Herewith another recent addition to my draft book, Intellectual Privilege: A Libertarian View of Copyright, (inspired, in part, by Berin Szoka's recent claim, "I just don’t know what the right balance [for copyright] is! I’m glad there are others patient enough to try to figure it out. This is why we have economists and… yes, even lawyers!"):
As an illustration of the public choice pressures that drive copyright policy, consider the fate of the copyright in Steamboat Willie, a 1928 cartoon that the Walt Disney Company cites as establishing its copyright claim in Mickey Mouse. Scholars have made a surprisingly strong case that, because the requisite formalities of the 1909 Copyright Act were not satisfied, Steamboat Willie has fallen into the public domain. The Walt Disney Company has responded to such claims by threatening to bring suit for "slander of title," demonstrating how seriously it takes its copyright in Steamboat Willie. Let us take that copyright seriously, too, then, so that we might better understand the public choice effects of the Walt Disney Company's interests.Term&MMCurveSmall.gif )
The above figure illustrates how the duration of the copyright that the company claims in Steamboat Willie—marked by the solid grey line—has twice approached expiration—a limit marked by the dashed grey line. In both instances, federal lawmakers amended the Copyright Act to extend copyright's duration, both for copyrighted works generally and works, such as Steamboat Willie, that predated the amendments. The line marking the copyright term in Steamboat Willie jogs upward both on the effective date of the 1976 Act (January 1, 1978) and again on the effective date of the Sonny Bono Copyright Term Extension Act (October 27, 1998). (Steamboat Willie did not receive the maximum possible copyright duration under either extension due to complications arising from the work's status as a work in its second term under the 1909 Copyright Act.) No one can, of course, say with certainty whether or to what degree lobbying by the Walt Disney Company drove those copyright term extensions, which fortuitously or not saved the (supposed) copyright in Steamboat Willie from falling into the public domain. It does not take a great deal of skepticism, however, to predict that federal lawmakers will extend copyrights again before 2023, at which time Steamboat Willie will once more risk sailing beyond the limits of copyright's duration.
Given the rough-and-tumble of real world lawmaking, does the rhetoric of "delicate balancing" merit any place in copyright jurisprudence? The Copyright Act does reflect compromises struck between the various parties that lobby congress and the administration for changes to federal law. A truce among special interests does not and cannot delicately balance all the interests affected by copyright law, however. Not even poetry can license the metaphor, which aggravates copyright's public choice affliction by endowing the legislative process with more legitimacy than it deserves. To claim that copyright policy strikes a "delicate balance" commits not only legal fiction; it aids and abets a statutory tragedy.
[Crossposted at Agoraphilia, TechLiberation Front.]
Wednesday, August 05, 2009
Copyright Duration and the Mickey Mouse Curve
Tuesday, August 04, 2009
Reforms Suggested by Modeling the Law School Rankings
As I recently observed, the close fit between law schools' scores in U.S. News & World Report's rankings and the scores of those same schools in my model of the ranking "suggests that law schools did not try game the rankings by telling USN&WR one thing and the ABA . . . another." Since both Robert Morse, Director of Data Research for USN&WR, and the ABA Journal saw fit to comment on that observation, perhaps I should clarify a few points.
First, I have no way of knowing whether or not law schools misstated the facts, by accident or otherwise, to both the ABA and USN&WR. The fit between USN&WR's scores and my model's scores indicates only that law schools reported, or misreported, the same facts to each party.
Second, this sort of consistency test speaks only to those measures USN&WR uses in its rankings, that it does not publish with its rankings, and that the ABA collects from law schools: median LSAT, median GPA, overhead expenditures/student, financial aid/student, and library size. Measures that USN&WR uses and publishes—reputation among peers and at the Bar, employment nine months after graduation, employment at graduation, student/faculty ratio, acceptance rate, and Bar exam performance—go straight into my model, so I do not have occasion to test their consistency against ABA data. In some cases—the reputation scores and the employment at graduation measure, the ABA does not collect the data at all. This proves especially troubling with regard to the latter. We have little assurance that USN&WR double-checks what schools report under the heading of "Employment at Graduation," and no easy way to double-check that data ourselves.
Third, and consequently, USN&WR could improve the reliability of its rankings by implementing some simple reforms. I suggested three such reforms some time ago. USN&WR has largely implemented two of them by making its questionnaire more closely mirror the ABA's and by publishing corrections and explanations when it discovers errors in its rankings. (I claim no credit for that development, however; I assume that USN&WR acted of its own volition and in its own interest.)
Another of my suggested reforms remains as yet unrealized, however, so allow me to repeat it, here: USN&WR should publish all of the data that it uses in ranking law schools. It could easily make that data available on its website, if not in the print edition of its rankings. Doing so would both provide law students with useful information and allow others to help USN&WR double-check its figures.
To that, I now add this proposed reform: USN&WR should either convince the ABA to collect data on law school graduates' employment rates at graduation or discontinue using that data in its law school rankings. That data largely duplicates the more trustworthy (but still notoriously suspect) "Employment at Nine Months" data collected by the ABA and used by USN&WR in its rankings. And, unlike that data, law schools do not report "Employment at Graduation" numbers under the threat of ABA sanctions. We cannot trust the employment at graduation figures and USN&WR does not need them.
Among the reforms I suggested some two years ago I also included one directed at the ABA, calling on it to publish online, in an easily accessible format, all of the data that it collects from law schools and that USN&WR uses in its rankings. I fear that, in contrast to USN&WR, the ABA moved retrograde on that front. I leave that cause for another day, however; here I wanted to focus on what my model can tell us about USN&WR's rankings.
[Crossposted at Agoraphilia, MoneyLaw.]
Saturday, August 01, 2009
What I Learned at the FBI
On Thursday I attended a seminar at the FBI for film and TV writers. There was lots of useful information, but what I found most interesting was the FBI agents' use of language. Specifically, I noticed that they regularly used the word 'forfeit' as a transitive verb meaning 'to acquire by asset forfeiture.' As in: "The FBI forfeited $2.6 million in this operation."
Of course, this is a perfect reversal of meaning. The standard meaning of 'forfeit' is to lose or to abandon, not to acquire.
I don't know that this says anything particular about FBI psychology, except that asset forfeiture has become so routine that they needed a shorter word -- "acquire by asset forfeiture" being rather cumbersome. I suppose that agents just naturally extracted the only verb embedded in the phrase 'asset forfeiture.' Words like 'seize' and 'confiscate' either didn't occur to them, or else seemed too narrow because they don't necessarily imply keeping the seized assets.
Still, it was jarring to hear this casual use of a word to mean something so diametrically opposite its original meaning. At first I was genuinely confused; when I heard an agent say the FBI had forfeited a bunch of money in some operation, I momentarily thought the FBI had actually returned the money to someone. But what are the odds of that?
