« More Digging: Speech-Speech Tradeoffs | Main | From the Mercantilist World to Market-Based Liberalism: Money as a Constitutional Medium »

May 10, 2007


Feed You can follow this conversation by subscribing to the comment feed for this post.


Professor Picker,

Quick copyright question. If our budding artist gives her work away free on YouTube in hopes of being able to sell it in the future, can she later claim copyright protection for the specific stuff on YouTube or wherever that she was allowing free download of in years before? Not necessarily trying to punish those who downloaded back when she was a nobody, but rather those who continue to download the old stuff now that she is somebody who can charge for her work.

Bruce Boyden

I've been thinking a lot about similar issues lately as well, in connection with my Internet law class. Many of the troubling cases in Internet law appear to gain their intuitive force from the blurring between amateurs and professionals. I think previously there was a hidden assumption in many areas of the law that the law would only, or primarily, be applied to professionals. You can see this particularly clearly in copyright. The fair use test, for example, makes little sense as a rule for governing consumer behavior--it's way too imprecise for that--but makes a lot more sense as a rule governing rival publishers. The same goes for sync licenses, the public performance right, the byzantine compulsory licensing scheme, etc. Amateurs have a great deal less cognitive resources they can devote to parsing such rules, not least because they can't afford attorneys. I think the challenge will be to develop rules governing ordinary online behavior that achieve the level of order we want while still being realistically implementable.

Chris Black

I'm just a curious onlooker, but the answer to Random's question is yes. Until an artist sells or otherwise forfeits the copyright for an original work, the artist can exploit it by any lawful means, for profit or not -- the latter generally described as "promotional" use, at least in the music industry.

Posting a song on Myspace would be considered a form of promotional licensing, and I'm not familiar with the consents that an artist must give in that specific situation. But it is highly likely that the person posting the song must certify his/her authority to post a given song, and I also wouldn't be surprised if the poster also indemnifies Myspace against any claims for compensation for the trafficking of that content.

X. Trapnel

It strikes me that this crucial sentence: "But absent the lure of selling the work tomorrow—and she needs copyright to do that—she would never give away the work today" contains two non sequiturs, which when combined completely more or less eviscerate the point.

Some creative folks will, in fact, continue to produce, and to give away what they produce, even if they never expect to sell anything. To deny this is simply to deny the pluralism of human motivation.

This is a minority, obviously. The 2nd non-sequitur is perhaps the most important: it's just not true that copyright is necessary (as opposed to -helpful-) in order to profit from selling one's work. Both empirical and theoretical evidence confirm this; Levine and Boldrin have done great work making this clear in their 'Against Intellectual Monopoly' book.

The Dude

Randy, you do an awful lot of posting. Don't the other profs there have anything to say?

The comments to this entry are closed.