The Public Domain

In his recent book, The Public Domain, Professor James Boyle makes a compelling argument that intellectual property rights, particularly copyright, have become more and more muscular over the last several decades at the expense of the intellectual process itself. Boyle argues, rightly, I think, that the dominant narrative of late is that as the cost of reproducing copyrighted works approaches zero (as it does with the Internet) the danger of illicit copying increases dramatically. As a result, ever more expansive rights and harsher penalties for infringement are required to met the danger.

Beyond expanding rights, this danger also requires ever more rigorous control over copyrighted works and eventually the internet itself. This system of perfect control, as Boyle calls it, requires that even authorized users of copyrighted work never be permitted to "buy" a work. Instead, users may only license works for a tightly limited set of uses defined and controlled by the content industries. Further, to protect copyrighted works, better digital fencing is needed to keep unauthorized users out. Laws that prohibit cutting of the digital fencing even when the purpose of cutting the fencing is to make a non-illicit fair-use of the protected work. Fair-use itself must be viewed as the grudging largess of the content industries to society at large. And an anachronistic largess at that since better technology and tighter legal control over copyrighted works will make any unauthorized use of such works nearly impossible. Eventually, the anonymity of the internet must also be done away with to make it a safe place for copyrighted work ...etc.

Boyle calls this narrative the "Internet Threat" and it is not without its truth. He concedes that there is a very real danger that valuable intellectual development might be stifled because the internet makes it so easy to copy the work of others. Nevertheless, the internet threat narrative ignores the benefits to copyright owners when new technology reduces reproduction and distribution costs. The internet has increased the rate of illicit copying of musical works but it has concomitantly made it cheap and easy for individual musicians and the industry as a whole to market and distribute their products.

The internet threat also misapprehends the nature of intellectual property. Intellectual property is different than ordinary property in important ways. For instance, if I am using my couch, no one else may use the same couch (except maybe my wife or a friend and, in the case of the latter, only with my permission) and I can exclude others from enjoying my couch fairly easily by simply keeping it locked inside my apartment. Intellectual property is not like this. A manuscript with my ideas in it can be locked in my living room, but the ideas inside cannot. Ideas tend to circulate. Of course, if I am careful to record my ideas only in a single manuscript and keep it secure and never discuss my ideas, then it is unlikely my ideas will circulate. But that has more to do with the costs of reproducing that manuscript than with the nature of my ideas and, as I already mentioned, the internet tends to reduce copying costs until the approach zero. So that if I record those ideas online instead of in a manuscript it is ever more likely that they will circulate.

Even more important than the free-wheeling nature of idea is that it is a good thing that ideas circulate. Society and culture cannot thrive without a constant intercourse of ideas. Thus, from a collective standpoint, we want ideas to circulate; we need them to do so.

However, there must be a balance. If authors or creators have no incentive to create because they cannot appropriate any of the value of their ideas, then culture and society will stagnate just as surely as they would if all ideas could be locked up perpetually. The framers of the Constitution realized this. As a result, they made a compromise. Article I Section 8 Clause 8 of the Constitution, the Copyright Clause, empowers Congress to "[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

This clause limits Congress's power to grant exclusive rights over ideas to their authors in a two important ways. First, the introductory clause states the purpose for granting such a power at all and so the extent of the power should be limited in light of that purpose. That is, Congress is empowered to grant exclusive rights only for the purpose of promoting intellectual development. So, if the intellectual property laws Congress passes are so muscular that they stifle intellectual progress rather than promote it, or if Congress passes those laws for some other purpose, say out of a political desire to create parity between the ownership of ordinary property and the "ownership" of ideas, then the constitutional validity of those laws is suspect.

The thrust of Boyle's book, however, is not that modern intellectual property laws are unconstitutional, rather, Boyle thinks that the idea of granting limited exclusivity over ideas in the hopes of promoting intellectual development is a good one independently of its status as a constitutional mandate. So throughout the book, he endeavors to detail the ways in which the modern IP regime undermines intellectual development and why most people do not seem to notice.

The entire book is available for free here. It is also available for good old fashion purchase in bookstores. And, if you are so inclined, you can also read the book's blog here or follow it on twitter here.

Recognizing Same-Sex Marriage in New York

The national battle over same-sex marriage touches on many issues that divide Americans. Naturally, the generalized media outlets tend to focus on the social issues: is same-sex marriage morally acceptable? Is it morally required? Is it a threat to the family? What happens to children raised by same-sex parents? ...etc. But there is also the question of whether the decision of whether or not to permit same-sex marriage is a question for the courts or for the legislatures. This is a fundamental question that goes to the very structure of representative government.

Of course, much has already been written about this issue, but as a new legal battle over same-sex marriage is once again taking place in New York's highest court, I thought it appropriate to address the question here.

First the context:

In the 2006 case of Hernandez v. Robles, the New York Court of Appeals ruled that New York's Constitution did not permit same-sex couples the right to marry. Instead, the Court held that the question was one to be decided by the Legislature. (Incidentally, whatever one's general view of whether the question is for the courts or for the legislatures may be, the wisdom of leaving a question as fundamentally important as this one to Albany in particular was questionable in 2006, and almost unthinkable after this summer's legislative meltdown).

In her dissenting opinion, then Chief Judge Judith Kaye noted that "[t]his State has a proud tradition of affording equal rights to all New Yorkers. Sadly, the Court today retreats from that proud tradition."

The issue in two cases argued before the Court yesterday, Godfrey v. Spano and Lewis v. New York State Department of Civil Service, are more narrow, but nevertheless important. In Godfrey, the question is whether it was legal for the Westchester County Executive to order all county agencies to recognize same-sex marriages validly performed outside the state in the same manner that they recognize opposite-sex marriages. In Lewis, the question is whether it was legal for the Civil Service Commission to grant health and other benefits to same-sex spouses of government employees who were validly married outside of New York.

In 2008, Governor Patterson issued a general order directing all state agencies to recognize same-sex couples validly married outside of New York. According to the New York Times, the questions by the judges during the Godfrey and Lewis arguments suggested that they may be considering skipping over the narrower issues in the cases and making a broad ruling on whether New York is required to recognize valid same-sex marriages performed elsewhere even though such marriages cannot be legally performed in the state. Of course, as pointed out by the lawyer challenging both orders, a broad decision by the Court might cut either way.

So, my question is this. What is the proper balance between allowing the democratic process to function through the elected representatives of the people and ensuring that the fundamental interests of minority groups are protected from the caprice of the majority? In other words, as a nation (or as a State, fellow New Yorkers) is it possible to be fully commited to democracy and the rule of law or are there inevitable tensions that must be resolved against one ideal or the other? So, regardless of your opinion on the question of whether same-sex marriage should be permitted, who should decide and why?

Theories of Criminal Law

A common debate is what the aim of the criminal law should be. Should the criminal law aim at effectively and efficiently preventing harm to some identified public and/or private interest? This instrumentalist, or consequentialist, position is, in part, the one taken by The American Model Penal Code. Or, should the criminal law be moralistic? That is, should it aim at vindicating a sense of justice by punishing transgressions that are, at some level, felt to be wrong? In other words, should criminal law be prophylactic or punitive?

Of course, in reality, criminal law is both prophylactic and punitive and probably rightfully so, but it is worthwhile to briefly (and admittedly far from exhaustively) explore the theoretical roots of each individual position.

The instrumentalists position starts from the premise that there are certain ends which can be effectively served by the existence of criminal law. These ends could be anything, but it is useful to focus on what they actually have been rather than what they could be. The Model Penal Code declares:

The general purposes of the provisions governing the definition of offenses are:

a) to forbid and prevent conduct that unjustifiably and inexcusably inflicts or threatens substantial harm to individual or public interests [s.1.01(1)]

Thus, on this view, the criminal law's purpose is, in the main, straightforwardly practical-- to forbid and prevent conduct that actually does inflict or threatens to inflict relatively serious harm to important interests. Because the aim of instrumentalist criminal law is practical, it is necessarily relies on empirical evidence both for its initial development and as a way of testing the real world effects of the law that has developed. After all, an instrumentalist criminal law that is not providing the desired ends-means fit has failed by its own terms.

The moralistic view differs in that it accepts the prophylactic nature of criminal law but insists on something more. This something more is the idea that the criminal law must also gratify the human need for revenge. Thus, harmful conduct should not only be forbidden and prevented, but it must also be punished. This view hinges on the concept of moral responsibility. The need for revenge only arises where there is some responsibility to refrain from given conduct and that responsibility has been abdicated. The act of abdication gives rise to a sense of outrage that can be satisfied only through the infliction of punishment. But if there is no moral responsibility, indeed, if the concept of morality is wholly removed from the structure of the criminal law as it is on the purely instrumentalist view, then there is no basis for outrage and hence no basis for punishment for the sake of punishment. To the extent punishment deters undesirable conduct, however, there may still be room for it on the instrumentalist view.

The moralistic view has its critics, especially to the extent that what is "moral" is tied to religion. In 1930, Bertrand Russell wrote an essay called Has Religion Made Useful Contributions to Civilization. Russell, being no friend of religion, could only bring himself to admit two contributions of religion to civilization--helping to fix the calendar and causing Egyptian priests to chronicle eclipses with such care that they in time became able to predict them. Russell found a moralistic view of criminal law irrational and detestable. He noted that "No man treats a motorcar as foolishly as he treats another human being. When the car will not go, he does not attribute its annoying behavior to sin; he does not say, 'You are a wicked motorcar, and I shall not give you any more petrol until you go.' He attempts to find out what is wrong and to set it right." Russell instead advocated an instrumentalist view of criminal law where the question of culpability was mooted and only practical considerations were admitted. Of course, Russell's analogy between man and motorcar only works if one discounts the possibility that people, unlike motorcars, can chose to act or refrain from acting and may be held accountable for that choice.

I think it is clear that the modern criminal law rightfully incorporates elements of both theories. As rational and dispassionate as we may like to think society has become, we have not come so far as to be beyond our feelings of moral outrage. Nor should we be because, although we should always be aware of the inherent prejudices and limitations of our sense of morality, sometimes it is the best guide to what is right and what is wrong. Moreover, were our system of justice to lack some element of institutional revenge, there would be that much more incentive for individuals to seek personal revenge. And that possibility is so hugely destabilizing to society that maybe its prevention provides a way to harmonize the instrumentalist and moralist views.

For a more thorough discussion of this topic see the Stanford Encyclopedia of Philosophy.

Introduction

Welcome everyone. This is my first post on my new blog that will focus on legal developments, musings and ideas I run across as I go about my days as a new lawyer in New York. I hope to post about once a week initially and then up the frequency as time goes on. One of the main reasons I am starting this blog is to stimulate conversations about legal topics, so, I hope readers that visit my blog will be liberal with their comments.

Who am I? Like I said, I am a new lawyer in New York. I graduated from New York Law School in May 2008 and was admitted to practice in New York in May 2009. I am a litigation associate at a large firm in the City and I live in Park Slope, Brooklyn with my wonderful wife (also a blogger), Meredith, and my adorable one-year-old son.

I might as well start things off with a short list of some of my favorite legal blogs, since these are the places from which I will likely be getting many of the ideas I post about on here:

PrawfsBlawg (written mainly by law professors for other law professors, but a great place to find interesting questions by people who are very passionate about legal issues)

SCOTUSBlog (a very thorough and insightful analysis of the latest goings ons at the Supreme Court)

Balkinization (a fascinating blog in general, but I am especially interested in the on-going discussions about The Constitution in 2020 Project, which tries to flesh out a liberal vision of the Constitution in the year 2020)

Does anyone have any other suggestions for interesting legal blogs?