The Technological Divide: Analyzing Intellectual Property and Copyright on the Internet
In 2003, Brianna Lahara was a twelve-year-old honors student who lived in a New York City Housing Authority apartment. In September of that year, the Recording Industry Association of America (RIAA) filed 261 lawsuits against claimed “egregious” file-swapping computer users, including Lahara (Borland 1). Another one of these lawsuits was targeted toward Sarah Seabury Ward, a 66-year-old sculptor. Ward’s suit claimed that she had downloaded over two thousand songs, including “I’m a Thug” by rapper Trick Daddy using KaZaA, a then-popular file sharing program. However, Ward only owned a Macintosh computer, which will not run KaZaA (Gaither 2-8). Ward and Lahara were both targeted as electronic criminals in the RIAA’s crusade against the downloading of music. The rights of Internet users are under attack, and these rights must be protected.
The roots of the Internet can be traced back to 1958, when the United States formed the Advanced Research Projects Agency to fund a program linking radar systems across the country on a single network (DARPA 1). By 1995, the Internet had 16 million users worldwide. By 2001, one billion users were online, and it is estimated that two billion will be online by 2010 (Castells 3). In America alone, 230 million people have access to the Internet in their home, with 60 million using broadband connections (Levy 2). The Internet has become a level playing field where a band created by a few friends can share their songs with the world, or a secretary can download a bootleg of a concert she attended ten years ago. As such, it is imperative that intellectual property and copyright laws be written to both protect creators of works, but not impede on the rights of the consumer.
Intellectual property is a term defined by legal entitlements that likens intangible ideas to physical property. Protection of intellectual property is vital to the consumer industry. Copyrights encourage creativity, patents stimulate innovation, and trademarks protect from false advertising. However, enforcement of intellectual property rights must be balanced between the producer and the consumer or else the ideas that copyright, patents, and trademarks protect will be destroyed. Under the terms of the Copyright Term Extension Act, copyright protection now lasts for 75 years after the creator of a work dies (Copyright). Original copyright laws were enacted to encourage a creator to produce additional works. As states, “It is hard for me to understand how giving dead authors a twenty-year increase in their term can possibly be understood as an attempt to encourage them to produce more works” (Boyle 145). This act is seen as protecting the few copyrights that continue to be relevant such as Disney films while harming the public domain (Boyle 144). Even Disney has benefited from the public domain, as many Disney stories are derived from older works, including The Jungle Book, released only seven years after Rudyard Kipling’s book entered the public domain. Currently, usage like parody and citation are excluded from laws protecting intellectual property. Laws should be written that will explicitly protect these rights of the consumer.
Some companies, taking advantage of the lack of patented processes on the Internet, have begun to patent general-knowledge concepts for monetary gain. Ideaflood currently holds a patent for assigning subdomain names, such as the “/life/” in www.usatoday.com/life/ (Patent 1). Opponents contend that assigning subdomains is a general knowledge process, and Ideaflood is only using this patent to pursue small, weaker companies for money, rather than larger companies who are obviously infringing upon Ideaflood’s patent more (McCafferty 3).
In 2004, Marvel Comics filed a lawsuit against NCsoft stating that the character creation utility in the popular online game City of Heroes promoted copyright infringement by allowing players to create characters with attributes of Marvel properties like Wolverine and The Incredible Hulk (Veiga 1). However, the end-user license agreement for the game contains language against such activity, allowing NCsoft to change or remove characters that could potentially infringe upon copyright (City 4e). With no precedent, this case looked to settle if server operators were responsible for infringement by their users (Veiga 12). However, Marvel’s case weakened when it could not prove that players were not commercially using their characters, and the suit was eventually settled out of court (Marvel).
Sampling small snippets of previous works has been in integral part of pop music since 1989, when Paul’s Boutique was released by the Beastie Boys. The rights of an artist to sample a work were contested in 2004, when Danger Mouse released a “mashup” (mix of two or more artists) of Jay-Z’s The Black Album and The Beatles’ The White Album titled The Grey Album. Critics in Spin Magazine gave the album an A-, and Entertainment Weekly gave it an A.EMI, copyright holders of most Beatles albums in America, took action, as Danger Mouse never requested permission for the use of the tracks from The Beatles. In response, 170 websites hosted The Grey Album for download on February 24, racking over one hundred thousand downloads on what was known as “Grey Tuesday”. Supporters called for clear legal terms on sampling. With only three thousand discs pressed by Danger Mouse, most reviewers had to download a copy of the album. Rebecca Laurie, co-founder of Downhill Battle, a non-profit organization for music industry reform, said “If music reviewers have to break the law to hear new, innovative music, then something has gone wrong with the law." In September 2004, the Sixth Court of Appeals ruled that all samples must be paid for by producers (Howard-Spink).
No one would think twice about burning a copy of a CD for a friend or for taping a movie off of television and watching it later. The entertainment industry does not agree with the public on these matters. In 1984, the Supreme Court ruled that videotaping a television program for later viewing was fair use and that manufacturers of recording devices cannot be held liable for copyright infringement (Sony Corp). Today, the landmark precedent set in the “Sony Betamax” case is still used as a defense. In 2005, twenty eight entertainment companies filed a suit against the makers of Morpheus, Grokster, and KaZaA, all popular file sharing programs. The Ninth Court ruled that the makers of these programs cannot be held liable for the copyright violations of their users. The Supreme Court overrode the ruling, adding a new copyright infringement doctrine on “inducement” to the previous support of the Betamax decision (MGM).
A levy has been placed on blank media such as CDs, DVDs, cassette tapes, and flash memory sticks to offset the cost of copyright theft (Wang 249). As Wang, author of Steal This File Sharing Book states, “A levy on blank recordable media is like having the police give everyone a speeding ticket for driving down a certain road whether they were speeding or not.”
In 2005, the D.C. Circuit Court of Appeals struck down a “broadcast flag” mandate that would have embedded a signal in television broadcasts that had to be recognized by satellite and cable receivers and would have prevented the skipping of commercials on a digital video recorder or taping on a cassette or disc recorder (Chessen). The court ruled that the Federal Communications Commission did not have the authority to prevent the manufacture of software and hardware that would not comply with the broadcast flag (ALA).
Consumers record radio songs and programs and listen to them later, increasing their sales potential (Card 17). Sharing music and movies is a way to sample them before the consumer spends their money. Courts must continue to support fair use rights of the consumer.