Revolutionary technologies always disrupt society and one of America’s biggest “digital age” disruptions is occurring in the area of intellectual property (IP). Indeed, the digital revolution has re-ignited a heated debate over whether intellectual property is even property at all.
The issue gained prominence a few years ago when five major record labels sued Napster, a peer-to-peer service that allowed Internet users to trade illegal copies of songs. The trial highlighted a major problem facing intellectual property holders: new technology makes it easy to illegally copy and distribute digital products like songs and movies.
The flip side of this problem is that it’s now easier for consumers who legitimately purchase digital products to make back-up copies for personal use. These changes have led to an emergence of two radically opposed groups looking to change IP policy.
The first, and so far more successful group, can be called “IP expansionists.” This group is mostly composed of Hollywood types who want to increase profits by expanding the definition of IP beyond its proper scope, regardless of infringement on fair use and free-speech rights.
The passage of the Digital Millennium Copyright Act (DMCA) and the Sonny Bono Copyright Term Extension Act, and the introduction of bills like the Peer to Peer Piracy Prevention Act and the Consumer Broadband and Digital Television Promotion Act (CBDTPA) show that the expansionists are currently winning in Congress.
For instance, under the DMCA it is unlawful to bypass copy protection on a legitimately purchased DVD in order to play it on a Linux-operated computer.
While some legislators are now introducing laws to fix these problems, something else is happening. Hollywood’s lobbying success has led to a dangerous new enthusiasm for the second extreme, the “IP abolitionists.” This group includes thinkers such as right-leaning Chapman University law professor Tom Bell and left-leaning free software proponent Richard Stallman. While thinkers on the left have traditionally placed less value on property, it is unsettling to see an anti-property stand from those on the right.
The IP abolitionists believe that while it is legitimate for a company to use technology to protect digital goods, it is not legitimate to use the power of the state to do so because the goods are not genuine property. They argue that intellectual property is not true property because you can’t exclude someone from it in the same way you can with physical property. For example, if you take away tangible property like a car, the owner no longer can enjoy the car, but with IP, the creator will always have and be able to use their copy.
But this doesn’t make sense because while the original creator might always have a copy of his work, he is robbed of the profit that he would have made by selling the goods he created with his labor.
The second argument is that since the U.S. Constitution only explicitly recognizes IP as instrumental (i.e., it exists to give creators an incentive to create more works which “promote the progress of science and the useful arts”), IP is not a “natural right” deserving the same protection as tangible property.
This ignores the moral argument that a person’s labor should be rewarded with property, and often the “proof” for this statement is given in instrumental terms: “people won’t have any incentive to produce creative goods if they aren’t rewarded.” The founders focused on the instrumental aspect, but it doesn’t mean they didn’t agree with the moral.
The spirit of copyright and patent laws means to reward labor rather than simply promote the useful arts. For example, one can hold a patent without ever using it and register a literary work for copy protection without ever publishing it. This suggests that there is an underlying understanding that IP is rewarded because it should be, not simply to make sure that there is more of it around for the public good.
There is much more to say about this debate and both sides will be looking for followers. While some legislators have noticed flaws in the expansionists’ goals, the abolitionists are silently gaining ground. The public should stay tuned because the very legitimacy of intellectual property may be at stake.
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