something that the law deems to be an infringing act and there are certain

um consequences of that like you have to pay a fine or might maybe go to prison but it’s not actually not theft and the

Supreme Court has explicitly said this they say this it’s literally it’s not theft because you’re not depriving someone you’re not taking something

although people use that term too they’ll say he took my work it’s like well if I took it why do you still have a copy you know so words like take and

piracy and theft and stealing and ripping off are actually literally dishonest and inaccurate and they’re

legally inaccurate too so it’s called infringement same thing with patents it’s called patent infringement and

copyright infringement now there’s an exception or a defense to infringement even if you do infringe

um a copyrighted work which is in the scope of copyright it’s still within the copyrights term

um you have one defense and that’s the fair use defense it’s an affirmative defense which means you have to make the

defense if you’re sued and the way the court would decide whether or not you have a defenses they

they’re given four factors which is a non-exclusive list what happened was the courts came up by

common law the courts came up with this list of factors in jurisprudence just in case law uh in the beginning of the

country and there was a patent law passed uh I can’t remember which year probably in the 1900s which codified the

four factors that had been judicially developed but they said these are not exclusive like there might be another Factor you might want to consider but

they’re telling judges you got to consider at least these four factors and weigh them together in a balancing test to decide and the the four factors are

and they’re all vague and arbitrary this is why no one knows for sure whether or not a given use of a work is fair use

except in clear cases um and what this means is because it’s an affirmative defense the burden of

proof is on the the defendant or the victim of a copyright lawsuit uh to

defend themselves and they can’t be sure they’re going to win because these these these rules are vague and so they are for example number one is the purpose

and character of the use including whether it’s commercial or for non-profit educational uses okay so if

it’s for non-profit use that’s ways in the that weighs in the balance of of the

favor of the of the infringer the nature of the work you know whether it’s like something that’s um

uh highly profitable like a brand new Hollywood movie or something something else

um the amount of it that you copy the portion like so if you only copy a page or two out of a of a novel did you

really you know that might weigh in your favor if you copy seven chapters out of it that might weigh in the in the in the

author’s favor and then the effect on the potential market so for example

this is going on right now with this Prince photograph I think it’s complicated but um Andy Warhol okay

there was a photograph taken of Prince by a photographer she licensed the the

photograph to him I think to a magazine I forgot the name of the company

uh and then the Andy Warhol I’m sorry yeah I’m sorry

the prince uh I want to say the prince uh the prince estate licensed to the

Andy Warhol estate or so the Andy Warhol the right to do these um the kind of like these Marilyn Monroe type kind of

like uh a neon looking watercolors or something based upon that photograph and he sold

them so now the question is um is is there fair use in Andy Warhol

being able to use that photograph and so one of the questions is it transformative like if you look at the

fourth Factor does it affect the potential market so the question is if you want to use that photograph to illustrate an article about Prince you

would have to go pay the whoever owns that photograph copyright um

um a license fee to use that photograph instead you could just use the Andy Warhol one to pay a license to the

Andrew Warhol foundation so is it a substitute or not and you could you know the argument now and I think it’s still

in litigation is and of course there’s no objective answer so whatever the judge decides it’s going to be arbitrary

but the question is is it a transformative work and is it different and I think you could argue it’s different because you might want to use

the Andy Warhol thing to make a different social commentary or to illustrate one type of article but the photograph to illustrate another type of

article but in some cases it really wouldn’t make a difference you know so it’s there’s no objective bright lines here because these laws are arbitrary

and vague all right going on Slide 17.

um I already mentioned the Safe Harbor so uh let’s let’s skip that

um and I’ve already mentioned the term it used to be 14 years extendable once now it’s the life of the author plus 70

or corporation which is a work for higher which I’ll get to in a second it’s 95 years from publication or 120

years from creation whichever is shorter which is usually the 95 years okay uh

now who who owns a copyright It’s usually the author unless he assigns it

to someone later the author is the creator and this is a weird quirk in the law if

you’re an employer where there’s a work for hire which like you’re employed by a company to write things

then it’s in the scope of your employment or if you if if someone commissions a

work from you a certain type of work and there’s a written agreement using the words work for hire in those cases when

the work is produced then the the employer or the corporation is actually the the author even though

they don’t exist as a person so they’re considered to be the author and in those cases the copyright term would be 95

years instead of life of the Creator plus 70 you see and one interesting

fluke in the law too is uh or not fluke but it’s part of the law which most people don’t understand if you have two

or more people jointly create a work and they don’t have to contribute equally to it but they jointly create a work you know two guys write a novel together

they each have a 100 copyright in it which in other words they each have the the total right to license other people

to copy it without the other guy’s permission so if a and b write a novel together and then they become enemies

Aiken license to everyone in the world the right to use this novel now if he

makes money off of it he has to share it with the guy but he can do it so all you have to do is go to one author to get

permission to do something if he gets your permission you can use it even if the other guy objects

um now U.S copyright law like patent law is domestic only it only applies to

activity within the territory of the United States that’s under the jurisdiction of U.S law so when people

say China is stealing rip usually they’re talking about inventions or Trade Secrets but sometimes they talk

about uh piracy of copyrighted works too they’re actually literally just wrong not only is stealing not what copyright

law stops which I mentioned earlier it’s not it doesn’t prohibit theft so China can’t steal our rip no one can steal IP

because it can be infringed but China can’t infringe your IP because in or no

one in China can infringe or IP or the Chinese government can’t because anything they do in China can only violate Chinese law now there happens to

be a Chinese copyright law so they would be violating some copyright in China maybe because China is part of these

these the burn convention and other things too but they cannot steal usip it’s like literally impossible so all

these charges are hysterical and they’re kind of racist and they’re kind of insulting to Chinese honor and stuff

I think I mentioned last time what people are talking about is um trade secret Espionage or theft

caused by leaks from within a factory in China when an American company has a

factory over there but that’s got nothing to do with stealing IP really it’s more of a trade secret thing and we

have that problem in the US as well so this is not some kind of China thing um already mentioned copyright’s

automatic ever since the burn convention um also it’s almost impossible to get rid of copyright so the patent system is

what you could call an opt-in system if you don’t file a patent on your invention you don’t get a patent and not

only that if you start making and using it or disclosing it publicly after a year becomes public domain no one else

can get a patent on either not even you like so it becomes public domain so you lose the right to do it it’s user to

lose it in a sense right um copyrights are automatic and there’s

no way they’re almost inalienable because there’s no way to get rid of them you can assign it but if you don’t

assign it in a written agreement signing it then you still have a copyright

um so you know you have these laymen like again criticize me of being hypocritical for having copyright

although it’s automatically I can’t help it they’ll say well well you put a copyright notice on your work as if if I

didn’t put the copyright notice I wouldn’t have a copyright well that’s just false I would have a copyright um or they say well you could just put a

little notice on their disclaiming copyright as if they’re copyright licensing experts and they know that

saying these magic words I disclaim it works no it doesn’t work well it’s not

clear that it works right uh because the caparella doesn’t say someone is infringing unless the author said to the

wind I disclaim it like some magical incantation um now the Creative Commons group and

others have tried to get around this with this Creative Commons license I assume that over time that’s going to

get judicial recognition if only by the doctrine of equity called estoppel but again as a lawyer I’m not so clear why

Creative Commons works because again if someone sees my my book and I have a

Creative Commons license saying anyone has the right to use this then if I sued them they could maybe

soon they could they could have a defense of um estoppel saying well I relied upon his representation

to my to my detriment and so he’s a stopped from asserting that defense but that’s not really clearly what would

happen you can’t count on that so the license idea is that oh I say I hereby

publish this work under Creative Commons Dash by license which means I’m giving a

license to anyone um um with the condition that they that they

they give me credit they put my name on it so as long as they keep my name on it then they have a permission from me but

do they really because the way a license works in the old days was it’s a contract between two parties two identifiable parties that negotiated

came to a meeting of the minds and the licensee

the licensee pays pays consideration like contracts have to have consideration rebinding so I wanna I

wanna print your book I have I ask you for a license you grant me a license in exchange for a

fee which is consideration we sign the license agreement we know when it was dated we can prove

that Who We Are if I just put a statement on a book who am I granting a license to some unknown

person did we have a meeting of the minds um did he give me any consideration no

uh how did he prove that he had a license but what if I publish a a a book

on a website uh well let’s say I published a painting a a a a a a a capture of a you know a

digital version of a painting on my website and I put a notice saying Creative Commons Dash b-y now you take

my painting and you use it to as the cover of your book and then the next day I take that

copyright I take that Creative Commons Notice off my website and then I sue you for copyright infringement

what’s your defense because it looks like a copyright infringement your defense could be well

I have a license and where’s your proof that you remember seeing it on my website so you’re supposed to print this

stuff out how do we know that wasn’t doctored right so like this whole thing is like it’s like um

it’s it’s a rickety way to try to address a stupid problem and the stupid problem is there’s no way to opt out and

the reason is because copyright is not is now automatic it used to be you had to register it so you would know whether

if you didn’t register you didn’t have a copyright if you didn’t put a notice in there you didn’t have a copyright but now it’s automatic but because it’s

automatic and the law didn’t provide a way the law didn’t say if you send a notice to the copyright office you can

disclaim your copyright into work and then you don’t have copyright they don’t do that so I’m not even sure if copyright is is

opt is opt out it’s not only not opt-in which it should be and it used to be it’s not even opt out because there’s no

way to get rid of it um anyway why didn’t they Sorry Stefan go ahead um I’m just wondering why did

they change that what was the rationale for well that was in the burn convention from the 1800s and late 1800s it was

always in there um and so when the US decided to finally join the world community in the 1980s

and joined the burn convention for for the benefits of of being able to influence policy in other countries and

things like that um and to and to get uh recognition of U.S copyrights in

other countries because that’s kind of you have to join the burn convention to do it um that’s why we have it we have it

because we joined the burn convention why that was put in the burn convention in the late 1800s I don’t know I don’t

know what I don’t know what the debates were that that had that that put in there um probably to make it easier for

authors to get copyright so they wouldn’t have to file a registration

probably that was the reason um okay now what are the penalties for infringing copyright not for theft but

um well it before before the law had statutory damages you had to prove actual damage

like okay this guy copied my novel and then I lost ten thousand dollars worth of sales

probably you know you can have an expert witness that can estimate what your sales probably would have been blah blah but you have to prove actual damages

well the the copyright said alternatively you could have statutory damages um and statutory damages can be decreed

by the court and they can be up to a hundred fifty thousand dollars her infringing work like burn fringing

act um and so like one law professor calculated like 12 years ago so it’s probably even

higher now that just taking the average activities all the people here do every day and every month every year you know

forwarding emails copying pictures here and there cutting and pasting

um theoretically we’re all liable for up to 4.5 billion dollars each per year in copyright infringement damages uh which

is insane right that may be at the high end because I think he took the 150 000 number which is the the most a judge can

use it could be smaller but theoretically billions of dollars each which is obviously absurd and if you

extend this to the AI thing that’s happening now you know AI is probably infringing copyright because it uses all

these sources and then it does all these internal computations mixing these things and then it generates an output

which is probably your derivative work in some sense and it does it’s billions of times faster than us so maybe maybe these AI

makers are liable for a trillion or a billion times the 4.5 billion so we’re

talking quadrillions or whatever the next level is which is obviously absurd like greater than the

value of the whole solar system or something um also unlike patent law I believe I don’t

think there’s a patent law criminal provision that I’m aware of um criminal liability can be attached

for willful infringement of copyright and this is why for example Aaron Schwartz the guy that helped to create

RSS and other things um who was a young guy and he was just trying to make academic Journal articles

available online so he was facing up to 35 years in federal prison and a million

dollars in fines and he committed suicide I mean he was his life was ruined by copyright and threat of threat

of prison um there was a guy who was put in prison for a year for uploading this Wolverine

movie like 15 years ago something like that just uploading one movie to the internet in jail for a year

um there was a British student named Richard Dwyer who was facing being extra extradition to the United States to fate

to face federal prison time for for living in England and having a

website that didn’t have any pirated content on it but it had it had I shouldn’t use the word pirated any

infringing content it had links hyperlinks to other websites that had it like Russians or whatever it’s crazy

right he finally got out of it but his life was almost ruined or derailed for quite a while

um so the implications of this is that as I mentioned earlier in the history copyright was rooted in state in church

censorship and and um uh control over freedom of the press and ideas and it still used the sensor

today we have millions of YouTube takedowns a year and other takedowns too I just using YouTube as a conspicuous

example um and it means you literally cannot have a book or build upon prior Works without

permission of someone and you’re off you’re usually not going to get it so you couldn’t have Star Trek or Star Wars

sequels can’t make a sequel or fan fiction unless you want to take the risk and maybe maybe Star Trek copyright

owners turn a blind Dyer they might give you permission but theoretically they could go after you right and they quite

often do and just here’s a couple older examples which I’ve had for years I quit I quit collecting examples because there’s there’s another one every day

but um so the famous novel Catcher in the Rye shortly after his death or right before his deaths JD Salinger the author

and then later his estate persuaded U.S courts to ban the publication of a

sequel called 60 years later coming someone wrote a sequel to Catcher in the Rye called 60 years later coming to the

Rye and they just went to court said this is derivative work we don’t want it published so the court banned it

this is literally book burning or book Banning um by the government and you’ve probably

seen videos of like you know Steamrollers rolling over CDs and things like this you know there are book

destroying books that are pirated books uh and there was an amusing thing back in 05 when one of the Harry Potter books

is coming out you know the copies were sent a few days early before the release date to this this bookstore up in Canada

and the store accidentally sold yeah accidentally I’m sure anyway they sold 14 copies

a few days early and the Publishers panicked about this because they they you know they wanted to have their

release date so they went to court and they used copyright law to get a a Canadian judge to issue an order to the

customers who bought the book not to talk about it not to copy it not

to sell it which again under the first sale Doctrine in Canada and here I believe uh

you have the right to if you buy a book that’s copyrighted you paid you you you already implicitly sold paid for the for

the copyright license to have it in that book so you can resell it to someone that’s why libraries can lend books out

the first sale Doctrine but the judge says you can’t sell it even though you own it and you can’t even read it

until it’s officially released on July 16th at midnight um

and I collect I used to collect other examples at the link at the bottom my horror files if anyone’s interested

now I don’t remember if I went into this in the last lecture but in my view the two main types of Ip which is patent and

copyright not so much the others but patented copyright legally should be viewed as what’s called in the in the

law is called negative easements this is the common law or or negative servitudes

in in the civil law which is the law of um of European countries uh in Latin America and Louisiana my home state

um so a negative easement is just a contractual restriction or or alienation

a part of the rights in your property and there’s nothing wrong with it it’s the basis of restrictive covenants and

homeowners association HOA agreements which I know a lot of Liberty and Libertarians just like they want their

freedom but whatever contractually and legally there’s nothing wrong with an HOA agreement what it is is you have

someone who owns a piece of land and you you you grant to your neighbors the were

you granted the owner of neighboring Estates whoever owns your neighboring estate the right to stop you from using

your property in certain ways so people do this like so they keep their neighborhood residential or something like that or they or they prevent houses

are being too tall or something so you still own your house and you have the right you’re the only one who can use it but your neighbors have a veto right

over how you use it like if I want to tear it down and build a factory I

couldn’t do it without my neighbor’s permission because I’ve granted them by contract a negative easement or a negative servitude nothing wrong with

that as long as you grant it by contract or it’s consensual just like there’s nothing wrong with the guy kissing a

girl if she consents but if she doesn’t consent it’s assault and battery right or like consensual sex

is fine but non-consensual sex we call that rape you know um if you punch someone in a boxing ring

it’s consented to by the other guy it’s not a battery but if he doesn’t consent if he doesn’t consent to it and you

punch someone in the street it’s battery right so consent makes the difference so

um a negative easement is fine as long as the owner of what we call the burdened estate that’s the state that is subject to the

negative easement held by others as long as you consent to it buy a contract

but the patents and the copyrights is just the government of in effect issuing a negative easement to the owner of that

IP right so the copyright holder in effect now has a negative easement over the printing presses and the factories

and the patent owners have a negative easement over the factories of everyone else in the country

where they can they have a veto right over how they use their property so that’s essentially the problem with

patented copyright law is that they are non-consensual negative easements

nothing wrong with consensual negative easements but the problem is when it’s non-consensual so it’s basically taking your property rights uh rothbard would

classify this as a triangular Innovation as opposed to a bank intervention intervention as opposed to

a binary intervention but that goes a little bit far afield but I’ve talked about that before elsewhere uh and

that’s the end of it so now I will open it up for any q a you can ask anything about policy or video

if you have actually any practical questions for yourself or elaborating on the legal stuff I just talked about feel

free to ask yeah hey Stafford uh there was a case I

recall from 2020 um where the U.S Supreme Court

um said that states are not subject to uh the the federal copyright law because of

sovereign immunity uh do you have any insight on that I remember reading that I can’t remember

the details of it um I can’t remember the details sorry

okay do you think that’s a good thing I don’t remember I don’t remember if it

if it meant that uh States themselves couldn’t be subject to Federal copyright LL claims like could a

citizen of the U.S who has a federal copyright sue the state for using that

um I don’t know I’d have to think about it I mean usually when the question is like how would you change copyright law or

has this current change by a Judicial decision is it a good thing if it weakens copyright law and its

effect it’s a good thing so if it weakens the ability of someone to sue on the other hand states are evil so I

don’t mind States being sued so I don’t know that’s a that’s a tough one

I would if I would abolish the copyright law and States so that there would be no states to Sue and there would be no

copyright law that an author could sue under so that’s how I would approach it

Stefan can I have a question on Section 230 please yeah

you know that’s supposed to give immunity to Publishers from what other people post on their

platforms right is this supposed to I think it’s more

for platforms internet service providers okay right okay platforms like Twitter

Facebook now what if Facebook or Twitter specifically what if they come up with a

uh defamatory statements like Alex berenson’s case I believe he suits

Twitter in California and they threw it down

because of section 230 even though it wasn’t anybody on Twitter the fame

defaming Alex Branson it was actually Twitter themselves they banned him and they said they bet him because he lied

or something um I don’t know the details of that I’ve heard baronson but um uh

my understanding of 230 and by the way 230 is very convoluted it’s hard to understand

although I think Mike masnick on Tech dirt has some good posts kind of unpacking

all the bad arguments used to like people say things like well suit 230

could is only applicable if the platform doesn’t become a publisher and starts

and start moderating the activity and therefore nowadays these Tech platforms are steering what shows up and so

therefore they should be considered a publisher and 230 shouldn’t apply I think that’s actually legally incorrect that’s not how 230 Works uh and that it

was never the way it was meant to work and I don’t think it should work that way I personally don’t think we should water down 230.

um the only problem I have with 230 is that I think it might violate federalism because

defamation law is a state law based thing by and large and so what you have is you have a federal law

saying in state courts they can’t have a defamation case in this in this

circumstance against a platform um I mean I like that rule but I think

it probably violates federalism but I’m not gonna cry too loud about it now it

if a court actually said that baronson’s defamation claim against Twitter

for what they said is bar by 230 I think that’s just wrong my understanding of you that’s wrong all 230 says that

Twitter can’t be secondarily liable for the deformatory acts of one of their

users okay so basically defamation means whoever makes the defaming comment he’s primarily

liable right and so if someone posts on Twitter a defaming comment Twitter did not make

that comment but without 230 You could argue that they’re that they’re um they

should be vicariously liable or secondarily liable because they they induced it or they contributed to it by

providing the platform and benefiting financially from it there’s all these doctrines under copyright law I think there must be similars for defamation

law so you could have a common law claim you would have to sue the actual speaker the person who the user who

spoke so you’d say he’s liable and Twitter is also liable secondarily and

jointly with him right um just like if a kid does something to you well like if an employee of a

corporation does something you should he has to be negligent you can sue him but then you can sue his employer under

respond yes Superior for vicarious responsibility for his ex so you sue them both basically if the

employer is not liable then the employee if the employee is not liable the employer is not liable

similarly in this case um whoever makes it a family comment is always liable under defamation law and

230 doesn’t change that so I don’t know the details of this case that that does this must be something wrong either a

decision or maybe and the way you’re recounting it but I I I can’t imagine that Twitter would be off the hook for

what they said under 230. I could be wrong yeah thank you okay

I had a question Stefan um so taking the example of the guy who

wrote a sequel to Catherine the Rye and under stopped the publication of that

yeah you know what if this guy out of spite you know like posted the whole

thing for free online said I’m not going to try to make any money off of it but I correctly want what I’ve seen to go out

into the world and whatever um what could they do to him then

okay so yeah and remember this case was years ago way before the internet existed so I think back then it was easy

to it you know The Gatekeepers had more power back then when when just like you

know just like uh you know the case for Bitcoin is that uh you don’t need you don’t have to go through a gatekeeper

who can stop stop your money transaction but back then when you had to go through a major publisher or like there was only a few self-publishing up it was easy for

the court to like say no we’re gonna stop this right here um so they could actually prevent it like and I don’t think the copies never

got out I think they were able to Snuff it out um but in today’s world yeah if you just posted it online

um uh it’d be too late to stop it um now if if they uh if they could find out who

did it then he could be sued for copyright infringement just like the Wolverine guy he uploaded one copy to the internet and he got a year in prison

for doing that because then millions of people could copy it right um

uh now you know so what I would do is if I wanted to do that I would do it anonymously so they couldn’t they

couldn’t catch me it’s hard to do that when you’re publishing a printed book but you know with the internet you could publish it anonymously but let’s suppose

you could find out who the guy was yeah he could be in trouble for that um and also you could go after anyone

else that you could identify who was who was downloading it because they’re copying it

um so all the thousands of people downloading it but I imagine they’re doing it behind tour or some encryption so it’d be hard to hard to catch them

too but um yeah well if so if you know someone had a sequel of Catcher in the Rye for

example they they post it for free online and you know they they have identified themselves as the author but

maybe they by posting it for free if they tried to claim some fair use

by saying well I’m not profiting from this and I I know that this happens there’s all kinds of Harry Potter fan

fiction websites and stuff and so I’m sure it’s all been litigated but you know in this capture in the Rye example

could they I mean would the estate possibly still go after them for a copyright infringement even if the

person tried to make no money yeah and I think they would still win see that’s another thing most people think well if it’s non-commercial it’s fair use I mean

as I mentioned earlier that’s only one of the four factors um and again and even the non-commercial

part it’s not non-commercial it’s just not I think it says non-commercial educational so it’d have to be sort of

educational and non-commercial just to satisfy that one factor but probably the other the other three would be um the

other three would probably weigh in the author’s favor and um or at least two of them and and then my guess is that the

court or the judge would side with the uh the author so I don’t think being non-commercial is going to help you very

much

so Stephen I have a question about um it is much more concerning to the

previous lecture about when we were talking about the intellectual property

rights on the religious images as far as I remember and this is thing that I have

seen and heard for the first time in my life that the religious images have a

special some kind of protection in the American culture talk a little bit about

it uh oh yeah I didn’t I didn’t mean in the law although it could be the law in

some countries like um in Sharia law it probably is part of the law in Sharia law um no I I just meant that the uh I meant

that um the fact that in the fact that everyone is afraid to print certain

images of certain Prophets because of physical retaliation as in

Charlie hebdo um is very similar to it’s a copyright like thing but it’s it’s done by more of

a private uh a private uh Mafia so to speak than than actual recognized state

but it’s in form it’s the same thing and states are mafias too with just

perception of legitimacy that’s the only difference um so that’s all I mean I was just analogizing it I was I’m basically

saying that you that Western copyright law is very similar to the way these

these people treat these religious images

I see I have not thought about it in this way well you know if you take my if you take

my negative easement analogy if you’re too broad with it almost every bad law

you could say is like that so for example if you don’t pay your taxes you go to

prison or if you don’t uh if you do drugs that are illegal you go to prison so you could classify that as um

in a way the state claiming a negative easement over your body so they’re saying you can’t use your body for these

uses unless we give you permission but I think that stretching the legal classification too far because it’s better to just call that aggression

because basically the state is using aggression against you when you didn’t do anything wrong that’s

what aggression is so the states using physical Force to put you in prison when you did when you have not committed any kind of actual natural crime

um now by the same token you could call that you could say that’s what the true for patent and copyright because

you know ultimately if I if I publish a book that the the court

tells me not to publish this Sequel and I publish it anyway you know I might go to prison for contempt of court or if

you know if they try to collect money money from me and I refuse to let them take it and I defend my property with my

gun they’re going to shoot me so in a sense all laws are backed by force and in a sense almost all bad laws can be

called a negative easement but I think it’s it’s it makes more sense from a legal classification in an explanatory

sense to basically to call patented copyright um negative easements because they’re very similar to the way negative

easements work they’re just non-consensual that’s the one difference it’s it’s not so easy to call trademark

and trade secret law negative easements um it’s it’s it’s you can classify them

in different ways but they’re all unjust and they all violate property rights I see so is this fair use Doctrine based

on the common law on is it the statutory one well there’s so first of all there’s no

in the US there’s no such thing as Federal common law uh because federal law came from the

Constitution which is basically a statute and then there’s Federal statutes which Congress enacts but

although the states inherited the British common law because they were the colonies of England and they already had in their Common Law Courts and the

private law systems common law there’s no such thing as Federal common law um not really

um and that’s why in in the 1900s or maybe the 1800s there was a decision the

Eerie Doctrine e-r-i-e was a railroad case um a decision was made that federal

courts because they don’t have any common law when they hear I think what they call a diversity case we’re like a

citizen from one state Susan citizen from another state that’s when you can go to Federal Court um the court The District Court the

federal district court what law does he apply so the answer was he has to apply the state law in that state as federal

law anyway but what happens is when the federal government interprets Federal statutes

they have to they have to interpret it and over time that precedent that body of case law develops over time it’s it’s

not really common law because they’re not really making it up from from a dispute between People based upon reasons or the ancient common law but

they’re interpreting Federal statutes but over time a body of law develops that interprets that and that’s what

happened with copyright law so copyright law was a statute in 1790 and then there were amendments made or Replacements

made over the ensuing decades so every time there’s a copyright dispute before a federal court they’re

interpreting a federal statute and some judge or some Court fine eventually

started inventing the fair use factors so they invented it you can call it common law but it’s really just a Judicial invention as a way of

interpreting a statute and then in the 1900s the co the Congress revised the

Copyright Act or replaced it with a new one I can’t remember and when they did that they decided to codify the factors

that the judges had previously developed so that’s where those four factors come from the four factors come from judicial

decisions but now they’re in the law so they’re actually in the copyright statute now I see I see because for example in

Poland we have a similar doctrine of fair use but all of those parts of those

important legally important parts are simply codified and for example if basically on the article 23 of the

Polish copyright law if I have a book or I have even an ebook so to say I can borrow it or send it to

the my family to my uh colleagues which I know personally to use it for the the

educational uh means and the actual book or you mean the actual book or a copy

both I can make copies for myself as much as I want

for example yes and in the U.S if you make a copy like a backup copy for yourself like of a of a of a movie on a

CD or of a book and if a library makes a copy for backup purposes that is

sometimes considered fair use too but only because of the way the four factors play out I think my my understanding is

that in in most European countries the the doctrine that’s similar to the U.S

doctrine of fair use I believe they call it fair dealing but it’s it’s it’s very

similar to the US I believe yes I believe so

anyone else Yeah you mentioned uh joint authors of

copyrighted Works uh could license stuff without the agreement of the other all without the agreement of the other

author um is it similar for patent patented patents

or how does that work

I used to know this um trying to remember um

I don’t actually recall maybe I’ll look it up and I’ll put it in the modified slides but um

yeah because if you have yeah if you have two or more inventors

then they’re co-inventors they all have to be listed on the patent and they’re presumed to be the owners unless they work for a corporation in which case the

employer owns it which is the main case usually it’s the employer so um it’s only one person there it’s not

not a problem but if you have two owners of a patent I’m I can’t recall I’m sorry

I’m sure there’s a black letter answer to it but uh

I think it is different than copyright but I can’t remember how I kind of would imagine it being like a

joint venture um but I’m sure you’ll figure it out yeah

well if I have time for more but if there’s no more I will go ahead and end this now and I think what I will do if

everyone if anyone thinks this is a good idea maybe I’ll do part three maybe next week

um and I’ll try to cover the other types of IP and that might take two lectures I don’t

know we’ll have to see how it goes uh and then if there’s anything else remaining we can I don’t know cover

anything else or maybe these three will be enough just to give people a good primer on how modern IP law actually

works in the real world um any other suggestions or questions before we before we go

yes I had one other question okay [Music] um as far as copywriting uh facts and stuff

um there was there was a time like 10 years ago or so I was I reached out to an

author of a book uh he’d written a biography of someone and I wanted to I

asked if I could I don’t know I base I really just wanted to look at

his research and his archive uh be able to see what stuff he had and you know

his initial response was just uh well you need to sign this uh licensing

agreement or you know and he was treating as I was adapting his uh biography

and I don’t remember if he claimed this or if I talked to someone else and they

explained this but they were kind of saying now if this author had done interviews

with this musician and if his research is the only source

of these facts about the musician’s life and I used them in some work

then um he can claim some copyright in those facts because I don’t know I would be

pulling it from his book which is the only source of it or something are you familiar with anything like that well

first of all quite often authors are confused about copyright law and they do things that are unnecessary or they say

things that are wrong or they don’t even understand their own rights so him saying something doesn’t mean it’s

correct um

that sounds inaccurate to me I don’t think that so no you you you don’t have

a copyright in facts and um and copyright law does not prevent you from looking at something

even if there’s a copyright in the work you’re looking at okay and using the data in there there’s nothing in

copyright the law that prevents that um so that’s just if he thought that

he’s just mistaken about how IP Works which he might have been because it’s a convoluted field now there so so for

example there’s a there’s a complicated thing where um let’s suppose you have you want to publish correspondence

between two authors which say I think Walter block did this a few years back uh his letters with Milton Friedman

you know there’s other books of you know like Thomas Jefferson’s correspondence or um of course that’s so old it

wouldn’t matter um you know there’s one I read Jasper Crane and Rose Wilder Lane their

correspondence so if someone writes me a letter you know let’s say say Murray rothbard

writes me a letter I can use that that piece of paper however I want I can display it in a

museum I can I can I can show them I could I could sell tickets to people to come to my house and take a look at it

but but the author is the one who owns the copyright so rothbart still owns the

copyright to it so I can’t publish it in a book without his permission unless there’s fair use which there probably is

not so if I wanted to publish my correspondence with Robert let’s say we wrote 50 letters to each other back and

forth I can publish the ones I wrote to him if I kept the copy he might have all my copies and I might have all his

copies so I might be unable like in the old days I might be unable to publish my own book my own stuff because I don’t

have a copy anymore why people started doing carbon copies right so they have their own copy so I

only have a copyright my stuff I might have to summarize his and say I wrote him this and then he said something

effectively like this so that’s why you usually so like I think when rothbard I’m sorry when Walter block

wanted to publish his correspondence with Milton Friedman um I think he had to get permission of

either Friedman if he was still alive or his estate um to publish that correspondence in that in that journal article

um so go ahead and you could publish like a facsimile of those written letters but

not just the text no that would be a copy too okay I could

publish a summary of it because again the information in it is not copyright the the ideas are not so so for example

I’m I actually might be publishing a book um I’m not going to say later and it’s a

collection of essays by other people and one of them is by someone I think will not grant me a copyright in his

piece oh here oh here’s a better example uh if I wanted to publish um

a book and with of essays and one of them was by arandian you know like uh

and the randians are notoriously they hate Libertarians and they and and they’re copyright Fanatics they’d

probably not give me permission to reprint that article so what I would do is I was in my book chapter 12 might say

um I would have the same title as the author’s thing you know I’d say article X by person y

and then I would have say something like you know they refused to give me permission but I’m gonna in the next few

pages I’m going to summarize what their argument was or I’m going to restate their arguments so I would tell you what their argument says they can’t stop that

they can’t stop that that’s why people do close notes of of books and that’s permissible I think that’s why a Cliffs

note is just you rewording and saying in summary form what a book says you’re not

using their language so you’re not copying it

by the way not only sequels and movie versions of novels but translations are also considered um

derivative works so if I if I wrote a book and someone wants to translate it

into another language they have to get the author’s permission for that too

but so so if you in the example of the letter that you said if you had a letter

from rothbard and you publicly exhibited it and charged money for people to look at it or whatever

you would be allowed to do that as the owner of letter but yeah because I’m not I’m not because I’m not copying it and

I’m not making a new work based upon it I’m just using my copies and I could sell the letter to someone too under the

first sale Doctrine but and by the way I could destroy the letter photograph of the letter you

could not do no I maybe could make a photograph for my backup copy but I I

you know then then you get dodgy about what your purpose is but um by the way if if this was in Europe

I might not be able to destroy the letter because of moral rights

and then what about uh life rights um just as an example if you wanted to

write a book about a person a true person uh or make a movie or something I’ve heard that

and a lot of cases you need that person’s permission to be able to do that

um that that could be the producers or their lawyers being risk-averse and extra careful

um but there is something which I’m I don’t know a good deal about but there’s something called rights of publicity

which is sort of like an ancillary type of IP type right um so under rights of publicity if

you’re trying to profit off of someone’s likeness and that kind of

stuff you have to get their permission I don’t know a good deal about that type of law um

I I do think my impression is that if you wanted to like let’s say I mean look

there was a movie just made about Elizabeth Holmes a documentary on um I

know Showtime or HBO one of those it was called um the Dropout which is actually excellent and then of course there’s

been recent movies recent mini-series made about uh Adam what’s his name from wework and also uh

the guy from uh from Uber and there was one made

um about uh inventing Anna about that uh that woman who defrauded people of money

although she might have given permission but I don’t think that um the wework guy or the Uber guy or Elizabeth Holmes

granted permission to the people um to make those documentaries so I

think you’re entitled to do that if it’s a matter of public interest I don’t think that’s the same thing as violating their publicity rights I think if you

violate the publicity rights that’s when you need to get their permission but I don’t know exactly what that entails so I’ve never practiced that type of law

um but for example in the Dropout I believe in that one the documentary is based

upon a book that someone wrote and that someone just did research like a journalist did research on what happened

and he presented it in a book and the documentary was a derivative work or based upon that book so they got

the permission of the author of the book but I don’t think the author of the book had to get permission of the subject of

the book Elizabeth Holmes I believe that’s the case I I’m not a deep expert on that type of law my main expertise

has been in patent and copyright and some trademark but I think that’s the way the way it works

okay thank you all right everybody well I guess I’ll

stop here but I appreciate your attention and your time and uh and if you feel free to email me or

contact me if you won’t have any suggestions about the next one but otherwise I’ll probably plan to do one next Thursday that’d be the May the well

today’s the 27th of May 2023 for people listening in the far future and today’s Thursday so whatever next May is May 4th

or 5th whatever that is um at the same time two o’clock Central Time

um I never know whether to say Central Standard Time or daylight time because I don’t know which one we’re on and

um I’ll try to cover as many of the other types of ips I can and uh go from there so thanks everybody

thank you thank you