Napster Naughties
A brief history of intellectual property

By Mark Loundy
The Congress shall have power... to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;
-- United States Constitution
Article I, Section 8
The current hoo-ha about Napster and online music is not a new issue even for the Internet. Ripping off copyrighted and trademarked material is an international pasttime. Few "perpetrators" think they're doing anything wrong.

At the heart of the Napster controversy are the dueling concepts of intellectual property and the pop principle that "information wants to be free." Mix this with a nearly universal misunderstanding of intellectual property laws and the weaker side of human nature and what you end up with is just too tempting for many -- if not most -- people.

When books were laboriously hand-inscribed works and music was only performed live, intellectual property was inseperable from physical property. In the post-Gutenberg, Capitol Records world, copying original works became possible -- but still beyond the reach of the ordinary person. The inventions of the Kodak camera and the typewriter in the late 1800s and the tape recorder and photocopying machine in the mid-20th century finally put the tools of intellectual property theft into the hands of the masses. In the 1980s, personal computers made individual acts of piracy trivially easy and the rise of the Internet created an absolute kid-in-a-candy-store environment.

The framers of the U.S. Constitution deemed the protection of intellectual property so important that they wrote it into the main body of the document, listing it ahead of the congressional authorities to make war and establish courts -- not to mention ahead of the comparitively minor rights of free speech and protection against unlawful search and seizure, which are relegated to the amendments.

Corporate owners of intellectual property -- particularly record companies -- have been slow to recognize the potentials of the cyber world but quick to target thieves on all levels. Disney, Paramount, Playboy and Fox were among the quickest on the draw targeting infringers running the gamut from major businesses to individuals with personal Web sites. Woe to the 12-year-old creator of a Simpsons Web site that draws too much traffic.

When the Internet first bloomed on university campuses, it inheirited the academic culture of unfettered information exchange. Indeed, this was the original purpose of the Internet, which was designed to tie together the several national laboratories and academic research centers working with the Department of Defense. Napster -- created by a high school student -- was a natural outgrowth of that.

There is no legal mystery about applying current law to the online world. Theft is still theft. But the statutes are falling behind headlong cultural and technological change. It's much like Prohibition in the 1930s, or the 55 mph speed limit. Society has yet to come to legal terms with a law that is widely ignored by ordinary citizens.

Copyright Myths

"The Digital Millennium Copyright Act says that I can make copies for personal use, so it's OK if I make copies of my CDs just for my friends."
Nope, "personal use" means only the original purchaser.

"It's OK as long as I give the author credit."
No. In fact, such credit can serve as evidence of willful infringement.

"It's OK as long as I don't charge money."
Distributing a work for free dilutes the value of the work. If I can get something for free, why would I pay for it?

"It's OK if there's no copyright notice."
The U.S. signed the Berne (international copyright) Convention in 1989. According to Berne no paperwork or other notice may be required to protect a work. In the U.S., works created since 1989 are protected from the moment that they are "fixed in a tangible form." This specifically includes data recorded in computer memory.

In the U.S., a work still must be registered with the Copyright Office for an author to collect statutory damages (which can easily run into the hundreds of thousands of dollars.) Such registration may be made for a limited time even after an infringement is discovered. No registration is required to collect actual damages. There have been a number of unsuccessful attempts to get Congress to remove the registration requirement.

"It's Fair Use if I only use X amount of a work."
Fair use is among the slipperiest concepts in all of law. It is truly defined only by a judge or jury in an infringement action. Although some Fair Use "rules of thumb" are floating around in popular culture, there is no magic amount of any work that may be safely used.

"The Internet itself is a copyright infringer because copies of data are cached in servers and browsers."
The legal term for such technical media is "incidental copy." They are created as part of the process of a permissioned re-use and are not themselves considered to be copies for the purpose of copyright law as long as they are not used outside of the scope of usage intended by the author.

For example, a print shop that prints the posters for a rock concert owns the plates, but they may not use those plates to run off any more copies of the poster than called for in the print order. Extra copies must be discarded. Since the print shop owns no usage rights whatsoever, the plates themselves may not be displayed in public or even shown to a third party.

A browser cache file is an incidental copy of a work that is part of the process of display, clearly intended by the author. It remains an incidental copy until someone removes it from the browser environment and puts it to an additional, unpermissioned, usage.

Copyright Resources

A handy list of copyright info links that I put together a few years ago.


Copyright 1994, 1997, 2000, 2001 Mark Loundy
All rights reserved

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