Category Archives: Uncategorized

As Larry Lessig has long and presciently emphasized, law and technology are substitute methods of protecting an interest. You can sue a trespasser; but it may be cheaper just to put up a strong fence. We used to think that if the technological substitute was adequate, it would be superior to the legal; and in fact the law often imposes self-help requirements to discourage lawsuits. And we never (or rarely) used to think that technology could upset a balance struck by the law; we thought law could cope with any technological changes. The dizzying advances of modern technology have destroyed… Continue reading →

A further thought, prompted in part by the release yesterday of the Schlesinger panel’s report of its investigation of the Abu Ghraib scandal. Under the present system of intelligence, the CIA, although it is not the largest intelligence agency, is the leading agency, and its director is understood to be the government’s senior intelligence officer; he briefs the President, and is responsible for keeping the President and the other top officials informed. If a National Intelligence Director is layered on top of the CIA, its director, and the other agencies, as recommended by the 9/11 Commission, and if in addition,… Continue reading →

Doug Lichtman, a very able IP professor at the University of Chicago Law School, took sharp issue with my brief note on patent fair use, emailing me that my “quick reference to patent fair use…is problematic for the simple reason that, often, the key market for research tools is to sell those tools to other researchers. If a researcher’s use of patented research tool is fair use, that would significantly degrade the incentive to create those research tools inthe first place. Moreover, even if your approach works, it is in sharp conflict with the Bayh-Dole instinct that society might very… Continue reading →

Here is a very worrisome problem concerning fair use. It has to do with a dichotomy long noted by legal thinkers between the law on the books and the law in action. They often diverge. And fair use is an example of this divergence. As I said in an earlier posting, fair use often benefits rather than harms the copyright holder. However, it doesn’t always; moreover, even if a copyright holder is not going to lose, and is even going to gain, sales from a degree of unlicensed copying, if he thinks he can extract a license fee, he’ll want… Continue reading →

Many great comments on my fair use posts; can’t discuss them all, but let me make a few points in response: With regard to the Patry-Posner proposal for creating a new fair-use defense for unauthorized copying of old copyrighted workers if the copier was unable with reasonable effort to discover the name and address of the current holder of the copyright, several commenters point out that one of the objections to the pre-1976 system, where failure to renewal forfeited copyright, was that people often just forgot to renew or botched the renewal application. No doubt there were unfortunate such incidents…. Continue reading →

Many excellent comments on my posting. I can’t respond to all of them, but I do want to respond to two of them. One commenter said (I’m paraphrasing): why would breaking up the CIA be a big deal? It accounts for only 12 percent of the national intelligence budget. What that overlooks is that high-tech intelligence agencies, like the NSA (surveillance of communications worldwide) and the NRO (develops and launches spy satellites), are very expensive because they are capital-intensive as well as requiring substantial staffs, but much of their intelligence output is input into the analytical and operational divisions of… Continue reading →

Enough for the moment on fair use; I’ll get back to that. I’m interested in the report of the 9/11 Commission on the intelligence failures that led up to the 9/11 attack. I was asked to do a book review of by it the New York Times, and I agreed (the review will appear in next Sunday’s New York Times book review section, but as the Sunday Times Book Review is published the preceding Monday, my review was actually published today) because of my interest in how the nation should be responding to catastrophic risks (this turns out to be,… Continue reading →

I’ve received some interesting comments on my last posting. One of the commenters asked me to explain the fair use doctrine; here goes. The doctrine, which has close counterparts in patent and trademark law, permits a degree of unauthorized copying of copyrighted works. Shocking! If a teenager takes a joyride in my car and is arrested, can he defend by arguing that it was a “fair use”? No, but the example points up an important difference between physical and intellectual property, a difference obscured by the use of words like “theft” and “piracy” to describe unauthorized copying. If someone takes… Continue reading →

“Fair use” is a doctrine of copyright law (with counterparts in patent and trademark law as well) that allows a degree of unauthorized copying of copyrighted works. Shocking! Squatters’ rights! Can a teenager take my car for a joy ride and when he’s caught plead “fair use”–that I wasn’t using my car and didn’t miss it for a second! But there’s a big difference between physical and intellectual property. Only one person at a time can use my car, so, in general if not in every instance, someone who takes it interferes with my use of it. But if someone… Continue reading →

The conventional economic objection to copyright and other IP propertization is that it limits access and by doing so causes a misallocation of resources: making and distributing another copy of some piece of software might cost nothing (well, virtually nothing), and yet if the copyright owner charges a price of say $100 for the software, people who value it at more than zero but less than $100 will be deflected to substitute products that may be more costly or of inferior quality; and that’s inefficient. Of course, limiting access may (or may not) be the least objectionable way of incentivizing… Continue reading →