Intellectual Property
I read an article recently where the author gave a lecture to a group of college students about intellectual property. He had been giving roughly the same lecture for years to mixed groups of ages. But this group surprised him.
He usually started with examples, asking people to give a show of hands if they think what he is describing is 'wrong'. He started out with fairly simple ones.
You can't be at home when your favorite show airs. So you use your VCR to record it. Is that wrong?
What if it's a TIVO or digital recorder?
What if you have digital cable and record it?
Most people didn't seem to think those were wrong. Although technically, the law gets sticky when you use digital recorders on digital media, thanks to the DMCA (Digital Millenium Copyright Act). But then he went on to others.
You tried to record a show and your VCR malfunctioned. So you copy your neighbor's tape.
Each time, he made it a little more egregious of a violation. Until finally, in exasperation,
You don't want to pay for the latest CD from your favorite band. So you just go online and download it for free.
Two hands went up, out of five hundred people in the audience. Less than one percent. He was astonished by this, apparently. It was far less than most audiences, and to him, represented a generational gap in understanding of Intellectual Property law.
The Origins of Intellectual Property
Intellectual Property was an early recognition in law that information itself can be a product worthy of protection from theft, for the precise reason that it is so easy to steal. Originally the notion was to protect the authors of books. The fear was that once an author published their book, somebody else could take the text of their book, typeset it, and start creating unauthorized copies for which the author would not get paid. They might sell a few hundred copies, and then the market would be flooded with competitors who did nothing more than simply set the type for another copy.
It was recognition that a certain type of work, once done, is very easy to reproduce. That the initial effort of creating the work is large, but after that it can be copied multiple times, with each copy generating roughly the same benefit. It might take months or years for an author to write a novel, but perhaps a day at most for a skilled typesetter to set up a printing press to issue more copies.
To do this, they created three types of intellectual property:
Copyrights protect the exact form of a work and obvious derivatives. Copyrights last the longest (initially 50 years), and prevent others from duplicating the work or creating obvious derivatives. To use an example, copyright law would prevent me from taking Dean Koontz's latest book and selling my own copies of it, but it wouldn't prevent me from writing a novel with a very similar plot but different characters and setting.
Trademarks protect a name, a logo, an image, from use by others in a similar field of endeavor. So I couldn't start a breakfast cereal company called Kellog's. But I could, for example, have an auto garage named Kellog's Auto Repair. The definition has always been, could a consumer be confused by the two in such a way that they might mistake the imitator for the original? Trademarks were issued for a long period of time, and were renewable.
Patents protect an invention or idea from use by others. A patent is unique because it protects not only the work itself, but anything similar to the work, even if it was developed independently. To be patentable, the idea must be unique, non-obvious, and specific. Patents were originally issued for seven years, and were not renewable.
Intellectual Property was a great leap forward, and the combination of these three items provided the protection to encourage innovation and helped propel the United States into the position it holds today. By protecting the rights of inventors, no longer was the only protection against infringement secrecy. And since Copyrights, Patents, and Trademarks were transferable, it became possible to buy and sell these properties, thus encouraging the economics in trade of useful ideas, stimulating their deployment and use.
Problems with Intellectual Property
So what does this have to do with the college students? The trouble is that the law is handled by lawyers, and our legal system is by and large based on who has the most money to spend in the courtroom. So there has been a gradual expansion of Intellectual Property laws and a gradual erosion of the freedoms others have enjoyed.
The first problem with Copyrights has been what some have called the Mickey Mouse clause. Because Disney has a huge legal department, and is capable of delivering large brib... I mean, campaign contributions, the length of time copyrights last has been gradually extended on at least three occasions that just happen to be long enough that Mickey Mouse never becomes public domain.
Originally, the idea was that after a fixed period of time, long enough to be most likely after the original author's death, the work would pass into the public domain and become part of the culture we all share. All of Mark Twain's work is public domain -- anybody can do anything they want with it. You can publish a leather-bound set of his works and sell them on the Shopping Channel for $69.95, with a free bonus gift, and you don't have to pay any money to Samuel Clemens' heirs. In fact, if I'm correct this is a large reason that the Lord of the Rings movies came out when they did -- British law has not permitted this extension of copyrights to the extent that American law has, and thus, J. R. R. Tolkein's heirs did not have to be paid or their permission obtained for the use of the work in film.
At this point, it appears that copyrights will be extended indefinitely. That a company doesn't have to continue to come out with anything new in order to maintain their hold on it. More and more of our shared culture is owned by someone or something. Witness the assault on restaurants by the composers of the song "Happy Birthday" demanding royalties for each time it was sung to a guest. Now, restaurants very carefully either compose their own song (and copyright it), or make sure none of their employees sing along.
Trademarks have also been extended. The original tests of whether someone would become confused by the use of the name or logo have been bypassed by the simple fact that the attorneys for the large corporation can essentially tie you up in court for years and millions of dollars, even if you win.
I'm going to save the problems with patents for a different section, since they don't apply as much to this discussion. College students are not impacted as much by patents as they are by copyrights.
From Rogue Publishers to Every Consumer
Originally, copyrights were enforced almost exclusively against those wishing to use someone else's intellectual property to make money. The reason was that it required a certain amount of investment to make copies easily. Printing a book requires a press and the work of typesetting; making a copy of a phonograph record required an expensive cutter; copying a painting required that you get out your brush and canvas, or make a woodcut, or some other method that made it impractical for the average person to duplicate.
The first real tests of copyright law came with the advent of new technologies: photocopying and tape recorders. At first, these technologies were expensive enough that it was not a huge concern, but as they dropped in price, and especially as cassette recorders entered the market offering low-cost recording, it became a concern.
Now the problem wasn't only somebody investing in infrastructure and mass-producing copies, but the concern that millions of people might buy a record album, then give out copies of the album to their friends on cassette tape. Somebody might see a great article and give it to people at the office. Teachers might photocopy a news story and hand it out to their students, with the advertising carefully cut out. All these things, it was feared, would harm sales of the product.
Various industries fought back. They fought photocopying by going after institutions that had them and suing for large amounts if they found evidence of such infringement. They managed to push through a regulation to collect a fee on each blank tapes sold, to be given back to the recording industry and split up among the publishers according to some arcane formula, to supposedly offset the lost sales.
The copyright owners were dealt a considerable blow, however, with the advent of Video Cassette Recorders becoming widely available and cheap -- and when a court ruling agreed that consumers had the right to record anything that came off the airwaves. Suddenly, anything broadcast became usable by anyone who saw it.
But none of this was anything compared to what became possible with the advent of the compact disc. Originally, CD's were intended to be the Holy Grail for the recording industry. It required a high-power laser to burn the information onto the disc. They were not recordable. Machines to do the recording cost thousands of dollars. And the CD's offered much higher quality than cassette tapes of the time, enough that consumers would be willing to spend the extra. And finally, they were smaller and less fussy than record albums, and far more durable -- you could play them as many times as you wanted without the sound quality degrading.
However, CD's had an Achilles' Heel. Compact Discs used a digital format. Instead of grooves on the record or variations on the magnetization of particles on a plastic tape physically corresponding to the sound waves, instead CD's used ones and zeroes to represent information that, in turn, represented the sound. There was no halfway -- a given spot on the CD, too small for the eye to see, was either pitted (a one) or not pitted (a zero). A laser would read this, and unless the CD was scratched badly, it would be able to reconstruct what was on the disc at that point. There was no ambiguity.
With every other medium to that point, a copy was always worse than the original. The term was generational loss, and the only way to reduce it was to use high-quality (and thus expensive) recording equipment. And even then, it could not be totally eliminated. Compact Discs did not suffer from generational loss. The only thing protecting them was the high cost of duplication equipment.
Which gradually came down in price, of course, like any other technology. And finally, the CD-R was invented. It used a much thinner sheet of aluminum, so it was not as durable as a commercially-produced CD, but it meant that it required a much smaller laser to encode it. The price began to plummet. Semiconductor lasers of the proper power became available, and suddenly, the end user had access to the ability to record their own CD's.
What was worse was that the technology was also used, in a similar format, for ordinary data. It was a great way for companies and individuals to archive information. Small software houses could create CD's of their own and send them to customers. An attempt by the recording industry to enforce a fee on blank CD-R's failed, because there were so many other uses, so many people who would be paying the fee who were not going to use it to record music. And the erosion began.
And the worst part was, there was no generational loss. A copy of a CD sounded just as good as the original. The same for a copy of that copy. And a copy of that copy, and so forth. Friends could buy a copy of a CD, and instantly share it with all their friends, passing the CD's back and forth -- for when you copied a CD, you still had the original. And the copy was just as good. Disaster.
Even so, the distribution was at least limited to people you knew. However, that was changing. Enter the computer -- and the modem. Even before the Internet, local communites had bulletin board systems. Users could upload files, and other users could download those files. It became a clearinghouse for all kinds of things -- including, in some cases, copyrighted files. But the recording industry was safe -- a compact disc over an early 2400-baud modem would take 33 days to transfer. Just a single song would take 2-3 days, depending on its length. Shortening this time meant degrading the quality. Even when the speed of modems increased to 28,800 bps or 33,600 bps, it would still take over a day to transfer a full CD -- longer than most people were willing to wait.
Enter audio compression, specifically the format known as MP3. MP3 uses a method of analyzing the audio and recording it as a series of frequencies, rather than storing the individual oscillations of the speaker cone. It then ignores the frequences that are least important to the ear -- and provides audio quality that is almost as good as a CD, but requires literally one tenth the storage space. Instead of taking over an hour to download per minute of music, now it would take only about ten minutes, meaning that your typical five-minute song could be downloaded in under an hour. And the files were small, meaning the user could build up a nice library of music.
The Internet was in full swing, but at least the recording industry had one last recourse. Ordinary users were limited to dial-up connections, which were slow. If you wanted to actually be able to serve files, you had to have a high-speed connection. You had a lot of money invested, and if you took the risk of hosting copyrighted files, you provided an easy target to go after. You had money, you had a visible presence.
This lasted until broadband brought high speed to the masses. Now, suddenly, home users could have Internet speeds that previously cost a small fortune. They could run servers, providing hundreds of thousands of small targets instead of a few big ones. Even so, the ability of home users to serve files was limited. Until Napster came along.
Napster was not the first user-based file-sharing program, but it was the first one to take off in a big way. You could connect to the network, and while it didn't store any files, it would take any files you wanted to publish and make them available to others. And it did this while you were getting the files you wanted from other people. A worldwide sharing network, with digital music moving around and spreading almost like a virus -- and the artists not getting paid for any of it.
This was a disaster. While the recording industry managed to get Napster shut down, they were never able to close the concept entirely. The newer hosts are run outside the USA, where it is not illegal to provide information about how to get copyrighted works, only to distribute the works themselves. They can target those who download the music, but most of them would cost more money to prosecute than could ever be collected. The newer file-sharing systems also make it far more difficult to trace the individual users who are sending or receiving files.
Through all of this, something interesting happened. While the recording industry was bleating about lost profits, it seems that sales were actually going up. But what was happening was that sales of larger, more publicized, more mainstream bands were going down, while the more obscure ones were seeing their sales skyrocketing enough to make up for it.
Why was this? Suddenly, instead of having to spend $15.00 on a CD for a band they never heard of, they could download a track or two. Some people would decide they liked the band, and many would spring for the CD. Bands that were previously unknown and obscure would suddenly see their fan base growing by leaps and bounds. In fact, a site called MP3.com arose where small artists could publish samples of their work for free, thus getting much-needed publicity.
The small size of MP3's also made possible portable music players that were small and could hold hundreds or thousands of songs. Suddenly, MP3 wasn't just for computers anymore. Now, it was a generic, portable, swappable music format.
The music industry was horrified by this more than anything else that had happened. Even though they were making money, they were losing control. Previously, they had always had the ability to decide who the next big artists would be. They could promote them, advertise them, ensure that they got airtime on the radio. Now, suddenly, the predictability of their audience was no longer guaranteed. They no longer controlled the channel. And worst of all, some artists, tired of the recording industry giving them pennies on the sales dollar in royalties, decided to bypass them entirely and self-publish, providing freely-distributable samples to flow through the file networks -- and publishing their music online, cheap.
In response, in panic, they have stepped up their enforcement. They have increased lobbying of Congress. They have tried to pass laws making the MP3 format illegal, to make devices that do not enforce 'Digital Rights Management' illegal. And they have gotten passed the Digital Millenium Copyright Act, the most egregious expansion of copyright law in history. But the end result of all of this is this: nearly every young person is a criminal, now. Instead of copyright infringement being an obscure matter to be settled among artists and publishers, now nearly everyone violates this law, routinely. It is hardly ever enforced, and as such, copyrights have become something ignored by the vast majority of users.
Worst of all was the hypocrisy of the media owners. For example, software companies, especially those producing games, would always advertise that if we could just stop software piracy, the cost of games would go down. Instead, as enforcement has increased, as copy protection and registration have become the norm and are more difficult to bypass, and as a larger percentage than ever of users have begun purchasing their software, the costs have gone up significantly, even after adjusting for inflation. A game that used to be $10.00 or $20.00 now sells for $50.00 or even $100.00.
The Digital Millenium Copyright Act
The DMCA represents the most powerful, comprehensive expansion of Copyright law since the laws were originally introduced. What it does, in essence, is consider any digital medium to be a new form of intellectual property, and thus not subject to previous court decisions about copyright law.
Previously, there was a 'loophole' in copyright law, called Fair Use. Once you had purchased a book, you could photocopy pages for your own use. If you bought a movie on tape, you could show it to your friends in your living room. If you bought a piece of software, you could make a backup copy of it and install it as many times as you wanted on the same computer. If you bought a CD, you could listen to it on any player. You could record programs from the airwaves and watch them at your leisure. And so forth.
The DMCA closed most of these loopholes for any digital medium, including computer files, DVDs, DVRs (Digital Video recorders), and even retroactively applied to compact discs.
In short, what it says is, the producer of the digital media has the right to decide how you can use the content, when you can view it, and what use you can make of it. They have the right to enforce this restriction through encryption technology, etc., and you, as the consumer, are committing a crime to, in any way, get around this technology. Further, it is a criminal act, now, to produce any device, software, or other mechanism that would help a consumer get around these restrictions.
Take the case of Dmitry Sklyarov. More details can be found at this site: http://www.freesklyarov.org/ . Sklyarov is a Russian citizen who helped a Russian company write a software package that would take legally-purchased Adobe eBook files and translate them into PDF files so they could be viewed on other computers. This was not a violation of Russian law, but it violated the DMCA. When he travelled to San Francisco to speak at a conference, he was arrested on $50,000 bail, but restricted to California. He was finally permitted to go home in December of 2001. Later, the company was found Not Guilty, but only after very expensive legal fees, and only on the jury's belief that the company 'did not intend' to break the law.
Before the DMCA, such a program would have been considered quite legal. It did not break encryption, simply removed it using the keys stored on the user's computer. But the provisions of the DMCA basically place all rights to anything you purchase squarely in the hands of the developers.
There is a lot of resentment, especially among young people, for these laws that, in their view, are designed to give these large companies 'too much' control over something that is that important to them. They resent being treated as mere consumers, and since it is so easy to satisfy their desires without spending any money, they do so, finding ways to rationalize it.
Ethics and Morality
Part of the problem is that rather than finding ways to enforce the laws on the books, or lowering their pricing structure to better accomodate these new developments, instead the publishers have, by and large, instead tried to find ways to change the law to benefit them. This, combined with the way the legal process works in this country, have created a good portion of this resentment. The simple fact is that in today's market, it's hard to charge $30.00 for a DVD of a movie or $50-$80 for a season of a television show, or $16.95 for a CD. It's hard to get consumers to pay $300-$400 for a piece of software.
And the trouble is, the industry has banded together. There's no competition because of these groups such as the MPAA or RIAA that encourage their members to charge these high prices. A few large companies control much of the market and distribution channels, and are trying to use their legal clout to restrict their competitors. In some cases, these industry groups have tried to force artists to join them, or target artists who choose to distribute their own copyrighted works through other channels for legal action.
Like many other aspects of our legal system, I believe a lot of this would be corrected by a 'loser-pays' system applied to tort cases. Whoever loses the case must pay court costs and reasonable attorneys' fees. This would encourage those who are actually at fault to settle early and quickly, and would discourage cases that are without merit from being brought.
I've saved the biggest topic for last, however: Patents.
Patents
Originally, the idea of a patent was simple. When you invented something, you could patent it, and no one else was legally allowed to sell, manufacture, or import anything that would violate that patent. Originally, the period of the patent was 7 years, long enough to capitalize on it but hardly an eternal right.
There have been several major problems with patents. The first is the extension of them, primarily by pharmaceutical companies, once again through bri... er, campaign contributions. The current period is 20 years, and sometimes much longer. During this time, the company has the exclusive right to produce the drug in question, and they can charge whatever price they want to for it.
Second, patents originally were supposed to be specific and non-obvious. However, especially in the software arena, many patents have been granted for far too broad of concepts, and things that were, frankly, obvious. A company managed to patent "e-Commerce", the entire idea of doing business over the Internet -- which has always been an obvious application of the technology. They didn't just patent one specific form of it; they were granted a patent on the entire concept of doing so, no matter how it was implemented.
Third, patents in some cases are granted multiple times for the same invention. For example, a drug company will, as a matter of course, apply for a patent on a drug. Then, when that one is about to expire, a patent on the molecular shape of the drug. Then on the DNA sequence for the drug. Then on the manufacturing process for the drug. And so forth.
Lastly, enforcement of a patent is exclusively the province of the patent holder. This means that small owners of patents often cannot enforce them; the government will not help them. Instead, they have to pay the legal fees to try to enforce their patent, often against a larger entity that can afford to pay for years to tie the case up in court, while profitting meanwhile on the invention.
Especially in the drug field, as well, many so-called inventions are created with public research funds, then transferred to the private sector for development. While this helps universities, and does increase the speed at which these technologies become available, it seems wrong to many that taxpayers are first forced to pay for the development, then continue to pay for another twenty years or so for the product itself. This is especially the case with pharmaceuticals, where the R&D is provided through a government grant to a university and acquires the patent, then develops the drug and passes it off to a company for production and sale at a very high price.
Patents were designed to protect inventors, to ensure that their investment of time and energy would not be squandered when imitators jumped into the market to begin producing the invention without spending the research and development money on it. It was especially designed to protect individuals and entrepreneurs. However, modern patent law has turned into a tool that is used to restrict the development of new technology and slow down progress in a field far more often than it helps it.
How can this be corrected? Patents should return to their original seven year period -- perhaps ten years at most. The Patent and Trademark office should enforce the rules on patents more stringently and deny claims that are too broad, obvious, or nothing more than an incremental improvement in what already exists. Mandatory licensing should be applied for anything developed using public funds, with pricing set by an independent review board.
Conclusions
What should be done about those college students? It's a hard question. On one level, the simple fact is that if you are not prepared to pay for something, you should not consume it -- and the same is true for intellectual property. Those who do not like the cost should seek out alternative forms of entertainment, and thus send a signal to the media producers that they need to lower their prices if they want to sell their product.
On the other hand, piracy also represents an act of civil disobedience directed against those media producers who would charge too high a price for their products. In a sense, it is a restriction on the prices of products for the simple reason that the more they charge, the more people will pirate rather than buy.
I think the biggest steps the companies could take would be to find distribution channels that satisfy the obvious consumer demand at a lower cost, and take advantage of these. Systems like Apple's iTunes and various other online distribution media allow legal downloads at a low cost, and these may represent the future of media. Instead of passing laws that benefit large companies at the expense of small consumers, finding new ways to use market forces to their advantage is in the best interests of the media producers.
