COPYCENSE

I am preparing an article on fair use for Online magazine, and part of the article deals with the costs of litigation. Despite the music and movie industries’ widespread litigation campaign against alleged infringers, I have found surprisingly little information online that analyzes the costs of copyright litigation.

(I posed this question to Fred von Lohmann at the Electronic Frontier Foundation quite a while ago, and at the time he was unaware that any data had been collected on this topic.)

I did run across this interesting analysis published in the Legal Theory Blog in 2003 (about the same time I posed my question to Fred). In it, Lawrence Solum, a law professor at the University of San Diego, looks at litigation costs from the perspective of copyright owner and alleged infringer. The analysis is a tad too theoretical for my purposes, but it is a good analysis nevertheless.

Legal Theory Blog. Copynorms & Litigation Costs. July 10, 2003.

Grokster relied heavily on a case that the Supreme Court had decided many years ago involving Betamax, a predecessor to the VCR. And so it is argued that file sharing of copyrighted music and film may also turn out to have unexpected benefits for the copyright owners themselves.

But the logic of this argument is that there can never be liability for contributory infringement because the possibility can never be excluded that the product or service offered by the alleged contributory infringer. There is a possible middle way that should be considered.

The Becker-Posner Blog. Grokster, File Sharing, and Contributory Infringement–Posner. July 3, 2005.

Media firms should be able to protect their copyrights. And without any copyright protection of digital content, they may be correct that new high quality content is likely to dry up (along with much of their business). Yet tech and electronics firms are also correct that holding back new technology stifles innovation and is an unjustified restraint of commerce.

In America, the length of copyright protection has increased enormously over the past century, from around 28 years to as much as 95 years. The same trend can be seen in other countries. In June Britain signalled that it may extend its copyright term from 50 years to around 90 years.

This makes no sense.

Economist.com. Rip. Mix. Burn. June 30, 2005.

See also:

Katie Dean. Keeping Up With Uncle Sam. Wired News. June 10, 2005.

"Not more than an hour after the Supreme Court ruled last week against a pair of file-sharing software companies, Hilary Rosen, the former head of the Recording Industry Association of America, had this to say on her Web log at The Huffington Post:

"’Wow. We won big. Unanimous. That doesn’t happen very often,’ she wrote. ‘I was right. Winning is a big psychological lift.’

"And yet, she was not sanguine about the future. ‘Knowing we were right legally really still isn’t the same thing as being right in the real world,’ she wrote.

Tom Zeller Jr. The Imps of File Sharing May Lose in Court, but They Are Winning in the Marketplace. The New York Times. July 4, 2005.

(Editor’s Note: The Times allows free access to their stories on the Web for seven days before sending the stories to the paper’s fee-based Archive.)

The Copyright Office announced that it will be holding three upcoming public roundtable discussions on orphan works.

The dates and locations are as follows:

• Tuesday, July 26, 2005 – Washington, D.C.
• Wednesday, July 27, 2005 – Washington, D.C.
• Tuesday, August 2, 2005 – Berkeley, California

U.S. Copyright Office. Copyright Office Announces Public Roundtable Discussions on Orphan Works. June 24, 2005.

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