Contemporary Intellectual Property, Licensing & Information Law

In a world that enables rapid and widespread duplication and transfer of information, law needs to adjust to preserve and protect social values and legal rights. All of those that provide incentives for the creative works that have contributed to the explosion of works that drives the information age. That being said, there are a large number of people who apparently believe that ownership of a copyright should mean relatively little when compared to the desire to allow virtually anyone to copy and distribute a work with or without permission if that is made possible by new technology. These people are arguing for immediate gratification at a sacrifice of long-term social benefits.

Who owns what and what does ownership mean in an information age? I ask that question frequently and will continue to do so in this forum. Indeed, we all need to ask that question.

One wonders about the Google "print" project, for example. This may be the first time that a company running a viable business (presumably relying in part on intellectual property rights) has elected to undertake what appears to be massive unauthorized taking and distribution of other people's property simply because it has technology to do so and because it has commercial goals that can be furthered by these acts. Google publicly argues that it has a right to copy and distribute all or part of the copyrighted works of others even though federal copyright law gives the copyright owner the "exclusive" right to reproduce the work. Google claims it may ignore the exclusive rights under the doctrine of fair use. I doubt that this claim (although actually, fair use is a defense, rather than an affirmative right). I doubt that Google's version of fair use will survive in court. But the interesting further step is that Google has sought to calm the political and judicial waters by giving copyright owners the right to "opt out" - by giving notice that if you don't want your work involved, Google will respect a notice from you to that effect. Google's approach is like my announcing to the entire city of Chicago that I plan to borrow a large number of personal cars owned by others next week, but that if the individual car owner notifies me that she does not want her car borrowed, I will take someone else's car. It turns the idea of property ownership and property rights on its head.

But let's put Google aside for the moment, since it is an ongoing matter likely to be resolved in some fashion over the next few years and we can discuss it again at that point. Let's look at the underlying conflict going on here, since it is a conflict that has had immense impact on modern policy and will continue to do so. On the one hand there are people who believe that society benefits if everyone can redistribute, modify and otherwise "share" digital and other works, with or without the approval of a copyright owner. There are many, important nuances to this view, but the consistent theme holds that copyright rights should often be subordinated to innovative uses of modern technology. In other settings, I and others have described some of those who hold this view as "rights restrictors" because a routine part of the viewpoint is to argue for a reduction in law or in fact of the effective scope of copyright protection in the faced of technological developments.

The converse of this view is held by those who we might describe as "rights protectors", who believe that intellectual property rights are a critical part of encouraging and developing new technology and other forms of creativity from which society benefits. These people would argue that modern technology threatens to change the balance between rights and use privileges in ways that may undermine the incentives for creativity embedded in intellectual property law. Thus, law reform and modern judicial decision-making must reflect the need to buttress and adapt the property rights so as to maintain a balance preserving incentives. Significantly, a period of startlingly rapid growth in innovation has coincided with a period of statutory and other expansion of intellectual property rights.

Certainly there is some facial appeal in the rights restrictive argument and it has attracted a support base. If accepted, it tends presumptively to allow most everyone to do what the technology enables us to do with a copyrighted work, and as a result tends to make existing copyrighted works widely available for little or no cost given that we all share in deciding when and how to distribute the work to our friends and others. Both of these immediate effects are very consistent with the tone and tenor of modern culture - immediate satisfaction of individual goals for little or no cost if possible.

But there are at least two problems with this view. First, no matter how strongly some claim to the contrary, there is virtually no support in statutes or in courts for permitting widespread copying and freedom to use property of others. The recent Supreme Court decision in the Grokster case is an illustration of how courts often react to the rights restrictive claims. A unanimous Court concluded that it is wrong actively to induce others to use your technology to violate the property rights of copyright owners. But courts do sometimes change their minds, although they should not do so in this situation. We see essentially the same rights restrictive argument reappear in different guise throughout modern copyright litigation. Indeed, the general view of many who follow a rights restrictive view seems to be that copyright should be subordinated to all other interests with which it might conflict.

A second more important concern is what impact adopting a rights restrictive viewpoint would have in the long term. How will the broad availability of works without cost and outside the control of the rights owner affect long term creativity? Simply put, at least in its extreme form (which is the form in which it is most often seen), the "freedom to use", "rights restrictive" view sacrifices long term benefits for short term or immediate pleasure.

In the United States, a goal of copyright law is to provide incentives for creative people to continue to make creative works. The idea is that, while creative people do their thing for many and diverse reasons, some of them at least create in order to profit (in money or in fame) from their works. The law thus gives them the right to control various uses of this works (the exclusive rights set out in the copyright statute), and to decide whether to release or retain their works, to contract for its distribution (or for nondisclosure), and to decide other attributes of control, leaving each owner to make choices suited to their own desires and leaving it to the marketplace to validate the choice or not. To the extent that the rights are taken away, the incentives are reduced and creative work is diminished, harming everyone. The effect is the greatest in those cases that are the most important - situations where investment of time or money to create, modify, make, or distribute the works is high. That investment is less likely to be made when it cannot be recouped.

So, if we were to buy into the rights restrictive viewpoint, in return for being able to obtain today free digital copies of music, software, movies and computer games today from one of our twenty million friends on the Internet, we may be sacrificing the ability to see the next great creative work because it will never be created or produced.

Before naysayers label this viewpoint as too simplistic, and as a way of closing off this afternoon's comments, let's clearly admit that anyone who thinks seriously about this issue must recognize that a complex relationship exists here: if I create a new work, it is virtually certain that some of the ideas and perhaps other content of that work come from prior works of other people. That is inherent in the idea of creativity. Indeed, the software industry has often said that everyone in that industry is both a licensor (e.g., rights holder) and a licensee (purchaser) of information. This places both a practical and a theoretical restraint on how one develops rights and limitations on those rights. It also leads to a balancing that is at the center of modern policy in the same way that it was at the center of developing intellectual property law in the past.

The rights restrictive view argues that the old balance as they define it is fine and that it is being tipped by court decisions and legislation that "favor" rights owners. But the fact is that digital technology tips the balance in fact in a way that is adverse to the rights owner and to maintaining appropriate incentives for creativity. Many political and judicial actions taken in the past decade are designed to protect those incentives in the face of this adverse change.