One Degree of Separation - The Link Between Kelo and Intellectual Property Rights
So, last week I linked the passing of civil rights icon Rosa Parks to the struggle for the protection of private property rights. This week, I offer a link between the struggle to protect intellectual property rights and the Kelo decision. The following article was written by my friend and colleague, Jim DeLong, for the Progress and Freedom Foundation:
http://www.pff.org/issues-pubs/ps/ps1.7kelo.html
One Degree of Separation: Kelo & H.R. 1201
Progress Snapshot Release 1.7 August 2005
By James V. DeLong*
Everyone knows the game Degrees of Separation, where one finds the connection between two seemingly distant people.
The same game works for seemingly unrelated policy issues. For particular example: it takes only a single hop to get from the recent eminent domain case Kelo v. New London to H.R. 1201, a bill on intellectual property and technological protection measures (TPM) in the U.S. House of Representatives.
The Fifth Amendment to the Constitution says that private property may be taken for public use only if just compensation is paid. The phrase "public use" has always been assumed to be a limitation, meaning that a state cannot take for a strictly private use, simply transferring property from A to B, even if it compensates A.
In Kelo , the Supreme Court addressed the issue whether this long-standing assumption has any real content, and its answer was "not much." New London took Ms. Kelo's house because it wanted to transfer the property to a redevelopment authority, which had some grandiose plans for the area. This was good enough to meet the public use requirement, said the Court, since: "For more than a century, our public use jurisprudence has wisely eschewed rigid formulas and intrusive scrutiny in favor of affording legislatures broad latitude in determining what public needs justify the use of the takings power."
Of course, it would be pretty hard to fail a test that requires nothing but some sanctimonious verbiage. As Justice Scalia said in an earlier case: "Since [a harm-preventing] justification can be formulated in practically every case, this amounts to a test of whether the legislature has a stupid staff."
Kelo has been met by a rush of criticism from both left and right, most of it refreshingly Adam Smithian. The gist is that it is simply not a proper function of government to decide that B can make better use of property than A. If this happens to be true, then the free market provides the perfect remedy - let B buy it.
Perhaps there is also a growing sense that the government raven for pork to distribute to favored constituencies is already out of control in spending tax money, and that giving it carte blanche to redistribute property in general is the road to perdition. (If this sense is not growing, it certainly should be.)
But at least Ms. Kelo got paid for her property. Pending before the U.S. Congress at this very moment is a bill designed to take property from a bunch of As and give it to a bunch of Bs, only without paying a cent to the As. And it, too, relies on a test composed of sanctimonious verbiage that could be failed only by the deeply stupid.
The bill is H.R. 1201, the Digital Media Consumers' Rights Act of 2005, and the background is the Digital Millennium Copyright Act, which is section 1201 of the Copyright Act (hence the H.R. number). The DMCA makes it illegal to crack technological protection measures (TPM) - commonly called encryption - used to protect copyrighted content. The DMCA also makes illegal the distribution of code cracking tools.
H.R. 1201 would repeal this ban insofar as the code cracker or the toolsmith wanted to obtain, or help others obtain, access for purposes of making "noninfringing use" of a work.
There are indeed lots of noninfringing uses of copyrighted works, most of them created by the courts under a doctrine called "fair use." The doctrine is a grabbag - it includes such uses as excerpts for book reviews; some transformative uses, whereby a work forms a foundation for broader efforts; political commentary. There is a dash of transaction cost thinking - it can be fair to photocopy an article for educational purposes if getting permission is a long and arduous process.
Because of the variety of purposes crowded into the doctrine of fair use, it would be is a dull code cracker indeed who could not attach a plausible claim of fair use to almost any work. Want to write a class essay on "Images of the Mafia in American Art?" Surely this commentary entitles you to get The Sopranos by hacking into the encryption that protects HBO. Want to compose "Variations on a Theme of the Grateful Dead"? Then hack your iPod to access the raw code of their music.
Note that such arguments would justify not just hacking by the nerd elite, but mass distribution of code-cracking tools. And, of course, once the tools are available, or the decrypted copies are available, then there is no way of controlling them. And the IP involved has then, for all practical purposes, been seized from all the As who used to own it and redistributed to all the Bs.
No one, including the backers of H.R. 1201, is so dumb as not to know that this would be the effect. Their precise goal is to abolish IP rights in favor of some mystical commune wherein all IP is free as the air and creators are compensated by government. Like the New Haven Redevelopment Authority, they have a grandiose plan.
Current fair use doctrines were invented in a different technological age. They need to be rethought to fit contemporary circumstances, and this is indeed happening in the marketplace. Consumers are making known that they want some ability to copy CDs, for example, and the TPM people are setting up systems that allow it, to a limited extent.
Other new divisions of property rights between creators and consumers are being negotiated out through marketplace experimentation. The last thing needed is a heavy-handed legislature deciding that it can decree how this complex territory should be redeveloped, and then trampling over both property rights and market processes.
Ms. Kelo lost in the Supreme Court, but Congress need not replicate the error.
* James V. DeLong is Senior Fellow and Director of the Center for the Study of Digital Property at The Progress & Freedom Foundation. The views expressed are his own.
posted by Andrew Langer at 3:04 PM
1 Comments:
I know some of you remember me because I still get emails. I guess maybe it is a cosmic coincidence that I am posting this today!
I'm the guy with the delivery company--a couple of my guys parked near the Dupont Scientology place, and the Scientologists went crazy when they mentioned blinkers. The Scientologists have been hassling me ever since then.
Well guess what I did? I went to that Scientology place on Monday afternoon.
I took the metro as I know parking is a pain around there.
I ignored the people outside, walked in like I had business there.
A young man asked if he could help me. I told him who I was and that I wanted to talk to someone in charge. His eyes got very big, but he stayed calm. He asked me to have a seat and wait.
I sat and waited. I have to tell you that they have a very nice place. I think it used to be a house. Someone obviously spent a lot of money on it.
Well a woman came out and asked me to come with her. We went into a little office.
She introduced herself, I won't give the name though.
By the way, I brought a yellow pad and made it clear I was going to take notes.
I told her I wanted the harassment to stop. I layed out what had happened, that they had been calling truck companies and had shown up when I was doing a pickup and told the people there my company was a bunch of religious bigots.
I told her as far as I knew the word blinker was the common term for the flashing lights on a truck.
I told her that hassling a small business over a word is ridiculous, and that if we could come to some kind of understanding I'd have to find another solution. I had thought about taking the two guys with me but then I thought they might have thought we'd get violent.
She said she'd wished I'd made an appointment. I told her maybe THEY should have made an appointment instead of just showing up and hassling me. I also told her that I did look on their website and it was not clear how to make appointments.
She asked me what I knew about blinkers and I asked her if she meant not the truck kind and she said yes. I told her I had looked on the web and it said that they were teleporting cats and that they were either made from cat dna or that their dna was the basis of cats. It also said that these cats are part of the invaders that are part of Scientology religion.
She said that there are many advanced teachings in Scientology. She asked me what religion I was and I would not tell her. She asked why and I told her I was there to get to the bottom of this and not to tell her my life story. She asked if I knew what was meant by a religion having advanced teachings. I told her not really.
She said in Scientology people come in at the level of preclear and move up the bridge. She showed me a picture of this bridge, there are many steps along the way to something called the OT levels. She said that OT is Operating Thetan and is the highest level.
She said along the way you have to learn various things and that L. Ron Hubbard designed the bridge so you learned things as you needed to learn them.
I asked her what the harm was in accidentally learning something early--like learning about the blinkers.
She said and was very serious that there were cases where people had learned things early and been harmed. She told me there was a court case where some other things had been leaked and they took steps to protect the judge who reviewed the leaked papers.
She also said that there are people who stole Scientology materials and use them in something called the Free Zone. She said that this violates the Scientology copyright. She told me that I should have made an appointment with something called the Religious Technology Center in Los Angeles but that since I was not a Scientologist I might not have understood the web site. I told her I did not know what that was and was certainly not going to go to Los Angeles for no reason.
She said that the Religious Technology Center protects Scientology's copyrights and makes sure that the material is used as it was designed. I asked if it was like quality control and she said yes. She said that Scientology is very precise and gets results if it is applied as designed. I told her that made sense but where was the harm in knowing about these blinker cats. In fact, I told her, the guys on the truck did not even know that the word blinker had anything at all to do with Scientology and that maybe they should use less common words for such sensitive things.
She told me that she had no control over what things were called that everything was based on the writings of L. Ron Hubbard.
I said well it is a good thing Hubbard didn't decide that the word mover is not some other kind of monster or I'd be in even more trouble. I don't think she got the joke. She repeated what she said about Hubbard's writings.
I said well OK what happens now. I said you are harassing me for what, because we parked near you, that's our right and because someone said blinker? I think that's legal too.
She said that we did not have a parking permit. I told her we did not need one. I told her I'd been in the business for quite a while, I know what permits I need. I also told her that if we had a permit violation, DC should deal with us and not her and that it had nothing to do with bigotry or religious secrets.
I told her that they have a special meaning for the word clear, is it a problem if we say something is not clear or that glass is clear? She said no as clear is not part of an advanced teaching. I said that's nuts, how are people who are not Scientologists supposed to know all of this? I said you are hassling my business because someone said blinker. I said Catholics would not get upset if we said cross or mass outside a church and Jews would not get upset if you said pass over.
She said, and I'm not kidding, that this was one good reason to study Scientology. I said why, so people won't break some odd rule? I told her that certain things were obviously offensive to different religions but they were pretty well known. I also told her I thought it was pretty rare for a religion to hassle someone over something so minor.
Then she said well you posted this story of yours on the Internet. She said you mentioned the blinkers. I said well yes I did as the last time I checked America still had free speech. I told her they post all kinds of stuff on the Internet and why are they better than me.
She said well we don't post other religions' advanced teachings or make fun of them. I told her that if I'm making fun of anything at all I'm making fun of their intolerance of the use of a common word in its usual meaning. I told her that if there's any bigotry going on it is against what seems to be some pretty serious stupidity. I told her they had hassled me way more than I had hassled them if I had even hassled them at all. I told her as far as I knew no one had had any problems from hearing us say blinkers. I asked her what would happen if a Scientologist went to the store and someone said they had left their blinkers on and they happened to hear it.
I asked her why, if this word is so dangerous or whatever that something hasn't happened before. I asked her why if these cats exist why hadn't the government done something about them.
At this point she said something about governments suppressing Scientology but I interrupted her and just kept going.
I told her I could have lived the rest of my life and not had a clue about these flying space cats if this had not happened. I told her that there are lots of moves and deliveries in her area and that they should be used to seeing this by now. I told her that when all of the stuff for this building got moved in that someone must have parked nearby to move it.
I told her I'd had it. I told her she was costing me money and my employees did not like being hassled and followed. I reminded her that I was taking notes and that I was most certainly going to post about the meeting. I told her if she had anything to say she had better get with it and say it as I'd heard about enough about parking permits and dangerous advanced teachings.
She asked if the comment about dangerous advanced teachings was making fun of Scientology and I said well maybe a little. I told her I'd been using the word for years and nothing had happened. I told her that I'd accept that they had advanced teaching but did not see how they could be dangerous. I asked her if she could give me any evidence of this danger and she said the danger was there but she was not allowed to give me an examples.
I said well that's about it, what are you going to do about this? I told her I was really upset and since the problem started here in this building that's where I'd come back to.
She asked me to wait outside while she made a phone call. I said maybe a conference call would be best and she said no. She said she would make a call and that she would have an answer for me at the end of the call.
So I wandered around the lobby for about twenty minutes. I thought they would watch me but if they were it was through hidden cameras. But maybe not, as another woman came up and asked if she could help me and I told her I was in a meeting with the other woman, they do not seem to be all that organized, and there were a lot of people wandering around in there.
Well she came back out and asked me to come back into the office. She said she had been talking to people at the Religious Technology Center about me. She said the disclosure of the advanced teaching about blinkers was recent and a major concern of theirs. She said it was a policy order that anyone not in good standing and disseminating data about blinkers was subject to a suppressive person declaration. That's pretty much what she said and yes I did ask her what it meant.
She said that it meant that in order to control the flow of information about advanced teachings that persons doing so without authorization were declared as suppressive. I told her I was not suppressing anything. She said that I was suppressing Scientology. I said well what happens now.
She said there were various procedures. She said I really should consider becoming a Scientologist in good standing as that would be the easiest way to get the suppressive declare revoked. I said I was not about to convert to her religion over this. She said then I needed to go ahead and make amends in the form of overts and withholds although she said it is hard to do this if you are not a Scientologist.
I told her I was having nothing to do with their rules and procedures. I said you people are after me because we parked near your building and used a common word which you think is some secret religious code word or something. She said that ever since the first disclosure of the blinker teaching there had been a lot of calls into Scientology about it.
I told her I had nothing to with the discovery of this teaching. I said if it is so secret then how did someone find out about it. She said well sometimes people steal documents and leak them. She said in this case it seems someone had bought confidential documents at a garage sale. She said this person posted about the blinkers and other things.
She said that this person then sold the documents to a known suppressive person even though they offered her a fair price for the documents.
Now I will be honest and say that by now I know about that but did not know about it before. I told her. She said well see that's the problem. People talk about these teachings and it causes problems.
I said well you caused this problem. If you had not been taking pictures of my guys and then having a fit when one of them said blinker none of this ever would have happened.
She said people come and protest there and expose teachings. She showed me some pictures of people with picket signs that looked like aliens. She said the alien signs were making fun of other advanced teachings. She said she had seen the blinker pictures on the internet and it was more of the same. I said well I never made any blinker pictures.
She told me that the Religious Technology Center had told her that they could arrange a special price if everyone in my company would at least do some basic processing. I said I am not going to convert over this and it is illegal for me to even suggest it to my employees.
Then she started telling me that Scientology is compatible with all other religions and you really don't have to convert if you don't want to. I told her it would still be illegal for me to even suggest any kind of religious training or whatever it is to my employees. She said that the suppressive person declaration applies to all of you and it is your choice of what to do.
I stood up. I told her well it is my choice to post something about this meeting to the internet. I told her that if you keep messing with me I will find some way to deal with it. I told her that if they want to believe in aliens and flying cats with alien dna and so on it is fine but when a guy talks about blinkers on a truck it is no big deal.
I told her that if it did not cost so much to repaint the trucks I'd rename the company Blinker Van Lines. She had an obvious nervous reaction to this!
So I'll keep you good people informed. I'm still not giving out the the name of the company but I do appreciate all of the good wishes. But if you see an ad for a blinker special you will know it is me!
November 25, 2005 1:12 PM
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