Intellectual Property v. The Internet
Asif Ahmad Khan
HOW WE GOT HERE
Technology has brought periods of discontinuity in various industries as far back as the industrial revolution. Farm work became far easier and as result, farms needed fewer workers. Manufacturing experienced a similar discontinuous change with the introduction of the assembly line. For the most part during the twentieth century, technology meant efficiency. This was until the advent of the single most important advancement in our country’s history, the internet. Initially the internet was an efficient way for the
Its name was Napster, and it had come to change how music was heard forever. College campuses became rampant with downloading of music. But how different was this behavior from teenagers and college students in the 1960’s becoming addicted to their favorite radio stations? Napster users were able to download a digital file of any artist that any online user had in their collection, with the same information that one would find as a track on a compact disc. It would seem that Napster was another “radio-like” means of hearing music for free with the proper technology, but its intention was to allow users to share files. “Musical compositions have been protected by copyright since 1831 (17 U.S.C. sec. 102(a)(2)) and sound recordings – the reproduction of sounds as opposed to musical notation – have been protected by copyright since 1972 (17 U.S.C sec 301(c)). Copying of sound recordings constitutes unfair competition” (A&M Records Inc. v. Heilman, 75
In 1984, VCRs became considerably more affordable. In fact many people had two with which they were able to record anything from one VCR to the next. The parallels to Napster are that both companies offered a product that could be used for illegal activity, but neither product was designed or intended for that. The question presented in the Betamax case was whether the sale of copying equipment was in violation of the Copyright Act. Copyright protection “subsists… in original works of authorship fixed in any tangible medium of expression” (17 U.S.C. B 102(a)(1982 ed.). This protection has never accorded the copyright owner complete control over all possible uses of his work. Rather, the Copyright Act grants the copyright holder “exclusive” rights to use and to authorize the use of his work in five qualified ways, including reproduction of copyrighted works in copies (Sony Corp. of
In 2005, the concept of secondary copyright liability was brought up again. This was because of a Napster-like program that enabled downloading of copyrighted files illegally, by now the internet’s bandwidth and the expansion of hard drive space on computers made it possible to even illegally download copies of movies, which is why MGM stepped in. The US Court of Appeals for the Ninth Circuit had ruled that Napster was guilty of infringement and must stop trading in copyrighted material. Four years later, the same problem had arisen, and the Betamax ruling was in play. Once again the Supreme Court had to make a decision regarding online peer to peer file sharing programs and their responsibility. Grokster, which developed software such as Kazaa, was under siege for enabling copyright infringement, and this time the decision was less difficult. MGM claimed that Grokster was aware of illegal activity and encouraged it within their advertising scheme. This program was free to users, but they would have advertisements at the bottom of the screen, this is how file-sharing software can generate revenue. In his opinion, Justice Souter claimed that “Sony did not displace other secondary liability theories… (Grokster’s actions are) a classic instance of inducement… by advertisement or solicitation that broadcasts a message designed to stimulate others to commit violations. MGM argues persuasively that such a message is shown here.” On November 8, 2005, Grokster settled with MGM. “Under the settlement, filed in federal court in
The damage from Grokster has already been done as millions of people continue to use the software. Many of the ongoing forms of online piracy are based in other countries where there is weak copyright enforcement. This would mean that someone could download a Napster-like program and proceed to share any digital files they please. The internet exists in every country in the modern world, and for there to truly be a way to hold infringers liable, there must be an overarching international statute regarding copyright, and strict enforcement of such a law.
WHERE WE ARE GOING
One of the last pieces of legislation passed by President Clinton was the Digital Millennium Copyright Act, or DMCA. This addition to the Copyright Act addressed the issue of international piracy. “The WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT) each require member countries to provide protection to certain works from other (WTO) member countries or created by nationals of other member countries. That protection must be no less favorable than that accorded to domestic works” (http://www.copyright.gov/legislation/dmca.pdf). The problem is not in the law, but in the enforcement.
A development in technology that seems to have gone under the radar is the explosion of digital video recorders. With a “DVR” one can copy any show that is available on your cable service. It would seem that people who “tivo” a show are behaving in a way similar to those who were illegally copying shows in the Betamax era. The Tivo/DVR concept is not addressed anywhere in the DMCA. “Interestingly, media giants like CBS and NBC are among TiVo's investors. Perhaps media companies have accepted the fact that technology must go forward and that they must adapt to viewers' changing habits. Furthermore, hackers have already made available software that allows DVR users to take compressed copies of TV shows and swap them on the Internet”
(http://www.elecdesign.com/Articles/Index.cfm?AD=1&ArticleID=2465). Perhaps technology is forcing some media corporations to realize that this is just another period of discontinuity and that there is a whole new market ready to be tapped into.
CHINESE PIRACY OF
Where Tivo only gives the user a copy of the show, a more accessible form of watching copied shows is gaining popularity in
This concept of having users stream television shows to and from each other simultaneously is called torrents. This phenomenon reached the
GOOGLE’S PRINT LIBRARY PROJECT
Google has become quite a force in the realm of intellectual property. The search engine recently decided to index written works into a virtual library. Of course copyright law rears its ugly head again, even with regards to works that are out of print. “At its core, the two sides are scrapping over the online application of ‘fair use,’ a legal doctrine allowing the use of copyrighted material for certain purposes, including teaching, research and news reporting. Some lawyers believe at least one of the lawsuits against Google could make its way through the legal system to the higher courts, eventually setting a precedent for fair use in the Internet age” (“Google Will Return to Scanning
Copyrighted Library Books,” 11/1/05, Delaney, Wall Street Journal). Google’s main source of revenue is through advertising. Companies pay to be part of the featured advertisements on the right side of the search results. The parallel to the Grokster case is that Google will be providing copyrighted material to searchers for free, and in turn they will make money on the side. Exactly how fair is Google’s use of the material? The indexation process is being done in conjunction with the
SONY’S ROOT DIR (the conglomerates strike back)
Instead of adapting to changes in technology, Sony decided to attack DVD hackers in a more malicious way. They created a technology that installs a hidden directory (rootkit) with masked files onto your hard drive any time you insert a Sony DVD. “If you look at the Sony rootkit, it does several things: It strips you of your rights, potentially causes your computer harm, breaks your computer if you remove it, and eats your CPU time” (http://www.theinquirer.net/?article=27426). What the rootkit does behind your back is quite stunning. Upon the unannounced installation, the rootkit renames your DVD ROM’s driver file, and hides it in the rootkit, while monitoring any attempts at piracy. If a computer user is savvy enough to locate the rootkit, upon removal, your DVD ROM ceases to function. This is not only a breach of our right to privacy, but it is by all definitions a virus. The ALCEI-EFI (Association for Freedom in Electronic Interactive Communications - Electronic Frontiers Italy) filed a complaint against Sony on November 8, 2005. “It claims that knowingly distributing code which damages computer systems is subject to penal law and an 'indictable offence'… It claims that Sony's actions to offer a patch and instructions on how to remove the software component, which installs itself without the express consent of the user, reveals the company's complicity in the 'crime'” (http://www.pcpro.co.uk/news/79650/sonys-rootkit-drm-comes-under-legal-attack.html).
This is a prime example of how far out of control the concept of internet piracy prevention has gotten. The “mal-ware” rootdir installs on all computers presented with a Sony DVD, this in effect hurts the non-infringing Sony viewers as well as the pirates. There is no sense in such actions and this is yet another case that will set a much needed precedent regarding the intellectual property laws of the internet.
WHERE SHOULD WE GO?
Betamax and the VCR revolution led to decreased sales of videos. At the same time the rental industry was booming, so the movie producers’ logic was that their demand for videos had shifted from the consumer to the renter. The production companies reacted by raising the prices of the videos. Rental companies had to buy the movies to rent, so increasing the cost of each tape was the best way that video producers could adapt to the discontinuous change brought by VCR dubbing. In doing this, the revenue stream shifted (producers now get a percentage of renter’s revenues), and most companies weathered the storm.
A similar procedure could have been adopted by the RIAA and the MPAA. The MPAA has introduced a few ideas. Recently movies have started being released on DVD the same day that they come out in theaters. This is to prevent those who post torrents of bootleg films shot by camera in the movie theater from detracting from ticket and movie sales. It is too early to see if it is working, but it is not too early to evaluate how far we have come since Napster.
There is more online piracy today than there has ever been. For every Napster or Grokster stopped, there is another different form of piracy born. Most of the time the enablers of infringement are in countries that don’t enforce the DMCA, and the people being arrested for infringement are the downloaders. Hobbes once said that the state of human nature was anarchy. This point has never been manifested anymore clearly than on the internet. The virtual nature of the internet allows people to feel that they are not part of any country, and in turn do not need to abide by any rules. For the internet to remain what it was initially intended to be there needs to be enforcement of some sort of rule. I believe that lowering the amount of damages awarded to the copyright holder would motivate some countries to enforce the laws of the WTO. “Mandatory statutory damages of as much as $150,000 per work infringed… a single iPod filled with infringing songs could give rise to more than half a billion dollars in damages” (http://www.eff.org/IP/P2P/MGM_v_Grokster/grokster_one_pager.pdf). I believe that part of the reason that such a law isn’t enforced as stringently as it could be is that most of these infringers don’t even have $150,000 and if they did, they probably would have bought whatever it was they were infringing.
In my interview with Manuel Gomez, an attorney in
The Department of Justice sued Microsoft before it grew out of control, but in doing so, it is a common belief that technological development has been thwarted. The technology is available to combine computers with televisions and phones, but obsolete industries screamed bloody murder. An innovative product that replaces multiple industries should not be viewed as a monopoly, but as change. Google’s library project is innovative in a different way. The biggest problem in this country is the divide between the haves and have-nots. The haves are able to get a good education, where the have-nots may not. This divide transfers to the digital world, but now even poor people can afford dialup internet. Google and other services that provide knowledge to people that could not find it otherwise are aiding in the closing of that divide.
Instead, I foresee more lawsuits. TiVo is setting itself up to be sued by not producers, but advertisers. When someone “DVRs” a show, they are able to skip through all the commercials. Eventually, data will be compiled showing that TiVo decreases the effectiveness of advertising and in turn, TiVo could be held liable for lost Nike sales, for example. This is an upsetting but very realistic way to look at the future of the internet. Already the MPAA and RIAA are working on a new sub-internet called Internet2, which claims to eliminate piracy. As I stated above, the problem of piracy goes beyond fixing one problem that lets people pirate, it requires seriously looking at the big picture.
We live in a world with countries that cannot get along. To think that the internet is free of these problems is foolish. If we are to eliminate piracy, or even enforce laws properly, we need every country to be on board. This is not the case, and if it ever is, that is a condition of world peace, a concept that is virtually impossible to accomplish. Perhaps achieving virtual harmony on the internet can lead to harmony in the world, but it is most likely necessary for that to happen the other way around.