Good news and bad news...

>> Thursday, August 14, 2008

Two quick news flashes from the geektacular intersection of law, art and technology known as "intellectual property law":




First the bad news: nine states this year have passed legislation enabling the taxing of digital downloads, with more likely to follow suit. Lovely, no? There's something about taxing virtual property that seems fundamentally off. Intellectually, I can bring myself to see that there's not a difference between taxing an online transaction and a meatworld transaction, but viscerally I can't quite equate taxing something I hold in my hands in a store located in a territory with some numbers I copy onto my computer from a location that could be anywhere.

And the snarky response, naturally, is to ask if the states intend to tax real estate in Second Life next? Perhaps the monies can go to fund online correspondence schools.

Presumably a tax on online transactions is less regressive than other forms of sales tax--a downloaded song, book or movie is undeniably a luxury when compared, well for instance, to food. Here, then, is where the technologically-inclined, affluent fellow gets into an internal fight with his good old liberal self: I don't wanna pay a tax on downloads! You cad, that money supports necessary services that are best provided for by the collective efforts of the People! But they're taxing my MP3s, whiiiiiiiiine.

(If your response at this internal strife is a smug, ideological "I told you so," please don't. Not today. We can argue about conservativism and liberalism later, some other time, just not now.)

So yeah, anyway, there's that.




And now the good news, and this is nice news indeed, an early Christmas present from the Federal Courts: the Court of Appeals for the Federal Circuit has upheld free licenses of intellectual property. That is to say, the Federal Court chiefly responsible for deciding questions of intellectual property law in the U.S. has said that licenses like the Creative Commons license are legally enforceable--something published under such a license (this blog you're reading, for instance), is protected by copyright and if the conditions of the license are violated, the violator is in breach of copyright.

This may seem like a no-brainer, but it isn't. Although various open source and shared-use licenses have been around for years, there was some debate over whether the conditions in them were enforceable or whether publication under those licenses was tantamount to a waiver of rights. So, for instance, if someone republished a posting of this blog without attribution or for a commercial purpose in violation of this site's CC 3.0 license ("The text of Standing On The Shoulders Of Giant Midgets is published under a Creative Commons Attribution-Noncommercial-Share Alike 3.0 license."), would there be anything I could actually do about it or would I be left wailing and gnashing my teeth in the wilderness. Turns out the answer is yes, there is something I could do about it: I could sue the infringer for appropriate relief--potentially including damages--just as surely as any other victim of a copyright violation.

That is good news.

9 comments:

vince Thursday, August 14, 2008 at 8:47:00 AM EDT  

I think the taxing of digital downloads was inevitable. Even more than music, the downloading of software is growing. For example, you can download trial versions of Microsoft Office, then convert them to fully operational versions by paying for them online. And whether for myself or for clients, if the software is available online for download (as most utilities are, for example) that's how I buy them, rather than order the software for shipment (I rarely go to a store and buy software, or even hardware, any more - too much hassle).

Like the push to tax other Internet sales, states see this as an untapped revenue source in an era where increased revenue is difficult to acquire by increasing taxes on already-taxed revenue streams.

As for the free license of intellectual property being upheld, I think that would benefit open source software the most. Yes, it helps bloggers use a less-traditional path than standard copyright law to protect their writing, but it gives software developers who believe in the open source concept while wishing to retain some control over how their products are used and modified a legal foot to stand on.

Janiece Murphy Thursday, August 14, 2008 at 8:57:00 AM EDT  

Eric, I thought I was the only liberal who had those internal conversations.

Glad I'm not alone!

John the Scientist Thursday, August 14, 2008 at 10:28:00 AM EDT  

"If your response at this internal strife is a smug, ideological "I told you so," please don't. Not today. We can argue about conservativism and liberalism later, some other time, just not now."

As your token Conservative reader:

Come, cooome to the Dark Side, my son.

:p

Seriously my internal conversation is the opposite: more and more transactions are going to take place online, and cities such as Chicago are raising their taxes in part because of this. The meatspace taxable transactions are going to hit the poor hardest, and as a libertarian who wishes to keep the government at arms length (other means of increasing revenue will be more intrusive), somehow we have to avoid a tragedy of the commons.

The opposite argument in my head is that I want to know just where the hell this money is going. No new revenue sources until we get spending cuts and proper allocation of resources, at least not for my state. Booondoggle city, we are.

Eric Thursday, August 14, 2008 at 11:03:00 AM EDT  

Thanks, Vince, for bringing up what is indeed the most important point about the IP decision, which I managed to entirely omit from my post. As you say, it's a major boon for the open-source movement, since it gives open-source programmers recourse against the "theft" of their code; for those who don't know, some open-source licenses prohibit commercial redistribution, and some (e.g. the GNU Public License, or GPL) require "derivative" works to be published under the same license. This ruling means that it should be impossible for a vendor to shamelessly "borrow" open-source code for proprietary purposes and then effectively claim authorship by copyrighting the entire body of code, a distinct possibility until now.

I focused on the incidental benefit to artistic types because that's probably what directly impacts me the most. :-)

----------

Naturally, better accountability for how money is used is one of those areas of common ground for liberals and all-but-the-most-Randian of libertarians. (Those far-right fringers who think that everything, highways and public safety included, ought to be privatized are consistent, but only prove Emerson's point about foolish consistencies being the hobgoblins of small minds.)

I've always been a little baffled that "tax-and-spend liberal" is such an epithet. Schools cost money. Police salaries cost money. Paved roads cost money. Bullets for soldiers cost money. I can understand some discussion over whether the common good should include national parks or public art, or debate over whether ten firemen is enough or twenty firemen is to many, but once there's some consensus that we need submarines to defend the homeland or clean drinking water for our health, those things are going to have to be paid for in some manner.

So I tend to think of taxes as being kind of like the dues you pay to join a swank club. I could join a less-swank club by expatriating myself somewhere, but maybe I'd get cholera from the local water (or lead poisoning from the local gangs).

As I see it, John, we seem to be in agreement that traditional taxable transactions are shifting and taxing meatspace transactions will hit the poor with increasing hardness. It's not just the shift to online purchases, either: e.g. energy concerns are already hurting fuel tax revenues. Changes in how we live are inevitably going to change how governments can raise money.

While I don't look forward to paying online taxes, it's a progressive tax. I think folks like Janiece and myself are going to have to suck it up... or go to the Dark Side....

Right, "suck it up" it is. :-)

----------

(Two emoticons in one comment? That is the Dark Side!)

John the Scientist Thursday, August 14, 2008 at 11:26:00 AM EDT  

"Schools cost money. Police salaries cost money. Paved roads cost money. Bullets for soldiers cost money. I can understand some discussion over whether the common good should include national parks or public art, or debate over whether ten firemen is enough or twenty firemen is to many, but once there's some consensus that we need submarines to defend the homeland or clean drinking water for our health, those things are going to have to be paid for in some manner."

The problem is, those items are a small part of the budget. Welfare and Social Security are much larger, and can be and are used as a means to buy votes indirectly (by claiming that the opponent will destroy the livelihood of those subsisting on those sources of income). It's this perversion of democracy (exactly what de Tocqueville was going on about) that leads to the epithet "tax and spend liberal" : the Republicans want to tax and spend, too, they just blow it all on their cronies' businesses.

Jim Wright Thursday, August 14, 2008 at 11:35:00 AM EDT  

I agree with vince's comment, taxation of downloads was inevitable. I rarely buy software in the store nowadays, in fact most stores don't carry much in the way of decent software outside of games, and I don't buy games, so... I don't buy much music, because my library is already over 400g, but when I do it's via download - I don't think I've bought a music CD in years. Movies I like on disk though. But since downloading is becoming a significant trend, I can see the states eying it with lust. However, I worry about everybody jumping on the bandwagon - are we going to start seeing federal, state, county, and city taxes on downloads? Is it going to end up like a gallon of gas or a pack of cigarettes? I.e. 60% product, and 40% taxes? And I wonder just how enforceable this tax is?

This ruling means that it should be impossible for a vendor to shamelessly "borrow" open-source code for proprietary purposes and then effectively claim authorship by copyrighting the entire body of code, a distinct possibility until now. And that's a good thing, certainly.

John the Scientist Thursday, August 14, 2008 at 12:20:00 PM EDT  

"And I wonder just how enforceable this tax is?"

Kids, the words of the day are "state-created black market" and "offshore home office". Heh.

Jeri Thursday, August 14, 2008 at 12:36:00 PM EDT  

IP & copyright law fascinate me. If I'd gone into law, it's the area I would have chosen to specialize in because it's changing and evolving so rapidly right now. (Although not nearly as rapidly as it needs to!)

I am excited that the courts have upheld creative commons licensing. I had always thought that CC was a consensus construct, at best a common-law, if that's the right term, system.

My interest, too, is primarily artistic - writing, graphics & photography - and it's good to know that CC protections can now be enforced if someone were to pirate and attempt to apply full copyright protection to some of my CC-designated work.

As I mentioned, I believe that our body of IP law is not evolving quickly enough to keep up with the explosive expansion of media technology. The RIAA and MPAA's postures are fearful and defensive; rather than taking advantage of new technology and business models, they're alienating their market by using draconian measures to enforce outdated legal and business models.

Creative Commons licensing is a great example of innovative thinking around IP law, licensing that actually is flexible and adaptable enough to reflect the some of the complexity of media and open source technology today. I was excited about it when it first came out - I'm even more pleased that it seems to have won the backing of the US court system.

Jim Wright Thursday, August 14, 2008 at 1:54:00 PM EDT  

Off shore home office.

Heh, indeed. And I wonder just how long it'll take for that idea to catch on.

Post a Comment

Thank you for commenting! Because of the evils of spam, comments on posts that are more than ten days old will go into a moderation queue, but I do check the queue and your comment will (most likely) be posted if it isn't spam.

Another proud member of the UCF...

Another proud member of the UCF...
UCF logo ©2008 Michelle Klishis

...an international gang of...

...an international gang of...
смерть шпионам!

...Frank Gorshin-obsessed bikers.

...Frank Gorshin-obsessed bikers.
GorshOn! ©2009 Jeff Hentosz

  © Blogger template Werd by Ourblogtemplates.com 2009

Back to TOP