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Denise Howell is a seasoned appellate and intellectual property litigator based in Los Angeles. Denise writes one of the first and most popular law-related blogs, Bag and Baggage, coined the term "blawg" and helped pioneer podcasting for lawyers. Microcontent obsessed since 2001, she is frequently quoted in the media on legal issues involving intellectual property and technology law. "Sound Policy" is Denise's show at IT Conversations, and it's also what she hopes results from the briefs she submits to court. Email Denise at

Dennis Kennedy is a computer lawyer and legal technology expert based in St. Louis, Missouri. An award-winning author, a frequent speaker and a widely-read blogger, he has more than 300 publications on legal, technology and Internet topics, many of which are collected in his e-books. Dennis has been described as someone who knows almost every rock song in existence and, more importantly, how they apply to technology and law. Email Dennis at his gmail address.

Tom Mighell is Senior Counsel and Litigation Technology Support Coordinator at Cowles & Thompson in Dallas. He has published the Internet Legal Research Weekly newsletter since 2000 and blogged about the Internet and legal technology at Inter Alia since August of 2002. With Tom's singing, Ernie on guitar and Dennis' encylopedic knowledge of rock music, we may have the beginnings of a good band, if this whole blog thing doesn't work out. Email Tom at

Marty Schwimmer left a partnership in the largest trademark practice in the world and founded Schwimmer Mitchell, a full-service IP micro-boutique in Westchester County, New York, where he represents owners of famous and not yet famous trademarks. He founded The Trademark Blog, the first IP law blog and the one with the most pictures. He is the first to come in and the last to leave in his firm. Email Marty at

Ernest Svenson practices law with a mid-sized law firm in New Orleans, specializing in business-related lawsuits. Most of his practice takes place in federal court, especially the Eastern District. He is best known for his weblog Ernie the Attorney, which he started as an experiment. Like many experiments it got out of control. Nevertheless, he continues to practice law and, occasionally, to seek enlightenment. Email Ernest at
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June 10, 2005

Denise re: fair use and the future

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Posted by Denise Howell

I've enjoyed reading the discussion here and elsewhere this week about the uncertain and unpredictable nature of copyright law today and whether and why it matters. (Some links aggregated here.) To answer Marty's earlier question to Dennis, the reason I worry about this stuff is to me it's another example of a problem we've historically created and relatively recently identified, but haven't solved and now threaten to foist upon our kids and grandkids.

Copyright law is like an aging house. Though it may still serve its central purpose of providing a roof overhead for its owners, its infrastructure and plumbing have reached the end of their useful lives, and need to be updated if the whole structure is to remain sound for decades to come. The areas most desperately in need of renovation are:

  1. The scope of copyright. What does and does not need to be protected in today's day and age, and when should protection attach?
  2. The definition of infringement. Where should the focus be, e.g., on copying, or as Ernie Miller suggests, distribution? Certain forms of copying and distribution deserve to be treated differently than others from a policy standpoint, and they should be definitively carved out of the definition.
  3. The requirement of harm. In cases where an activity is technically infringing but actually confers economic benefits on the rights holder and cultural benefits on society, there should be more roadblocks to a legal recovery than are in place today.

How do we know the current copyright structure really needs this remodel? Dennis' post is illustrative, and one could devote many hours (indeed, many already have and regularly do) to chronicling similar examples. The cornerstones of "thievery" and "piracy" have been eroded by technology and utility, and by the old fair use standbys of news, commentary, art, education, and science. When your child takes something from a store, you explain why that was wrong and take her back to apologize and return it. When she mods her Xbox so she can back up her games to its hard drive and improve its performance, a similar trip to Redmond is the last thing on your mind. You're too busy considering her prospects and potential.

Who are the general and sub-contractors of this remodel? We all are. Participatory journalism gets a good deal of attention, but with the kind of unprecedented, unmediated, and distributed influence on the lawmaking process becoming possible today, "participatory law" is just as important, if not more so. Conversations like this one can become part of the analysis, and so can ideas generated around Creative Commons, collective licensing, and collaborative editing of scholarly texts. Keep hacking and hammering folks, and just maybe our children will inherit fewer constraints and uncertainties, and a better world.

Comments (1) + TrackBacks (0) | Category: Copyright | Participatory Law


1. A new Copyright Act for "we the people" on June 13, 2005 6:57 PM writes...

Great! But for a new Copyright Act:

We must first define the purpose of copyright law or copyright protection. After we have a clear picture of what the purpose of the law, it is then the laws made and can be changed and then observations can be made to the results to see if the changes measurably mproved the results or not. Then if the changes made the results worse, then the changes can be eliminated or changed again.

This is how a scientist would work on the "problem".

For example, is there evidence that by extending the duration of copyrights (many times), the results were actually improved, and for whom? Of course no one can answer the question because the purpose of the law in inexistent, or muddy at best.

Unfortunately legislators are not scientists and all they do is play politics and do political favors. Until this changes, there really is little hope, unless the people revolt at election time.

To define the purpose of copyright law, legislators should familiarize themselves with The Copyright Funnel (

If the purpose of the law is not clear, the law will be designed wrong and will satisfy no one, other than the successful lobbyists and their clients. But these are not "we the people", are they?

Rafael Venegas

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