Copyright in the Internet Age

Copyright in the Internet Age

Will Overweening Emphasis on Information Security Staunch the River of Free Samples That Irrigates Our Consumer Markets?

Clearly, the concept of copyrights is being tempered if not wholly reforged by the technologies of the Information Age. They have forced the entire culture to revisit questions of how copyright is defined, applied, and enforced - something it hasn't had to do all at once for almost 300 years. Ease of copying and the accompanying potential for usurping copyrights and markets for intellectual property have never been greater. Indeed, what is the Internet but a large copying machine? This very page is a rendering of the original stored on a server, basically auto-published right in your browser for the trouble of clicking an HTML link.

In this advance of electronic communications, established media conglomerates have pressed for and won legislation in the Digital Millennium Copyright Act (DMCA) that would criminalize the act of bypassing encryption or anti-copying systems. Technologies have been drafted and are being perfected that would allow creators and distributors to enforce absolute compliance with usage rules in ways that circumvent a good deal of the fair use entitlements built into copyright law today for public benefit. What is troubling to many observers is that the laws and solutions being proposed and imposed upon the public to counter the Internet's potential as a vehicle for piracy are designed to pre-emptively limit or eliminate consumers' legitimate abilities to copy and otherwise manipulate digital works that they have purchased or licensed - before any breach of copyright has transpired.

Blue Spike appreciates the position of the media companies. An entirely new marketplace is forming on the Internet, complicating the future of a multi-billion dollar market that the media companies largely defined. The individualization of communications media and its potential to remove traditional distributors are rightfully troubling publishers and other media companies that have been successful, profit-bearing gatekeepers for more than 500 years. Yet in the long-term, the new communications media will provide the greatest boon to these established market makers - as has been the case with radio, television and the recordable formats - cassette and VHS.

Supra-legal solutions that bypass the fair use rights that are guaranteed to the public under copyright laws, however, could well reverse the enormous social and economic benefits these rights have bred. In the context of making retail markets for information goods, most significantly, the public's grazing rights on the info-commons has created an alert, informed and lusty consumer market. Herein lies Blue Spike's warning: information security applied for its own sake in consumer markets might well deaden the healthy yearnings that free sampling excites.

Copyright's wonderful precipitates - among them a continuously invigorated consumer population - hang in the balance. Copyright laws, from their inception, never gave a hammerlock of control to creators. Nor did they seek to give unlimited freedom of use to the public or commercial sectors. In its baldest characterisation, copyright is an institutionalized compromise between copyright holders' legal right to hold temporary monopolies on information and the public's right to use that information while and after that monopoly is in force. The concept of copyright cannot exist outside of the context of the public's interests and their embodiment in the legal entity called the public domain.

In their modern manifestation, copyright laws have expressly codified the public's right to benefit from the fruits of intellectual and creative enterprises that some of its constituents pursue. The Statute of Anne, the first modern copyright law, enacted in 1709, was a radical bit of law-making for its time. It extended copyright to anyone including authors themselves for the first time. Up until then, guilds had exclusive control over all published works in the kingdom. Further, this statute established a mechanism by which the public domain was regularly invested with the new knowledge and literarary works that had been published just a generation before. The copyright period then was 14 years, extendable for just one additional term of 14 years at expiration.

Not that the law was, in motive, a purely populist vehicle. The English printers were very keen to normalize the copyright laws that governed England and Scotland, which were joined politically in 1707. At the time, England's Stationers' Company, a Crown-sanctioned oligopoly of 150 years' tenure, had exclusive rights to publish works in the UK and was greatly disturbed by the relentless Scots' success in publishing, especially those books upon which their members held registered "copy-right". The Statute was in large part inspired by the printer's and booksellers' interests in imposing legal controls on Scotland's "pirate" publishers who were undercutting the London book market with high-quality, low-cost texts (Still, it was only in 1774 that the Parliament conclusively closed the loopholes that kept works from passing into the public domain).

History is often a parade of unexpected consequences as much as it is a procession of nobles and their armies. Over the decades and centuries, it has become clear that the establishment of copyrights for authors and a public domain for the people has provoked a lot of new writing, thinking, differentiation in published works, and of course, wider enlightenment. Now that ideas could be protected, it was well worth an author's time and trouble to cultivate his thoughts and develop them in full since finding an audience could actually be a remunerative enterprise. Otherwise, he might as well keep churning out pornography and cheesy society novels anonymously at a flat rate for the publishers -- which was the state of things until copyrights accrued to authors and publishers grew to recognize them.

In Western Europe and in America, copyright laws flourished during the 18th Century. Denmark gained its copyright law in 1741; the United States in 1790 and France in 1793. In America, a nation imagined and founded by wordsmiths and literate yoemen and businessmen, copyright arrived on the heels of its formation, under Article I, Section 8 of the US Constitution. Over the decades all manner of creation was pulled under copyright's protections: printed music, artwork, movies, recorded music, computer software and just about anything that could leave one's mind and be represented in symbols or some analogue format.

With equal vigor however, fair use privilege continued to grow, interpretations and extensions of which the founders could not have fully envisioned. Often, questions about the extent of fair use has found its way to the Supreme Court, which historically has sympathized with users over creators and their agents. In the "Betamax" case for example, the court ruled that consumers' fair use extends to making copies of a copyrighted work for their own enjoyment, specifically to "time-shift" programs for later viewing at a more convenient time. Had Sony lost the case, an important part of the entertainment industry would have been killed in the cradle. In the more recent case brought against Diamond Multimedia Rio MP3 player, the court expanded consumers' privileges to include "space-shifting" or the relocation of recordings from format to format.

Consumers' rights to copy and use music and movies in the formats that they liked best was affirmed, and with it, the capacity for those consumers to act as marketing agents by enjoying their copies with friends and acquaintances, in their homes, in their cars, on the stoop and in the backyard. Those entitlements, however, are increasingly being confronted by law (at least the DMCA and its progeny) and technology that will give creators and their distributors the ultimate, most detailed control of usage - for whatever term they choose to enforce it, without regard for the public rights described under contemporary copyright law.

Blue Spike has surveyed these developments with an appreciative detachment, borne of our thought-excursions and experiences in the development of our digital watermarking systems. Blue Spike's digital watermarking schemes are themselves extensions of our corporate philosophies - cultivated in the Wharton School of Economics and corporate cultures of the United States and Japan. As such, we question the wisdom of replacing the authority of copyright law that has been so useful in informing and cultivating markets with automated systems that serve only creators' interests. (For this reason, we've enjoyed the writings of Constitutional Scholar Lawrence Lessig, who has elaborated on the consequences of copyright law being superseded by machine-enforced contracts.)

Without accessible markets, Blue Spike believes, there are no valuable copyrights. When Thomas Jefferson said, "Information wants to be free," he meant freely accessible. It's good for nation formation, and not inconsequentially, for market making. For that reason, we believe efforts at restricting access are at odds with simple market mechanisms. Freely accessible radio sells compact discs; freely accessible television trailers sell movies. Recognition is the asset which is in high demand, replacing location as the central means for which property needs to be valued.

Once information has been digitized, it is inherently easy to replicate. The benefit of the digital format to creators has been a vast increase in revenues and the explosion of competitive entertainment products.To attempt to define use in terms of access control begs the question of what rights consumers have in the sale and exchange of copyrighted works. Simply, do consumers have any rights over copyrighted works they purchase?

While Blue Spike is flatly opposed to any form of piracy, the value of any given copyrighted work can only be determined if the work exists in some freely accessible form. This is the standard by which the copyrighted work is judged, prior to efforts to restrict or otherwise deny access to the work. To assume that purveyors of copyrighted works know what is best, in terms of access control, begs the related questions: what is best for business and for the consumer, and what common standard will accomodate the interests of all?

Our Giovanni digital watermarking technology and Trusted Transaction Server technology enables copyright holders to establish responsibility for digital copies of copyrighted works where before there was none. This single powerful ability addresses, head on, the digital copying problem -- piracy. To the extent that differentiations between perfect digital copies can now be provably accomplished, restrictive interpretation of the DMCA and automated usage-control technologies may represent an impediment to furthering creative output that would otherwise result in benefits to society's arts and sciences. Provable identification and authentication of any given copy of a copyrighted work is as important to any civilised nation's future as a haven for intellectual property as the importance of clear and transparent title to any other asset in a free market economy.

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