Week 11: Election Day

This week’s reading: Burnett & Marshall, Chapters 5-7

In contrast to the polar bear book, an information setting where I often felt I lacked important context, Web Theory puts me in mind of a thousand different responses: enthusiastic agreements, vigorous ripostes, and occasional moments of eyebrow-raising realizations about how much the Internet has changed since 2003. This week I’ll take advantage of today's date – Election Day – to discuss the interface between politics and the issues of Chapter 7.

In their treatment of copyright issues on the Internet, Burnett and Marshall successfully make the crucial distinction between creators and copyright holders. Plaintiffs in key intellectual property suits are typically publishers and other firms, not the individuals who created the property at issue. Especially egregious examples of such firms have abounded in the news recently. One is Righthaven LLC, a group that has systematically purchased the copyright to stories in the Las Vegas Review-Journal in order to sue weblogs that have quoted from these stories. Another is the U.S. Copyright Group, which hires itself out to movie producers to sue thousands of unnamed defendants accused of illegally downloading movies via BitTorrent. Watchdog groups such as the Electronic Frontier Foundation and Ars Technica have found such suits socially and legally problematic; for current purposes, the most salient point is that the original creators of the material at issue are nowhere to be found in the legal proceedings.

When politicians make copyright law, then, the most vigorous lobbying rarely comes from authors or creators, nor from the disorganized masses who benefit from copyright liberalization; rather, the loudest voices are those of copyright holders, whose financial interest in their material gives them ample incentive to seek stringency in copyright law. Congress’s most recent extension of the copyright term – to the life of the author plus seventy years – coincided with the year when Mickey Mouse would otherwise have entered the public domain, and the Walt Disney Company lobbied for the change with corresponding intensity. Yet a broad-based consensus exists across the arts and sciences that a robust public domain from which to draw information and inspiration, as well as an expansive view of “fair use” of copyrighted material, contributes crucially to the “progress of Science and useful Arts” prioritized by the Copyright Clause of the Constitution. And so the public interest is often at loggerheads with the interests of intellectual property owners.

The Internet enters this conflict partly with its promulgation of Web 2.0 tools like YouTube and Flickr, which permit everyday citizens with no acquaintance with IP law to violate copyright on a daily basis. A photo of a friend posing in front of an iPod ad, if posted to a public Flickr account, might conceivably draw a DMCA takedown notice from Apple. A cottage industry of YouTube videos that redub a few minutes of popular cartoon shows for satirical purposes have frequently received similar notices. The individuals committing the alleged infringements may well be engaging in fair use, but they lack the recourse to defend themselves from the much better funded corporations who own the intellectual property that Web users are adapting. Researchers, too, often skirt IP law when they seek to develop new technologies; DMCA lawsuits have been threatened or actually prosecuted in cases concerning security research, DVD-ripping software, and even the manufacture of universal garage door openers.

The Internet, of course, also makes actual piracy – with no pretensions to fair use – as easy as downloading the right file from The Pirate Bay. But while IP holders invest a lot of money in chasing down pirates, too many artists, scientists, and other genuine creators get caught up in the dragnet. There’s very little money protecting these individuals in comparison with what IP holders spend on lobbying and lawyering. As long as intellectual property issues continue to exist under the radar of the general public, and as long as no large organizations find it’s in their interest to step up for content creators, neither political party will find the will to challenge the status quo as copyright grows more draconian. Victories for copyright liberalizers will come in the courts, not the legislatures – and for those interested in these issues, Election Day doesn’t represent a meaningful choice between alternatives.