The University of Chicago Law School Faculty Blog

Three Eras of Copying

This is one of a series of posts; the last post was here.

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Jump across time quickly: from medieval monks to Gutenberg to 1959 and the Xerox 914 and finally to Sean Fanning, who created Napster. These events define three eras of copying. Call the first period Handcrafted Content; the second, Gutenberg’s Professionals; and the third, starting with the Xerox 914, Distributed Content and Copying. In defining these eras, focus on the second-copy costs for the author/publisher versus those of a person in possession of a single copy of the work. Not the cost of producing the first copy, but instead, first copy in hand, how much does it cost to create a copy of that copy? Does the author/publisher have an advantage over a person who has acquired a physical copy of the work?

Henderson CBI: CEOs are Underpaid

A provocative title, no? Well, Todd Henderson's a provocative guy. On Wednsday, May 9, 2007, he delivered the talk on "CEOs are Underpaid." As he said, he may not have convinced the audience that CEOs are underpaid, but he was pretty convincing in explaining that they seem to be efficiently paid and not overpaid. You're going to have to listen to hear for yourself. The blurb for the talk is after the jump.

Doing Mashups with Walt and George

How do you think Donald Duck would sound doing the Gettysburg Address? The genie from Aladdin reciting the Bill of Rights? Perhaps your tastes run in a different direction. George Bush channeling Bono? Tony Blair contemplating his future courtesy of the Clash? Perhaps Elmer Fudd singing opera (oh wait, that’s already been done and classically so)?

This is all doable. What we really need is a grand database of video snippets—a database of what a telecommunications lawyer would call unbundled video elements (“UVEs”). The Wall Street Journal reported today that George Lucas is taking a step in this direction by releasing 250 clips tomorrow in honor of the 30th anniversary of the original film. (Commentary here and here.)

How would we use such a database? Eric Faden, a media professor at Bucknell, has given us a glimpse of this in his recent video “A Fair(y) Use Tale.” What do we learn?

Executing child-rapists

Constitutional doctrine relating to capital punishment is (in)famously tangled.  That said, one proposition that, I suspect, most who litigate, teach, or write in the area have long thought -- since Coker v. Georgia (1977), anyway -- one could take to the bank is that the death penalty is an unconstitutional punishment for non-homicide crimes.  The New York Times is reporting, though, that the Louisiana Supreme Court has "upheld the death sentence of a man convicted of raping an 8-year-old girl.  Legal experts say the man, Patrick Kennedy, is the only inmate on death row in the United States who was not convicted of committing or participating in a killing."

It is quite likely that the Supreme Court will review the Louisiana court's decision.  In Coker, the Justices ruled that the death penalty for "the rape of an adult woman" is "grossly disproportionate and excessive punishment" and "therefore forbidden by the Eighth Amendment as cruel and unusual punishment."  Can the same be said -- should the same be said -- of the death penalty for the rape of a child?

Closing the Doors to (Antitrust) Plaintiffs?

Today, in a 7-2 opinion, in Bell Atlantic v. Twombly, the Supreme Court ruled that the mere assertion in a complaint of an underlying agreement violating Section 1 of the Sherman act was insufficient to withstand a motion to dismiss when the parallel behavior in question could just as easily be explained as independent behavior. The majority opinion, authored by Justice Souter, emphasizes the high costs associated with antitrust discovery. In reaching its conclusion, the Court “retires”—as it puts it—its 1957 decision in Conley v. Gibson in which the Court spoke of “the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Twombly is an important case for the antitrust bar, but it may matter everywhere. How much did the door to federal court close today?

The Copy and Copyright

This is one of a series of posts; the last post was here.

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The rise of copying and yet even more recently of easy distribution across the Internet has changed the consequences of the copy profoundly. Technology has dramatically expanded what can be copied, and personal computers and networking have made distribution of digital copies instantaneous. To possess a copy is to have the power of distribution in your hands. To sell a single copy of a work is to sell the practical ability to distribute content for free. Sold once, free everywhere. That is most true for music—hence music has been the frontline in the content wars—as the songs that make up popular music today are divided up nicely into 3-5 minute chunks and in digital form are measured in megabytes and not gigabytes.

Not Johann 1.0

This is one of a series of posts; the last post was here.

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But while Gutenberg created the copy, we should also note what he didn’t create: Johann 1.0, the Gutenberg Reading System™. There was no device interposed between the content and the reader, no distinctive system to carry the information to those who wanted to access it. That was also true of the dominant method for creating music: home-brewed using instruments and sheet music. Any piece of sheet music would work with any piano.

Epstein vs. Epstein: Drug Price Subsidies

If you're planning a discussion at the University of Chicago Law School and you want a very lively debate, you ask Richard Epstein to be one of your panelists. So how could we go wrong for a Loop Luncheon on Reunion weekend by asking Richard to debate himself? On May 4 he did exactly that. The event was billed as Epstein vs. Epstein, and the topic was "Why should the U.S. subsidize the world with our high prescription drug prices?" Professor Epstein served as moderator as well, of course. If you'd like to hear the results, you can listen here.

On Constitutional Visionaries

The justices of the Supreme Court have historically included people who seemed, even during their service, to be genuine visionaries. But things are different today. Notwithstanding its unsurpassed level of sheer competence, the Court lacks old-style constitutional visionaries--in a way that tells us a great deal about the nature of contemporary constitutional law. There is an important qualification to this claim. But before getting to it, we need to clarify some terms.

The Creation of the Copy

This is one of a series of posts; the last post was here.

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Gutenberg’s printer created mass media, a way for producers of content to distribute those works to many consumers. Producers were freed of the powerful technical limitations of one-by-one document production or of in-person, live production. Gutenberg created the copy, the widely-distributed, faithfully-executed physical instantiation of content. Printing brought with it reproductive fidelity and volume, the ability to turn a single manuscript produced by an author into many accurate copies available to the public. Until recently—say the last three decades roughly—a copy of the content provided only a way to consume the content, that is, to read the book or listen to the music or go the movie theater to take in a show. And it wasn’t even possible to possess a copy of radio or television broadcast: radio waves emanated through the ether to be received, ever so briefly and fleetingly.