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).
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).
During the 2004 presidential election, Internet cartoon site JibJab released an animated parody of Woody Guthrie’s folk song “This Land Is Your Land” featuring altered lyrics being sung by caricatures of George W. Bush and John Kerry. Ludlow Music, copyright holders over the song, threatened JibJab with a lawsuit if it did not remove the animation from its website (Hertz 1). JibJab then filed against Ludlow Music and proved that not only was the animation’s use of the song in parody considered fair use, but that the song had actually entered public domain in the 1970s, when the copyright was not renewed (LiCalsi 1).
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).
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. Organizations like the Recording Industry Association of America and the Motion Picture Association of America attempt to infringe on fair use in attempts to harm piracy. 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.”
Companies also use digital rights management in an attempt to stop pirates. However, pirates can easily get around digital rights management, and the average consumer ends up harmed by the locking of their media. Fair use allows consumers who purchase a movie or audio recording to make a back up copy of the media. This allows a consumer who purchases a CD to make a copy for their car or to copy a movie to their computer so that the disc is not needed to play the movie (Copyright Act). In 2002, 321 Studios released DVD X Copy, a program allowing users to circumvent copy protection of DVDs to make copies to their computer. 321 Studios also filed a complaint that the Digital Millennium Copyright Act, a 1998 law supported by Hollywood studios, violated fair use by preventing the circumvention of copy protection. In 2003, eight studios sued 321 Studios for allowing users to break copy protection. 321 Studios included a warning that was added before all copied movies and a digital marking tracing any movie copy to a specific DVD X Copy program (Wildstrom). The studios claimed that DVD X Copy was a tool used for pirating movies, and in 2004 Judge Susan Illston ruled that 321 Studios products’ violated the Digital Millennium Copyright Act (Morphy 3).
Another concern is the “analog hole”, or the use of analog technology like cassette audio and video tapes, to record digital media from computers, CDs, and DVDs. A piece of legislation titled The Digital Transition Content Security Act of 2005 aimed to require all television hardware sold after 2006 to process a “rights signaling system” that would cover all broadcasted programs. The system would allow broadcasters to mark a program with one of four signals that would limit a viewer to either not recording a program, recording but not copying a program, allowing one copy to be made, or allowing recordings of the copy. Additionally, recorded programs would expire ninety minutes after the broadcast finished (Digital). This bill would limit the use of taping programs at home which has been protected by the Sony Betamax decision, and would restrict the use of digital video recorders like TiVo. 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).
The first step to controlling intellectual property and copyright laws on the Internet is for politicians and judges to hold a better understanding of technology. In May of 2007, a British judge presiding over a case against suspected terrorist planning on the Internet admitted that he did not “understand simple terms like ‘web site’” and asked the prosecutor to keep his questioning simple enough to understand (Techdirt). Though judges cannot hold specific knowledge of every case that they decide, it should be expected that basic knowledge over the subject matter be understood for a fair judgment to be made.
The public must also become more aware of how new technology laws can affect their life. Under The Digital Transition Content Security Act of 2005, broadcast television after 2006 would have contained signals labeling programs, and all televisions would have been required to recognize the signal. Older televisions would not have displayed the program, forcing consumers to purchase new, compliant models (Digital). The Sony Betamax decision has protected fair use for consumers for over twenty years, but slight differences in language defining new technology can exempt it from protection. Groups such as the Electronic Frontier Foundation defend technology in court and mobilize concerned citizens to block bad legislation (EFF 2).
Digital Rights Management must be controlled to protect the rights of both the user and the copyright holder. As of February 2006, over one billion tracks have been downloaded from iTunes, the number one music store on the Internet (Silverstein 1, 10). All iTunes downloads are locked by FairPlay, Apple’s digital rights management technology. FairPlay tracks are linked to the customer’s account. A specific track can only be played on five computers that the customer licenses and a playlist of tracks can only be burnt to CD seven times (Authorization). Tracks downloaded from iTunes can only be played on Apple iPods, iPhones and Motorola ROKR cell phones or through Apple iTunes or QuickTime. Ombudsmen from Norway, Sweden, Denmark, Germany and France have accused Apple’s licensing agreement and digital rights management techniques to be unfair to the consumer, and have started negotiations with Apple (Forbrukerombudet). In February of 2007, Steve Jobs called for Universal, Sony BMG, Warner, and EMI to allow Apple to sell FairPlay-free tracks through iTunes, stating that iTunes sales show that people are willing to pay for music, but piracy shows that many people wish to have the same rights with a downloaded track as a track that they would rip from a CD (Jobs). In April, EMI announced that their catalog of music on iTunes would be available in a rights-free, high quality format for $1.29, 30 cents more than a standard track (Apple 1-2). Advances in rights by influential companies like Apple must continue to happen if the rights of consumers are to be protected.
Artists must also be protected from the same corporations who harm consumers in the music industry. Some pirates advocate their practice because artists lose little money in the loss of CD purchases. Most artists only start earning royalties after selling five hundred thousand albums, at which time up to ten percent of sales go to them (The Reasons 6). Other clauses, such as an outdated royalty reduction covering broken vinyl records, further reduce the amount of money an artist makes from a record sale (Major). Steve Albini, producer of Nirvana’s In Utero, claims that an average album makes the music industry three million dollars, but each band member only makes four thousand dollars (Albini 9). Through the use of file sharing, many artists can stay relevant without a label controlling the distribution of their material. Fans will then attend concerts and purchase merchandise, which both deliver better profits (Oswald).
The Electronic Frontier Foundation offers several solutions to piracy. One of the best is voluntary collective licensing. Voluntary collective licensing was created to give radio stations freedom in their broadcasting choices while allowing artists to continue to collect royalties. Performing Rights Organizations like the American Society of Composers, Authors and Publishers collaborate with artists and radio stations to license a radio station to play any song by an artist covered under their license. The performing rights organization then distributes licensing fees to artists based on the popularity of their music (A Better 11-13). Under current laws, copyright owners could offer this licensing to Internet providers, peer-to-peer software developers, or customers themselves for a small, monthly fee. Customers would be free to download and share any music that they wish, and peer-to-peer network information would track artist popularity that would be used to divide profits between artists.
Intellectual property and copyright are two of the most controversial Internet-related issues today. For every lawsuit that is settled in favor of protecting fair use, another two are settled that limit it. Music piracy continues to gain popularity, despite industry attempts to stop it. Consumers must continue to push to protect their rights on the Internet while laws are being written and cases are being settled.