Intellectual Property in the Twenty-First Century

With the advent of the Information Age has come the ability to easily share ideas. Across great expanses of distance, it is now possible to transmit large quantities of data at virtually no cost. Very easily can a person sitting comfortably at home debate with someone across an ocean. It is no longer necessary to physically print a document or to etch a compact disc for dissemination to the masses as digital information readily lends itself to duplication. Also, the cost of shipping and distribution is no longer a concern beyond the expense of maintaining a connection to the Internet and having enough bandwidth.

However, with this great ease in transmission has come great consternation to owners of intellectual property. It is not only possible to replicate ideas and data with great ease, but to replicate copyrighted ideas and data illegally. In 2001, a Boston-based consulting firm called Viant estimated that roughly 350,000 movies were being illegally downloaded every day (Richardson). If we were to assume each movie is worth about twenty dollars and that economics works in this manner, this is a seventy million dollar loss in revenue per day.

To protect stakes in intellectual property, content owners have lobbied for additional legal support to gain a better hold on their assets from the apparent dangers of the Internet. This was the Digital Millennium Copyright Act, or the DMCA. It was an attempt to solidify what the relationship between the public and the copyright holders ought to be.

The entire basis of copyright law in the United States rests upon a clause written by the framers of the United States Constitution which states that “The Congress shall have the Power [. . .] To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries” (US Const., art. 1, sec. 8). It is simply an incentive for creators to make new works by promising that other people can not compete for a limited time. Interestingly enough, Thomas Jefferson himself was hesitant about including such a thing in the Constitution as he believed monopolies of any sort were of doubtful efficacy, no matter how limited. (Bell, 5). In the end, though, the founders did see that some protection of intellectual property was important enough that it received notice in the Constitution (Bell, 6) before even the Bill of Rights was drafted. With this gravitas, we must be careful with how we treat copyrights.

John Perry Barlow, founder of the Electronic Frontiers Foundation, an organization which fights for the freedoms of the general public in the networked world, argues that it is much too early to legislate the uses of the Internet. He says

In a more perfect world, we’d be wise to declare a moratorium on litigation, legislation, and international treaties in this area until we had a clearer sense of the terms and conditions of enterprise in Cyberspace. Ideally, laws ratify already developed social consensus. They are less the Social Contract itself than a series of memoranda expressing a collective intent that has emerged out of many millions of human interactions. (Barlow)

He adds that it is a legislative failure for the law to diverge wildly from social actuality. Illustrating this, he notes that when he gives lectures on the subject, no more than ten percent of the people of the audience can report honestly having no illegally-acquired software on their hard drives. One must wonder, then, what the basis of the law is.

The DMCA, which was passed in 1998, amended title 17 of the U.S. Code to extend the reach of copyright protection. More specifically, it standardized copyright law with other countries, indemnified Internet Service Providers against the actions of its users, and, most controversially, criminalized circumvention of copy-prevention measures. In title 1, chapter 12, section 1201 of the act, it states “No person shall circumvent a technological measure that effectively controls access to a work protected under this title.” It also states “No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that” makes circumvention possible. This section meant to crack down on mass piracy of digital media.

Unfortunately, this turned out to not be the case. The Electronic Frontier Foundation published a whitepaper concering this, saying that the DMCA has not been used as Congress had intended and has instead been abused to stifle legitimate activities such scientific research, fair use, and innovation. There have been numerous lawsuits and legal threats novelly wielding the DMCA, claiming circumvention. As cited by the whitepaper:

In 2001, Dmitry Skylyarov, a Russian programmer, was detained after speaking at a conference in Los Vegas due to his work on a software application which converted “e-books” into PDF files. He was never accused of copyright infringement, but instead accused for creating an application which had the ability to circumvent the copy protection mechanisms embedded in the original files.

In 2003, a graduate student at Princeton discovered a weakness in a CD copy-protection technology by SunnComm and upon publishing his results was summarily threatened with legal action for having circumvented copy protection.

One feature that people have come to expect of media, under fair use, is the ability to “time-shift” for later listening or viewing, that is, the ability to record a program with a device such as a VCR or cassette deck. Streambox developed a product that could record Internet media streams for such a purpose. However, RealNetworks, a streaming media company, obtained an injunction against the product using the DMCA, effectively disallowing the digital equivalent of the VCR.

The DMCA has also been used to enforce monopolies, blocking innovation. In 2004, RealNetworks developed a technology to package music purchased from their music store to be playable on an Apple iPod. Accusing RealNetworks of having the “tactics and ethics of a hacker,” Apple threatened legal action under the DMCA and changed their software to prevent RealNetworks from being able to compete in their market.

Looking at these examples, it is clear that the DMCA has been used for somewhat nefarious purposes. Instead of protecting copyright owners’ works from pirates, it has instead been used to protect ignorance, control, and monopolies over the public. The DMCA has not been successful in improving the copyright law in the digital age and instead has been trying to carry over old business models which have assumed the distribution of hard, physical copies as opposed to ephemeral replications.

Despite being excessively complicated with many facets, copyright law is simply an incentive scheme, and an incentive scheme is all copyright law should be. The code should simply be that all works are to be protected for a limited time starting from the act of creation as is stated in the Constitution. The protection would simply be an exclusive right to commercialize the work during the time period as opposed to nearly eternal rights to completely control the work. According to James Boyle, the William Neal Reynolds Professor of Law at Duke Law School, the current protection period of seventy years after death, as prescribed by the Sonny Bono Term Extension Act, is “outrageous,” being much too long for a simple incentive.

One way to work toward updating copyright law is to deprecate it. Instead of clinging onto the old practices, content creators can embrace the digital age. For example, Cory Doctorow, a science fiction writer, wrote an article for Forbes magazine describing how he offers his books freely as “e-books” on his website and yet still makes “a bunch of money” for his work. He makes the point that although many people who download the book do not end up purchasing it, those people wouldn’t have bought the book anyway. The reason this model works, according to him, is that an electronic book is a “social object. It wants to be copied from friend to friend [. . .]. Nothing sells books like a personal recommendation” (Doctorow). He admits it cannot be proven that giving books away for free sells more books, but he argues that it has worked for four books he has published and that it is free advertising for his skill as a writer.

This has also worked for software. In the eighties, Richard Stallman, then a Harvard student working at the MIT AI Laboratory, had the idea to create free software under what he called a “copyleft.” From this sprouted the entire open-source movement where the source code of applications is available for anyone to examine or modify. Linux is a notable example of such software. Despite the code being freely available, companies such as IBM and Novell have found a way to make money with a service-oriented business model. Instead of selling the software, they sell the tech-support, installation, and hard copies of manuals. Since they, too, use open-source software, they also help fund the software projects. Thus, this business model embraces the Internet in allowing free dissemination for the public good whilst supporting a profit.

The Telegraph, a reputable British news source, ran an article in 2007 describing the more recent adaptation of the music industry to the Internet. It is proving to be more profitable to book bands for concerts than to try to create a record with a major label. According to Alan McGee, a previous manager of the well-known band Oasis, “It is definitely the beginning of the end of the old model. [. . .] With the losses in CD sales, the band [the Charlatans] will get paid more by more people coming to the gigs and buying merchandise. I believe it’s the future business model” (“Radiohead”).

It used to be that one would have to pay for access to information. With the transition to radio, performers could no longer control who could listen to their shows. Likewise, with our transition to the Internet, it is impossible to control information from being shared. Business models had to adapt to the radio transition. Now it’s time to adapt to the Internet (Doctorow).

Even though many people will download works without compensating the authors under these models, we can think about the fact that copyrights are a relationship between copyright holder and the public which is a two-way street. Copyright law and discussion about the DMCA has generally focused on protecting the copyright holder (Litman 128). However, it is also in the public’s best interest to protect the copyright holder when the author creates something worthwhile, and the public has the desire to see more similar work, expressing the desire in the form of donations and actual purchases. The DMCA is not required to support the artists, and, if the artist is not supported by the public, one may question whether or not the artist is actually wanted. Economically, there is an incentive for both parties. For the public, to keep artists they like, and for the artists, to disseminate their ideas and gain market share, enticing the public.

It is too early to legislate the new digital age when we are just at the beginning, not yet knowing what is or will be possible. The Digital Millennium Copyright Act has been stifling innovation, which is quite the opposite of the purpose of copyright law. New business models need to bring us into the future, understanding the implications of the world in which we now live. We can not box ourselves in by holding onto the old status quo of intellectual property. We need to truly update our ideas of what it means to own an idea for the new millennium as opposed to the DMCA’s attempt to force the old onto the Internet. Since the law reflects social custom, we must change how we think of digital media, realizing data can be copied without cost. We need our business- and congress-people to understand this, too. Never before has it been so easy to distribute works to so many at such little cost. Let us experiment.

1. Works Cited

Barlow, John Perry. “The Economy of Ideas: Selling Wine Without Bottles on the Global Net.” 22 May 2008 <http://homes.eff.org/~barlow/EconomyOfIdeas.html>.

Bell, Tom. “Indelicate Imbalancing in Copyright and Patent Law.” Copyfights. Ed. Adam Thierer and Clyde Crews Jr. Washington, D.C.: Cato Institute, 2002.

Boyle, James. “Intellectual Property Rights Do Not Require Greater Protection.” “Opposing Viewpoints: The Information Revolution”. Ed. Laura K. Egendorf. San Diego: Greenhaven Press, 2004. Opposing Viewpoints Resource Center. Gale. Eden Prairie High School. 22 May 2008 <http://find.galegroup.com/>.

Digital Millenium Copyright Act. Pub. L. 105-304. 12 Oct. 1998.

Doctorow, Cory. “Giving It Away.” Forbes. 1 Dec. 2006. 22 May 2008 <http://www.forbes.com/>.

“Radiohead Generation Believes Music Is Free.” The Telegraph. 16 Oct. 2007. 22 May 2008 <http://www.telegraph.co.uk/>.

Richardson, Bonnie J.K. “The Government Must Combat Online Piracy.” At Issue: Internet Piracy. Ed. James D. Torr. San Diego: Greenhaven Press, 2005. Opposing Viewpoints Resource Center. Gale. Eden Prairie High School. 22 May 2008 <http://find.galegroup.com/>.

Litman, Jessica. “Revising Copyright Law for the Information Age.” Copyfights. Ed. Adam Thierer and Clyde Crews Jr. Washington, D.C.: Cato Institute, 2002.

“Unintended Consequences: Seven Years Under the DMCA.” Electronic Frontier Foundation. Apr. 2006. 22 May 2008 <http://www.eff.org/wp/unintended-consequences-seven-years-under-dmca>.