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Abstract
The single most significant issue that intellectual property lawyers have had to deal with in recent years has been the impact of the Internet on copyright. It has raised more than mere legal queries, obliging society as a whole to reconsider the fundamental bargain of capitalism – private gain versus the public good. However, the authors progressed beyond this specific social bargain to consider the role played by commercial giants that either own or have a shared interest in the works of their creative artists, which in turn requires us to scrutinize the true purpose of copyright law – the guarantee of a social bargain or a tool for pure economic protection. In an attempt to chart a suitable path for the future development of copyright law, as applicable to commercial giants and the Internet, the authors have chosen to critique Professor Lessig's theory, namely that the Internet and intellectual property law are being used by powerful media forces as a tool for suppressing creativity in the pursuit of pure economic benefit. The bleak view adopted by Lessig of the Internet and related intellectual property law, which he perceived as impeding progress, frustrating creativity and detracting from the positive social impact the Internet can have on society, is examined and ultimately regarded as being the equivalent of Dickens' ghost of Christmas yet to come and grounded in the Chancery lawyers of Victorian England depicted in Dickens' Bleak House.Footnote3 The authors conclude that the fundamental bargain that must be honoured, no matter what the social or commercial marketplace may be, is that a creator must be afforded such legal protection as to induce him or her to create. Whilst this may eventually amount to an updated and slightly more pragmatic version of current intellectual property law, it should certainly amount to more than the Creative Commons licences that were championed by Lessig.
The authors welcome comment and discussion.
Notes
The authors welcome comment and discussion.
1 A parody of the title of the 1964 Stanley Kubrick film entitled Dr Strangelove or How I Learned to Stop Worrying and Love the Bomb, http://www.indelibleinc.com/kubrick/films/strangelove/
2 The authors are respectively, Dr Stuart Weinstein, Senior Lecturer, Centre for International Law, University of Hertfordshire and Dr Charles Wild, Head of the School of Law, University of Hertfordshire.
3 Charles Dickens, Bleak House, Doreen Roberts (ed.), Wordsworth Classics, 1993 (1853).
4 Infra, note 48.
5 Patti Waldmeir and Scott Morrison, Peer pressure: a ‘looting of property’ is at issue in the Internet's biggest test case, Financial Times, 23 March, p 17, 2005.
6 In his book Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Controversy.
7 Lawrence Lessig, Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity, pp 10–11, 2004.
8 Pursuing the issues raised in the introduction to this paper, the ‘threats’ referred to are economic in nature. As such, we must factor into our analysis the fact that this is the standpoint from which significant pressure is emanating.
9 In contrast, Lessig refers to freedom of expression.
10 Op cit note 7, p 13.
11 Or rather the protection of their current economic benefit.
12 Dickens, op cit note 3, p xxiii.
13 Friedrich Nietzsche, Thus Spoke Zarathustra, R L Hollingdale (trans.), Penguin, 1969.
14 Discussed below.
15 In other words, partnerships with those who have previously been accused of breaching the creator's copyright. A perfect example of this would be Napster, which, having been forced to become a legitimate outlet, has continued to prove successful.
16 Consequently, the creator receives a percentage of the revenue generated by the partner, who exploits the evolving marketplace on behalf of the creator. The partner is in turn assured that he is backed by the creator and, as such, has an interest in policing the marketplace on behalf of the creator so as to protect his market share and, in turn, his revenue.
17 The question may be posed as to the potential impact on the consumer. Under such a system, is the consumer being asked once again to pay an ‘inflated’ fee as per a traditional compact disc at a retail store as opposed to the discounted rate offered by the Internet? The answer is simple. In order to be competitive in this new marketplace, the creator–partner team must price themselves competitively, so as to discourage the use of rival, non-authorized sites. Consequently, if entered into from a commercial perspective, as opposed to a regulatory one, the consumer should still benefit from such a regime.
18 Once again returning to the question as to the driving force behind the Internet and intellectual property law.
19 Digital technology has empowered relatively low net worth individuals to commit infringements, thereby opening copyright protected materials to a mass market of low net worth individuals for no individual economic gain. This differs from the past in that capital investment in reproductive technologies, followed by the sale of copyright infringed material, was the previous mode of infringement, which usually meant adequate compensation could be gained from pursuing the infringer. Moreover, on several other occasions before the Internet existed the US Congress extended the terms of copyrights at its volition.
20 The potential for both parties to benefit, both creatively and economically, far outweighs the risks encountered by the original creator. This in turn refers us back to the recommendation that ‘partnership’ is the way forward.
21 Op cit note 3, A Christmas Carol.
22 Op cit note 6, p 118 et seq.
23 Ibid.
24 Ibid, p 119.
25 Ronan Deazley, The myth of copyright at common law, Cambridge Law Journal, Vol 62, No 1, pp 106–133 and 108, 2003
26 8 Anne, c. 21.
27 Deazley, op cit note 24, p 108.
28 Lessig, op cit, p 119.
29 The ‘Takings Clause’
30 Op cit note 6, p 119.
31 Ibid.
32 William M Landes and Richard A Posner, The Economic Structure of Intellectual Property Law, The Belknap Press of Harvard University Press, p 5, 2003.
33 Ibid, p 4.
34 Ibid.
35 Ibid.
36 http://creativecommons.org/about/licenses/andLessig, op.cit, note 6, pp 282–286.
37 Ibid.
38 The question may then be posed as to whether such as system is workable. If an individual requests permission and is refused, then he or she has effectively indicated to the creator their interest in and possible intention to use the intellectual property. The question arises as to why such an individual should bother in the first place.
39 Op cit note 36.
40 Frequently referred to as RIAA.
41 Lessig, op cit note 6, p 51 suggested that financially well-off litigants such as the RIAA are acting immorally when they are ‘taking money away from a student for running a search engine’.
42 Ibid.
43 Though this is frequently countered by the ‘drop in the ocean’ argument.
44 Landes and Posner, op cit note 31, p 7.
45 Ibid.
46 Once again, this brings us back to the ‘partnership’ debate. If such a system is correctly weighted, it should prove far more attractive to a potential infringer to enter into partnership with the creator than it would be to risk prosecution.
47 Then again, those wishing to enforce their intellectual property rights must consider whether the level of damages to be attained, coupled with the likelihood of success, outweigh the economic cost of bringing the action in the first place. When this is coupled with an attempt to enforce rights in another state, the time, cost and inconvenience associated with the action may be viewed as too great for pursuing an action.
48 545 U.S. _ (2005) available at http://supremecourtys.gov/
49 Lessig, op cit note 6, p 8.
50 MGM Studios Inc., et al. v. Grokster, Ltd., et al., No. 04-480, US Supreme Court, brief for the United States as amicus curiae supporting petitioner, available at http://supremecourtus.gov/
51 Lessig, op cit note 7, p 8.
52 Ibid, p 18
53 Infra, fn. 49, Slip op. at 1.
54 Scott Morrison, Entertainment industry hails judges' ruling on Grokster, Financial Times, 28 June, p 14, 2005.
55 Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417 (1984).
56 Ibid, p 439.
57 Infra, fn. 49, Slip op. at 16.
58 Ibid, p 17.
59 Ibid, pp 21–22.
60 Ibid p 10.
61 Ibid, p 11. Note 7, p 11:
The mutual exclusivity of these values should not be overstated, however. On the one hand technological innovators, including those writing filesharing computer programs, may wish for effective copyright protections for their work. | |||||
See, for example Wu, When code isn't law, Va. L. Review, Vol 89, pp 679 and 750, 2003. | |||||
62 Lessig, op cit note 6, p 9.
63 Ibid, p. 304:
I'm a lawyer. I make lawyers for a living. I believe in the law. I believe in the law of copyright … Yet, much of this book has been a criticism of lawyers, or the role lawyers have played in this debate. The law speaks to ideals, but it is my view that our profession has become too attuned to the client. And in a world where the rich clients have one strong view, the unwillingness of the profession to question or counter that one strong view queers the law. | |||||
64 Ibid, p 9
65 Ibid, p 9.
66 Ibid, p 9.
67 Ibid, pp 62–79.
68 MGM Studios Inc., et al. v. Grokster, Ltd., et al., United States Court of Appeals for the Ninth Circuit, Slip Opinion, No. 03-55894, D.C. No. CV-01-08541-SVW available at: http://www.corante.com/importance/archives/MGMvGrokster.pdf, pp 11721–11747 quoting pp 11746–11747. See also Judge Posner's decision in In Re Aimster Copyright Litigation, (USCA, 7th Cir.)334 F.3d 643, 67 USPQ2d 1233, where he sets forth a test for a peer-to-peer service to avoid secondary copyright infringement liability:
Even when there are noninfringing uses of an Internet file-sharing service, moreover, if the infringing uses are substantial then to avoid liability as a contributory infringer the provider of the service must show that it would have been disproportionately costly for him to eliminate or at least reduce substantially the infringing uses. | |||||
69 Op cit, note 20.