The recent lawsuit by rapper Dr. Dre against Napster and his battle against the teenagers who traded music over the internet may seem like a simple case of intellectual property law, but it's implications are far more sinister.

 

When Copyright is Wrong

by Del Miller

May 7, 2000

 

What is music anyway? Pressure fluctuations strike our eardrums and somehow generate sensations in our brain that we somehow find pleasurable. Signals propagate through the air along with the rattle of jackhammers and the roar of diesels, yet we pluck them from the noise that surrounds us and perceive them as something that enriches our lives. It's magic, in a way. But for all the value we give to these pulses in the air, they are only the ethereal echoes of some mechanical vibration. How then can a person "own" a vibration? How can we buy and sell harmonics? Who gives one person the right to allow or to deny others to hear the music?

The law does, that's who.

Indeed the copyright laws of the nations of the world have enabled the growth of enormous industries which make their money by peddling this fleeting and nebulous physical phenomena. These businesses have become so entrenched into the fabric of our society that we seldom question their right to meter these sounds to the masses and to demand payment for our privilege to listen. We passively accept the odd notion that the noise from banging drums or from strumming strings is a commodity as saleable as pork bellies.

We should remember, however, that the laws that give this quaint practice legitimacy are merely the arbitrary constructions of society rather than a God given mandate from heaven. Until western culture invented the concept that music could be owned such a thought was ludicrous, a bizarre corruption of nature's way. Along the way we chose to make music into property, but this was not a singular decision, debated and decided upon by people of judicious nature, rather the notion grew piecemeal from the arcane history of print copyright laws which themselves arose from the random workings of human endeavor. Our world could have easily evolved with music as a freely given, freely taken work of nature, as free from the rules of commerce as is our very breath.

Instead we now read headlines describing billion dollar lawsuits against internet companies which had the temerity to allow the downloading of copyrighted, digitized music. Such "theft" of intellectual property is viewed as larceny of the highest order and the penalties are so severe as to condemn the offender to financial death. However, such views only reflect our present day sensibilities, skewed by the adversarialism that we accept as normal commerce and by the complicated laws that govern it. But is this right? Can we judge the correctness of these laws without understanding their original purpose and the torturous path by which we've come?

 

The origins of copyright

Copyrights arose from gentlemen's agreements between the members of the bookselling guild of sixteenth century England. The members agreed among themselves that the right to print specific works could be exclusively given to a particular printer, affording protection from competition by the others. There was no force of law behind these agreements, only the agreed upon rules of the printer's cartel enforced the monopoly. There were, however, many printers that did not belong to the cartel and they printed whatever manuscripts they chose, competing fiercely with a guild that had no legal right to stop them.

By the end of the sixteenth century the increasing influence of the printing press began to worry the monarchy as a potential source of sedition and agitation against the crown. The King saw a way to use the printer's cause for his own purposes and granted the printers guild, now called the Stationer's Company, a royal charter that gave them a sanctioned monopoly on all printed works as well as the power to enforce their monopoly throughout the empire. This enforcement authority was under the direction of the crown and was afterward used for its primary purpose, to control the content of any publication. This "copyright" was in reality the first censorship of the press and it was used as such by the English government well into the eighteenth century.

The writer's of the American constitution had themselves been victims of the censorship aspect of copyright and had borne the brunt of Britain's colonial monopolies. They were therefore determined that such monopolistic power would not be used to control the press in the United States. On the other hand, they were also businessmen and suspected that without some protection for ideas and artistic works, the creative forces of the people could not be fully realized. The result was a compromise; Article I, section 8, clause 8 of the United States Constitution which gives Congress the obligation 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."

It is important to note that the very clear purpose of the framers was to promote knowledge and art -- not to guarantee monopolies by it's creators. The use of the word "limited" speaks forcefully on this point. This clause is the constitutional foundation for the first Copyright Act, which granted the holder of a copyright the exclusive right to print, publish, and sell a copyrighted work for fourteen years with a second fourteen-year term possible. There were no rights given to the copyright holder regarding the public performance of the work nor could the holder control adaptations or derivative works.

The Copyright Act also defined the doctrine of fair use, wherein certain uses of the copyrighted material do not constitute an infringement. The principle of fair use involves four factors, all of which must be considered in any infringement case: That the work not be used for profit, that the particular characteristics of the work must be considered, that the amount of the copyrighted work used is small as compared to the complete work and that the effect of the use does not adversely affect the value of the original work.

The original copyright laws of the United States were designed to strike a balance between incentivizing those who created versus the benefit that the unfettered access to these works would bring to the citizenry. The Supreme Court ultimately declared that "The immediate effect of our copyright law is to secure a fair return for an 'author's' creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good."

 

Who's rights are we protecting?

The recent lawsuit by rapper Dr. Dre against MP3 company Napster and the ongoing battle between the teenagers who traded music over the internet may seem like a simple case of intellectual property law, but it's implications are far more sinister. Dr. Dre's lawsuit demands that the Napster website be shut down because it includes information on how to break the encryption on DVD disks. If upheld, this essentially makes illegal an entire technology, one that has enormous benefits to the public, simply because it could be used to download software without payment to the holder of the copyright.

By this thinking, the entire internet should be illegal, for it is nothing but a giant mechanism for the free flow of information of all kinds, whether copyrighted or not. On the surface, the rights of free speech would seem far more important than some copyright issue, especially when, as we've seen, the purpose of copyright law is to advance the common good, not to guarantee the wealth of a monopolist. It seems downright laughable that the desire for money, by some rapper who is already absurdly rich, should make illegal an entire technology that offers a benefit to the public. Yet, just a few months ago, in a similar case, the recording industry obtained an injunction against parties that published software that could break DVD encryption.

Automobiles were not outlawed in the early days of this century just because they posed a threat to the buggywhip interests. Why is it so different now? Why must today's society forego beneficial new technologies for the sake of the recording industry? Why is the music business so sacred that the rest of the world must remain mired in the technology of the past so that recording stars and record companys can rake in their billions of dollars?

 

We've lost our way

Even the most casual reading of history makes it clear that the founders of the United States never intended that copyright law become a tool for excessive monopolistic control over knowledge or works of art. The entire legal basis of copyright law was founded on the balance between the rewards for creativity versus the public good. But in the last two centuries we've lost the original meaning of the constitution and now seem to view copyrights solely as a tool for the acquisition of wealth by the holder of the copyright. Public good be damned.

Current copyright laws have extended the period of exclusivity to the life of the holder plus seventy years, hardly a "limited time" as described by the constitution. The fair use doctrine has been so gutted by complicated licensing loopholes and by definitions of "derivative" so absurdly broad that almost any use of any work opens the user to frighteningly severe criminal penalties -- even for uses that bring no monetary gain, strictly against the original meaning of fair use.

All of this places the individual at a terrible financial disadvantage in today's legal world, where wealth so often determines the outcome in court. The legal profession gravitates to the side with the deepest pockets and that is of course where the recording industry sits. The financial might of the recording industry has brokered a legal environment where it always wins, if not in court then in other, duplicitious ways. The market for Digital Audio Tape was crushed because of the mere possibility that recordings might be copied. Behind the scenes maneuvering by the electronics industry and the recording business buried a technology, in the name of copyright protection, that would have been of immense value to the public. This is the very censorship that those who wrote the constitution sought to avoid.

 

Monopoly money

If the current scheme for protecting intellectual property actually did protect creativity, then we should be surrounded by artists and technical innovators who have profited from the process. But the single most glaring characteristic of industries that live and breathe by copyright laws is the enormous disparity of income between the few at the top and the many at the bottom. For every rich performer in the entertainment business there are millions more that live in poverty or give up hope of ever making a living through their art.

All of this money flowing to the recording industry should theoretically foster immense variation and choice to the public, yet we are immersed in a top-forty market demographic designed by the industry for maximum financial gain. Copyright law now protects a status quo rather than promoting the arts; the whole purpose of the copyright has been subverted.

We have made ourselves victims of other's greed by foolishly accepting the premise that the broader the monopoly granted to copyright holders, then the greater the incentive for innovation. But Shakespeare needed no such incentive. The fact is that every work of scientific or artistic value ever created was built on works that came before. The intricate and overly broad protection of intellectual property has begun to muzzle the creative process that the copyright laws were meant to advance. We have taken away the value of copyright as a reward for creativity and replaced it with a system of sanctions so complex and so daunting that only large corporations and the very rich can use it to advantage.

The record business has shown that it will eagerly stifle technological advancement to preserve a monopoly far broader than the writers of the constitution ever intended. People such as Dr. Dre have no conception that the real purpose of copyright law is to advance the common good. Instead they shamelessly exploit our poorly considered laws solely for their own enrichment and to the detriment of the public welfare.

Dr. Dre has made it big in the recording industry and is now part of the establishment. He says he doesn't like anyone stealing "his" music, but the very law he cites arose from the principle that the music really belongs to the world and his limited rights are constrained by the common good. Artists have a right to benefit from their creativity and their sacrifice, but there is a limit, defined by the constitution, beyond which the enforcement of copyrights interferes with the rights of everyone else. It's time we take back what is ours. We must demand that the laws that govern copyrights adhere to the intent of the constitution. We must insist that moneyed interests don't control our technology and our future for their own selfish interests.


Copyright 2000, Del Miller. All rights reserved.

 

Del also writes the "Difference Engine" column at www.macopinion.com

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