From David Marburger: John: I'm one of the co-au...

2009-07-12T07:37:07.222-10:00

From David Marburger:

John: I'm one of the co-authors of the economic and legal analysis that your blog is talking about.

I think "mischaracterized" is a loaded term -- it suggests blame or fault, which I suspect you don't mean to convey. Given the context of amending the copyright statute, anyone not already immersed in my area of law everyday would use words that connote "statute" or think "statute" when talking briefly about what we conclude and recommend.

In fact, a young lawyer in our office read my brother's and my analysis a couple of weeks ago. He thought that we wanted Congress to pass a statute that would require free-riders to disgorge ad revenue and give news organizations injunctions, and he asked me what such statutory language might say. He wasn't already conversant with common-law unfair competition or the pre-emption provisions of the copyright act, and so I explained to him that we weren't calling for Congress to pass statutes like that.

I explained that the common-law already allows those kinds of remedies for unfair competition without any statute, and that they apply to every business except the reporting of daily news. The problem is that the copyright act effectively impedes -- if not actually blocks -- those common-law remedies and common-law unfair competition itself from applying to the business of reporting daily news.

It is the nuances of the complex interactions between economic principles, the unique and unprecedented qualities of the internet, and both statutory and common law that have converged to bring about the demise of the daily news business.

If those nuances were so obvious and simple that everyone could describe them fully enough during a coffee break, the problem would have been identified and solved years ago.

Yet it is those nuances that, in the end, explain in large part what has happened, and what can correct it. Now, let's get to the details; let's get to the merits.

"embraces the dialectic" Nice the Marxists out ear...

2009-07-11T17:17:57.922-10:00

"embraces the dialectic"
Nice the Marxists out early this morning.

John - there's no question that your asking questi...

2009-07-11T04:36:34.034-10:00

John - there's no question that your asking questions helped clarify these issues. That's one of the biggest boons to participating in and adopting an approach that embraces the dialectic that gets going through online interactive information sharing. As a lawyer and as a journalist, I really appreciate the effort you've made here, and the sharing of the information. Now the issue is getting it to everyone else who still thinks the 24 hour moratorium is what was intended.

Comments on TEMPLE TALK: More on the copyright issue: Read how the lawyer b...

From David Marburger: John: I'm one of the co-au...

"embraces the dialectic" Nice the Marxists out ear...

John - there's no question that your asking questi...