• A strategy used until recently by U.S. companies wishing to corner a technology niche was to keep what were known as “submarine patents” in their portfolios. The contents and even the existence of patent applications were secret until final issuance, so companies would do everything in their power to delay prosecution of an application with very broad claims, filing repeated “continuation” applications to reset the clock, thus ensuring that it had a secret application constantly pending as it watched its competitors develop new product lines. (The United States is in the process of adjusting its procedures toward international norms, making this harder to do.)
Inventors are not the only ones feeling strain. Artists, authors, and other creative people approach this coming age with justifiable trepidation, because one of its most exciting features is also among the most deeply disturbing. Unlike any of the physical objects we desire—food, shelter, space, companionship—information can be copied countless times, at negligible cost. • The publishing industry was shaken recently when the establishment journal Atlantic Monthly ran an article casting doubt on the fate of magazines and books in the information age. It compared the value of printed text to tomes distributed on the Internet, concluding that digital media had advantages that could, in the long run, outweigh the tangible “touch and feel” of paper. Those advantages include trivial ease of duplication, bringing into question the whole income system that publishers and authors have relied on for two centuries.
• Raising new fears is a new kind of photocopier with an attachment that automatically turns the pages of a book. This means that a volume can be plopped on the platen and left in place to be copied. Publishers believe that, until now, the sheer drudgery of standing at a hot machine, turning pages, had heretofore deterred many, causing them to prefer spending a few dollars for a legal version from the bookstore.
• By some estimates, computer software companies lose a dollar to pirated copies for every dollar of legitimate sales. According to former U.S. Labor Secretary Robert Reich, in mid-1994 China alone was responsible for producing an estimated 75 million unsanctioned compact discs per year, all but two million exported to other countries. Similar horror stories indicate that a majority of music recordings on compact disc and videotapes of movies on sale in South Asia, Africa, and large parts of the Americas were never licensed or sanctioned by the copyright owners.
The recent General Agreement on Tariffs and Trade (GATT) achieved concessions from nations such as Taiwan and Thailand, which had formerly served as havens for illicit duplication. And software companies fight back with various innovations. Frequent updates make it in the best interest of a heavy user to register with the company in order to be kept current, and the need for technical support keeps many users willing to stay legal.
But this war has barely begun. The big “content owner” media companies—from movie and recording studios to book and software publishers—worry about the new era ahead. Above all, they fear that widespread use of digital technology will enable vastly greater numbers of people to copy just about anything. The Creative Incentive Coalition (CIC) is a powerful trade group whose membership roster reads like a Who’s Who of “content providing” giants, including Microsoft, the Motion Picture Association of America, the Association of American Publishers, and the Software Publishers’ Association. The CIC has been vigorous in pursuing changes to both national and treaty law, in order to better protect the billions of dollars that flow through corporations whose lifeblood is their intellectual property. Their greatest success so far has been persuading the Clinton administration to support the National Information Infrastructure Copyright Act (NIICA), whose aim is to plug some of the leaks before they become a hemorrhage of lost profits.
This proposal, if fully enacted, would practically eliminate the customary practice of “fair use,” which currently allows copies to be made without payment or permission under certain conditions including research, teaching, journalism, criticism, parody, and library activities. Courts have also interpreted fair use to include the simple act of taping a television program in the privacy of one’s own home for purposes of timeshifted viewing, as well as many other little actions that we now take for granted in daily life: browsing through a book before deciding whether to buy it; photocopying a magazine article to share with a friend; selling or giving away a copy of a book, after having paid once for the original purchase. In fact, without the fair use doctrine, I would have been crippled in the writing of this book. Of more than one hundred quotations and references that I drew from various sources, I had to seek permission to use only about half a dozen of the longer ones. The burden on academic researchers and nonfiction writers will become insupportable if they have to extract an okay from—or negotiate a fee with—every single person whose words they want to cite.
But the NIICA’s reach extends farther. Early drafts of the bill have interpreted existing copyright law as being violated if users made temporary reproductions of copyrighted matter in their computers’ working memory, even to peruse a page on the World Wide Web. That would brand any digital transmission of a work as an attempt to distribute the work to the public. Service providers such as America Online and Prodigy would have to enforce strict pay-per-use rules. Moreover, the NIICA is perceived as a precursor of the Global Information Infrastructure (GII) which the World Intellectual Property Organization (WIPO) contemplates will supplement the Berne Convention.
Despite the list of the NIICA’s titanic corporate sponsors, its advocates nevertheless portray this bill as the chief hope and defense of the little guy. When anybody with a scanner can upload a comic strip and send it to a hundred friends or “subscribers,” the profession of cartoonist starts to look like a threatened species. According to the CIC, the livelihoods of millions of freelancers will be endangered if reforms are not made at once.
In response to what they see as draconian proposals in the NIICA, the Digital Future Coalition (DFC) was formed, drawing membership from the Computer and Communications Industry Association, the Electronic Frontier Foundation, the National Education Association, and various library societies. Note that all of these organizations serve as data conduits. Unlike copyright owners, they would naturally perceive their self-interest to lie with open access. The stated aim of DFC is to prevent any oppressive restrictions on the open flow of information.
At one level, this can be seen as a clash between two cultures: on the one hand, the business community is accustomed to payment on a per-use basis; on the other hand, the academic and cybernetic communities are used to general access. According to Anne Branscomb, the common assumption by Internet aficionados when it comes to copyright is, “What is yours is mine.”
While at first the DFC may resemble a “David” in contrast to the CIC’s well-funded “Goliath,” their relative strengths are not properly measured by the amount of raw cash behind each side, nor even by which one has the support of the White House. In fact, the DFC has a far stronger ally, the world press corps, whose hostility toward NIICA has been reflected in most news stories and editorials dealing with the subject. Moreover, the DFC has the advantage of inertia. People are already accustomed to fair use. It is very doubtful in the short term that citizens will accept being hounded for pennies each time they photocopy a clipping, browse a Web page, or crib a brief quote from Kurt Vonnegut, Jr., to use in a speech before the local rotary club.
What might happen if the conduit companies and content owners ever get together? Stranger things have happened. Howard Rheingold, author of The Virtual Community, worries about this possibility when the Internet is commercialized. “If the company that carries the communication also creates the content, are they going to discriminate against competing content?” Rheingold believes they will if they are allowed to. It could be the worst possible combination of both worlds.
On copyright, the EFF and its allies seem to be pushing hard for “transparency.” On the other hand, as one of the “little guy” authors, I have
a lot to lose if novels and nonfiction works are routinely pirated, so that we freelance writers are reduced to the honorable penury now enjoyed by poets. The benefits of copyright have outweighed the disadvantages for centuries, and a heavy burden of proof falls on those who suggest this should change.
As in the Clipper dispute (see chapter 7), the back-and-forth shouting over NIICA often winds up being expressed in apocalyptic terms, with both sides depicting themselves as defenders of truth and freedom. If the CIC does not get its way (they say), millions of little daily thefts will wind up corrupting civilization. Creative industries will collapse, authors will have to get day jobs, and we will all be left poorer for it.
Not so, cry defenders of the status quo. Members of the DFC depict an awful prospect if proposals like NIICA are implemented—an era when citizens must keep dropping quarters into the great Viewmaster of Life, an interminable drudgery of expense and inconvenience, simply in order to exercise the gracious power of sight.
NIICA is hardly the only modern storm brewing over copyright. A recent report by the U.S. National Academy of Sciences warns of a worldwide trend to grant commercial companies exclusive access to scientific data gathered at taxpayers’ expense, and then to sell the data to scientists and other companies. “Full and open access to scientific data should be adopted as the international norm,” the committee’s report concludes. Private companies would not have a monopoly on the original dataset, but might charge fees for organizing or improving the data.
An ongoing effort to formulate new portions of the Universal Commercial Code may result in the licensing of information being handled in much the same manner as commerce in tangible goods. This effort, while less publicly notorious than NIICA, could have effects that are just as far-reaching, especially in the area of “noncreative” information, such as telephone directories.
Another ominous copyright war has been taking place between the Church of Scientology (CoS) and its critics. No battleground on the Internet has been more bitter than alt.religion.scientology, a Usenet discussion group where take-no-prisoners attacks rage between defenders and detractors of that organization. Among the alleged dirty tricks employed are forged messages, “cancel-bot” programs dispatched to delete the other side’s postings, and the use of litigation to suppress free expression. In one famous case, a former CoS minister was accused of illegally acquiring and posting confidential CoS documents. In an aggressive legal campaign, CoS attorneys went to Finland and forced the owner of the world’s most renowned “anonymizer” remailer to expose the name of the person distributing purloined material. Following this coup, rulings by one judge in the United States resulted in seizure of a private individual’s computers, as well as his arrest and prosecution on several felony counts. The rationale was that the CoS retain, under copyright control, the right to disseminate their own “creative works” as they see fit.
This case offers fascinating reading and insight into all sorts of latetwentieth-century quandaries, including freedom of speech and religion. But we will concentrate on a single ominous implication relating to openness. Traditionally, the aims of patent and copyright law were twofold: first, to encourage the greatest possible sharing of knowledge and, second, to ensure that creators derive fair market value for artistic or technical innovations. The two goals were ranked in this order for reasons that go back to the origins of the American republic. (See next section.) But recent cases involving the CoS appear to run in the opposite direction.
At one level, CoS officials had a legitimate case to seek monetary damages commensurate to income they might otherwise have received, had the documents never been stolen and “netcast.” But these were clandestine and concealed documents. Some were never meant for publication in any form. Others were strictly reserved for sale to acolytes who take a series of expensive preparatory courses. Concealment in this case is justified in part on the basis that the documents contained concepts that would prove harmful if perused by unprepared minds. (See the section in chapter 5 on the “toxicity of ideas.”)
One effect of this case has been to realign the law so that it encourages and rewards secrecy, a reversal of the fundamental principles underlying copyright. The abstract purity of property rights now comes ahead of the practical goal of maximizing openness. Even more astonishingly, a federal judge ruled recently that Internet access providers can be held liable for copyright violations committed by one of their users if they know that illegal copyright infringement of CoS-related material is taking place. In fact, none of this need ever have happened. CoS had other recourses—accusing its hacker-enemies of crimes such as computer tampering and theft, for instance—besides sending us all down a questionable road and using state power to punish people just for knowing things.
This forbidding trend can be seen burgeoning in many walks of life, for instance, when corporations force executives and other employees to sign nondisclosure compacts, agreeing in advance to penalties if they divulge company secrets to outsiders. Sometimes this normal business practice crosses the line from reasonable accountability to absurd persecution or concealment of alleged crimes, as in the famous case of Jeffrey Wigand. That former biochemist at Brown & Williamson Tobacco Company released documents indicating possible perjury by the presidents of several major tobacco corporations (when under oath before Congress they denied knowing of the likely addictive effects of nicotine). Though depicted heroically on news programs such as Sixty Minutes, Wigand was beset by legal charges stemming from alleged betrayal of his nondisclosure agreement, as well as an orchestrated campaign to discredit him by investigating all aspects of his life and publicizing potentially embarrassing personal information. This campaign was dropped as part of a tentative deal the tobacco companies struck with the attorneys general of several states early in 1997. But its effect on Wigand cautioned other would-be whistleblowers.
While the basic meaning and purpose of copyright are endangered by some who would plunge us back toward a secret-ridden past, there are others who wish to eliminate it entirely, calling copyright an impediment to virtuous openness.
REMEMBERING ORIGINAL GOALS
Thomas Jefferson’s original draft of the Declaration of Independence used the phrase “life, liberty and property,” which was amended, partly under the influence of Benjamin Franklin, to the more familiar “life, liberty and the pursuit of happiness.”
Why the change? Among other reasons, it appears to have happened because there was no consensus among the Founders that property should be enshrined as a fundamental right. To be sure, most of them were property holders who wanted some due-process ownership protections, such as later found their way into the U.S. Constitution. But for the most part the Founders showed remarkable reticence toward defending property ownership as a rigid postulate. Unlike free speech, which was enshrined as a central or fundamental right, property became a contingent right—like privacy.
One can argue that this path was chosen because the Founders were largely pragmatists. As with copyrights and patents, they tended to look at desired outcomes rather than mythologized essences. From a strictly practical point of view, “fundamental” rights must be defended without compromise, because they become useless if diluted. Even a little diminution makes them ineffective. This is obviously true of freedom of speech.
But contingent rights, while highly desirable, can be balanced in trade-offs among individuals, groups, and the state, without necessarily tumbling down a slippery slope to tyranny. They can be malleably adjusted by each generation to suit its own circumstances, after which sovereign citizens can then freely debate whether the results justify further changes.
(While it is acknowledged that purists will find the above paragraph loathsome, this republic was not established by purists, but by the greatest assemblage of Enlightenment-era empiricists to gather in one place.)
When it comes to patents and copyright, the practical social goal has always been to encourage maximal openness and minimal secrecy. Profits f
or the owners of a creative work are of secondary concern, except as incentives to encourage creative effort and rapid sharing.
But as we see in this chapter, recent cases show a dangerous reversal of priorities. Property rights are placed first, and enforced in ways that encourage the clandestine caching of information away from public view. The aim is no longer to enhance the sharing of learning and skills, or even to maximize economic benefit to owners. Rather, the law is used in these cases to ensure that citizens of a free commonwealth will be prevented from knowing certain things, whether they would be willing to pay for the information or not.
Lee Daniel Crocker, a member of the Extropians futurist society, typified this view when he recently suggested that true accountability can take place only if “tag commentary” is taken to its logical conclusion. People who criticize a specific work on the World Wide Web should be able to “tag” that site with a compulsory “back-link” that will notify any future visitor about the critic’s censure—whether or not the author wants his Web page to carry any disparaging tags. (In effect, such a tagged alert would say, “When you finish reading what this fool has to say, come on over to this address and listen to somebody who disagrees!”) Like the aggressive so-called truth squads who follow opposing politicians around to refute their stump speeches, these contentious datalinks would stalk and harry a rival’s works, remaining attached to them, like remoras or lampreys, as long as electrons flow through the conduits of the Internet. (One primitive but positive example of tags might be the blurbs on book jackets.)
This notion—a level of transparency so radical that even I find it hard to swallow—would be fundamentally thwarted by existing copyright laws, which protect the cohesive integrity of a creator’s work. Hence, Crocker and others propose ending the “fiction” of copyright altogether! Strong medicine, and perhaps unnecessary, if tag commentary systems were designed properly. Some proposed implementations of the Platform for Internet Content Selection (PICS) might enable critics to let back-link citations float outside the formal boundaries of any message or Web page. That way, creative content would continue enjoying the protection of copyright, while the less formal, tagged portion would connect to whatever caveats outside observers might want to append.