Intellectual
Property
in the Age of Free Information
by
ADAM KEIPER
9 March 00
A confluence of trends in science and technology has led to exciting times for observers of intellectual property standards. Many recent developments, because they are so technical in nature, may seem at first glance to affect only a narrow sliver of the public, but the implications for society are profound.
Information technology is wreaking long-anticipated havoc as it ripples through the world of copyright holders, subverting the scarcity that gives information its value. Those who create or collect information - which today can mean anything from economic data to orchestral overtures - need guarantees that their products will not be freely available, lest they lose the financial incentive that makes providing information worthwhile.
The difficulty, however, is in keeping intellectual property secure without placing unnatural constraints on developing technologies. This requires a degree of forbearance regrettably absent in the legal proceedings launched by the music and movie industries against programmers whose technology, the industries argue, is intended for piracy.
The Recording Industry Association of America has sued two Web firms and several users involved in the trading and collection of MP3s, a popular music format that lets users store and play music on computers, including songs lifted from CDs. The legality of the practices involved is somewhat murky; it is uncertain how much protection the MP3 companies will have under the "fair use" provisions of copyright law, which give consumers leeway in making personal copies of works they own.
The recording industry's behavior is inappropriate, given the debt the industry owes to Web sites like those it is suing: these MP3 companies have roused the industry from its sloth and demonstrated that there exists a vast market for music in a new format - a market the industry is now aggressively pursuing. Their expression of gratitude to these Net pioneers is an attempt to extinguish them through litigation.
The behavior of the movie industry has been even more thuggish. Late last year, users of the Linux computer operating system cracked the encryption scheme used to store information on DVDs. Since no company had created a DVD player for Linux, people who used Linux could not play their legally-owned DVDs on their computers. Savvy programmers reverse-engineered the DVD encryption, and posted their "descrambling" program on the Web.
The Copy Control Authority in charge of the DVD encryption system and the Motion Picture Association of America (MPAA) started suing hundreds of people, and (presumably at their beck) the Norwegian government briefly arrested the 16-year-old programmer who posted the code online. They reason that the program created by Linux users violates the Digital Millennium Copyright Act of 1998, which makes it illegal to circumvent software anti-piracy measures. The movie industry argues that the programmers are out to pirate DVDs.
Their reasoning is specious. The descrambling code the programmers created is not necessary for pirating DVDs - and is in no way useful for pirating. All it does is make DVDs readable on computers using Linux. If you wish to make an illegal copy of a DVD, you do not need to decrypt it - and, in fact, pirated DVDs were flowing out of Asia long before the Linux programmers broke the encryption. Yet lawyers for the entertainment industry are pursuing lawsuits around the country on these unmeritorious grounds. These ill-informed and heavy-handed tactics are unbecoming of an industry that will need the good will of the tech community to design, implement and maintain the next-generation content delivery system.
Not all the intellectual property battles involve copyright issues. Online retailer Amazon.com has pursued patents for software the company considers essential to its business method. Other companies, and a large segment of the online community, argued that these patents - like that of Amazon's "1-Click" ordering system - could get out of hand and stifle the creative programming vital to online business. Amazon CEO Jeff Bezos has offered an intriguing solution: he proposes that software patents be treated differently than other patents, with abbreviated life-spans and greater public review.
This is a proposal deserving of attention - and not just for software patents. A recent Washington Post editorial regarding human genome research argued that "the patent office should tighten its rules on the genome to the point where the vast majority... will end up in public, not private, hands." Perhaps a new category of patents for genome data, a classification with shorter duration, would keep research available while permitting private genome firms to profit from their investments that have so invigorated the gene-mapping effort.
One thing is clear from all these emerging debates: our notion of intellectual property is evolving as new technologies come into their own. How that evolution is managed will prove extremely important in giving form to the Information Age.
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The author is president of the Center for the Study of Technology and Society.
Related sites:
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See Creativity - for more on intellectual property, software patents and online music.
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See our Special Focus on Gene Patents for more on intellectual property in cutting-edge research.
