Years ago I swore off responding to Professor Epstein in print – not because he’s not full of ideas and very often right (he is both of those things, and more), but because it’s so hard to get him to listen. (He once published an article attacking an argument I had made but insistently misinterpreted my position; no matter what I did, I couldn’t get him to see that we were actually in agreement.) But his response to my essay here proves that my resolve was misplaced. It is a brilliant and compelling argument for a very sensible position about copyright, software, and even culture. Save for quibbles on the margin, there’s little with which I would strongly disagree.
Epstein contends that “every legal system in history has blended two separate property regimes: the private and common”; that “the justification for private rights…has to be social”; that we need a “social reason to protect writings and other intellectual creations.”
All true. And nothing I’ve ever written says anything to the contrary. We need a balance (or “blend,” as Epstein puts it) between the private and common. We need social justifications before we regulate anything, especially speech (as copyright inherently does). So the argument I’ve made in many contexts (both “from legal principle, as a good jurist should” and from real stories about real people, as good writers sometimes do) is just that we need to be skeptical about the explosion in regulation that goes under the name “copyright.” I emphasize: skeptical, not condemning. Where regulation serves a progressive end, we should embrace it. Where it is little more than corruption introduced by special interests, we should condemn it.
Thus, Epstein is right that I do not explain “why the standard view, which offers sensible if limited protection of intellectual-property rights, is wrong.” That’s because I don’t think the standard view is wrong. Nor do I condemn “proprietary culture.” Proprietary culture has been with us from the start and for most of our history has served creativity and culture well.
What I do condemn is extremism – the shift from the standard view to an extreme version of “proprietary culture” that could easily become embedded in the digital economy.
I doubt Epstein endorses extremism, so it would be great to know how he justifies his Panglossian views. I described, for example, a very particular design of digital rights management (DRM) technology, one that prohibits a certain kind of cultural “remix.” Epstein apparently has no problem with DRM. As he writes, “DRM is no more threatening to free culture than metered phone calls.” But of course, the devil is not in the theory, but in the details. If DRM functioned merely as a metering mechanism, I’d agree. But Epstein is presuming that DRM’s principal use will be for price discrimination. Whether DRM will be used for something more insidious is the question I was raising.
The DRM scheme that I was discussing would indeed “impede the ‘remixing’ of bits and pieces of shared experience into new creative works,” as Epstein puts it. I am suspicious of this particular scheme – if only because I can’t see any reason why the law should restrict my freedom to refer to culture just because I am using new digital technology. After all, the law left me free when I was using older technologies.
Epstein simply asserts that DRM won’t have this restrictive effect. Why, he doesn’t say. Instead he insists, “I can be inspired by Hemingway or Bellow to write my own masterpiece, so long as it is not a derivative work.” But taking inspiration from Hemingway or Bellow is not “ ‘remixing’…bits and pieces of shared experience.” That was the subject of my question: What possible reason is there for the law to restrict remixing bits of shared experience? And what reason is there to believe that DRM technologies won’t be so restrictive?
Finally, a word about Brazil’s free-software pledge: I agree that there should be no preference for a particular model of software development, independent of the value that any particular model delivers. I oppose the slogan “Buy American”; I would also oppose “Buy Free.” But if a government determines that the value to society from one model is greater than from another, then there’s no principle of neutrality that says it can’t push the more valuable model.