intellectual property

Chapter Captain: Mia Garlick - mgarlick at stanfordalumni.org

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Statement of Goals for Chapter 10 – Intellectual Property

Hi there - welcome to Chapter 10. When contributing to this Chapter, please keep the following things in mind.

Overall approach:

Keep in mind that what we are doing here is not writing a new book but “correct[ing] and update[ing] the existing book” – see http://www.lessig.org/blog/archives/002358.shtml (I know this is stated in general terms in the “getting started” section but it never hurts to continually remind yourself of the overall purpose).

Also, remember that we are not trying to create an encyclopedia or a definitive treatise on IP/copyright/code so we do not need to include every example that illustrates or challenges a point made in this Chapter; instead, let’s try to come up with the best and most relevant and applicable examples to illustrate the arguments made in Chapter 10.

Specific goals for this Chapter:

The overall goal for this Chapter is twofold. First, the goal is to update the overall proposition made by this Chapter. Second, the goal is to update specific examples used in this Chapter and/or add new, highly pertinent examples to illustrate the updated argument made in this Chapter.

Goal One:

In sum, the argument of Chapter 10 is:

Rather than threaten the demise of copyright, as each new technology has been decried to have the potential to achieve and as the Government has stated that they would in the White Paper, digital technologies actually enable copyright owners to replace the ‘sufficient control’ granted them by traditional, balanced copyright laws (which contain fair use, limited terms and the first sale doctrine), with ‘trusted systems’ that enable ‘perfect control’; a privatized enforcement of the law, more effective than the law, in combination with norms, could previously achieve. At stake (specifically) are fair use and anonymity; values that are threatened by ‘trusted systems’, values about which we need to make a decision, which decision in turn, will dictate how the architecture is structured. That decision should dictate an architecture that preserves a commons, an intellectual and creative commons.

So the purpose of Goal One for this Chapter is to analyze the extent to which this proposition – within the context of the overall theme of the book - stands up over five years later. Code v.1 was published in 1999. Obviously, a lot has happened in the IP/copyright-space since that time: the DMCA has been enacted & litigated; Napster v.1 has been and gone: Google & eBay are now referred to in mainstream press as tech bellwethers & litigate to protect their interests accordingly; iPod and TiVo have changed our personal experience of content; and content owners, courts and the legislatures are currently trying to grapple with Grokster and its ilk and BitTorrent technology.

So, to what extent has Chapter 10’s overall argument been borne out by the events of the past five years? To what extent do the challenges we foresee in the near future bear out its central tenet? To what extent was Code v.1’s 1999-tealeaf-gazing a misguided claim that the sky is falling in (I mean this as an invitation to rigorously analyze the theory (see the second section of Goal One below) to make sure it is accurate, not to completely tear it apart)?

Keep in mind how Chapter 10 fits into the overall theme of the book. At the end of Chapter 1, Lessig argues that structure builds substance; “guarantee the structural (a space in cyberspace for open code), and (much of) the substance will take care of itself.” Chapter 10 – IP/copyright laws is then one area of controversy in which Lessig has identified values that are at risk - values such as fair use, first sale, limited terms and anonymity; values designed to build an intellectual and creative commons.

Specifically, the questions I think we may want to consider & try to answer are:

• To what extent have the events over the past five years demonstrated a coordinated effort between government and commerce to dictate code & our behavior (norms) contrary to the overarching goals of copyright laws (structured to build an intellectual and creative commons)? To what extent are copyright laws now being crafted by Congress & the courts to protect established media’s business model rather than promote innovative new business models or consumers’ interactive experience of copyrighted materials? To what extent are ‘trusted systems’ exerting ‘perfect control’?

Random initial thoughts of examples to consider/explore/debate:

• The enactment of the DMCA – law protecting the ‘trusted systems’.
• New and popular proprietary services being tailored to impose limits on the scope of use of consumers & to collect consumer information (iTunes slowly shrinking the scope of consumer's enjoyment of downloaded music - see: http://www.theregister.co.uk/2005/03/15/social_music/ and http://lawgeek.typepad.com/lawgeek/2004/04/meet_the_new_it.html Napster-to-go, TiVO-to-go, “my TiVO thinks I’m gay” etc).
• The FCC & the ‘broadcast flag’ debate, now before the courts.
• Replay TV gets sued into bankruptcy for allowing viewers to skip ads but there appears to be no opposition by the content owners to new legislation before Congress (Family Entertainment and Copyright Act of 2005) that will protect technology (Cleanflicks, Clearplay) that allows consumers to skip ‘dirty’ & violent parts of movies – despite the Copyright Registrars announcement that this latter technology would likely not infringe copyright (then why would ReplayTV?).
• Congress’ willingness to consider the INDUCE Act when it two courts exempt Grokster et al. from secondary liability for copyright infringements.
• To ensure that Chapter 10’s argument is not completely out of touch with what has been going on in the IP space over the last five years or so, to what extent do these events not support the argument made in Chapter 10? Can this be explained within the context of Chapter 10/Code’s overall arguments? Are these simply isolated examples? To what extent have norms stultified any attempt by the government and commerce to dictate code & consumer behavior with respect to copyright protected goods/services? To what extent is ‘sufficient control’ the defacto standard for all technologies or legislative attempts to update copyright laws in the face of new technologies?

Random initial thoughts of examples to consider/explore/debate:

• Attempts by record companies to encourage the widespread adoption of copy-protected CDs seem to be continually thwarted.
• ‘Hacks’ enable some people to get around copy & distribution restrictions.
• Invariably many movies & songs do make it online prior to their official release date.
• The Copyright Registrars proposed revised version of the INDUCE Act seeks to specifically exclude liability for personal copying and focusing on commercial distribution.

Goal Two:

The specific examples used in Code v.1 need to be updated. The most obvious example is the reference to the White Paper in the section “Law to the Rescue”. While we do not need to include chapter & verse about the DMCA (see earlier comment about this not being a treatise), some well-phrased explanation of what the White Paper became is necessary to properly update this Chapter. Similarly, there are more recent cases about shrink-wrap and click-wrap cases that have tried to impose restrictions greater than are permitted under copyright law (Bowers v. Baystate Technologies, Inc. & Blizzard for example?). In addition, can we find examples where fair use or anonymity has been compromised (really, not theoretically)? Can we also describe examples where the limited terms objective (Eldred?) and first sale doctrine have been compromised in recent years?

Bearing in mind that we are not writing a definitive work on these issues and keeping it to the bare minimums necessary to intelligently illustrates the broader points made in the Chapter, Goal Two is to update the examples used in Code v.1 and, to the extent the updated argument of Code v.2 elicits new examples, make sure we include the best of those as well.

Feel free to contact me with constructive comments, questions, suggestions (via email is best – see the directory).

Rgds, Chapter 10 Captain Mia (C10CM).