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Response: Intellectual Property - Whose Right is it Anyway?

by Louise Ferguson 2003

Tom McEwan writes in UN article (The Internet Society announces Code of Conduct) that 'There is a body of opinion that rejects the notion of enforcing copyright on the Web - what might be termed the "Intellectual Property is Theft" movement.' He refers to my article on the OII conference 'The Politics of Code' where I discuss Lawrence Lessig's contribution.

The OII report on Lessig on the UN site (How Control is Stifling Creativity and Code) is nothing to do with the 'Intellectual Property is Theft' idea, and Lessig is no supporter of that (and neither am I), so I'm not at all clear why he referred to both in the same breath in the article.

Lessig's complaint is that because 'real space' and digital offer fundamentally different technologies that behave in different ways and the law takes no account of that (because most laws predate digital technologies). Then, if we don't rethink the law, the effect is to massively *increase* the application of the law, far beyond what its drafters intended. Just one example: the legal concept of *fair use* - one of the fundamental pillars of copyright law throughout the western world - effectively disappears in the digital arena. Quoting, as I have done above from Tom's article, becomes technically illegal in many internet contexts.

The beneficiaries of recent legal developments in the US are often not the authors at all. DMCA and subsequent Supreme Court decisions in the US are beneficial for Disney and other *publishers* of mainly dead authors/creators. Mickey Mouse was not invented by the Disney empire (in fact it wasn't that original to the person who 'invented' it), but it is Disney that reaps the benefits of the recent US decisions. Meanwhile, I do not benefit at all when online publishers acquire more and more rights concerning my material, including significant extensions to terms and media; they do. I, as author, get nothing at all.

Book authors may find that blind readers are prohibited from having their e-book read aloud to them, without having been consulted by the publisher. If you download "Alice's Adventures in Wonderland" and were obsessive enough to read through the 'permissions' you would discover a list of things Adobe would not permit you to do. Under the 'Copy' heading, the permissions say: 'No text selections can be copied from this book to the clipboard.' Under 'Print', it indicates: 'No printing is permitted on this book.' Under 'Lend', users are told: 'This book cannot be lent or given to someone else.' Under 'Give': 'This book cannot be given to someone else.' And finally, under 'Read Aloud' the permissions page asserts: 'This book cannot be read aloud'. (They meant 'read aloud' in the sense of system function, not in the sense of reading to your children, it seems, but this is still fairly obsessive control, it strikes me.)

The public misunderstandings concerning the IP issue strike me as being down to lack of knowledge. The public think the idea of copyright is one of *prohibition*. It is not. They believe that those who gain from increased *protection* are authors. In fact the beneficiaries are the publishers of vast quantities of material developed by others. They believe that rights are granted *in perpetuity*. They are not, and never have been. And finally they belive that contravening intellectual property rights has always been a *crime*. It has never been so.

If you look back to early copyright legislation (originally designed in the UK parliament and exported elsewhere), the intention was to provide *limited* rights to control the creation of mass-produced *copies* (printing) for a short period of time, a general rule that has pertained until very recently.

Unfortunately, in the digital era and due to an accident of technology, every time we *see* an electronic text we have made a *copy*, hence our current difficulties. While Lessig and others believe these issues need to be addressed at a fundamental conceptual level, it is clear to all that there are no easy answers.

But that does not mean this issue should be shoved under the carpet, or that governments should assume that the only valid perspective is that of the large corporations like Disney and Time-Warner. Or that those who raise questions regarding recent legal/corporate developments should be portrayed as radicals with an 'intellectual property is theft' agenda who object to the idea of enforcing copyright or protecting authors. Many of the people concerned about these issues are lawyers, journalists and other authors, and a wide range of content and code creators. Disney, AOL Time-Warner and others often claim to speak in the name of such creators, but rarely do.

DMCA and related legal developments mean that it will not only become a contravention of copyright to reuse sections of code (so when you move company/employer you must forget every little coding routine you have ever developed in the past in order to avoid becoming liable to prosecution - I'm sure this will do wonders for reliability and safety in critical systems), but that you will become liable to criminal prosecution even if you attempt to access any code for whatever legitimate purpose (even if you're a computing academic trying to prove something about security), even with the permission of the copyright owner. I quote from the EFF complaint filed in relation to the Prof. Edward Felton/Princeton University v RIAA case:

'The private Defendants, relying on a relatively new and unclear statute, have chilled Plaintiffs from engaging in core scientific speech. The private Defendants dared, and specifically invited, the entire Internet world to attempt to crack certain technologies which they were proposing to use to protect digital music from copyright infringement. The individual Plaintiffs, researchers from Princeton University, Rice University and elsewhere took up the challenge as part of their normal scientific research and defeated most of the technologies. They then did exactly what scientific researchers normally do: they wrote a paper discussing their work; they submitted it to a peer-reviewed scientific conference which accepted it for publication; they planned to present the paper at the conference. But then, in a brazen attempt to squelch Plaintiffs' research, the private Defendants threatened to sue, claiming (among other things) violations of the Digital Millennium Copyright Act (DMCA) - even though they had specifically authorized Plaintiffs to attack their technologies. 2. Unfortunately, the private Defendants successfully accomplished their short- sighted objective. The conference at which the paper was to be presented was thrown into chaos, and the researchers felt compelled to withdraw their paper for fear of having to defend baseless litigation. Their speech was chilled, to their detriment and to the detriment of the scientific community. 3. The individual Plaintiffs (all but one of the original researchers) still desire to present the results of their research, but fear that they will be sued. Plaintiff USENIX Association has accepted their research for its Security Symposium in mid-August, but fears that, because it benefits financially from holding conferences, it may be subject to criminal as well as civil liability under the relevant provision of the DMCA. Plaintiffs are forced to seek a Declaration from this Court that publication of the paper is lawful, since they have no other reasonable way to assure themselves, in the face of the serious threats made by the private Defendants, that they will not be sued or prosecuted for publishing mainstream and valuable scientific research."

Louise Ferguson
Author, etc.

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