Issue #8

April 2002

This article is Part 1 of a two-part series on intellectual property issues. Part 1 lays out the issues at stake. Part 2 will discuss possible remedies and solutions.

Intellectual Property by Sten Grynir   Until recently, patents and copyrights, mentioned in the U.S. constitution, were a means of granting a limited-duration monopoly on tangible inventions, writings and artwork in order to encourage innovation and progress for the general benefit. Patented and copyrighted works were open to the public, and the doctrine of fair use limited the application of the patent or copyright monopoly. Recent laws, passed in the hysteria over technological progress that threatened to limit the control that movie, music and software companies exercise over their product, have subverted both the letter and intent of the Constitutional provisions. Coupled with Reagan-era slashes to the budget of the Patent Office that limited the ability of the Office to properly investigate patent applications and led to a philosophy of "allow the patent - if it's invalid, someone will sue to overturn it", the protections formerly in place have been completely undermined, to the profit of large corporations and the detriment of the general public.

In addition, the class of patentable and copyrightable objects has been broadened out of all recognition. The patent or copyright was granted to cover the expression of an idea. The idea itself could not be protected, except as a trade secret. Thus, previously, software could be protected by copyright as a written work; now the concepts underlying the written expression can be protected as well. It's as if the ability to copyright Moby Dick were enlarged to forbid anyone other than Melville to write about a whale hunt.

Finally, the time period during which patent and copyright protection is in force has been lengthened enormously, long delaying the time when the objects of the protection pass into the public domain.

Greed and fear have driven these changes. Two reasons have been given to support the new legislation as being absolutely necessary: conformance with European intellectual property law mandated by trade treaties, and the so-called problem of theft posed by Napster, Gnutella and other internet and technology-based sharing and copying mechanisms. While it is true that European copyright and patent law differ in substantial ways from previously-existing American law, changes in US law are structured only to conform to the more restrictive aspects of European law; the more liberalizing aspects are left out of the legislation. Similarly, the issue of controlling file-sharing is stated in terms of depriving authors, composers, performers and movie makers of the full fruits of their labors, with no exploration as to whether this is indeed true (an argument has been made, on the other side, that getting a free copy of a song (or program) often leads to sales that would not have otherwise occurred), or even whether it is currently true in a system where record companies, movie distributors and publishers have regularly been convicted of defrauding their artists.

The greed factor is obvious; the fear factor less so. Even more than retail and distribution industries, which have been heavily impacted by internet technology, the information industry, which includes radio, television, newspapers, magazines, music publishing, motion picture production and distribution, book publishing, and many other enterprises which earn money by the dissemination of ideas and data, face a complete revolution. Until recently, access to the public and potential buyers was mediated by cost: the cost of production of the product (book, film, record, etc.); the cost of distribution and delivery of the product (creation of distribution channels, shipping, sales, and, in the case of movies, display); and the cost of publicizing the product so the target audience could become aware of its existence and know where to find it. Technology has made all of these costs potentially minimal. From a technological and cost point of view, Sony Pictures, Bertelsmann Books and Motown Records no longer serve an economic purpose, especially for the artists supplying the content. These industries realize that their very raison d'etre has been called into question, and they are terrified. As a stop-gap in absence of any real concept as to how to survive the new reality, they have focused on legal measures to hobble the technologies threatening them , using arguments ranging from intellectual property theft to security against terrorists to push the enactment of these new laws.

The dangers to us, the general public, include the following:

1. Stringent restrictions on how, where and on what devices we can make use of products that we have bought
2. Criminal liability for using our own property in ways unintended by the manufacturer
3. Severe restrictions on fair use and copying of our own property, even if the end use is by ourselves, and not distributed (free or for money) to others
4. Granting of powers to the product manufacturer to invade our computers to search for "illegitimate uses or existence" of the product, and to make changes to our own files as the product manufacturer sees fit.
5. Industry and/or governmental registration of data on our personal computers in centralized databases, resulting in complete loss of anonymity when making a purchase.
6. Restrictions on the transfer of personal files over the internet, overseen by government agencies.
7. Lengthening of copyright protection from 35 to 75 years, and extending this protection to the heirs of the author.
8. Granting of patents to preexisting or new concepts, concepts not translated into an expression or product, and copyrighting or patenting intangibles like genomes not developed by the patent-holder, but merely described by him.

Examples or analogies of each of these dangers will make the problem clearer. Danger 1 is equivalent to saying that the CD you bought at the record store can only be played on your livingroom HiFi, not on your computer or through a portable CD-player playing through your car radio using an adapter, or in another state than the one you were in when you bought it. Danger 2 forbids you from using a computer program to slow down the music so you can finally figure out the fingering of that complicated guitar passage, or using a decryption program to allow the music to be played on a computer using the Linux operating system, when the protection scheme on the CD only allows for playing on Windows computers, and no Linux versions are being produced. Danger 3 means that the CD you bought at the record store can't be copied so that you can keep it in your car as well at home. It also means greater restrictions on excerpting written works (with attribution) for use in scholarly articles, newspaper columns, classrooms or parodies. Danger 4 gives the manufacturer of your CDs, programs, DVDs, etc. the right to enter your computer on line, or physically seize and inspect it, to ensure your are not violating their copyrights and patents, and to delete or modify files they deem in violation. Danger 5 would require your purchasing history and file transfer history to be maintained by stores, libraries and ISPs and available for inspection by government agencies. Danger 6 would subject the transmission of your grandchild's baby pictures to friends and relatives to governmental inspection and control. Danger 7 results in a perpetual copyright which, for all foreseeable purposes, destroys the concept of public domain. Performances of Rhapsody in Blue in the year 2002 would still be subject to royalties to his heirs. There would be no such thing as freely reprintable classics, at least of works created after 1932. Danger 8 allows the ownership of your genetic code, and the cells derived from your body, by pharmaceutical companies, with no obligation to include you in the revenues. In effect, if you don't patent yourself, someone else may patent you. It also means that ideas which have been floating around for years, and even implemented, can be protected as a monopoly, as Amazon.com did with the concept of 1-click checkout.

While it is true that many recently granted "concept patents' may eventually be invalidated due to prior art or obviousness, a small company does not have the resources to challenge the patents of a large corporation that has a giant team of lawyers. Invalidations of patents that never should have been granted in the first place will be slow and painful, and usually only undertaken by other major corporations. Even then, cross-licensing agreements may scuttle these cases as well.

In the next article, recommendations will be made for protecting the public and for resolving some of the industry conflicts. Stay tuned.

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