Intellectual Property
Question:
Will intellectual property survive in the digital age especially with the advent of digital technologies and networks?
Definition:
Intellectual Property: property that results from original creative thought, as patents, copyright material, and trademarks.
A.) Positives and Negatives of Being a Digital Creator and a Digital Consumer:
Living in a digital reality where anything can be created and distributed at a mere click of a button poses a bit of a conundrum for the people who integrate technology in the fabric of their lives. This new information age has posed a number of positives for creators who very much like the added simplicity and efficiency of using a computer to increase work flow and generate ideas as well as have the ability to reach a limitless number of individuals around the world. Consumers enjoy the ability to access an endless amount of data and information from the convenience of their personal computers. However, with these grand strides in technology come certain pitfalls. Creators of digital information have to question how much of their product is being sold legally and how much is being acquired through illegal means. Since what they provide is intangible and easily transferred by making electronic copies, how can anyone be sure what they make and sell online isn’t being transmitted and copied over and over again without the creator’s consent? There is no definitive way to really know for sure. If there is no law protecting the publication of digital information from being illegally copied without just compensation to the publisher then why would an individual create something at all? The flipside to this is the negative consequences to the consumer. Laws to ensure legal protection to the publisher..s works will be instituted and the consumer..s access to the intellectual information on the Internet will be severely diminished in order to protect the market for the digital publishers. Technology can either be seen as an enabler to help foster a creative and socially beneficial means of networking for the common good of both creator and consumer or it could potentially be seen as an inhibitor in which it ultimately stifles information distribution on both ends due to a gross negligence for intellectual property law. To promote the progress of science and useful arts,.. is part of the foundation in which our country was founded on, the main point being progress and the positive growth of society. To strike a balance and find a resolution that meets the demands of the creator as well as the consumer requires tough decisions to be made in the court of laws that will influence future judgments on how technology will ultimately change and shape the way we create, express, purchase, and interact on the Internet.
B.) Where the Problems Stem From:
Intellectual property cases are on the rise whether it be the increase in lawsuits against peer-to-peer networking companies or the constant litigation concerning the distribution of film and music online. Understanding the source of the problems will provide a key insight on how to find solutions. As discussed in The Digital Dilemma, there are two key developments that are central in the explanation of where the intellectual problem of technological change has stemmed. The first developments are in the way of ..radical.. shifts in the economics of reproducing, distributing, controlling, and publishing information. Along with the economic dilemmas, the second key problem deals with the information structure which is ingrained into people..s everyday lives. The trio of technological advances that have led to radical shifts in the economies of information are these: 1) information in digital form has changed the economics of reproduction, 2) computer networks have changed the economics of distribution, and 3) the World Wide Web has changed the economics of publication. In discussing the economics of reproduction, once one puts information in the digital form it dramatically reduces the price of reproducing that item. Take for instance the time and effort of producing a hardbound book at a library and the time and effort of producing a book that is online and has no physical costs. The low cost of having a digital reproduction increases the likelihood of illegally producing digital copies. The economics of distribution, aided by computer networks, allows individuals to send digital information from Tokyo, Japan to Knoxville, Tennessee at virtually no cost and as fast as their Internet connection will allow, which in most cases is instantaneous. The economics of publication is being heavily influenced by the advent of the World Wide Web. The Web has become a gargantuan forum where a countless number of works are available for publication by the worldwide network of users. The second problem deals with how the information infrastructure is so prevalent in everyday life. With millions of users downloading images, music, and movies on a daily basis, at times with no hesitation, where is the line drawn on dealing with IP law and how does enforcement take place when there is such a proliferation of public exploitation? IP law mainly dealt with large-scale public consequence in the past, but with the advancement of technology and the Internet, rights holders are becoming more concerned with small-scale infringements that could possibly threaten their markets. With these problems cited and a modest understanding of the information infrastructure one can seek to evaluate the problems and seek resolutions.
C.) Understanding the Problems:
Upon grappling with intellectual property law, one must first understand the complexity of such an issue and the far-reaching problems that lie therein. Dealing with digital information is dealing with an intangible object with intangible rights. Like a trade secret for Coca-Cola..s soda formula or the trademark of Nike..s swoosh, these examples of intangible property rights are easier to govern because they involve a tangible product you can see and taste. However, for a copyrighted song that is uploaded to the Web digitally and copied over and over again to a multitude of users, it is more difficult to enforce. This is because of the mass proliferation of piracy by individuals numbering in the thousands or millions covered in a veil of anonymity. It is also difficult to resolve IP problems because it covers a large gamut of industries with each having its own set standard. The layman individual, for instance, has no legal idea on whether or not it is acceptable to make a burned copy of a music CD they just purchased in which they would like to keep for backup. Is it acceptable to make a burned copy for yourself, while making one for a friend is deemed a violation of property rights? This is where the ..fair use.. doctrine of copyright law comes into play. ..Fair use is a doctrine in United States copyright law that allows limited use of copyrighted material without requiring permission from the rights holders… Even under the fair use doctrine it is difficult to establish the legality of each particular case, since no current standard exists for a blanket decision on all IP matters. With so many players involved in IP there are varying views and opinions of what should be done and what shouldn..t be done. On one end of the spectrum you have the creators and publishers of the digital content, whether it be the music or film industry, and on the other end of the spectrum is the consumers of the digital content in the form of the online community. In the middle of this spectrum lie the government, libraries, and schools. How one approaches the content and the strategy they use will influence their viewpoint on the matter. If one goes by the customary model of exchange, where one party creates a good and another purchases the said good directly, it is to be understood that IP law would be welcomed to establish rights and fixate a strong legal foundation. However, if one were submitting their work for an ..indirect benefit.. on the Web, such as promoting their product or service by building a market online, then their strategy would be to keep IP an open source to foster a new and receptive community. It should be noted that since all IP matters are different and that each party is concerned with different outcomes, having a uniform IP policy might not be the best route to enforce. Enforcement of a draconian IP policy might be construed to be too intolerable for the average user and as a result prematurely cripple what could be a very lucrative market. Enhancing the IP problem with the fact that the Internet is a global market, one must then evaluate the international infrastructure and each individual nation. How can IP law ever enforce the policies set forth by the U.S. to apply to their court of laws? There is so much variation in global customs, laws, and attitudes; it would be impossible to implement such a far-reaching measure.
D.) Governmental Regulation:
The Digital Millennium Copyright Act (DMCA) is a United States copyright act, signed into law in 1998, that criminalizes production and dissemination of technology with the primary purpose of circumventing measures taken to protect copyright, not merely infringement of copyright itself. It also heightens the penalties for copyright infringement on the Internet. The DMCA has been under pressure by the two opposing sides, one being the software and entertainment industries and the other being librarians and members of academia. The software and entertainment industries enjoy the fact that enforcement of the DMCA will make it a crime to circumvent anti-piracy measures built into most commercial software, as well as outlaw the manufacture, sale, or distribution of code-cracking devices used to illegally copy software. Academics and the like feel that the DMCA is anti-competitive in nature. As Timothy B. Lee examines in his policy analysis of the DMCA, ..It gives copyright holders and the technology companies that distribute their content the legal power to create closed technology platforms and exclude competitors from interoperating with them. Worst of all, DRM technologies are clumsy and ineffective; they inconvenience legitimate users but do little to stop pirates… Another regulation imposed to curtail intellectual property misappropriation is the implementation of Digital Rights Management (DRM). DRM refers to a number of technologies used by publishers that control and limit access to either digital information and or restrictions associated with a particular digital work or device. On the surface DRM can be seen as a positive way to merge both the wants of the publishers and the needs of the consumers in a safe manner that offers a level playing field. However, upon closer inspection there are camps from both sides that are displeased with the DRM implementation. Rampant piracy, so the argument goes, undermines the incentives that make it worthwhile to create new content. If, because of infringement, copyright owners cannot make a return on their investments in content creation, they will stop investing in new content. With this noted, the creators of digital works enjoy having a way to control the distribution of their works without worrying about piracy. Some advocates note that DRM might even result in the lowering of prices for consumers on products because of the ability to micromanage digital distribution. While it is definitely good to protect the digital creators.. products, one must argue the potential drawbacks of having DRM, especially when being supported by the DMCA with the question of whether or not fair use is being violated. As the Electronic Frontier Foundation points out, ..An erosion of fair use in favor of DRM comes with the following potential costs; a reduction in freedom of expression, to the extent DRM interferes with review, commentary, scholarship, and parody, a reduction in innovation, to the extent that DRM eliminates the reservoir of incentives that spur companies to develop technologies that interact with copyrighted works, and an erosion of privacy, to the extent that DRM compromises user anonymity… The question of whether or not DRM will add more benefit than it detracts has yet to be seen for the long term. It can be concluded that DRM enforced by the likes of DMCA could have a powerful impact on the fair use doctrine in which there will be a distinct division between digital creators and consumers. As for international copyright, there are no current measures such as the DMCA or DRM being put into place to protect IP of digital creators. It should be noted however, that most countries do offer protection through conventions. The Berne Convention acts as a form of underlying regulation for the protection of copyrighted works from other countries. The Universal Copyright Convention (UCC) is the other international convention that protects copyright. The United Nations enacted this convention for the desire to ensure in all countries copyright protection of literary, scientific and artistic works. With these conventions noted, it is still almost impossible to a) know if one..s digital work is being compromised and b) how would one go about enforcing a transgression that happens in say Sri Lanka for example, a country on the other side of the world, where the government has no means by which to judge such a case? The issues still remain the same whether it is on a local or international scale. IP law is complex in nature with a multitude of factors being presented that make it nearly impossible to find a solution.
E.) Cases Involving Copyright
In the case of Eldred vs. Ashcroft, the constitutionality of the 1998 Sonny Bono Copyright Term Extension Act was questioned. In the CTEA, Congress increased the duration of copyrights by 20 years, making copyrights now run from creation until 70 years after the author..s death. Petitioners, whose products or services built on copyrighted works that have entered the public domain, argued that the CTEA violates both the Copyright Clause’s “limited Times” prescription and the First Amendment’s free speech guarantee. They claimed Congress cannot extend the copyright term for published works with existing copyrights. The District Court and the District of Columbia Circuit disagreed. The question of whether the 1998 CTEA exceeded Congress..s power under the Copyright Clause was called into question as well as whether the CTEA..s extension violates the First Amendment. In a 7-2 opinion delivered by Justice Ginsburg, the Court held that Congress acted within its authority, did not transgress constitutional limitations, and that the CTEA..s extension does not violate the First Amendment. This case is extremely important because it establishes the extended protection to copyright..s that were soon to become public domain. This benefits the intellectual property protection over a larger-scale for big businesses such as Walt Disney and their copyrighted cartoon characters. This case also points out who is most concerned with protecting their intangible assets and that is the businesses that will suffer the most financially from digital piracy.
In the case of MGM Studios, Inc. v. Grokster, Ltd., MGM Studios as well as other leading film companies brought suit against Grokster alleging contributory copyright infringement for distributing peer-to-peer file-sharing software. It is said that Grokster..s file-sharing software help facilitate the exchange of copyrighted material and thus with each exchange of information through his software copyright infringement occur. This case was an extremely important one for the role of intellectual property and established the realm of what is considered copyright infringement. Justice Souter wrote the opinion of the court, ..We hold that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.” This case affected the future of peer-to-peer file sharing services. In late 2005, Grokster closed his file sharing services and had to pay a $50 million dollar restitution to the music and recording industries. LimeWire, another popular peer-to-peer file sharing software halted the distribution of their program entirely and implemented a new strategy, in which to download the new software users must agree to a statement that stipulates that they will not use LimeWire for copyright infringement. Even with the waiver relinquishing LimeWire of doing any wrong, they are still under fire from the Recording Industry Association of America for the alleged profiteering off unauthorized downloads.YouTube is another file sharing service that has been accused of contributory infringement on IP. Their stance is that they don..t screen their videos in advance. However, if it is found that any material is a copyright violation, that material will swiftly be removed from their website. YouTube..s strategy is to rely heavily on the DMCA as means of protection. It is to be inferred from these cases that IP is big business and that copyright infringement of any sort will not be tolerated.
Through my analysis of intellectual property I have identified what intellectual property is, the pros and cons of the authors, publishers, and consumers of digital content, where the main problems stem from in relation to technological advances and the information infrastructure as a whole, understanding the problems, dissecting governmental regulation on IP, and cases involving copyright. With all of these aspects being examined and discussed on IP the question of whether or not IP will survive in the digital age has become clearer than it was in the past. The aspect to take note of is that information and technology is omnipresent on a global scale and it has taken relatively short time for IP law to become more and more complex with a multitude of factors contributing to this issue. IP will survive through the digital age with a number of legislative bills to being passed protecting IP law on a continuing basis. The cases cited in this paper reinforce the idea that IP law has to first understand the technology behind digital piracy as well as the infrastructure in which it is being distributed before any progress can be made. Once there is a general consensus between digital creators and consumers on rights and publications, IP can survive and continue to grow establishing a firm foundation to judge future copyright challenges.
