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Ernest Miller Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School. Ernest Miller's blog postings can also be found @

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June 07, 2005

In Search Of: A Positive Agenda for the Copyfight

Posted by Ernest Miller

My friend, Prof. Beth Noveck, has written (not for the first time) about the need for a progressive political agenda with regard to cyberlaw on her Cairns Blog (Positive Cyber-Progressivism).

I say "as usual" not because I am playing social critic again but because cyberlaw so predictably tends to focus on negative liberty rather than positive rights. In other words, how can I be free from abuse? Free from constraint? Free from censorship? This reactive stance has characterized cyberlaw for the last decade of its existence. Our agenda is full with staving off excesses of intellectual property "protection" and privacy-violating snoops. Far too little attention is paid to positive prescriptions. How can we use law and technology to enable greater innovation, creativity, productvity and freedom? Being free from the law and free from intrusive code is not the only way to deepen human happiness. Rather, the legal code as well as software code -- designed right -- can promote the same shared values.
Part of this is, of course, because even negative liberty has been under constant attack for the past decade. We copyfighters have barely fought off things like the INDUCE Act and Broadcast Flag, which doesn't leave much time for focusing on positive goals.

Which isn't to say that there haven't been a number of positive goals put forward. In the copyright realm there have been several alternative compensation schemes for filesharing put forth, from prominent law professors (Neil Netanel and William Fisher among others) and organizations such as EFF. I keep deluding myself that it's all about the distribution, and copyright reform should follow along those lines, most recently: A Reply to Dennis Kennedy, Michael Madison and Marty Schwimmer on iPods, Distribution and Copyright. Larry Lessig has called for shorter terms and a return to some copyright formality. There are other examples. Unfortunately, however, none has really caught on for a variety of reasons, not least that there is much disagreement.

And, actually, I'm not even sure what "negative liberty" means in the context of copyright law. Most copyfighters, myself included, are intent on finding the right level of copyright, not freeing us from it entirely. That seems to me a very progressive goal itself.

The main problem, I think, is that most people really don't care about copyright; they don't realize how important to a democratic culture it is. We don't lack for potential progressive prescriptions. We lack agreement on them and we lack the marketing.

The issue of free speech, which Beth also raises, is also an interesting one. Free speech is a funny sort of negative liberty. It is a negative liberty that is, in part, justified by its positive purposes. According to Mill, the best way to approach truth is by allowing, almost encouraging, error. Accepted truths will be strengthened through battle with error. Error will be overthrown by truth. And, as is most likely the case, both sides have a little bit of truth to them and we move to a better synthesis. Free speech may be a negative liberty we cherish, but even were it not, it would be a progressive policy goal.

Be that as it may, there are also a number of progressive free speech policies out there - particularly for what I call "freedom of the press", the role of government in regulating distribution of information. For example, there are those who want stricter control over media ownership and claim a progressive mantle. I disagree with them (as I disagree with Netanel and Fisher), but it is a positive platform. There are many in the copyfight who argue for open access and open standards in order to free distribution. This seems to me a positive, progressive goal. Unfortunately, these two groups seems somewhat opposed and, among other reasons, very little is accomplished along these lines.

Comments (1) + TrackBacks (0) | Category: Copyright | Freedom of Expression | Network Law | News


1. Copyrighter on June 9, 2005 09:20 AM writes...

Mr. Miller,
I agree with your headline assertion that copyright reform from a libertarian point of view does need to find a more positive agenda, however I would argue that it already has one -- just not the one you proposed. While you bring up a linkage between copyright reform and freedom of speech that I find nebulous, I think movement has found a focus which is laudable: creating an alternative to the studio system of distribution for artists who want or need another avenue.
I'm not sure that I understand the link between copyfight and freedom of speech. I don't think copyright reform really impedes the ability of someone to get a message out into the public or it's intended audience. It might impede someone doing it with the aid of copyrighted works, but communicating anti-governmental or anti-societal messages by themselves is not very difficult today.
I believe that the positive copyfight agenda relates to the fact that as a public, we have the right to create an alternative distribution system for media created by creators who don't want to opt into the studio system or use DRM. And as a copyfight critic, I think this is an entirely laudable goal. The studios, in their own arrogance, do not believe that anyone can create content outside of their system that will be appealing to the masses. I think this creates an opportunity to prove them wrong. I point to sites such as and that other one up in Washington that distribute independent artists as the first steps. I think winning the war in the marketplace will be much more effective than fighting it in courtroom.
The real problem with the copyfight agenda is that there are too many of you who when venting true feelings behind closed doors disclose that copyfight is *really* about "making information free", "god damn it if I'm going to pay for a song that I can download from Kazaa for free" and "record studios are evil corporations that deserve to be destroyed". As long as those constituents continue to occupy your ranks, your agenda will always be compromised and will fail against a lobby that has law and economics on its side.
Interestingly, it seems to me that the more rational proponents of copyright reform are shouted down or dismissed by the more virulent, fatally flawed amongst you. However, I use my criticism to voice support for those who advocate rational copyright reform and to counter those who are emotionally invested in destroying an industry.
Just my thoughts.

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