Comments on: Sharing, YouTube, and the Law School Community http://madisonian.net/2007/03/19/sharing-youtube-and-the-law-school-community/ a blog about law, tech, culture, and related things Sat, 11 Feb 2012 02:59:42 -0600 http://wordpress.org/?v=2.8.4 hourly 1 By: Mike Madison http://madisonian.net/2007/03/19/sharing-youtube-and-the-law-school-community/comment-page-1/#comment-188160 Mike Madison Mon, 19 Mar 2007 18:57:28 +0000 http://madisonian.net/archives/2007/03/19/sharing-youtube-and-the-law-school-community/#comment-188160 Well, of course, a license is always a way out, at least so long as we assume a certain set of default entitlements and burdens. Sure, I can assume that I have a copyright in my materials, then I can attach an appropriate Creative Commons license to all of them and release them into the Web 2.0 playground, and that will take care of the transactional problem. Or I could deposit the notes in some online repository and charge a PayPal tax for the privilege of downloading copies. I really don't care whether swapnotes.com (or YouTube) can make money or not; it doesn't bother me if either one of them has to add an expense that they'd rather not add. And it also doesn't bother me if Viacom (or a law professor) has to add an unexpected expense. The transactional problem, though, doesn't interest me all that much; what interests me is the default set of entitlements and burdens. And that's because, in part, the transactions costs aren't always as low as we might assume, and more important because rethinking the default set sometimes leads to new places altogether. What interests me is how the shape of the arguments in both contexts illustrates some baseline assumptions about the character of the "community" (note scare quotes) or group or market that's in play, and how that "community" is functioning or should function in the future. Frankly, and YouTube aside, I rather dislike the premise that my relationship with my students, and students' relationships with me and with each other, should be placed so explicitly on a transactional footing. If that's the case -- and you and others may well disagree with me, which is fine -- then how does the "swapnotes" issue (if it is an issue) get managed? A "license it" solution isn't normatively appropriate. YouTube may turn out to be an entirely different problem; a transactional baseline may be entirely right -- though the default allocation problem remains. If it turns out that Viacom holds the entitlement by default, then presumably YouTube has to pay, somehow. If, on the other hand, YouTube is assigned the entitlement, it's conceivable that Viacom is writing the checks. Why, in hypothetical other words, should YouTube agree to be Viacom's best advertiser -- for free? Well, of course, a license is always a way out, at least so long as we assume a certain set of default entitlements and burdens. Sure, I can assume that I have a copyright in my materials, then I can attach an appropriate Creative Commons license to all of them and release them into the Web 2.0 playground, and that will take care of the transactional problem. Or I could deposit the notes in some online repository and charge a PayPal tax for the privilege of downloading copies. I really don’t care whether swapnotes.com (or YouTube) can make money or not; it doesn’t bother me if either one of them has to add an expense that they’d rather not add. And it also doesn’t bother me if Viacom (or a law professor) has to add an unexpected expense.

The transactional problem, though, doesn’t interest me all that much; what interests me is the default set of entitlements and burdens. And that’s because, in part, the transactions costs aren’t always as low as we might assume, and more important because rethinking the default set sometimes leads to new places altogether. What interests me is how the shape of the arguments in both contexts illustrates some baseline assumptions about the character of the “community” (note scare quotes) or group or market that’s in play, and how that “community” is functioning or should function in the future.

Frankly, and YouTube aside, I rather dislike the premise that my relationship with my students, and students’ relationships with me and with each other, should be placed so explicitly on a transactional footing. If that’s the case — and you and others may well disagree with me, which is fine — then how does the “swapnotes” issue (if it is an issue) get managed? A “license it” solution isn’t normatively appropriate. YouTube may turn out to be an entirely different problem; a transactional baseline may be entirely right — though the default allocation problem remains. If it turns out that Viacom holds the entitlement by default, then presumably YouTube has to pay, somehow. If, on the other hand, YouTube is assigned the entitlement, it’s conceivable that Viacom is writing the checks. Why, in hypothetical other words, should YouTube agree to be Viacom’s best advertiser — for free?

]]> By: Adam Steiner http://madisonian.net/2007/03/19/sharing-youtube-and-the-law-school-community/comment-page-1/#comment-188154 Adam Steiner Mon, 19 Mar 2007 18:38:33 +0000 http://madisonian.net/archives/2007/03/19/sharing-youtube-and-the-law-school-community/#comment-188154 Mike, Greatly enjoyed and appreciated the post. Not all of the feedback has been negative, a number of professors have replied in support, saying they think its a great idea. Mike,

Greatly enjoyed and appreciated the post. Not all of the feedback has been negative, a number of professors have replied in support, saying they think its a great idea.

]]> By: geoff manne http://madisonian.net/2007/03/19/sharing-youtube-and-the-law-school-community/comment-page-1/#comment-188153 geoff manne Mon, 19 Mar 2007 18:38:28 +0000 http://madisonian.net/archives/2007/03/19/sharing-youtube-and-the-law-school-community/#comment-188153 Mike: Of course there's a solution that offers all sides a way forward. And it respects both property rights and all business models. It's glaringly simple and yet the swapnotes folks and many law professors seem to discount it entirely, presumably because it isn't "fair" or it just doesn't jibe with the Web 2.0 world we live in. Here it is: swapnotes (or YouTube, which at least made the effort (although not until Viacom came knocking)) can LICENSE the copyrighted material. I would gladly offer swapnotes a blanket license (so we don't have to negotiate over each item posted to my page on swapnotes) in my copyright in my exams, notes, outlines, etc. It might eat into swapnote's bottom line. Tough. There is no reason why it shouldn't. I know IP profs hate this analogy, but it also eats into grocery stores' bottom lines to have to buy the produce they sell. Ditto . . . every other business in the world! So why should Swapnotes have some sort of moral claim on my property just because it's cheap for them to obtain it? The answer is--they don't. But they needn't abandon all hope. They need only offer to license the protected material. In this Web 2.0 world, the transaction costs are low. It needn't be a black and white world of "swapnotes posts my content unless I tell it not to" (opt-out) or "swapnotes posts nothing unless I authorize it" (opt-in). Either of those can be a precondition for bargaining, but too often the analysis stops at the extreme. The real answer lies in between with a license. Copyright doesn't have to shut down swapnotes, and swapnotes doesn't have to cause professors to change their business models. Mike: Of course there’s a solution that offers all sides a way forward. And it respects both property rights and all business models. It’s glaringly simple and yet the swapnotes folks and many law professors seem to discount it entirely, presumably because it isn’t “fair” or it just doesn’t jibe with the Web 2.0 world we live in. Here it is: swapnotes (or YouTube, which at least made the effort (although not until Viacom came knocking)) can LICENSE the copyrighted material. I would gladly offer swapnotes a blanket license (so we don’t have to negotiate over each item posted to my page on swapnotes) in my copyright in my exams, notes, outlines, etc. It might eat into swapnote’s bottom line. Tough. There is no reason why it shouldn’t. I know IP profs hate this analogy, but it also eats into grocery stores’ bottom lines to have to buy the produce they sell. Ditto . . . every other business in the world! So why should Swapnotes have some sort of moral claim on my property just because it’s cheap for them to obtain it? The answer is–they don’t. But they needn’t abandon all hope. They need only offer to license the protected material. In this Web 2.0 world, the transaction costs are low. It needn’t be a black and white world of “swapnotes posts my content unless I tell it not to” (opt-out) or “swapnotes posts nothing unless I authorize it” (opt-in). Either of those can be a precondition for bargaining, but too often the analysis stops at the extreme. The real answer lies in between with a license. Copyright doesn’t have to shut down swapnotes, and swapnotes doesn’t have to cause professors to change their business models.

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