For years I nursed the belief that Miles Davis's rendition of My Funny Valentine on Cookin' with the Miles Davis Quintet was probably the best single jazz piece recorded on CD.

I suffered crises of faith, bewitched by Dave Brubeck's Take Five and Lester Young's This Year's Kisses, which are both fabulous songs, but neither one could ever quite push me to the brink of tears the way Valentine could, especially during night drives down snowy roads in a rush to get home for dinner.

Some bloggers are under the delusion that In a Silent Way is better than any of the four MD Quintet albums. Others inexplicably think that a few beautiful notes hit by Red Garland in "If I Were a Bell" are better than seconds 33 to 41 of Valentine. They're wrong. However, the time has come for me to confess error.

Last week, I acquired the Miles Davis Quintet's Steamin', and I think I can safely say that the Miles Davis Quartet's nine-minute version of "Surrey With the Fringe on Top" may be even better than Valentine. The song's only flaw-- but it is a huge flaw-- is that no 8.5 minutes of music can possibly live up to the 26th through 29th seconds of Surrey. Once you hit a pair of notes like that, it is hard to justify doing anything other than hanging up your trumpet and taking up a new job.

On a camouflage painted Hummer in my neighbor's driveway:

PEACE... through superior firepower

My week guest-blogging here at Crescat comes today to a close. There is obviously much more to say, and much more on which I would love to get your feedback. In the meantime, anyone interested in reading more on self-help should feel free to email me. I am -- suprise? -- working on a paper related to all this, and I would be happy to share the current draft.

In true Chicago style, however, let us end our conversation here with a little more substance: specifically some further thoughts on self-help and copyright.

My copyright post this weekend focused on self-help technologies that allow copyright holders to assert greater control over their work. I want to turn now to the opposing self-help technologies through which college students and other ordinary consumers are themselves shifting legal boundaries, specifically by engaging in the unauthorized duplication and dissemination of copyrighted work online. Copyright law has had a hard time discouraging illegal activities of this sort, the primary reason being that the large number of bad actors makes normal legal process prohibitively expensive. The law could in theory still deter either by significantly increasing the penalties associated with these illegal acts, or by finding some strategy to lower the cost of bringing each individual case. Neither approach, however, holds great promise.

With respect to increased penalties, current penalties for copyright infringement are already quite steep, with statutory damages clocking in at anywhere from $750 to $30,000 per work copied, and criminal prosecution a real possibility thanks to renewed interest from the Department of Justice. A college student with a modest collection of illegal music is therefore already being threatened with a possible punishment on the order of five years in jail and well over $500,000 in cash damages. It is hard to imagine credibly threatening higher penalties for this category of legal wrong; and, even now, nearly every case settles for a tiny fraction of the maximum possible penalty, presumably because both the government and the copyright industry feel constrained by the possibility of negative publicity.

Meanwhile, although the idea of lowering the costs of legal process resonates in the abstract, in practice none of the plans proposed thus far show much promise. For example, over a several month period in 2003, the Recording Industry Association of America experimented with a streamlined court process wherein copyright holders would present circumstantial evidence of online infringement to a court clerk and, in response, the clerk would issue a subpoena ordering the relevant Internet service provider to reveal the name and address of the accused infringer. The process was designed to avoid the expense of conducting a full hearing before issuing a subpoena; in particular, it cut corners by relying on a court clerk rather than a judge, and by not offering accused parties the opportunity to defend their anonymity through counsel. The procedure was roundly criticized for fear that it would be too easily abused. The worries included somewhat outlandish concerns that stalkers, pedophiles, and the like would masquerade as injured copyright holders in order to discover the names and addresses of previously anonymous targets; but they also included more plausible privacy and due process concerns over a streamlined process that unmasked anonymous parties without giving them any chance to anonymously resist. The merits here were never adjudicated; the D.C. Circuit killed the program on the ground that it was not authorized by statute.

Where deterrence at the individual level cannot work, the typical response is to regulate or in other ways hold accountable parties that facilitate the illegal practice. Copyright holders have obviously attempted that strategy, perhaps most notably through high-profile litigation against Internet startups Napster, Aimster, and Grokster. Much has already been written on these particular cases, as well as on the general issues they raise, and I will therefore keep my remarks on this topic short. I want to emphasize, however, that these are difficult cases because the technologies at issue are capable of both legitimate and illegitimate use. That is important as a matter of copyright doctrine—a decade ago, the Supreme Court found manufacturers of video cassette recorders to be immune from copyright liability primarily on the ground that VCRs are “capable of substantial noninfringing uses” —and as a matter of policy as well, in that courts when faced with dual-use technologies must be careful not to regulate in a way that unnecessarily discards the wheat with the chaff. At the same time, caution should not be allowed to morph into paralysis, especially in instances where small modifications to the relevant technology could reduce the number of illegitimate acts without substantially interfering with legitimate ones, or substantially altering the core underlying technological accomplishment.

Let me unpack those concerns just slightly further. In Sony Corporation of America vs. Universal City Studios, Inc., the Supreme Court held that “the sale of copying equipment, like the sale of other articles of commerce, does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes. Indeed, it need merely be capable of substantial noninfringing uses.” Bill Landes and I have criticized this holding along two dimensions. First, read literally, it fails to account for the costs and benefits of the technology at issue, excusing from liability even a product for which expected harms fully overwhelm expected benefits. There are admittedly reasons not to engage in too careful a cost/benefit balance. It might be difficult for a court to predict future uses of a new technology; and some harmful uses ought not count given that they can be better addressed through other forms of intervention, such as direct litigation against the relevant bad actors and self-help. However, on its face, the Sony rule requires no balancing at all; and, if that reading is correct, it seems an unduly paranoid approach.

Second, the Sony rule creates no incentive for firms to try to better protect copyright. Instead, it offers blanket immunity the moment a firm can demonstrate sufficient legitimate use, completely ignoring any possibility that the firm could have done better. An analogous approach in criminal law would be to announce that anyone who does two good deeds in the morning is free to commit any number of bad acts in the afternoon. Such a rule is ridiculous because it does nothing to discourage afternoon malfeasance; but the Sony rule does exactly that with respect to infringement. Again, there are admittedly reasons not to be too aggressive in terms of allowing courts to micro-manage the development of new technologies. The Sony rule, however, has been read to contemplate no court evaluation at all. Just as courts are able to evaluate the complicated technology issues that arise in the context of the patent system, and courts are able to evaluate questions of product design in the context of products liability litigation, courts working in the copyright setting could be expected to evaluate whether technology firms were (say) reckless in their failure to adopt additional copyright protections. This is therefore a second dimension along which a literal reading of the Sony rule would be overly cautious.

Issues left unresolved in Sony raise similar complexities. Consider, for example, the question of which legitimate uses should count as “substantial noninfringing uses” for the purposes of the Sony balance. In my view, a use should count only if it is both lawful and sincere, which is to say that the use is both technically permissible as a matter of law, and also a use for which the technology at issue has plausible charm. Grokster could in theory be used to disseminate copies of the Bible. That would be lawful, as there is no copyright in the Bible, but not sincere, in that there are so many equally good ways to acquire a copy of the Bible—websites that post free copies online, religious institutions in every community that offer free copies in print, hotel rooms where the Bible can routinely be found in a drawer—that there is little reason to defend the ability to acquire a copy through Grokster per se. Grokster similarly cannot be defended on the argument that peer-to-peer file sharing helps strangers recommend new music one to another, because suggestions could be made without actually offering the music files at the same time. Nor can KaZaA be defended as a mechanism for new artists to introduce their work, given that free centralized websites—like the old mp3.com —can easily be used as centralized repositories for music that is willingly being placed in the public domain. Phrased another way, a legitimate use must be evaluated in light of plausible alternative means to accomplish the same end result. This is an important detail left unmentioned in the Sony decision, and a detail that the appellate courts seem also to have thus far overlooked.

As for still other responses to the various self-help technologies that facilitate consumer infringement, federal law offers a potpourri of approaches. One provision of the Digital Millennium Copyright Act encourages Internet service providers to remove allegedly infringing content by immunizing service providers from liability for wrongful removals made in good faith. Another provision immunizes from copyright liability search engines like Google and Internet intermediaries like eBay, but only on the condition that they act expeditiously to remove infringing content from their sites the moment they are made aware of its existence. Yet another forbids any firm from manufacturing, importing, or in other ways offering to the public any technology that is primarily designed to break an encryption scheme that would otherwise protect copyrighted work from unauthorized distribution. Even the Federal Communications Commission has tried its hand at protecting copyrighted work; the Commission recently promulgated a series of regulations that require manufacturers of television and cable hardware to build into their equipment certain technologies that restrict the unauthorized redistribution of copyrighted television content.

All of these strategies have advantages and drawbacks. What is interesting about them, however, is their sheer diversity. Because consumers have this new ability to assert unilaterally the power to duplicate and distribute copyrighted work online, copyright law has had to fight back by: using immunities to entice various parties to do their part in enforcing the law; banning some technologies even though those technologies might have substantial legitimate uses; and imposing by regulation specific design requirements for the next generation of television equipment. And, because all this is only working so well, there are proposals on the table to do still more—such as permitting copyright holders to engage in otherwise-illegal denial-of-service attacks as a means by which to bring down servers that are distributing copyrighted work illegally, and authorizing copyright holders to unleash self-help computer viruses that would detect and destroy copyrighted music that is being offered for free by unauthorized sources. In short, copyright law—perhaps more than any other field of law—has been and continues to be under enormous pressure to react to self-help measures.

**

Many thanks for reading and writing with me this week.

Regards,

Doug Lichtman
Professor of Law
The University of Chicago
dgl at uchicago.edu

Andrew Dilts discusses a pair of intriguing arguments against the juvenile death penalty (which I've most recently blogged about here).

The first argument: The death penalty, because final, is incompatible with due process:

So long as we are human, we are prone to make mistakes. Due Process allows for mistakes to be corrected, and is integral to criminal proceedings by virtue of the fact of humanity. The problem with the death penality, is that it is irreversable. . . . It, unlike any other form of punishment, can not be suspended, canceled, or compensated for in light of new information.

First, a quibble. Death is not the only punishment that can not be suspended, canceled, or compensated for-- certain kinds of physical punishment (or abuse that results from our system of imprisonment) could also result in psychological conditions that are effectively incurable and incompensable. And despite my economics courses, I'm dubious of the notion that we can really compensate all wrongly-convicted folks for all of the nasty things we do to them in the meantime. In any case, note that this argument goes much further than to argue against the death penalty-- it argues against our current system of relatively low compensation for errors in the system (which is where I think we ought to focus reform efforts).

The second argument: You can't hold people to account as adults unless you give them adult freedoms:

I am deeply critical of the practice of trying minors as adults. There are reasons (arguable if they are good or not) for maintaining a distinction in the law between youth and adults. Most important, in my view, are ones of citizenship and inclusion. ... (b)ut it is in fact two conditions which make those lines acceptable: 1) they must be arbitrary (that is, they cannot be used to intentionally disenfranchise a specific group) and 2) they must be consistent. It was a lack of consistency that brought about the 26th amendment.

Note again that this argument carries beyond the death penalty. Dilts recognizes that the argument against executing 17-year-olds applies equally to the argument against trying 17-year-olds as adults in certain cases (a practice that I suspect is with us to stay).

Note further that while one option is to restore the senseless 18-is-it line, and eliminate the practice of adult prosecution for juveniles, we could also bring duty and freedom into equilibrium the other way 'round, by instituting a scheme whereby exceptional 16- and 17- year olds who wanted adult freedoms could convince a semi-neutral decisionmaker of their advanced capacities. If we could work out the administrative costs, I'd favor that approach.

The consistent theme here is that the arguments against or about the juvenile death penalty have logical ramifications that go beyond the simple practice of execution. If reversibility is the problem with the death penalty, then we ought to take much more seriously our commitment to compensating the wrongly-punished where we can (I'd suggest compensation of at least $1,000,000 + $500,000/year wrongfully imprisioned). If the problem is adult punishment without adult freedom, then that implies the juvenile death penalty should rise or fall with the practice of trying-juveniles-as-adults.

Note that this is an entirely different approach than that carved out by the Supreme Court, which holds (wrongly, in my view) that the death penalty jurisprudence should be much much different than the locking-people-in-concrete-boxes jurisprudence.