In the case I am about to relate, the intellectual property involved was software; but this case has implications far beyond its original scope. The defendant, David LaMacchia, posted a number of commercial programs on his electronic bulletin board and allowed computer users to download copies of the programs for free. Originally, the charges brought against him were under federal “wire fraud” statutes; however, Judge D. J. Stearns found that these specific statutes did not apply when no personal profit was involved. Ultimately, he dismissed the charges. Congress later passed the “No Electronic Theft” or “NET” Act to make sure that no future LaMacchias would be able to escape scot-free as he had.
If one carefully examines different parts of Stearns’ ruling in the case, one gets a vivid picture of the contradictions and paradoxes in both intellectual property law itself and in people’s attitudes towards it. At one point in his decision, Stearn goes out of his way to emphasize how the “limited nature of the property interest conferred by copyright stems from an overriding First Amendment concern for the free dissemination of ideas.” Stearns quotes Harry Blackmun’s words from a Supreme Court decision in an earlier case. Blackmun, treading carefully along a fine line between the different kinds of “rights” accorded to different kinds of “owners,” stresses that
infringement of copyright does not easily equate with theft, conversion or fraud. . . .
The infringer invades a statutorily defined province guaranteed to the copyright holder
alone. But he does not assume physical control over the copyright; nor does he wholly
deprive its owner of its use. While one may colloquially liken infringement with some
general notion of wrongful appropriation, infringement plainly implicates a more complex
set of property interests than does run-of-the-mill theft, conversion or fraud.
However, near the end of his decision Stearns seems to speak in a different tone. Here is his description of the defendant and what the defendant did: “One might at best describe his actions as heedlessly irresponsible, and at worst as nihilistic, self-indulgent, and lacking in any fundamental sense of values. Criminal as well as civil penalties should probably attach to willful, multiple infringements of copyrighted software even absent a commercial motive on the part of the infringer.”
Is Stearns being downright inconsistent here, or just sort of vague? If copyright infringement so “plainly implicates a more complex set of property interests than does run-of-the-mill theft, conversion or fraud,” what exactly is the “fundamental sense of values” which LaMacchia allegedly lacks?
If a federal judge, experienced in copyright cases, can be moved by such contradictory ideas in the space of a single decision, what of the rest of the population? Although our government may never be perfectly democratic, the state of the laws and their effective enforcement still depends ultimately on genuine support by the broad mass of the people. How much is the general public going out of their way to actively cooperate in maintaining the old rules of the game? Does the person in the street even know what is going on with intellectual property?
I have mentioned the lack of mainstream journalistic coverage of these issues; how many times have you seen a story about this on the evening news? One reason why few journalists cover intellectual property stories is because journalists, and their employers, don’t want to give the public any more ideas than they already have about copying and distributing copyrighted material. Another reason, I think, is that they know the public really isn’t interested.
I can supply an anecdote from my own recent teaching experience. A month or so ago, I had my freshman composition students read a section from a book entitled New Media Technology: Cultural and Commercial Perspectives. The section that I assigned discusses several cyberspace issues; one portion, written for parents, runs: “Make sure that your child is not obtaining pirated material, such as digital recordings of copyrighted music or video. This is not only potentially dangerous but is illegal. If you do find pirated material, talk to your child about how he or she received it, and delete the files (Pavlik 383).”
After we read that excerpt in class, I asked the students how many of them had ever talked to their parents about intellectual property in any way. No hands were raised. I knew from earlier discussions that most of my students have computers at home, and that even those who aren’t home users still have downloaded a variety of materials by using machines in our university’s computer labs. I have little reason to believe that they ever check on the copyright status of the material they download. In general, questions of intellectual property simply don’t appear on their radar screens. This attitude does not bode well for copyright holders. In particular, it does not encourage confidence in the enforceability of anti-piracy laws.
Laws which don’t have public opinion behind them are difficult to enforce. Laws on the books which don’t fit with the laws of physics are even more dubious. It is these laws of physics, as they are embodied in countless pieces of modern technology, that I will discuss in the next section.
Part 3: Technical Realities
The owners of intellectual property, quite understandably, are pursuing every course of action that they can find to maintain control over their “stock.” They have turned to computer programmers and the like for answers. Have the technicians succeeded? Are they likely to?
While trying to answer these questions, one could look at many different pieces of hardware and software, and read through a flood of details about what they are supposed to do. For the purposes of this relatively short paper, I will rely upon one source which I think summarizes much of the most relevant and interesting information in this area. In addition, this source reveals–sometimes unwittingly and indirectly–a few of the more intractable problems in the technological approaches to preserving intellectual property.
In 1997, the Information Technology Association of America (ITAA) released a document entitled “Intellectual Property Protection in Cyberspace: Towards a New Consensus *ipprotec.html*.” The web-published piece begins with a message which is, in my opinion, generally correct: “When it comes to the Internet and government policy, the indecency issue has [recently] garnered the greatest attention. . . . However, over the long term, intellectual property protection will in all likelihood prove to be the more important concern.”
Later in the document, as we move slowly towards the details of the proposed technological solutions, the authors (whose individual names are not supplied) seem to be maintaining a healthy and realistic amount of caution about the relationships between technology and law:
Too often, discussion surrounding digital copyright protection fails to take into
account the physical and practical limitations imposed by the Internet itself. . . . The
IT industry is concerned that attempts to legislate sanctions to digital copyright
protection and infringement may ignore technical realities. The physical operation
and working dynamics of this “network of networks” defy traditional legal notions
of enforcement [and] boundaries. . . . It is important to recognize that the actual
functionalities of the Internet, just like the laws of gravity, cannot be legislated.
But, not far away from these words, we find a burst of enthusiasm for the tools which are supposed to solve the problems of intellectual property in cyberspace:
When copyright holders and content providers begin to utilize the many and varied
technological tools that can serve to protect video, audio, and text-based
intellectual property distributed in a digitized form over the Internet . . . most of the
problems expressed during [recent] debates will be silenced.
There are already some technology tools today, and many more in
development, that can securely label intellectual property and provide the means
for those who have control and have been given notification of the infringement to
monitor, take down, and/or block infringing material. . . . Technology can provide
solutions for these needs. Technological solutions exist today and improved means
are being developed to better protect digital works through varying combinations of
hardware and software.
Copyright owners and content providers have the tools available to label,
tag, or add a digital watermark to the work at the beginning of a transmission’s
“food chain,” before it is sent out onto the Internet. Depending on the perceived
value or importance of the work, the copyright holder can “wrap” the package with
various levels of protection. These protections can restrict reproduction, use,
re-transmission, and provide the means necessary to identify, locate, impede or
take down unauthorized reproductions. This technology approach maintains the
value of copyrighted material.
For those not familiar with the concept of the “digital watermark” and other such innovations, there is at the end of the article I have been quoting a list of copyright-protection products and the companies which make them. One of the more well-known firms in the digital watermark business is Digimarc *http://www.digimarc.com/*. Here is the description of Digimarc’s product, PictureMarc:
PictureMarc embeds an imperceptible digital watermark within an image. The
watermark carries copyright information and links to the image creator, enabling
copyright communication, authorship attribution and electronic commerce.
Coupled with Digimarc’s aggressive distribution strategy, PictureMarc promises to
yield a viable solution to the long-standing problem of how to communicate
copyright in a digital setting. A Digimarc watermark is durable, able to survive
across file formats and most transformations of the image such as copying and
editing, and can be read even when the image is cropped. The watermark is
embedded digitally within the image, remaining a part of the image even when
printed, and can be read by scanning the printed image into a computer. This
durability ensures that the watermark stays with the image wherever it may travel.
First, of course, one might ask the same questions that consumers should ask about anything when it is just coming onto the market: will this product work completely as advertised, or does it have some of those nasty little bugs and limitations that we have observed in so many modern “miracles”? Since we are talking high-tech, another natural question should emerge: can PictureMarc be “hacked” by hostile programmers? Experience should make us very cautious at least; few pieces of electronic technology are either bug-free or bulletproof, and the ITAA itself, as they remark in their introduction to their list of copyright protection products, unequivocally refuses to “make any claims as to the validity of the claims made by the providers of these technologies. All information provided is summarized and condensed from company press releases and responses to requests for information. . . . As with most emerging technologies, there is a varying degree of protection and efficiency among technologies available for copyright protection.”
But let us assume, with supreme optimism, that all of Digimarc’s claims about its product are correct, and that the claims will remain true indefinitely. What, in fact, do we have? Even if PictureMarc lets us keep track of the origin and legal ownership of an image, firmly and forever, we still find nothing in Digimarc’s description of it that implies some physical restriction on the ability of people to make copies and send them racing around the world. And this is precisely where some of the most important copyright questions lie. Intellectual property, like other forms of property, is subject to the laws of supply and demand; it is the electronic creation of a theoretically unlimited supply that is the economic problem for authors and publishers. PictureMarc may help resolve cases of theft, in which someone is trying to falsely claim authorship of an image in order to try to make money from it illegitimately; but a profit-motivated thief, just as much as a legitimate owner, wants to maintain the value of the merchandise he has stolen, or else he can make no money either. None of the features of PictureMarc seem to be relevant to the problem that Charles Mann described: how the flexibility of cyberspace is “pushing the price toward the vanishing point.”
If space permitted, I could describe some of the other gadgets and programs that are listed in the ITAA article: electronic “containers” of one sort or another, with their own varied “locks” and “keys;” “WebArmor,” program which “archives your web site and affixes an authoritative, encrypted time-date stamp and content signature” so that “you can then show, in court if necessary, what your web site looked like at a particular instant in time;” the “Flickering Screen” from Bellcore Corporation, which displays data on a screen in such a way that the human eye can see it but the computer supposedly can not dump it to a printer; and so on and so forth, almost without limit.
After all is said and done, one does not need to be an expert to decide whether or not technology is really likely to protect intellectual property. All one has to be is an ordinary computer user. The next time that you sit down at the keyboard and go into your word processor or email program, ask yourself: is there really anything that prevents you from taking any piece of text and sending copies of it anywhere in the world? If you are using a web browser, ask yourself the same question about graphic images and other media.
I restate what I said near the beginning of this essay: I use a computer daily, and I look at the evidence staring me right in the face. It is two years after the ITAA produced their document, with all of its contradictory statements of confidence and caution; it is more than twice that long since Barlow described the holes in the hull of the sinking ship; and no group of technical geniuses, no matter how intelligent and well-paid they may be, has yet found really effective patches for those holes. I am not betting that they will in the foreseeable future.
Part 4: Software, Hardware, Hard Facts, Hard Choices
As I look back over the earlier portions of this essay, I realize how much I have omitted from my description of this huge universe called “intellectual property.” There are so many more things that I could include, if time and space permitted.
For example, I could include the words of Nicholas Negroponte Professor of Media Technology at the Massachusetts Institute of Technology and Founding Director of the Media Lab at MIT: “Copyright law is totally out of date. It is a Gutenberg artifact. Since it is a reactive process, it will probably have to break down completely before it is corrected” (58).
I could include some more words from the book by John Pavlik that I mentioned above, New Media Technology:
Earlier generations of technology, including the photocopying machine and audiotape
recorders, have presented challenges to existing copyright law, but none have posed
the same threat as the digital age. Earlier technologies, although they may sometimes
have made copying copyrighted material possible, did not have the copying advantages
of digital technologies, which make instantaneous mass copying of exact duplicates on
an international scale a matter as simple as pressing the Enter key. (286)
I could include excerpts from the debates that have taken place on the floor of both houses of Congress as they have wrestled with these issues; excerpts from a slew of court decisions; excerpts from analyses by a variety of legal scholars; excerpts from the long-running, and still ongoing, arguments over “fair use;” and on and on and on.
But this essay, originally written for a college class, had to stay under twenty pages, not surpass twenty million; and this essay had to be completed within a few weeks, not be spread out several decades. So I must limit myself to just a few brief concluding remarks and recommendations.
In order to work our way out of the “muddle” that Charles Mann described, we need to move far away from our wishful thinking, our old conditioned reflexes, and our deep-seated, short-sighted, narrow greed. We cannot keep on saying, both to ourselves and each other, that the old rules of the game will somehow continue forever just because we want them to and just because we become very uncomfortable when we think about those old rules failing. We cannot keep looking only at which pattern of laws will (we hope) provide us with the largest possible amount of money in the shortest possible amount of time, and then keep demanding that Congress maintain or strengthen that set of laws. We cannot trust blindly in nice-sounding but unproven, even uninvented, technologies to help us, when so many of the old, proven, well-established technologies have so clearly turned into integral–indeed, into rapidly expanding–parts of the very problems we are trying to solve.