I noted previously that my Against Intellectual Property and Boldrin & Levine's Against Intellectual Monopoly are both selling just fine, even though both books are available for free online. Now it's no surprise the Mises Institute publishes works in free, online versions whenever possible; it doesn't hurt sales and anyway, their mission is to spread the freedom philosophy and sound economics.

But I was a bit surprised that Boldrin & Levine's publisher, Cambridge University Press, would allow them to put a free version of the book online; my experience with Oxford University Press (1, 2, 3, 4) would have led me to suspect publishers would be reluctant to permit this.

But as explained in the commments here, although they were not able to prevent the work from being protected by traditional copyright, the authors were able to persuade Cambridge to permit a free online version. Heroic! (The carping of some that they were "hypocritical" because the book has a copyright is ridiculous.)

When I inquired of Levine how they were able to manage this feat, he told me they simply bargained for it. The clause they got is as follows: Clause 3(a) grants to Cambridge "sole and exclusive right and license to produce and publish and itself further to license..." with some exceptions. Clause 3(b) reads: "(b) Notwithstanding clause 3(a) above, on first publication of the Work, the Author shall have the non-exclusive right to post the files of the published Work on his/her own and/or his/her institutional website subject to the inclusion of the copyright notice, full acknowledgement to Cambridge University Press and an appropriate hyperlink to the Cambridge catalogue."

In response to my surprise they were able to negotiate this, Levine told me that "academic journals give that as a matter of course - maybe for an academic publisher it isn't such a big deal? They didn't fuss about it, and it didn't sound like it was the first time they did it."

Could it be that some publishers are starting to get it?

The Los Angeles Times reports that the first Mickey Mouse cartoons have ambiguous copyright claims, listing two other potential claimants between "Disney" and the word "copyright". Under interpretation of the law at the time, this does not constitute a proper copyright claim.

Given that previous copyright rulings against Disney were unsuccessful on the basis of the existence of previous copyright claims, and these claims now appear not to be valid, this is significant news to one of the biggest beneficiaries of copyright laws.

As noted previously, both my and Boldrin & Levine's recent anti-IP books are selling well on Amazon--despite being offered for free online.

Jeff Tucker makes a similar observation on the Mises blog:

Kinsella Vindicated

You will note that Kinsella's book Against Intellectual Property is the #2 bestseller in the store. This is despite its having been online for six years and remains so, in two formats. What a way to demonstrate a thesis. If you have something that is valuable to others, people might be willing to pay for it.

As reported by copyright lawyer William Patry in a comment on his blog:

"... I would like to ... point[] to an amazing new UK historical resource. ... the project in the UK House of Commons to digitize (or as they say digitise) Hansard, the official record of the House of Commons, for the period 1803 to 2005. I have already used it and found great discussions of copyright issues, including the term of protection, as early as 1803.

William Patry has ended The Patry Copyright Blog, and detailed his reasons for doing so.

His blog will be missed by all his readers, both copyright professionals and us amateurs. His copyright legal acumen, learning, and scholarship were second to none, and on full display in his seven-volume treatise Patry on Copyright, as well as in his blog.

In the last statement at his blog, he notes the depressing nature of the current state of copyright law. Of course it is depressing, but not just because of the reasons he sets forth.

Copyright law, in common with all "intellectual property[,] is a cancer," as Michele Boldrin and David K. Levine put it in Against Intellectual Monopoly, p. 264. Like all cancers, it has a tendency to metastasize and grow. It ultimately threatens the life of its host. Even short of killing, it can make life unpleasant, as it did for a young Chinese computer scientist, who was jailed for "infringing" a copyright last year. I don't recall William Patry speaking out against the violation of his liberty, but this blog did. Boldrin and Levine also discuss this issue at length. I can't recall one defender of the monopoly formerly known as intellectual property (or copyright) ever even taking note of the contradiction between liberty and "IP."

He notes that:

Copyright law has abandoned its reason for being: to encourage learning and the creation of new works. Instead, its principal functions now are to preserve existing failed business models, to suppress new business models and technologies, and to obtain, if possible, enormous windfall profits from activity that not only causes no harm, but which is beneficial to copyright owners. Like Humpty-Dumpty, the copyright law we used to know can never be put back together again: multilateral and trade agreements have ensured that, and quite deliberately.

Although his point about copyright's preservation of failed business models and technologies is correct, I must respectfully dissent from his view that its reason for being is "to encourage learning and the creation of new works." Copyright, like its older sibling patent, was born in an unholy alliance of kings and rent seekers, and is all about statism and rent-seeking, not creation and innovation. (N.B. William Patry disagrees with this and wrote about it at his blog.) Unfortunately, he has removed his archives, so it's impossible to read his blog on this subject.

Finally, his statement that

In order to encourage open discussion I permitted not only comments but anonymous and pseudonymous comments. I did that because I wanted to encourage the largest number of people to participate, and after four years I believe that was the right decision

is a bit disingenuous, as Crosbie Fitch and I would both attest to, having both had (non-crazy) comments he disagreed with removed.

The legal arcana was a bit heavy going, and of more interest to copyright lawyers. I will miss his blog more for its historical scholarship and erudition, as well as its occasional bursts of humor. I might not have discovered authors such as Ronan Deazley otherwise, to name one.

The library of Congress, along with others, has carried out a study on the impact of copyright on digital preservation link. The 200 odd page report comes to the conclusion that 1) laws were enacted in an analog era, thus do not understand digital preservation; 2) there is little in the sense of mandatory preservation of digital works, like there is for paper copies at the Library of Congress; 3) archives have resorted to piecemeal agreements to digitize works instead of having blanket approval, due to copyright laws.

The report recommends in particular that the law should define "preservation institutions" that can digitize at risk copyrighted material, that they should be allowed to preserve in various formats, that they should be allowed to harvest material pro-actively, irrespectively of the medium and the type of material. In short, the preservation institutions should be granted privileges that allow them to bypass copyrights in a wholesale manner, for the sake of preservation.

Hat tip: DigitalKoans.

Interesting post by Mike Masnick of Techdirt, Supreme Court Decision On Guns May Cut Promoting Progress Out Of The Constitution, where he worries that the reasoning in the Second Amendment case Heller--where the prefatory clause "A well regulated Militia, being necessary to the security of a free State" was not held to modify the operative clause, "the right of the people to keep and bear Arms, shall not be infringed"--on the grounds that with similar reasoning, the IP clause might be de-linked from its initial cause "To promote the Progress of Science and useful Arts..." I.e., if the first clause merely states the purpose of the power, but can be ignored, as in Heller, then Congress can still establish copyright and patent even if we can show that they do NOT promote the progress of science and the useful arts.

Well, as I wrote there, Masnick has a reasonable concern, but I think, ultimately, these clauses are different. As this post above notes, in the case of the Second Amendment, the prefatory clause does not limit the operative clause. The limit on federal power is in the operative clause.

In the case of the copyright clause, first, this is a grant of power, not a limit on power. Second, as the poster notes, the power is the power "to promote the progress of science and useful arts" by a certain means, that is, by copyright and patent grants. But the power is clearly linked to "promoting progress." So I think you could probably argue that if IP does not promote the state goals, it's ultra vires. However, I'm afraid the necessary and proper clause would be used to give the feds a lot of leeway.