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Talkin' Smack: Copyrighting the Future

On intellectual property and intellectual improprieties By Dave Nagel
For most, the issue of intellectual property rights is just a distant abstraction, and probably a dry subject to boot. But for our industry, the issue is at the core of everything we do. It drives our value as content creators--whether in print, on the radio, in film and video or on the Web--and it affects the financial value of our work well after the work is created.

Of course, there wouldn't be much of an problem if intellectual property were a stagnant issue. It's not though. It's ever evolving, sometimes swinging more in favor of the property owner, sometimes more in favor of the user. And, at times, it can swing way too far either way. In recent times, it's swung too far both ways.

Several weeks ago in these pages I published an editorial blasting Sony for the copy protection scheme it's been using on its audio CDs, a scheme that can go so far as to cause harm to computers by causing CDs to become stuck inside the internal player. (This problem affects some Macintosh models.) I said this was a bit far to go, since it does nothing more than annoy the average consumer and does absolutely nothing to stop music piracy. In other words, it's a hassle for users without any payoff in terms of copy protection.

Response to this editorial was overwhelming. I'm used to getting a lot of comments on my columns, but I'm not used to getting so much agreement and so many well considered letters disagreeing with me. In large part, though, I think both sides missed the point.

Those who agreed and disagreed with me both thought the point was that software, including audio, video and applications, should be available to everyone at no cost and freely distributable by anyone using any means. Well, I hope it's obvious to most of you that this isn't the point at all. The economics of a scenario like this simply don't work themselves out. You'd have a tiny portion of the public paying for copyrighted works, with a much greater number enjoying them for free. Pretty soon you wind up with a situation where copyright holders are competing with freely distributed versions of their own work, and then the money dries up, and then the very innovators who brought us these works that we're freely enjoying go out of business. No more innovators, aside from those exceptional people who happily contribute their ideas to the public domain for what they perceive to be the common good. In the world of computer software, Linus Torvalds immediately comes to mind, though students and researchers had been sharing their own "open-source" code long before Linux came along. And, since the advent of Linux, there have been literally tens of thousands who have dedicated their time to developing and providing intellectual property based around Linux free of charge.

This is not to say it's a moral imperative for software developers and artists to provide free access to their content. Nor is it up to the end user to force the moral imperative on developers by pirating their works. Look, I have no sympathy for Sony's whining about them only making X billions of dollars rather than X+0.001 billions of dollars owing to music piracy--especially when Sony brought video piracy to the masses vis a vis home video recorders. But this is beside the point. This is only looking at the ugly side of the business, where corporations own intellectual property simply by virtue of the fact that they have the cash or credit line to purchase rights to this property.

Ownership of intellectual property transcends companies like Sony. It's at the core of everything we, as creative professionals, produce. If you've ever had your work stolen, as I have, you know what this means: It diminishes your value as a content creator. Period.

Nevertheless, both corporations and government have, without a doubt, gone too far in the other direction. Sony' copy protection scheme cited earlier is one example on the corporate side. Macrovision, the nemesis of anyone who just wants to watch a movie, is another. On the government side, things look much more grim. You have the technically illiterate blathering of statesmen like Sen. Ernest Hollings advocating some kind of government-approved "copyright chip" in digital devices, which, oddly enough, is supported by companies like Disney and News Corp. (I can't wait for computerized polling so that I can advocate "competency chips" to ensure the eligibility of our government officials.) And you have laws that allow for the imprisonment of individuals for merely discussing hacking techniques.


Here is a fact that is indisputable: No technology--no piece of software, no work of art, no piece of literature--develops in a vacuum. We're arrangers. We arrange concepts, imagery, data, words, materials and the like that already existed before we came along into something that is hopefully, in some way, new. More often than not, the things we arrange are merely derivative. Sometimes there are breakthroughs, which we call "creative," but everything we make is based on something that was already made. You can't write five notes in a row that haven't already been written. You can't write a piece of literature that doesn't take from another piece of literature, unless you want to make up all the words. And you can't write a piece of software that doesn't borrow from another piece of software already out there.

We have copyrights and patents in this country based on the fundamental notion that those who innovate should have a certain period of time in which to nurture their creations, develop them further and potentially bring them to market. In other words, if I create a new piece of software, I shouldn't have to worry about Microsoft or some other heavily endowed company driving me out of business by taking my idea simply because they have better resources to succeed with my idea. (Although, with Microsoft, questions remain....)

But we do not have copyrights and patents as a means for consolidating access to technology and the arts into the hands of a few corporations. Innovation didn't begin with and doesn't end with the current generation of software, music, art or literature. And yet, this is the way we're heading, isn't it? Will you have to buy a Sony-branded device in order to watch a movie, listen to a recording or even read a history in electronic form? It's not as far-fetched as it might seem. You can't legally build upon the innovations in today's software because you can't legally take it apart and examine it. There's no equivalent of a "Fair Use" doctrine for electronic media. There are merely copyright holders and pirates. Nothing in between. Do you know how difficult it would be to carry this over into other forms of media? Not at all.

But what's the answer? In the past, before electronic media really took hold, things sort of worked themselves out without too much preemptive legislation. You could buy and sell a book, for example, but you couldn't copy and distribute the book for commercial gain or use more than a small portion of it for republication. I don't recall book publishers printing their materials on un-Xerox-able paper or including a password-protected lock on their books. And I don't recall sending people to jail for discussing the structure of any particular piece of literature, though such dangerous information could certainly provide readers with the tools they might need to write their own books. And yet somehow the book industry survived.

Do I myself have an answer to this problem? Certainly not. But I can tell you that the answer is neither a software free-for-all nor a scenario in which the tools of all innovation are held by a few corporations. There has to be tolerance for inquiry and protection for those who invest time and effort in the creation of new works. Not either/or, but both. The things we create need to belong to us as creators in a legal and practical sense. But they also belong to the world in the sense that we would not be able to create these things without the whole of human history supplying us with the materials we need to do our work. And they belong to the world in the sense that our ideas and innovations are necessary for the continued development of the human species.

In the end, of course, your work will literally belong to the world when it enters the public domain ... at which point Disney, an advocate of the "copyright chip," can turn it into an animated feature without worrying over the moral implications of copyrights.

Contact the author: Dave Nagel is the producer of Creative Mac and Digital Media Designer; host of several World Wide User Groups, including Synthetik Studio Artist, Adobe Photoshop, Adobe InDesign, Adobe LiveMotion, Creative Mac and Digital Media Designer; and executive producer of the Digital Media Net family of publications. You can reach him at dnagel@digitalmedianet.com.

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