The Perils Of I P

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The document discusses the challenges of intellectual property (IP) laws in the digital age. It notes how IP laws and lawsuits have restricted innovation and concentrated control over knowledge. Examples discussed include the DMCA, lawsuits against DeCSS, Felten, Blackboard, Napster, Grokster, and others. The document argues this amounts to a "second enclosure" that risks ruining technological progress, and questions are raised about balancing IP with innovation.

Technology

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Concentrated control of knowledge resources

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30 C o M M u n i C at i o n s o f t h e a C M | j A n U A R Y 2 0 1 2 | V O L . 5 5 | n O . 1 V viewpoints T He eMeRGence of the Internet has put enormous pressure on the rights model of U.S. copyright law. That model is premised on the notion that copyright holders are entitled to control the making of copies of their works, but technology has made that control somewhere between fragile and nonexistent. Content creators have struggled to restore the control assumed by copyright law. Two recent developments, one pending federal legislation and the second an industry- wide agreement between Internet ser- vice providers and content distributors, provide new looks at this ongoing issue. Technology and copyright have a complex relationship. New waves of technology have created novel expres- sive opportunities and dramatic im- provements in the ability to distribute copyrighted works. But new technology rarely asks permission, and with each technical advance, we have seen new opportunities and new clashes. Perforated rolls for player pianos in the early 1900s came from sheet music and roll producers were not eager to write checks to copyright holders. Radio saw recorded music as a way to fill the airways even though disks came with a legend stating that the music was not licensed for radio broadcast. And the VCR introduced a new vocabu- lary—time shifting—and the chance to watch TV on your schedule, not broad- casters’ schedules. It did so without offering any compensation to broadcast- ers or show producers and even created the risk that the financing model for free broadcast TV would be put at risk by viewers with nimble fingers who fast-forwarded through commercials. Since at least the advent of Napster, the music industry has struggled to find a strategy to control illegal downloads of music. Technology made it very easy to rip CDs and share the results with the world. The music industry responded with lawsuits, first against Napster, Aimster, and Grokster, and then against individual consumers, leading to prom- inent examples such as the ongoing saga of Jammie Thomas-Rasset. The suits have been on the whole quite suc- cessful, at least as measured by the stan- dards that lawyers use. Grokster lost 9-0 on the question of whether it might be liable for inducing copyright infringe- ment (there was much more division on the question of how the U.S. Su- preme Court’s prior Sony case should apply to this situation). Thomas-Rasset has faced juries multiple times and each time jurors have come back with damage awards—the first time $1.92 million and second time $1.5 million— that judges found too high. Notwithstanding all of that, the Law and Technology The Yin and Yang of copyright and Technology Examining the recurring conflicts between copyright and technology from piano rolls to domain-name filtering. DOI:10.1145/2063176.2063190 Randal C. Picker ...

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