Sunday, December 23, 2007

The Negative Spaces of Copyright

The Boston Globe has a piece today, Creative vigilantes, about how magicians, chefs, and stand-up comics are protecting their creative property without the law. The piece suggests this could be one future for intellectual property:

Over the past 15 years, the rise of digital technology and the global economy has made it ever easier to copy, distribute, and profit from the fruits of other people’s creativity - from the new Fergie album spreading across peer-to-peer networks to pirated “Spider-Man” DVDs showing up on the streets of Shanghai. In response, American lawmakers have instituted increasingly sweeping laws, seeking to stymie intellectual-property theft with lengthier copyright terms and more stringent consequences for violators. Without these measures, they reason, innovators will lose money, and innovation will suffer.

In something as simple as the public outcry of a Hollywood jokester, [Christopher] Sprigman, an associate professor of law at the University of Virginia, sees an approach that he hopes could put the lie to this thinking, and turn the heads of lawmakers. He sees a comedian enforcing respect for originality [expletive-laden video] without resorting to legislation, lawyers, or the courts. He sees intellectual property being protected - not by the strong arm of the government, but by way of the very technologies that have incited stronger laws in the first place.

“People usually talk about how the Internet destroys intellectual property,” says Sprigman. “But here the Internet enforces intellectual property. It helps to protect creativity by shaming pirates.”

Comedy is not the only creative industry in which scholars are finding evidence that challenges assumptions held on Capitol Hill. Over the past two years, a flurry of papers have appeared on so-called “negative spaces” of intellectual-property law - industries that receive little to no legal protection for their ideas or products, yet that continue to innovate, often at a rapid clip. Articles have already appeared about high fashion, haute cuisine, and professional magic, with another planned by Sprigman and a colleague about stand-up comedy. And already, Washington seems to be paying attention. Last July, Sprigman testified in Congress against a bill that would have tightened copyright control in the fashion industry; the fashionistas, he argued, are better off on their own. [READ ON]

Via Siva, “My UVA colleague Chris Sprigman is the star of this article.”

Dangerous deer? (reprise)

In light of my recent collision with a deer, I thought I’d re-post this one from last year...

Lots of stories about deer this time of year. Here a pair of South Florida news anchors laugh at a deer stuck in an Iowa Target store. Here CNN tells us that more drivers are smashing into deer.

Georgia ranks 5th in the number of deer collisions; State Farm Insurance says “deer whistles” have been proven ineffective. John Berman had a report on GMA yesterday that advised, “If you see the deer, don’t swerve, don’t be afraid, hit it if you have to.”

Swell. And what can we do for the deer? Berman says, “One solution is creating wildlife under passes...surveillance video from a study conducted in Virginia shows that given an option, deer will cross under a busy highway, avoiding the dangers above.”

Huh? That’s it? I’m thinking they picked that solution because they had the video (I don’t) of deer using an underpass rather than because that’s the best idea anyone’s thought up.

None of these stories has bupkis to say about real solutions to a real problem!

So I went looking and here’s what I found:

Currently, there are approximately eight does for every buck in the wild. Laws restrict the number of does that hunters may kill. Deer do not have monogamous mating relationships, and bucks will often mate with more than one female. As a result, the ratio of does to bucks sets the stage for a population explosion.

Allowing hunters to kill more does, however, does not resolve population problems. In the nineteenth and early twentieth centuries, the open hunting of does left fawns without mothers, and removed too many females from the breeding population. Sport hunting decimated deer populations in many states. As a result, states passed laws restricting the hunting of does. These policies have contributed to the overpopulation of deer.

Hunting does remove some animals from the population, but it does not keep deer populations at a continually reduced level. Immediately after a hunt, the remaining animals flourish because less competition for food exists, allowing the remaining animals to live healthier lives, and resulting in a higher reproductive rate.

Left alone by humans, the ratio of does to bucks would be approximately equal.

They want hunting banned. But that’s not all:

Many national, private, and state owned lands are open to logging… Companies demolish large stands of trees, rather than selectively taking trees from different stands of timber. This practice ill effects animals dependent on trees for food and cover. It also creates fields of additional “browse” vegetation for deer, causing a surge in deer population attributable to the introduction of this food source.

Their prescription:

• Ban sport hunting.
• Reintroduce natural predators, such as wolves and mountain lions, where possible.
• Maintain existing populations of natural predators.
• Ban clear-cut logging.
• Allow fires to burn naturally in wildlife areas. Limit new human habitations in wildlife areas, decreasing the risk of property damage in the event of a fire, and making controlled burns a more acceptable wildlife management tool.
• Prevent humans in residential areas, state parks, and federal parks from feeding deer. Deer should be reliant on their own habitat for food.
• Erect high fencing around crops and plants. Electric and sturdy fencing increase the effectiveness of this deterrent. Fences should be at least eight feet high and buried one foot deep. Openings in the fence should be small. Contact a university agricultural extension office or landscape business before purchasing and installing your fencing.

We’ve got a deer problem and, while media stories show empty pictures and laugh at what they think are funny deer stories, that problem’s getting worse. One thing is clear to me, we’d all benefit from more humane education.

The Castle Doctrine

The talk of the town this week here is a violent home invasion in which the invader shot the homeowner and was shot and killed himself by the homeowner’s son. As it happens, on the Talk of the Nation Thursday the focus was the Castle Doctrine:

The Castle Doctrine allows law-abiding citizens attacked in their own homes (their “castles") to respond with force, even deadly force, to protect themselves - though the law varies from state to state. Self-defense laws are back in the spotlight after two recent cases in which intruders were shot and killed by homeowners.

Jonathan Turley, professor of Public Interest Law at George Washington University, had written about those two cases on his blog and was one of the guests.

He explains that “Castle Laws” or “make-my-day laws” came about because the common law rule believed that “it’s not worth shooting someone for property.” So these laws became a politically expedient way to get rid of that by saying that anytime someone enters your domicile or home you are allowed to use lethal force.

The problem is…

Prof. TURLEY: ...they pretty much solved the problem that didn’t exist; that juries really didn’t convict people that shot burglars, you know? You didn’t - it’s hard to find a jury that says, gosh, you know, you were really harsh with that guy that kicked the door of your room in.

So there wasn’t a great need to pass the law, but it’s very popular politically. It resonates with people. But the ironic thing is that the laws are almost always used in mistake cases; that they involve people who shoot their spouses and shoot their neighbors.

Actually, this is a seasonal thing. We see most of these cases during the holidays. When people get drunk, they go to a development with a like-looking house and get shot by their neighbors… they drop their keys and they go through that side window and they end up staring right down the barrel of a gun.

Turley says that, as a consequence, the drive for more of these laws has slowed.

Law or no law (ours passed in March of ‘06 - though you’d be hard-pressed to find someone prosecuted for shooting a home invader prior to that) the sentiment here favors the armed homeowner, even among those in the more liberal college crowd I run with.

With a small police force spread across a much larger geographical distance, I understand it in a way I never had before. I even shot a gun for the first time in my life after moving here. Still, I don’t expect I’ll be shooting one again any time soon.

Road kill

An animal lover, in the last couple weeks I’ve hit a deer and a squirrel. I’m hardly alone:

Wildlife-related crashes are a growing problem on rural roads around the country. The accidents increased 50 percent from 1990 to 2004, based on the most recent federal data, according to the Western Transportation Institute at Montana State University here.

The basic problem is that rural roads are being traveled by more and more people, many of them living in far-flung subdivisions… Ninety percent of the accidents occur on rural two-lane roads, and the most common animal involved is a deer.

It’s deadly - “the human death toll has risen from 111 in 1995 to around 200 in 2005” - and it’s costly:

The average cost of a deer collision is $8,000, including repair, towing and cleaning up the carcass, while hitting an elk averages $18,000. If the driver strikes a much larger moose, expenses average about $30,000.

The total cost of the accidents to insurance companies exceeds $1 billion a year, the institute estimates. Pennsylvania has the most vehicle-wildlife crashes. Drivers there struck nearly 97,000 deer in the last half of 2005 and first half of 2006, according to estimates by State Farm, the insurance company.