Wednesday, May 10 2000 was pretty average news day, at
least to distant observers. The population of India reached or was about to reach billion, although, understandably, nobody was quite sure when to fire the salute. British troops were getting involved in yet another world trouble spot. John McCain III grudgingly endorsed George Bush II for the US presidency. The Euro had its usual day of hiccups on the Exchange. The buyers of the Rover company from BMW for £10, were asking themselves whether they had overpaid. May 10 2000 was pretty average day in the intellectual property microcosmos too.
In retrospect, four events may come to be seen as capturing some of the spirit of the times even after their details are well and truly archived. First came news of the locating of the person who had released the “I Love You” virus the previous week, which had disrupted computers across the world.
The suspect was computer hacker in the Philippines, who had dropped out of college when his supervisor had rejected thesis proposal that dealt with computer program for using other people’s passwords to gain free access to the Internet.
Through his lawyer, the suspect said the release of the virus was all mistake but let the gathered reporters in on his views on intellectual property: “The lnternet is supposed to be educational so it should be free.”
A second apparently unrelated event that day underscored the ubiquity of that viewpoint. The New York Times reported on the availability of computer program called Freenet, which encrypts files so that users may exchange them anonymously on the Internet. Its developer, whose day job was with small e-commerce firm in London, had built on the project he’d worked on as student at Edinburgh University.
He is reported as saying: “If this whole thing catches on, I think people will look back in 20 to 40 years and look at the idea that you can own information in the same way as gold or real estate in the same way we look at witch burning today.”
He also had some advice for copyright holders trying to stop the free movement of digital data: “I have two words for these companies,” he said: “Give up.” He actually had two more sentences: “There is no way [these companies] are going to stop these technologies. They are trying to plug holes in dam that is about to burst.”
Getting heavy
Coincidentally, one of these anti-dambursters was, that very day across the Atlantic, busy presenting his viewpoint in an interview that appeared on the Internet. The heavy metal band Metallica sued the operator of website that allows the downloading of program which, like Freenet, enables users to swap files but without encryption.
Users of the program, called Napster, typically swap music files – that is, sound recordings stored in their computer hard drives in compressed format called MP3 – locating the music they want from directory on the Napster website. Metallica presented Napster with evidence that over 300,000 people had used the program to exchange Metallica’s works without their authority, and claimed that Napster was contributory infringer of their copyrights by actively encouraging such infringements.
Napster lost the first round of the Metallica litigation. On May 2 2000, federal court refused to dismiss the case summarily. Although the court did not go far into the merits, Napster’s problem seems twofold. First, the program and website were designed to encourage users to copy music and to hand over electronic copies to others, without the consent of any copyright owner and without paying any royalty. The first commandment of copyright is: “Thou shalt not copy without the copyright owner’s prior consent.” The first user who copied the initial work into her computer and the second user who copied that copy into his machine both broke that rule.
Second, Napster may not itself have done any copying, but it may have actively encouraged others to copy by providing directory of copiable music, and by providing the means of copying. It may not claim innocence of copyright violations once the copyright holder notifies it of what is going on.
To operate legally, Napster may perhaps not need to check that every title that it files on its directory has been cleared for copying by the rightholders, but it must at least act to prevent infringement on being notified. Alternatively, it may have to make some prior arrangement with the copyright owners to remit agreed royalties. The American record industry has joined in litigation. The question whether Napster should be closed down is now before US Appeals Court in California. Meanwhile, Napster closed the offending 300,000 accounts to mounting barrage of criticism from Metallica fans. Later that day, Metallica’s co-founder sought to justify the ways of Metallica to ABC News. Among the things he said was the following:
“[People are] taking the computer for granted to the point where now [they] believe that they have right to get music, literature, art and other things for free over the Internet because they have access to them. And, that’s very, very dangerous train of thought… that [if] not challenged in the next couple of years… has the potential to run completely amok, and throw commerce and creative entities and the way people relate to those completely upside down.”
Intellectual crisis
One need not be Manichean to sense the intellectual crisis posed to intellectual property by the dicta of the Love Bug spreader, the Freenet programmer, and the Metallica band member.
That intellectual crisis, is not new or recent. It has existed for centuries, at least since the printing press revolutionised the way in which ideas were disseminated. The crisis has returned to sight periodically as new technologies produced new practices and encroached on former habits and casts of mind.
The new curse
Digital technology is just the latest manifestation of intellectual property’s continual crisis.
As existing works are digitised, with or without authorisation, or new works are made available solely in digital format, copyright becomes less able to cope with the manipulation and movement of intangible electronic streams.
Detection and enforcement become difficult, sometimes impossible, and rights that appear on the books are ignored in practice. Access to music, art, literature, and other material in digital form has given users the power to modify these works or data at will, replicate them almost infinitely, and transmit them anywhere in the world.
Every user is potential re-author and redistributor of material made available electronically to her.
In this world, the only way in which an initial provider of work or information can practically profit from its investment may be through reliance on shared ethical understandings, encryption and password technology, click-on contracts, and good marketing.
Even before digital technology raised such issues, intellectual property was having difficulty justifying itself to its users.
How far should right holders be legally able to control how their creations are used or distributed? What qualifies as “their creations”? When and what sort of rights should be granted over these creations, and to whom? Such questions highlight the intellectual property system’s fundamental incoherence.
Consider the following random examples:
? Why should, on the one hand, toddler’s doodles be vigorously protected by copyright from being copied by anyone in any medium whatever for almost any purpose, not only for the period that the toddler grows up and eventually dies, but for 50 years beyond that.
While, on the other hand, life-saving new invention costing millions to research and develop before it can come to market is protected for just 20 years, and in practice often much less?
Is encouraging children to be creative somehow worthier than preser
