 Okay, hey, this is step and can sell this will be can sell on Liberty episode of 411. And I think in 409 I did part one of this, what probably will end up being a series of talks on intellectual property law and I've almost never given this talk except to other attorneys in the past I've always talked to libertarians and others about policy. You know whether we should have copyright patent law. But I figured it would be helpful to people who actually have a might have a practical desire to understand these laws or who want to understand it better to understand the policy arguments better. So I've already covered patent law in the first one. I do realize that in the first talk there was a chat window open which let me see if I can open that now, which I missed last time. Let's say hello in the chat message make sure it's working can everybody see my, my, what I just typed. Okay, because I didn't see that last time but I got the zoom had saved it. Okay, good. Zoom had saved it so before we get started let me just briefly mentioned there was two questions I didn't, I didn't see, but I saw it in the log. Okay, and it was Matt Brandon, Brandon Berg asked, am I am I saying that both hold designs are separate category from patent copyright and trade secret. Well, it's part of the copyright it was an amendment to the copyright law. I think with the DMCA the digital millennium copyright act in the 90s. It's sort of different than copyrights it's it's sort of the way that the front of a boat, or the whole is shaped or designed so it's similar to copyright but it's got its own, its own rules which I don't know much about but anyway. And then Scott asked, should a goal in this type of law be to maximize the incentive to be creative. Now in this lecture I'm only talking about how the law works, really, I did talk a little bit about the history. In the policy talks I talked about the bad arguments for IP, one of which is the incentive to create. Yeah, that is one of the, that is one of the arguments given for IP law, especially for patent and copyright. In the framework, it's more about helping you sell your goods on the market and identify them as coming from you something like that. But for patent and trademark, sorry patent and copyright they both come from in the US anyway. Congress is authorized to make copyright patent because of the copyright clause in the Constitution of 1789 which says to promote the progress of science and the useful arts. Congress can make patent and copyright law so the whole purpose was to promote the progress. Yeah, so to give incentive to creators by giving them some kind of property right and what they creatively produce. So they can make more money off of it because they can sell their stuff at a monopoly price if they can stop competition. So yeah, one of the arguments is that this is sort of a temporary or a special property, the common law rules or private property. It's a temporary monopoly privilege grant designed as a policy tool to try to encourage or stimulate innovation like inventions for patents and artistic works for copyright. So that is the argument I think the argument is bad, which I'm not going to get into here because that's more of the policy issue. So I have my other writings on this for example on my website. C4sif.org go to the against IP page and you'll see a post about the empirical case against intellectual property and Greg is joined us now. Okay, so those are the two questions I had from last week but let's let's go to turn to copyright now so I talked about copy patent last time, and then copyright and now. So this is an overview of the different types of IP law. I forgot to mention I am a electrical engineer background that's how I got into patent law and I've been practicing patent law and other types of IP law like copyright and licensing and some litigation support like that, since 1993, basically, so 20, 30 years. I talked last time about types of IP there's copyright and patent, and we'll talk about copyright today, those are the two big ones. Those are the two worst, the most damaging ones in my view. There's also trademark and trade secret, and I may do another lecture where I talk about all the other types trademark trade secret, and then there's others like about hold designs and semiconductor master mask works and database rights and moral rights and geographic. And then there's also systems which is sort of a type of trademark and special protections and things like that. And again, I'm on page three of my slides and there's other other resources there. Now, let's talk about the history of modern copyright law so modern copyright law has been basically in the world. I'd say in two phases, since the statute of and of 1710 in England, and then in the US and then in Western countries, since around the beginning of the US around 1790. After the first Copyright Act in 1790 in the US and then other acts like that in Europe followed soon after that. And that was in the US based upon the 1789 constitution which authorized Congress to to enact such a law. But if you go back a little bit further in history before modern copyright. So you basically before the printing press you had the only way that copies of things can be made was by hand so you had scribes who would like copy things by hand. And because this was laborious and it was usually done by you know, religious monks or scholars of they could be there what they could copy could be controlled by the church, or the state or the church in the state working together. When the printing press in the 1400s and 1500s started becoming more popular, it became an obvious threat to these to the state and the church of their ability to control what people could see, like, you know, Protestants might not Protestant rulers might not want the Catholic Bible printed or vice versa. Or they might not want heresy printed, you know, or things that people shouldn't be reading. What was, I remember printing was still difficult you couldn't print at home you still had to go to a printing company so the government in England gave the stationers company which was then a kind of emerging printing firm, a royal charter in 1557. And that lasted for, I don't know, a little over 100 years or or so. And during that time, of course, the state could control what that what the stations company would approve to be printed so they still had to control our monopoly over over ideas. That was a form of censorship. Now, when it's charter expired in the late, I think late 1600s. There was a debate about renewing the charter and keeping this going, but but by that time, there was agitation against renewing it and instead replacing it with a different system which would give the copyright in works to authors and so that's what they did with the statute of ban in 1710 so it gave the copyright to authors, and they sold it by saying all this is going to help the authors but of course, all it meant was the authors had to go to the printer the publishing companies still to get the works printed and that was still controlled by the the church in the state, especially the state. And they had to assign their copyrights and so, you know, it looked like it gave a right to to authors now what does that look like that looks like today you know many book publishers have to assign their copyright to a publisher to get it published. The patents, you know, most inventions come from employees engineers at corporations who buy the virtue of working for them as an employee or signing an agreement. Have to assign their inventions, their patented inventions patentable inventions to their corporations. So, you know, you still end up having the corporations control copyrighted works and patentable inventions that is starting to break down now in the at least for copyright because of self publishing and the internet and digital technology and you know print on demand and things like that and online publishing printing digital copies writing a blog, and sub stack things like that, as we'll maybe get to in a bit but any in any case, that's the history so you can see that the history of copyright, you know, it emerged from the desire of the powerful institutions the rulers the state basically to control thought and to censor speech, or to censor the press basically. Now, and you can think about this, we saw in addition to this this publishing system where up until recent times most authors were subject to the whims of the publisher so for example I published several novels and I might make a royalty from the publisher for each each copy sold but they own the copyright usually. And so the book goes out of print, and the publisher doesn't want to renew it, then the book just disappears, and I can't do anything about it because even I as the author or my heirs don't own the copyright so they would be infringing copyright to republish it right. And you know it's led to the orphan works problem where you know works disappear because you don't know who the author was and no one is everyone's afraid to republish this this out of print book, etc. So it led to that but also like it's led to this whole thing of academic publishing where, you know, most of the scholarly type work is done by academics and scholars in the past, who are employed by universities, and they tend to publish their works in scholarly journals, or in books with academic presses. And the reason they do that is to, and they don't usually get paid for this right they're doing it just to advance their careers and to get their ideas out there. And they publish in these journals and these publications, even though their price to the very high price because that's how they get tenure and promotions. That's how their universities grade them basically. So they, they give their work for free to these academic presses, which then print the books and sell them to libraries at colleges and universities at exorbitant prices which the university libraries can afford so it's like an unholy alliance between the you know the taxpayers are forced to subsidize universities quite often. So that money pays teacher salaries, and it also funds library budgets, which are used to buy books and inflated prices from academic presses. But what this means is these books just gathered dust in these libraries which the average person, or the person from a poor country, you know, can't afford to get to. And they can, and even nowadays they can't afford to buy the book because it's too expensive. They can't afford to basically, you know, a stifling of the spread of information so you have this professor who he might get a promotion or academic tenure or something from this but his ideas don't really get spread except to other academics. Again, this may be breaking down as more and more open source journals come online and things like this. So that's that's where we are right now. If you want to read into this more I have a couple of links here to a great article by Carl Fogle about this and some others I've linked here to Eric Johnson. As Eric Johnson wrote, wrote in a law review article about 10 years ago, the monopolies now understood as copyrights and patents were originally created by royal decree bestowed as a form of favoritism and control. Over of the monarchy dwindled these chartered monopolies were reformed, and essentially by default they wound up in the hands of authors and inventors. But again, as I said they they wound up in the hands of authors and inventors nominally but in practice they ended up being reassigned back to the publishers or to the employers. By the way, I want to make sure someone just say something or type in the chat make sure everyone's hearing me correctly correct. Okay, and if you feel free to interrupt me by the way what I'm speaking, I will do a Q&A at the end but if you if you see something you really want me to address right now, feel free to interrupt me, as long as it's not too much. And I will try to get to the questions in the chat I see there are some here. Matt writes that Brandon Berg, I think the arbitrariness of the subdivisions of IP law show that it's just a made up concept not based upon any real world type of property that can be owned. And that is true in the arbitrariness not only of the different types but of each type. So the boundaries of you know, like for example the term of patent is about 17 years, totally arbitrary. The term of copyright is now it's life of the author plus 70 years it used to be the life of the author plus 50 years. And before that it was in the beginning of the country, which Tom Bell calls the founders copyright which we may get back to. It was about 14 years extendable once, if you applied for it by another 14 years so 28 years max, but basically in the founding in the beginning of the country patents lasted about 17 years. And I think they lasted 17 years I actually can't remember, but something like that, and copyrights were 14 usually. And the reason that the 14 year copyright term came about was the theory is I'm not sure if this has been proved but this is the theory. It's an arbitrary number how do you pick the right you know if the Congress is going to make up a brand new copyright law. How long did they make it last for they didn't want to make it last forever because that would obviously be harmful just like a $100 minimum wage is obviously harmful so they can get away with a $14 one because it doesn't hurt too much it's not too visible it's the same thing with copyright, you know, so they came up with a 14 year term. And here it goes that back in those days it was common to have apprenticeships like indentured servitude and apprentices, someone who would serve under. I don't know what they call the master or the employer and learn the trade but they would serve them while they were learning they were kind of learning on the job, and the terms of apprenticeships were seven years and usually there would be, you would have two apprentice, maybe one apprentice and then another one follow him. So the idea was that someone who is teaching his craft to his, his, his apprentice should be protected from competition from them when they leave his, their, their, their, their apprenticeship and they go, they start competing with them, he should be protected for the length of two apprenticeship terms, you know, so yeah it's completely arbitrary. So it's funny when you see these critics of patent and copyright who pretend to be radical reformers and firebrands who none of them favor patent and copyright abolition, but they want to put they want to pose is like we're some Maverick or there's some radical reformer like say Alex Tabarak who's this allegedly free market guy from from Mercadis or George Mason, and he you know he draws this thing, I think I've got a link to, I've got a blog post on this on c4sif.org called something like patent policy on the back of a napkin and he draws this on the Gaussian curve, showing the benefits of patents given their term and if you go start at zero like you don't have patents at all. There's no benefit but then the benefit goes up and up and up to a peak and then it goes down if you have too long of a term, and he just draws that Gaussian curve and says, Oh, we're on the other side of the of the of the optimum so patent patent terms are too long, or copyright terms I can't remember which one. I need to shorten it, but how does he know what the optimum is it's just totally arbitrary and there's no reason given whatsoever. It's like he wants to say we should lower the term but he has no basis for that because if you think there's a peak. Maybe we're on the left side of the peak maybe we should increase patent terms and copyright terms. If you believe the optimum term is zero like me, then it's easy to see that the lower the term the better we are because it's like taxes the if you believe in no taxes at all then if we have 40% then 30% is even better and then 20% is better than that all the way down to zero. I believe in this sort of a peak somewhere or an optimum like, like most, you know, state many status do like you know our earth or laffer had the laffer curve saying tax revenues are too high we're killing the cow. We're killing the goose that lays a golden egg we need to lower taxes and we'll get even more revenue out of the people that was under Reagan you know this laffer curve idea. So this is what some of these these reformers say is we have a laffer curve type thing for intellectual property but we're on the far side of it, but they don't know. So it's all arbitrary alright so done with that little question let me return to where I was now on slide seven. Okay, I'm going to talk about us law mostly and most other countries laws are similar due to treaties which require all the countries who are members which are most countries in the world to have similar minimum standards. And the US was either the first or one of the first and it's been emulated by a lot of countries anyway so the US is a good model. As I mentioned earlier so in the patent law lecture, the Constitution which was ratified in 1789 the reason I keep mentioning that is because the first patent act was was made the very next year in 1790, but also because in 1791 under the next Congress because every two years there's another Congress in the US under the next Congress the Bill of Rights was was ratified the first 10 amendments to the Constitution. And the first amendment restricts, it says Congress can't enact a law that abridges freedom of the press, right, which is clearly in conflict with the copyright act of 1790, which was, which was enacted a year before, based upon the 1789 copyright clause. And the Supreme Court has recognized that as common sense shows, there's an obvious tension between or conflict between a law that prevents you from publishing a book like copyright law says you cannot print this book. Because it copy is it's it's it would be a copy of someone else's book or a derivative work. So copyright law literally prevents people from publishing books which you would think is an abridgment of freedom of the press. And the first amendment prohibits, so there's a conflict between these laws. Now, under, under principles of statutory interpretation and constitutional interpretation. These are called cannons can on s of interpretation. When you have two laws in conflict, the later one is the one that prevails because that's how laws get overturned as you pass another law later that overturns the earlier law. If the later law didn't have priority then you could never overturn a law. In America, the Constitution had an amendment prohibiting alcohol in 1923 or something and then 1933 another amendment was enacted, overturning the earlier one so that when you have a later amendment to a constitution that that is in conflict with an earlier one, then the later one is the one that has to win. You could make an argument that the entire copyright law is unconstitutional because it's outlawed by the First Amendment. But unfortunately the Supreme Court doesn't do that they say, well we have to balance them because they were enacted so close in time we can't assume that Congress meant to overturn copyright law. Blah, blah, blah, but in my view an originalist understanding of the Constitution and a liberty loving and a liberty leaning and liberty presumptive Supreme Court ought to say listen. Unfortunately, copyright can't survive in the face of the First Amendment so we have to choose, we're going to choose the First Amendment. I wish they would do that but they haven't. And not only the First Amendment also the Eighth Amendment for cruel and unusual punishment because the damages the damages that can be awarded under statutory damages for copyright infringement are insane $150,000 per infringing act which is no relationship to actual damage done etc. So I think that violates the Eighth Amendment it probably violates the Fifth Amendment on due process it violates maybe some other provisions as well. In any case, Constitution authorized it. The next year Congress passed the Copyright Act, which is now the modern act is now entitled 17 of the United States Code US code. The copyright office is what runs and handles the copyright system in this country, at least for registrations. And oddly enough, it's part of the Library of Congress, which is a kind of like a library of Congress, which is the legislative branch of the US government, which is odd right because you have an executive. You know when laws are enacted by Congress they're executed by the executive, the executive branch, and yet the copyright office is in the Library of Congress is kind of a weird fluke of history. For example, patents and trademarks federal trademarks and the patent system, which are also federal laws enacted by Congress, they're administered by an executive agency the Department of Commerce, right, which makes more sense so it's not clear to me why copyright wouldn't be under the Department of Commerce but I guess they thought when you had to register works and people still do register them sometimes. They had to be held somewhere so they were held in this repository which is the Library of Congress which keeps other records of the federal government. So it's just kind of odd. All right. Now there's a there's a ton of other US laws that they touch upon copyright I won't get through to detail I've got them listed here with some links. But there's the net act the new electronic theft act which has criminal criminal fines and at $250,000 in fines and criminal possible prison term. The sunny bono copyright sentient act call sometimes called the Mickey mouse extension act protection act because the theory is that Disney Corporation has a lot of its capital or its value in its copyrights and Mickey mouse and its other creations and every time Mickey mouse's copyright is about to expire they lobby Congress to tack on another 20 years to the to the system so it used to be life of the author. Plus 50 years and then in 1998 right when Mickey mouse was about to enter the public domain 20 years were tacked on to it. So, you know I think I'll get to this later but in the US system in most of the world is life of the author plus 50 is 70 in some countries but the US is more aggressive of course. Now in the case of a work for hire, where the author is a corporation and I'll get to that in a bit. The term is 95 years or 120 years depending upon when it was published. Now in the 90s the DMCA the digital millennium copyright act was passed and part of it is called Osilla the online copyright infringement limited liability limitation act that's the safe hardware provision people. I've probably heard people talking lately about section 230 of the CDA the communication decency act that is a safe harbor for inner service providers to not be liable for defamatory comments of their users like if you have a website and you have a comment section and someone post something in the comment that is defamatory that defame someone, then they're liable if you can find them, but the publisher or the platform that hosts that is not liable under the CDA under section 230 this is what a lot of conservatives and even some post libertarians want to change to make the tech companies more liable for the comments of their users which is a bad idea as I've written and some posts. And the DMCA had one like that for copyright. It was a little bit different it's not as broad as the well it's not as unrestricted as the CDA section 230 for defamation. The DMCA says you're you're you're you're you're you're isolated from liability for copyright infringing acts of your users who use it on your plate like you can't be sued for, say, secondary infringement liability for your users posting a copyrighted work on your website, as long as you take it down when you get a notice. This is why all these big publishers like YouTube, they instantly take down anything if there's any threat, even if it's an unsubstantiated threat by a robot. They take it down because they don't want to take the chance that they lose their safe harbor protection, and it might be an actual copyright infringement if they don't take it down then they could be secondarily liable because they lost their safe harbor under the DMCA. The DMCA has made these platforms like Google and, you know, websites with comment sections, publishing platforms, and YouTube, just have a trigger trigger finger just take things down as soon as they get a takedown notice and there's almost no liability for posting a takedown notice if you're wrong. So, so you have all these media companies they have these robots that just search, and they just send a notice out and I think I've read that we go to page. I don't know where it is, but I think there's something like one point up to 1.5 billion takedown notices sent to YouTube YouTube every year. It's insane. I know they take down millions of videos per year because of this. So, oh, the DMCA I think I mentioned earlier it also that's what added the vessel hole the boat hole designs protection. Now, I talked to this last time to I've got some blog posts just outlining all these mountain of IP legislation both domestic and all and international treaties. So, the major international bodies that sort of administer these things or promote these things or the WTO the World Trade Organization which tries to liberalize trade, but when they do so they require companies to have strong IP rights, it makes no sense trade literally has nothing to do with with internal property rights. So for example, if China doesn't have strong property rights because you have to get license license to get permission from different different layers of government to open a factory there or to start a business there. That is not that is not a free market and that's not good, but it's got nothing to do with free trade like however that country makes goods they can ship it to the US. If there's free trade between these countries. So free trade agreements like bilateral investment treaties. Let's just talk about the free trade free trade agreements really have nothing to do with the internal property rights in in in different countries, but they use the leverage like they say if you're going to open up retrade with the US if you want access to our markets. You need to have American style IP rights. Then there's the WIPO the world intellectual property organization which is a UN agency which also deals with intellectual property. Now the major treaties some of which are administered by these these these bodies. For copyright the major treaties the burn convention which was first enacted in 1886 by European countries and the US oddly enough resisted joining until 1989 the reason part of the reason was because you know, well we didn't want to input we didn't want to have the moral rights provisions which the burn treaty tried to impose on countries that joined. We didn't mind the minimum copyright provisions and giving reciprocity respecting the rights of foreign authors, although at first we didn't want to do that because you know in the fledgling days of the country. We protected American authors but for foreign books can be pirated left and right and so there was some opposition to losing that freedom to do that. We finally gave into that and I think we gave into the burn convention in 89 because we were able to to not have to be subject to. Sorry that's my poodles to not have to be subject to the, to the moral rights provisions moral rights is sort of this weird European thing where, in addition to being able to stop people from copying your work, which by the way you can sell that right you can get rid of it like so if I sell you a book, then I've given you a license for that copy and you can do whatever you want with the book you can resell it under the first sale doctrine and stuff like that. Or if I, if I'm an author and I assign my copyright to a publisher I've lost my copyright, and you can sell it. But moral rights in Europe are things that are called considered inalienable and that they're related to copyright but they're not they're not copyright itself they're related to your, your active creating a copyright of work. And those rights are things like attribution, like the right to always be given attribution or credit be accredited as the one who made it. And those are inalienable you can't even sign that away. And the other one would be the right to like prevent your work from being defaced or destroyed. I mean there's these crazy cases where you know like some some artists paint some mural on a refrigerator. Or he has an apartment where he painted a mural, and he sells the apartment to someone or he sells a refrigerator to someone, and then he learns 1520 years later that, you know, the owner of the apartment wants to demolish that wall or to paint over it, or they want to paint over the refrigerator, he can like get a court order to stop them from doing that because he has this inalienable moral right to not have his work defaced. There's a there's a lawsuit going on in some museum somewhere where the museum, they can't destroy the mural but they don't want to show it anymore so they, they're putting up these big banners in front of it and the question is, is that defacing it or something so it's crazy and so the US that was one impediment to the US Now, so the burn convention imposes minimum standards like you have to recognize the types of works like you know, artistic works paintings writings, motion pictures audio recordings, and it also abolished also minimum terms like I think it's life of the 1950s the minimum term in there something like that. The US has gone beyond that to 70. It also abolished formalities which was one of the worst things it did. Before the burn convention or before the US exceeded to the burn convention under US copyright law you used to have to get a copyright you had to do two things you had to put a copyright notice on it to tell the world, I'm the author. And everyone knows who to contact if you want permission so the author is the person who stamped their name on the copyright notice, and then you know the date because you put copyright you know 1972. So you know the date which can be useful for for attribution and for for no and knowing when it's going to expire under the old regime. And also you had to register it so you had to send a copy to the Library of Congress or the copyright office and register it. And then there was a record of what the copyright work was what you're claiming that was abolished in the burn convention so that's why you still see copyright notice because there are some advantages to doing it but you don't have to. And also because it's just a legacy or a relic from the old days and most people are clueless about copyright law they don't understand it. I don't have layman say to me, for example, cancella as an author who has a copyright notice on some works and I do it for a certain reason. But they say oh cancella you're against copyright but you're a hypocrite because you're copyrighting your work. They don't understand their ignorant copyright is not a verb anymore copyright is a noun you have a copyright in a work, and it's automatic as soon as you write something and you put it down on a piece of paper. You put it down on your computer as soon as it's fixed in a tangible medium of expression, you have a federal copyright whether you want it or not. So, this has led to all kinds of problems like the orphan works problem, etc. Okay, you also have the gap the general agreement on tariffs and trade, the 1994 round covered IP, which resulted in trips the agreement on trade related aspects of IP that's trips. And then there's the universal copyright convention which was an alternative to the burn but the burn has sort of one out as far as I know. I've got other links here for think people are interested in. There's also the practice in the last 40 or so years of countries, implementing what's called bilateral investment treaties there's a web of thousands probably tens of thousands of these things around the world because the US has bilateral investment treaties with with dozens, if not over 100 countries in the world, which is like a little mini free trade agreement with those countries and then France might have one with with with UK and so like all these diads or pairs of agreements there's there's I think thousands of them maybe maybe over 10,000 in the world. A lot of them follow the same model, but a lot of the Western ones, especially the American ones basically impose on the other country. Like I mentioned earlier they impose requirements that this other country beef up their IP system and start enforcing it better, or have stronger penalties or have terms similar to the US. Either doing this at the behest of the American, the three of the strongest lobbies in America, and the driving force behind intellectual property rights being spread around the world to countries that don't benefit from it, but they have to do it because the US basically coerces them to do it or, or extracts it as a price of doing business with us through a bilateral investment treaty or some other way. These lobbying industries would be probably today's world primarily the pharmaceutical industry, and that be patents they fight tooth and nail to have strong patent protection, and then the, you know, the music industry in Hollywood publishing industry for copyright. So in a sense that Hollywood and the music industry in the in the pharmaceutical industry, primarily in the US have driven IP policy all around the world and what I call intellectual property imperialism. I've got some links here at the bottom of page slide 10 about how like Japan during the the Trans Pacific Partnership which Trump killed for the wrong reasons. Trump didn't kill because it had a strong IP chapter in it and again, a trade agreement should have nothing to do with the local, the local countries internal domestic patent or copyright law has that that's their own property right system has nothing to do with trade. But I think actually Canada during just to get a seat at the table for the TPP negotiations which ended up falling apart, but during that process Canada like actually added 20 years to their 50 year life of the author plus 50 year term for some of some copyright works just to appease the United States so you see a have this effect. Anyway, I call this IP imperialism. Okay, so let's talk about how copyright law works and what it is. Okay, so the scope that is what is what is copyright law protect so patents patent law protects inventions that's practical machines or processes right trademarks protect marks which identify the source of goods you know like Coca Cola, something like that. Trade secrets is just a kind of a way to protect proprietary information that you keep secret, a company keeps secret that they try to keep secret that gives them a competitive advantage so they're different. Copyright protects basically creative works. Okay. Let me go to slide. I'm going to go to slide 14 for a second. So the requirements are copyright it has to be a work we call it a work. It's the thing that you an author produces from his mind his intellect. It's got to be original have a some some small spark of creativity, and it doesn't have to be big because that's why photographs. So let's talk about where the photograph should be copyright because they're just like a factual representation of what the world is like, you know, the light rays bounce off objects, go through a lens and mechanically hit, you know, a photographic, you know, plate or CMOS sensor or something, and it just records what's out there. What's the creativity in that so the, you know, photographers of course they oh no it's very creative the the lighting the aperture the, the timing blah blah blah. And so, you know, even a very small degree of creativity. And same thing with software code. I mean, software code it was there was a debate about whether source code for a software program, which is functional right because it just tells a machine how to work. Whether that would be copyrightable to because is there any creativity and just telling a machine how to do something. But then of course you know the argument as well there's a little bit of creativity so there's just a smidgen and that's enough. So you have to have some originality. This is why people are also confused about copyright they'll say, well I have to copyright my stuff which is confused because you don't copyright anything it's automatic but they'll say, well you have to copyright your stuff because if you don't someone else might copyright it. What, but that's not true you can't, you can't get a copyright on someone else's work even if you copy it because you're not the author. So you have to be the author and has to be an original work of authorship. You have to fix it so you can't just like have a chorus, or you can't talk and just say you have a copyright when you said because it is not recorded it's not fixed you got to write it down or you got to record it somehow. It's also gonna be you get a protection on the expression of your ideas but not only underlying ideas themselves and we'll come back to that with something called a merger of ideas and expression doctrine. Okay, I'm going back to slide 11 so the types of things that can be covered by copyright have now been recognized. Either under the statute or under judicial decisions to be writings like a book, whether fiction or nonfiction photographs paintings you know your painter you make a painting. Software code musical compositions sound recordings which are different than the composition right there are two different things to different copyrights, which is why sometimes getting permission for a song is difficult because you have to get two sets of permission. I'm not an expert on this but that's that's good enough motion pictures like movies, film and architectural works and probably some other things to like both hold designs which are sort of like not exactly the same but somewhat. Now, in the beginning of the country 1790 the fountain this 14 year copyright which had to have a notice and had to be registered only covered maps charts and books that's it. It didn't cover movies which didn't exist yet didn't cover photographs which didn't exist yet didn't cover painting. I don't think it covered paintings or sculptures or plays music sound recordings and weren't sound recordings yet didn't cover architecture works didn't cover both hold designs didn't cover software there wasn't software yet. Well he's a libertarian law professor. He's also not an abolitionist but he he supports reform as well but he he I have a case that we returned to the founder's copyright which would be great admittedly. It's someone here, it would be admittedly a big. A big improvement. Let me let me check the chat real quick see if there's anything I need to address. It has an advantage because they start producing for everyone else yeah the first mover advantages is a big advantage that's true. Collage is barely created anything new. That's true but it's probably enough because you have to have some artistic choice and where you put the little picture so yeah you can get a protection on that. I'm not going to get into the first mover advantage because that's more about the policy that's more about rebutting the bad arguments for IP that without IP you wouldn't have, you wouldn't have people produce things which is clearly false because let's say copyright in today's world although there is copyright law because of piracy it because it's so easy to pirate now with with the internet and with with. I don't know all the terms tour browsers and encryption and all this stuff. Piracy is rampant and widespread so every time you make something you know you're doing it when people can copy and pirate it and yet people still make tons of stuff and they make lots of money off of it so it's clearly possible. Anyway, going on to slide. I'm not going to do this just shows when when different types of works started being protected you know books maps and charts in the beginning and then later on in time other things started being added. 1790 I think some of my formatting is off here, but you can see how over time more and more things were added to the scope of copyright. Now, you can you cannot get copyright in things covered by other types of IP like inventions patents are for that, or for slogans trademarks are for that, or private information that's not because it's not published. It's got to be. It's got well definitely published but it hasn't. It's got to be fixed in a in a. Yeah, this might actually be wrong I'm going to have to adjust that private information can be copyrighted. If you write it down. But if you're keeping it something is a trade secrets is a proprietary information that trade secrets not necessarily copyrightable. You can't get a copyright in mere ideas only in their expression. So, you know, if someone writes a book explaining some theory they have, then someone else is free to re to write their own book, elaborating or even restating that theory in their own words, but they can't copy the way it was expressed by the first author. You can't get a copyright in facts mere factual information which is why the photographs were it wasn't clear where the photographs were copyrightable in the beginning. Short phrases can't be copyrighted because they're just too short and they would limit what how people can use language. Same thing with titles like titles of movies or books. You can't get a copyright on that, which is why there's you'll quite often see the same title used for multiple copies of some work like a same novel the same word. There's like four or five movies out there with the with the title nefarious. There's a brand new one called nefarious. Sometimes the producer will add a subtitle to distinguish it but everyone's free to use the same title just like people can name their kid John, you know, there's a million people in this world, so what. Now, go back to that first one ideas. You can't get a copyright and ideas. And so if there's a certain type of idea that can only be expressed in one way or in a very limited number of ways, then you can't get a copyright only expression either because it's so they're said to be called a so a merger of ideas and expression. In other words, if you were to give someone a copyright in the way that they express this idea, you're effectively giving them a copyright in the idea because there's no other way to explain it or to describe it. One example would be like a recipe for food, maybe, or the rules of a game like how many ways are there to explain the rules of a certain simple game. You have to use language to explain it and anyone explaining the rules of a well known game, they're probably going to use very similar language so if you had a copyright on the language on the way it's expressed. No one can explain the rules of this game except for you and that's not prohibited that's not that's not what copyrights for for also there's no copyright in public domain works works that are very old, or works that are in the US published by the federal government like there's a statute saying the federal government disclaims or cannot own or have copyright anything that the federal government produces that's why there's no copyright in say statutes enacted by the federal government which makes sense right The government and passes things that affect us all we should have a right as citizens to copy them so that we can spread the word about what what policies of the government affect us right. Although I believe some states in the US do not have that rule so they can copyright things which I think is bizarre. I've already went through the requirements for copyright earlier. Okay, 15. Now what are the copyright rights though so what copyright covers. It covers the right to copy that is you can you can stop someone from making a copy of your copyrighted work, or something substantially similar so the exact duplication will be called literal literal copyright infringement. But you also can't just make minor changes and get a get a get out of it that would be called substantially similar copying. So it also covers derivative works that is like. So if I have a copyright in a novel like Jaws. Well, I don't know if that's a good example. I don't know if Jaws was a novel first. Let's say it was a novel. And then someone can't someone can't make someone would it would make a movie based upon Jaws. That would be a derivative work. It's not a copy of it but it's a derivative work is based upon the original. It's an exclusive right of the author. And also there's performance and distribution rights and things like that so the bundle of rights themselves would be the right to reproduce or copying the right to make a derivative works to distribute companies to perform them publicly to display them publicly, and, and there's a special one that's fairly recent and last decade or two, the right to perform publicly sound recordings by digital audio transmission. But it just makes all this stuff just makes jobs for copyright lawyers because it's hard to understand this stuff so if you're in the business you have to go to one of us to help you out. Now, there's also so basically violating a copyright right is called infringement. And this is the bottom of this page 16 slide 16. It's best is you know most people call it informally they'll say ripping off someone or stealing their work when you commit copyright infringement, but that's technically incorrect. Under the law, it's simply called infringement it means you have done something that the law deems to be an infringing act and there are certain consequences of that like you have to pay a fine or might maybe go to prison, but it's not actually not theft. And the Supreme Court has explicitly said this they say this is not theft because you're not depriving someone, you're not taking something, although people use that term to let's say he took my work it's like well if I took it why do you still have a copy. You know, so words like take and piracy and theft and stealing and ripping off or actually literally dishonest and inaccurate and they're legally inaccurate to. So, it's called infringement same thing with patents called patent infringement and copyright infringement. Now there's an exception or defense to infringement. Even if you do infringe a copyrighted work which is in the scope of copyright, it's still within the copyrights term. You have one defense and that's the fair use defense, it's an affirmative defense which means you have to make the defense if you're sued. And the way the court would decide whether or not you have a defense is they they're given four factors which is a non exclusive list. One was the courts came up by common law, the courts came up with this list of factors in jurisprudence, just in case law in the beginning of the country. And there was a patent law passed. I can't remember which year probably the 1900s, which codified the four factors that had been judicially developed, but they said these are not exclusive like there might be another factor you might want to But they're telling judges, you got to consider at least these four factors and weigh them together in a balancing test to decide and the four factors are, and they're all vague and arbitrary this is why no one knows for sure whether or not a given use of a work is fair use except in clear cases. And what this means is because it's an affirmative defense, the burden of proof is on the defendant or the victim of a copyright lawsuit to defend themselves and they can't be sure they're going to win because these these these rules are vague. And so they are, for example, number one is the purpose and character of the use, including whether it's commercial or for nonprofit educational uses okay. So if it's for nonprofit use that's ways in the, that weighs in the balance of the favor of the of the infringer, the nature of the work, you know whether it's like something that's highly profitable like a brand new Hollywood movie or something, something else. And the amount of it that you copy the portion like so if you only copy a page or two out of a novel did you really, you know that might weigh in your favor, if you copy seven chapters out of it. That might weigh in the in the in the author's favor, and then the effect on the potential market. So for example, this is going on right now with this prince photograph I think it's complicated but Andy Warhol. She was taken of prints by a photographer. She licensed the, the photograph to him, I think to a magazine I forgot the name of the company. And then the Andy Warhol, I'm sorry, yeah, I'm sorry the prints. The prince estate licensed to the Andy Warhol estate or so the Andy Warhol, the right to do these, the kind of like these Marilyn Monroe type kind of like a neon looking watercolors or something based upon that photograph and he sold them. So now the question is, is there fair use in Andy Warhol being able to use that photograph. And so one of the questions is transformative, like if you look at the fourth factor does it affect the potential market. So the question is if you want to use that photograph to illustrate an article about Prince you would have to go pay the whoever owns that photograph copyright license fee to use that photograph. Instead you could just use the Andy Warhol want to pay a license to the Andy Warhol Foundation. So is it a substitute or not, and you could you know the argument now and I think it's still in litigation is, and of course there's no objective answer so whoever the judge decides it's going to be arbitrary. But the question is, is it a transformative work and is it different and I think you could argue it's different because you might want to use the Andy Warhol thing to make a different social commentary or to illustrate one type of article, but the photograph to illustrate another type of article, but in some cases it really wouldn't make a difference you know so it's there's no objective bright lines here because these laws are arbitrary and vague. All right, going on to slide 17. I already mentioned the safe harbor so let's let's skip that. And I've already mentioned the term used to be 14 years extendable once. Now it's the life of the author plus 70 or corporation which is a work for hire which I'll get to the second. 95 years from publication or 120 years from creation whichever is shorter, which is usually the 95 years. Okay. Now, who who owns a copyright is usually the author, unless he assigns it to someone later. The author is the creator. And this is a weird quirk in the law. If you're an employer, where there's a work for hire, which like, you're employed by a company to write things. And the scope of your employment, or if you if someone commissions a work from you a certain type of work, and there's a written agreement using the words work for hire in those cases, when the work is produced, then the, the employer or the corporation is actually the author even though they don't exist as a person so they're considered to be the author. And in those cases the copyright term will be 95 years instead of life of the creator plus 70 you see. And one interesting fluke in the law to is or not fluke but it's part of the law which most people don't understand. If you have two or more people jointly create a work and they don't have to contribute equally to it but they jointly create a work, you know two guys write a novel together. They each have a 100% copyright in it which, in other words they each have the total right to license other people to copy it without the other guys permission. So if A and B write a novel together, and then they become enemies. A can license to everyone in the world, the right to use this novel. Now if he makes money off of it he has to share it with the guy but he can do it. So all you have to do is go to one author to get permission to do something if he gives your permission, you can use it even if the other guy objects. US copyright law like patent law is domestic only it only applies to activity within the territory of the United States that's under the jurisdiction of US law. So when people say China is stealing our IP user they're talking about inventions or trade secrets, but sometimes they talk about piracy of copyrighted works to. Not only is stealing not what copyright law stops which I mentioned earlier it's not it doesn't prohibit theft so China can't steal our IP. No one can steal IP because it can be infringed, but China can't infringe your IP because in, or no one in China can infringe your IP or the Chinese government can't because anything they do in China can only violate Chinese law. Now there happens to be a Chinese copyright law so they would be violating some copyright in China, maybe because China's part of these, these the burn convention and other things too, but they cannot steal us IP it's like literally impossible so all these charges are hysterical. And they're kind of racist and they're kind of insulting to Chinese honor and stuff. As I mentioned last time, what people are talking about is trade secret espionage or theft caused by leaks from within a factory in China, when an American company has a factory over there, but that's got nothing to do with stealing IP really it's more of a trade secret thing, we had that problem in the US as well so this is not some kind of China thing. I already mentioned copyrights automatic ever since the burn convention. Also it's almost impossible to get rid of copyright. So the patent system is what you could call an opt in system if you don't file a patent on your invention. You don't get a patent. And not only that if you start making and using it or disclosing it publicly after a year becomes public domain. No one else can get a patent on either not even you, like so it becomes public domain. So you lose the right to do it. It's user to lose it in a sense right. There's no rights or automatic. And there's no way they're almost inalienable because there's no way to get rid of them. You can assign it. But if you don't assign it in a written agreement assigning it, then you still have a copyright. So, you know, you have these layman like again criticize me of being hypocritical for having copyright although it's automatic and I can't help it. They'll say well, well, you put a copyright notice on your work as if if I didn't put the copyright notice I wouldn't have a copyright well that's just false I would have a copyright. Or they say well you could just put a little notice on their disclaiming copyright as if they're copyright licensing experts and they know that saying these magic words I just claim it works no it doesn't work. Well it's not clear that it works right because the copyright doesn't say someone is infringing unless the author said to the wind I just claim it like some magical incantation. Now the Creative Commons group and others have tried to get around this with this Creative Commons license. And over time that's going to get judicial recognition if only by the doctrine of equity called a stop all. But again, as a lawyer, I'm not so clear why got Creative Commons works because, again, if someone sees my, my book and I have a Creative Commons license saying anyone has the right to use this. If I sued them they could maybe soon they could they could have a defense of a stop will say well I relied upon his representation to my to my detriment. And so he's a stopped from asserting that defense but that's not really clearly what would happen you can't count on that. So the license ideas that I say I hereby publish this work under Creative Commons dash by license which means I'm giving a license to anyone. With the condition that they give me credit they put my name on it so as long as they keep my name on it then they have permission from me, but do they really because the way a license works in the old days was it's a contract between two parties to one viable parties that negotiated came to a meeting of the minds and the licensee the licensee pays pays consideration like contracts have to have consideration be binding. So I want to, I want to print your book. I have, I asked you for a license. You grant me a license in exchange for a fee, which is consideration we sign the license agreement. We know when it was dated. We can prove that who we are. If I just put a statement on a book. Who am I granting a license to some unknown person. Did we have a meeting of the minds. Did he give me any consideration. No. How did he prove that he had a license. But what if I publish a book on a website. And then I publish a painting, a capture of a, you know, a digital version of a painting on my website and I put a notice saying creative commons dash by. Now you take my painting, and you use it to as the cover of your book. And then the next day I take that copyright, I take that creative common notice off my website, and then I sue you for copyright infringement. What's your defense. It looks like a copyright infringement. Your defense could be, well, I have a license. And where's your proof that you remember seeing it on my website. So he shows to print this stuff out and how do we know that wasn't doctored right so like this whole thing is like, it's like, it's a rickety way to try to address a stupid problem and the stupid problem is, there's no way to opt out and the copyright is not is now automatic. It used to be you had to register it so you would know whether if you didn't register you'd have a copyright if you didn't put a notice on there you didn't have a copyright, but now it's automatic, but because it's automatic. And the law didn't provide a way, the law didn't say if you send a notice to the copyright office you can just claim your copyright and work and then you don't have copyright, they don't do that. And so, I'm not even sure if copyright is is opt is opt out. It's not only not opt in which it should be and it used to be it's not even opt out because there's no way to get rid of it. Anyway, why did they, sorry, Stefan, go ahead. I'm just wondering why did they change that what was the rationale for. Well that was in the burn convention from the 1800s and late 1800s it was always in there. They decided to finally join the world community in the 1980s and joined the burn convention for the benefits of being able to influence policy in other countries and things like that. And to and to get recognition of us copyrights in other countries because that's kind of, you have to join the burn convention and do it. But we have it, we have it because we joined the burn convention. Why that was put in the burn convention in the late 1800s. I don't know. I don't know what what I don't know what the debates were that that had that that put in there, probably to make it easier for authors to get copyright. So they wouldn't have to file a registration. I believe that was the reason. Okay, now, what are the penalties for infringing copyright not for theft. But, well, it before before the law had statutory damages you had to prove actual damage like okay, this guy copied my novel and then I lost $10,000 worth of sales. Probably you know you can have an expert witness that can estimate what your sales probably would have been blah blah blah. But you have to prove actual damages well the copyright said alternative you could have statutory damages. Statuary damages can be decreed by the court and they can be up to $150,000 per infringing work, like per infringing act. And so like one law professor calculated like 12 years ago. So it's probably even higher now that just taking the average activities all the people here do every day and every month, every year, you know forwarding emails copying pictures here and there, cutting and pasting. And theoretically we're all liable for up to $4.5 billion each per year and copyright infringement damages, which is insane right that maybe at the high end because I think he took the $150,000 number which is the most a judge can use it could be smaller, but theoretically billions of dollars each which is obviously absurd. So let's extend this to the AI thing that's happening now, you know ai is probably infringing copyright, because it uses all these sources. And then it does all these internal computations mixing these things and then it generates an output which is probably a derivative work in some sense. It's billions of times faster than us so maybe, maybe these AI makers are liable for a trillion or a billion times the 4.5 billion so we're talking quadrillions, or whatever the next level is, which is obviously absurd like greater than the value of the whole solar system or something. Also, unlike patent law, I believe I don't think there's a patent law criminal provision that I'm aware of. The liability can be attached for willful infringement of copyright and this is why, for example, Aaron Schwartz the guy that helped to create RSS and other things. He was a young guy and he was just trying to make academic journal articles available online. So he was facing up to 35 years in federal prison and a million dollars in fines and he committed suicide I mean he was his life was ruined by copyright and threat of threat of prison. He was a guy who was put in prison for a year for uploading this Wolverine movie like 15 years ago or something like that just uploading one movie to the internet jail for a year. There was a British student in Richard Dwyer who was facing being extradition extradition to the United States to face to face federal prison time for for living in England and having a website that didn't have any pirated content on it but it had. I shouldn't use the word pirated any infringing content. It had links hyperlinks to other websites that had it like Russians or whatever. It's crazy right he finally got out of it but his life was almost ruined or derail for quite a while. So the implications of this is that, as I mentioned earlier in the history copyright was rooted in state and church censorship and control over freedom of the press and ideas. We still use the censor today we have millions of YouTube takedowns a year and other takedowns to I just using YouTube as a conspicuous example. And it means you literally cannot have a book or build upon prior works without permission of someone and you're often you're usually not going to get it. So you couldn't have Star Trek or Star Wars sequels can't make a sequel or fan fiction unless you want to take the risk and maybe, maybe Star Trek copyright owners turn a blind eye or they might give you permission but theoretically they could go after you right and they quite often do and just here's a couple of older examples which I've had for years I quit I quit collecting examples because there's there's another one every day but So the famous novel Catcher in the Rye shortly after his death or right before his deaths JD Salinger the author and then later his estate persuaded us courts to ban the publication of a sequel called 60 years later coming someone wrote a sequel to catch on the I call 60 years later coming through the rye and they just went to court said this is derivative work we don't want it published so the court blank bandit. This is literally book burning or book banning by the government, and you've probably seen videos of like you know steam rollers rolling over CDs and things like this that you know they're there are book destroying books that are pirated books. And there was a musing thing back in oh five when one of the Harry Potter books is coming out. You know the copies are sent a few days early before the release date to this, this bookstore up in Canada, and the store accidentally sold. Anyway they sold 14 copies, a few days early, and the publishers panicked about this because they, you know they wanted to have their release date. So they went to court and they use copyright law to get a Canadian judge to issue an order to the customers who bought the book, not to talk about it, not to copy it, not to sell it. Which, again, under the first sale doctrine in Canada and here I believe you have the right to, if you buy a book that's copyrighted you paid you, you, you already implicitly sold paid for the, for the copyright license to have it in that book. So you can resell it to someone. That's why libraries can lend books out the first sale doctrine, but the judge says you can't sell it even though you own it, and you can't even read it. It's officially released on July 16 at midnight. And I collect I used to collect other examples at the link at the bottom, my horror files, if anyone's interested. Now, I don't remember if I went into this in the last lecture but in my view, the two main types of IP which is patent and copyright, not so much the others but patent and copyright legally should be viewed as what's called in the in the law is negative easements this is the common law, or, or negative servitudes in the civil law which is the law of European countries in Latin America and Louisiana my home state. So a negative easement is just a contractual restriction or alienation of part of the rights in your property, and there's nothing wrong with it it's the basis of restrictive covenants and homeowners Association HOA agreements which I know a lot of libertarian libertarians they want their freedom, but whatever contractually and legally there's nothing wrong with an HOA agreement, what it is is you have someone who owns a piece of land, and you, you, you grant to your neighbors, the way you grant to the owner of neighboring estates whoever owns that your neighboring estate, the right to stop you from using your property in certain ways, so people do this like so they keep their neighborhood residential or something like that or they, or they prevent houses are being too tall or something. So you still own your house and you have the right you're the only one who can use it, but your neighbors have a veto right over how you use it like if I want to tear it down and build a factory. I couldn't do it without my neighbors permission because I've granted them by contract the negative easement or negative servitude. Nothing wrong with that as long as you granted by contract, or it's consensual, just like there's nothing wrong with the guy kissing a girl, if she consents. But if she doesn't consent, it's assault and battery right or like set consensual sex is fine but non consensual sex we call that rape you know. If you punch someone in a boxing ring, it's consented to by the other guy. It's not a battery, but if he doesn't consent if he doesn't consent to it and you punch someone in the street. It's battery right so consent makes the difference. So a negative easement is fine as long as the owner of what we call the burden to state. That's the state that is subject to the negative easement held by others, as long as you consent to it by contract. The patents and the copyrights is just the government of in effect issuing a negative easement to the owner of that IP right so the copyright holder in effect now has a negative easement over the printing presses and the factories. And the patent owners have a negative easement over the factories of everyone else in the country, where they can, they have a veto right over how they use their property. And that's essentially the problem with patent and copyright law is that they're non consensual negative easements. Nothing wrong with consensual negative easements but the problem is when it's non consensual so it's basically a taking a property rights Rothbard would classify this as a triangular innovation as opposed to invite intervention, intervention as opposed to a binary as I mentioned but that goes a little bit far field but I've talked about that before elsewhere. And that's the end of it so now I will open it up for any Q&A you can ask anything about policy or video if you have actually any practical questions for yourself, or elaborating on the legal stuff I just talked about, feel free to ask. Yeah, hey Stefan, there was a case I recall from 2020, where the US Supreme Court said that states are not subject to the federal copyright law because of sovereign immunity. Do you have any insight on that. I remember reading that I can't remember the details of it. I can't remember the details sorry. You think that's a good thing. I don't remember. I don't remember if it if it meant that states themselves couldn't be subject to federal copyright law claims, like, could a citizen of the US who has a federal copyright sue the state for using that. You know, I'd have to think about it I mean usually when the question is like how would you change copyright law, or has this current change by judicial decision is it a good thing. If it weakens copyright law and its effect it's a good thing. So if it weakens the ability of someone to sue. On the other hand states are evil so I don't mind states being sued so I don't know. That's a, that's a tough one. There would also copyright law and states so that there would be no states to sue, and there would be no copyright law that's an author could sue under so that's how I would approach it. Stefan, can I have a question on section 230 please. Yeah. You know, that's supposed to give immunity to publishers from what other people post on their platforms right. Is this supposed to. I think it's more for platforms. Internet service providers, not publishers. Okay, right. Okay, platform, like Twitter, Facebook. Now, what if Facebook or Twitter specifically, what if they come up with a defamatory statements like Alex Berenson's case I believe he sued Twitter in California, and they threw it down. Because of section 230, even though it wasn't anybody on Twitter defame defaming Alex Berenson it was actually Twitter themselves, they banned him and they said they bet him because he lied or something. I don't know the details of that I've heard Berenson but my understanding of 230 and by the way 230 is very convoluted. It's hard to understand. Although I think Mike Maznik on tech dirt has some good posts kind of unpacking all the bad arguments used to like people say things like well suit 230 is only applicable if the platform doesn't become a publisher and starts and start moderating the activity, and therefore nowadays these tech platforms are steering what shows up and so therefore they should be considered a publisher and 230 shouldn't apply. I think that's actually legally incorrect that's not how 230 works, and that it was never it the way it was meant to work and I don't think it should work that way. I personally don't think we should water down 230. The only problem I have with 230 is that I think it might violate federalism because defamation law is a state law based thing by and large. And so what you have is you have a federal law saying in state courts they can't have a defamation case in this in this circumstance against a platform. I mean I like that rule but I think it probably violates federalism but I'm not going to cry too loud about it. Now, if a court actually said that Berenson defamation claim against Twitter. And what they said is barbed by 230 I think that's just wrong my understanding of that's wrong. All 230 says that Twitter can't be secondarily liable for the defamatory acts of one of their users. Okay, so basically defamation means whoever makes the defaming comment, he's primarily liable. So, if someone posts on Twitter a defaming comment, Twitter did not make that comment, but without 230 you could argue that they're that they're, they should be vicariously liable or secondarily liable, because they, they induced it, or they contributed to it by providing the platform and benefiting financially from it there's all these doctrines under copyright law I think there must be similar to defamation law. If you have a common law claim, you would have to sue the actual speaker the person who the user who spoke. So you'd say he's liable, and Twitter is also liable secondarily, and jointly with him, right. Like if a kid does something to you. Well, like if an employee of a corporation does something you should, he has to be negligent you could sue him, but then you could sue his employer under respond yes superior for vicarious responsibility for his acts so you sue them both basically, if the employer is not liable, then the employee if the employees not liable, the employer is not liable. Similarly, in this case, whoever makes a defaming comment is always liable under defamation law and 230 doesn't change that. So I don't know the details of this case that that doesn't, there's must be something wrong either decision or maybe, and the way you're recounting it but I can't imagine that Twitter would be off the hook for what they said, under 230. I could be wrong. Yeah, thank you. Okay. I had a question step on. So taking the example of the guy who wrote a sequel to catcher in the rye. Yeah, and render stop the publication of that. Yeah, you know what if this guy out of spite, you know, like posted the whole thing for free online said I'm not going to try to make any money off of it but I correct what I've seen to go out into the world, whatever. What could they do to him then. Okay, so yeah and remember this case was years ago way before the internet existed so I think back then, you know, it was easy to, you know, the gatekeepers had more power back then when the when just like, you know, just like, you know, the case for Bitcoin is that you don't need you don't have to go through a gatekeeper who can stop, stop your money transaction. But back then when you had to go through a major publisher or like there was only a few self publishing up. It was easy for the court to like say no, we're going to stop this right here. So they can actually prevent it like and I don't think the copies never got out I think they were able to snuff it out. But in today's world yeah if you just posted it online. It'd be too late to stop it. Now, if if they, if they could find out who did it, then he could be sued for copyright infringement just like the Wolverine guy he uploaded one copy to the internet and he got a year in prison for doing that, because then millions of people could copy it right. Now, you know, so what I would do is if I wanted to do that I would do it anonymously so they couldn't they couldn't catch me it's hard to do that when you're publishing a printed book but you know with the internet you could publish it anonymously. But let's suppose you could find out who the guy was yeah he could be in trouble for that. And also, you could go after anyone else that you could identify who was, who was downloading it because they're copying it. So all the 1000 people downloading it but I imagine they're doing it behind tour or some encryption so it'd be hard to, hard to catch them to but yeah. Well, if so if you know someone had a sequel of Catherine dry, for example they they posted for free online. And you know they they have identified themselves as the author. But maybe they by posting it for free if they tried to claim some fair use by saying well I'm not profiting from this. And I know that this happens there's all kinds of Harry Potter fan fiction websites and stuff. And so I'm sure it's all been litigated but you know in this catcher in the right example, could they, I mean would the estate possibly still go after them for a copyright infringement even if the person tried to make no money. Yeah, I think that was still went see that's another thing most people think well if it's non commercial it's fair use. I mean as I mentioned earlier that's only one of the four factors. And again and even the non commercial part is not non commercials is not I think it says non commercial educational. So it has to be sort of educational and non commercial just to satisfy that one factor, but probably the other, the other three would be. The other three would probably weigh in the author's favor and, or at least two of them and then my guess is that the court or the judge would side with the the author. So I don't think being non commercials going to help you very much. I have a question about it is much more concerning to the previous lecture about when we were talking about the intellectual property rights on the religious images as far as I remember and this is being that I have seen and heard for the first time in my life that the religious images have a special some kind of protection in the American culture talk a little bit about it. Oh yeah, I didn't I didn't mean in the law, although it could be the law in some countries like in Sharia law, it probably is part of the law in Sharia law. No, I just meant that the, I meant that the fact that in the fact that everyone is afraid to print certain images of certain profits, because of physical retaliation, as in Charlie Hebdo is very similar to it's a copyright like what I'm saying is done by more of a private, a private mafia, so to speak, than than actual recognized state, but it's in form it's the same thing. And states are mafias to with just perception of legitimacy. That's the only difference. So that's all I mean I was just analogizing it I was, I'm basically saying that that Western copyright law is very similar to the way these, these people treat these religious images. I see I have not thought about it in this way. Well, you know if you take my if you take my negative easement analogy, if you're too broad with it, almost every bad law. You could say is like that so for example, if you don't pay your taxes you go to prison, or if you don't. If you do drugs that are illegal you go to prison. So you could classify that as in a way the state claiming a negative easement over your body. You can't use your body for these uses unless we give you permission, but I think that's stretching the legal classification too far because it's better to just call that aggression because basically the state is using aggression against you. When you didn't do anything wrong. That's what aggression is so the states using physical force to put you in prison when you did when you have not committed any kind of actual natural crime. Now, by the same token you could call that you could say that's what the true for patent copyright because, you know, ultimately, if I, if I publish a book that the court tells me not to publish this sequel and I publish it anyway. You know I might go to prison for contempt of court, or if you know, if they try to collect money money from me and I refuse to let them take it and I defend my property with my gun they're going to shoot me. In a sense, all laws are backed by force and in a sense, almost all bad laws can be called a negative easement but I think it makes more sense from a legal classification and explanatory sense to basically to call patent and copyright. Negative easements because they're very similar to the way negative easements work they're just non consensual that's the one difference. It's not so easy to call trademark and trade secret law. It's it's it's you can classify them in different ways but they're all unjust and they're all violate property rights. I see so is this very use doctrine based on the common law or is it a statue statue to your one. Well there's. So first of all there's no in the US there's no such thing as federal common law, because I see yes yes federal law came from the Constitution which is basically a statute. And then there's federal statutes which Congress and acts, but although the states inherited the British common law because they were the colonies of England and they already had in their common law courts, and the private law systems common law. There's no such thing as federal common law. Not really. And that's why in, in the 1900s I can, or maybe the 1800s there was a decision called the e-reduction ERI it was a railroad case. The decision was made that federal courts because they don't have any common law, when they hear, I think what they call diversity case we're like a citizen from one state Susan citizen from another state that's when you can go to federal court. The court the district court the federal district court, what law does he apply. So the answer was he has to apply the state law in that state as federal law. Anyway, but what happens is when the federal government interprets federal statutes. They have to, they have to interpret it and over time that precedent that body of case law develops over time. It's, it's not really common law because they're not really making it up from from a dispute between people based upon reasons or the ancient common law, but they're interpreting federal statutes but over time a body of law develops that interprets that. And that's what happened with copyright law so copyright law was a statute in 1790 and then there were amendments made or replacements made over the ensuing decades. Every time there's a copyright dispute before a federal court, they're interpreting a federal statute and some judge or some court find eventually started inventing the fair use factors so they invented it. You can call it common law but it's really just a judicial invention as a way of interpreting a statute. And then in the 1900s. So the Congress revised the copyright act or replaced it with a new one I can't remember. And when they did that they decided to codify the factors that the judges had previously developed so that's where those four factors come from the four factors come from judicial decisions but now they're in the law. So they're actually in the copyright statute now. I see because for example in Poland, we have a similar doctrine of fair use but all of those parts of those important legally important parts are simply codified and, for example, if based on the article 23 of the Polish copyright law, if I have a book or I have an ebook. So to say I can borrow it or send it to my family, to my colleagues, which I know personally to use it for the educational means. You mean the actual book or you mean the actual book or a copy? Both. I can make copies for myself as much as I want. Yes, and in the US if you make a copy like a backup copy for yourself like of a movie on a CD or of a book and if a library makes a copy for backup purposes, that is sometimes considered fair use to but only because of the way the four factors play out. I think my understanding is that in most European countries, the doctrine that's similar to the US doctrine of fair use, I believe they call it fair dealing but it's very similar to the US I believe. Yes, I believe so. Anyone else? I mentioned joint authors of copyrighted works could license stuff without the agreement of the other all without the agreement of the other author. Is it similar for patented patents or how does that work? I used to know this. Trying to remember. I don't actually recall, maybe I'll look it up and I'll put it in the modified slides but yeah because if you have two or more inventors than their co-inventors they all have to be listed on the patent and they're presumed to be the owners unless they work for corporation, in which case the employer owns it, which is the main case usually it's the employer so it's only one person there it's not not a problem, but if you have two owners of a patent, I can't recall I'm sorry. I'm sure there's a black letter answer to it but I think it is different than copyright but I can't remember how. I would imagine it being like a joint venture. But I'm sure you'll figure it out. Yeah. Well, I have time for more but if there's no more I will go ahead and end this now and I think what I will do if everyone if anyone thinks this is a good idea, maybe I'll do part three, maybe next week. And I'll try to cover the other types of IP. And that might take two lectures I don't know, we'll have to see how it goes. And then if there's anything else remaining we can, I don't know, cover anything else or maybe these three will be enough just to give people a good primer on how modern IP law actually works in the real world. Any other suggestions or questions before we before we go. Yes, I had one other question. Okay. As far as copywriting facts and stuff. There was a time like 10 years ago or so I was, I reached out to an author of a book. He'd written a biography of someone and I wanted to ask if I could. I don't know. I really just wanted to look at his research and his archive, be able to what stuff he had. And, you know, his initial response was just, well, you need to sign this licensing agreement or, you know, and he was treating as I was adapting his biography. And I don't remember if he claimed this or if I talked to someone else and they explained this but they were kind of saying. Now if this author had done interviews with this musician. And if his research is the only source of these facts about the musician's life, and I used to them and some work. He can claim some copyright in those facts, because I don't know I would be pulling it from his book, which is the only source of it or something. Are you familiar with anything like that. Well, first of all, quite often authors are confused about copyright law and they do things that are unnecessary or they say things that are wrong or they don't even understand their own rights so him saying something doesn't mean it's correct. That sounds inaccurate to me I don't think that so no you, you don't have a copyright in facts and and copyright law does not prevent you from looking at something. Even if there's a copyright in the work you're looking at okay, and using the data in there, there's nothing in copyright law that prevents that. If he thought that he's just mistaken about how IP works which he might have been because it's a convoluted field. Now there. So, for example, there's a there's a complicated thing where let's suppose you have, you want to publish correspondence between two authors which say I think Walter Block did this a few years back. His letters with Milton Friedman. You know there's other books of you know like Thomas Jefferson's correspondence or, of course that's so old it wouldn't matter. There's one I read Jasper Crane and Rose Wilder Lane their correspondence. So if someone writes me a letter, you know let's say, say Murray Rothbard writes me a letter. I can use that that piece of paper however I want I can display it in a museum I can, I can, I can show them I could I can sell tickets to people to come to my house and take a look at it. But, but the author is the one who owns the copyright so Rothbard still owns the copyright to it. So I can't publish it in a book without his permission unless there's fair use which there probably is not. So, if I wanted to publish my correspondence with Rothbard let's say we wrote 50 letters to each other back and forth. I can publish the ones I wrote to him if I kept a copy. He might have all my copies and I might have all his copies so I might be unable like in the old days I might be unable to publish my own book my own stuff because I don't have a copy anymore. Why people started doing carbon copies right so they have their own copy. So I only have a copyright my stuff. I might have to summarize his say I wrote him this and then he said something effectively like this. So that's why you usually so like I think when Rothbard I'm sorry when Walter block wanted to publish his correspondence Milton Friedman. I think he had to get permission of either Friedman if he was so alive or his estate to publish that correspondence in that in that journal article. So, go ahead. You could publish like a facsimile of those written letters, but not just the text. No, that would be a copy to. Okay. I can publish a summary of it because again the information and it is not copyright the ideas are not. So, so for example, I'm I actually might be publishing a book. I'm not gonna say later and it's a collection of essays by other people. And one of them is by someone I think will not grant me a copyright in his piece. Oh, here's a better example. If I wanted to publish a book and with of essays and one of them was by a Randian, you know, like, and the Randians are notoriously they hate libertarians they and their copyright fanatics. They probably not give you permission to reprint that article. So what I would do is I was in my book chapter 12 might say, I would have the same title as the author's thing. You know, I'd say article X by person Y. And then I would say something like, you know, they refuse to give me permission. But I'm going to in the next few pages, I'm going to summarize what their argument was or I'm going to restate their argument. So I would tell you what their argument says. They can't stop that they can't stop that. That's why people do close notes of books and that's permissible. I think that's why a close note is just you rewording and saying in summary form what a book says. They're not using their language so you're not copying it. By the way, not only sequels and movie versions of novels but translations are also considered derivative works. So if I if I wrote a book and someone was to translate it into another language they have to get the author's permission for that too. But so so if you in the example of the letter that you said if you had a letter from Rothbard and you publicly exhibited it and charged money for people to look at it or whatever, you would be allowed to do that as the owner of letter. Yeah, because I'm not because I'm not copying it and I'm not making a new work based upon it. I'm just using my copies and I could sell a letter to someone to under the first sale doctrine. And by the way, I could destroy the letter of the letter you could not do. No, I may maybe could make a photograph for my backup copy but I, you know, then then you get dodgy about what your purpose is. But by the way, if if this was in Europe. I might not be able to destroy the letter because of moral rights. So how about life rights. Just as an example if you wanted to write a book about a person a true person, or make a movie or something I've heard that. And a lot of cases you need that person's permission to be able to do that. That could be the producers or their lawyers being risk averse and extra careful. But there is something which I don't know a good deal about but there's something called rights of publicity, which are sort of like an ancillary type of IP type right. So under rights of publicity, if you're trying to profit off of someone's likeness and that kind of stuff, you have to get their permission I don't know a good deal about that type of law. I think my impression is that if you wanted to like, let's say I mean look, there was a movie just made about Elizabeth Holmes, a documentary on, I don't know showtime or HP one of those is called the dropout which is actually excellent. And then of course there's been recent movies, recent mini series made about Adam what's his name from we work, and also the guy from from Uber. And one made about inventing Anna about that that woman who defrauded people of money, although she might have given permission, but I don't think that the we work guy or the Uber guy, or Elizabeth Holmes granted permission to the people to make those documentaries so I think you're entitled to do that if it's a matter of public interest I don't think that's the same thing as violating the publicity rights. I think if you violate the publicity rights that's when you need to get their permission but I don't know exactly what that entails so I've never practiced that type of law. But, for example, in the dropout I believe in that one. The documentary is based upon a book that someone wrote and that someone just did research like a journalist did research on what happened and he presented it in a book. And the documentary was a derivative work, or based upon that book so they got the permission of the author of the book but I don't think the author of the book had to get permission of the subject of the book Elizabeth Holmes. I believe that's the case I, I'm not a deep expert on that type of law. My main expertise has been in patent and copyright and some trademark, but I think that's the way the way it works. Okay, thank you. Alright everybody well I guess I'll stop here but I appreciate your attention and your time and any of you feel free to email me or contact me if you want have any suggestions about the next one but otherwise I'll probably plan to do one next Thursday. That'd be the May the, well today's the 27th of May 2023 for people listening in the far future. Today's Thursday so whatever next May is May 4 or 5 whatever that is. At the same time two o'clock central time. I never know whether to say central standard time or daylight time because I don't know which one we're on. And I'll try to cover as many of the other types of IPS I can, and go from there. So thanks everybody. Thank you.