Thursday, February 16, 2017

The Ethical Issues of the Internet: Intellectual Property and Copyright

If you are like me, and millions of others around the world, then you are a fan of the HBO series Game of Thrones. Game of Thrones also has the distinction of being the most pirated show of all time (Goldman, 2016). Piracy has always been an issue in the entertainment industry and the internet only has compounded the problem. However, when it comes to intellectual property rights and copyright when it comes to the internet, piracy is only a small subset of the ethical issues that are now occurring. Additionally, despite first appearances, there is still arguments being made about the ethical issues surrounding intellectual property and copyright law. One of the key ideas to many people concerning the internet is the notion that it provides a forum for the flow of ideas, something that seems to be at odds with traditional intellectual property rights.

Intellectual property is defined by the World Intellectual Property Organization (WIPO), as the "creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce" and is protected by various laws including patents, copyrights, and trademarks (WIPO, n.d., p. 2). However, as the Game of Thrones example shows, some of the largest contributors to the rise of violations with intellectual property are due to the ease of access and low costs associated with copying information provided on the internet. Additionally, the internet provides a layer of anonymity that makes protecting intellectual property harder and quickly it becomes apparent that maybe traditional view of intellectual property rights might not be a model that fits the internet (Bessen & Maskin, 2004, p. 1).  Despite these hurdles, many intellectual property and copyright laws underwent a transformation in the 1990s due to the increasing popularity of the internet (Flanagan & Maniatis, 2008, p. 69).

Intellectual property and copyright law have their history in the Paris and Berne conventions, respectfully (WIPO, n.d. p. 3). The first major treaties that deal with the exploding digital world and the internet were the WIPO Copyright Treaty (WCT) and WIPO Performances and Phonograms Treaty (WPPT), both in 1996 (Flanagan & Maniatis, 2008, p. 86). Many readers might be familiar with these treaties as the law passed in the United States implement the changes, the Digital Millennium Copyright Act (DMCA).

However, due to the rapidly changing technologies and innovation occurring during that time (and possibly the misunderstanding of the internet for many lawmakers) many facets of the treaties were either uncovered or carried unintended consequences. Take for instance the fact that according to Google, 57% of all DMCA takedown notices are sent from companies targeting their competitors, with 37% not even being valid (Gibbons, 2009).  Another example, and one of the biggest complaints about the DMCA, is that people are not allowed to legally "rip" or copy CDs or DVDs they have purchased in order to create backup or personal copies. The webcomic xkcd demonstrates why, thanks to proprietary protection software and changing technology, this is such a problem; especially as more people begin to buy strictly digital media products, like music on iTunes.   
 

It is this principle of fair use is where a lot of legal and ethical gray area begin to appear. Take down notices and fair use claims are now common to many more people because of social media and internet sites such as Youtube. In fact it wasn't until recently that courts even upheld fair use as an affirmative defense against copyright claims, and force companies to act in good faith concerning fair use before issuing a DMCA take down notice (Lenz v. Universal Music Corp, 2015). That case is currently being appealed and the Supreme Court is deciding whether or not to hear it. And if you wanted to see the video Stephanie Lenz posted that Universal Music deemed copyright infringement, it is right below.


While Universal was originally able to take this video down as a copyright violation, I doubt many people would find the video itself unethical. In fact, it would have probably been much smarter for Universal to reach out to the creator of the video, providing links to Prince's album, instead of the knee jerk reaction to remove it entirely. A short-sighted view that has now cost them a fortune in court costs. This video also highlights a viewpoint that many people have regarding the internet and how its inherent interconnected nature makes the traditional copyright and intellectual property right ideas seem ill fitted.

Bessen and Maskin (2004) argue that two unique aspects about the internet in particular make it troublesome for traditional intellectual property and copyright laws: interactive communication and sequential improvement (p. 2). Take for instance this blog, at the bottom you can comment and a discussion can occur, but the intellectual property rights begin to get muddled, a large problem consider that online discussion happens on almost every website now, not just blogs, but Youtube, news websites, etc.

The other issue is with sequential improvement, especially in regards to software which is constantly being developed based on innovation and competition (Bessen & Maskin, 2004, p. 4). Patent eligibility is still in a gray area when it comes to software and the internet. When is a competitor stealing your ideas versus just improving on them? Is something as fundamental as online banking as an idea eligible for a patent? It seems that for now patent eligibility is destined to be determined at a case by case basis, see the famous Alice Corp v. CLS Bank International case in 2014 as an example of software being determined illegible for patent, while the recent case of Enfish LLC v. Microsoft Corp. (2016) upheld patent eligibility claims.

Bessen and Maskin (2004) feel that because of the unique challenges surrounding the internet, a weak form of intellectual property law makes more sense. They go on to say,
moderately weak intellectual property protection is optimal. The best sort of intellectual property rights are strong enough to prevent direct copying and knock-off products, but weak enough to encourage the greatest amount of cross-licensing and sharing of information between competitors.

I would have to agree with them, and it appears that as the internet continues to evolve, intellectual property rights and law must continue evolving right along side it, or risk becoming obsolete altogether. The whole problem is captured eloquently by the National Research Council's Committee on Intellectual Property Rights in the Emerging Information Infrastructure who said:
The committee believes that the issue of intellectual property in the information infrastructure cannot be viewed as solely a legal issue (as it was, for example, in the white paper Intellectual Property and the National Information Infrastructure, IITF, 1995)1 or through any other single lens. Such an approach will necessarily yield incomplete, and often incorrect, answers.
Without the answers, the ethical gray areas concerning the internet and intellectual property and copyright law will persist.


References:

Alice Corp v. CLS Bank International. (2014). 134 S.Ct. 2347.

Bessen, J. & Maskin, E. (2004). Intellectual property on the internet: What's wrong with conventional wisdom? Retrieved from http://www.researchoninnovation.org/iippap2.pdf 

Enfish, LLC v. Microsoft Corp. (2016) U.S. App. LEXIS 8699, 2016 WL 2756255. Retrieved from http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/15-1244.Opinion.5-10-2016.1.PDF

Flanagan, A. & Maniatis, S. M. (2008). Intellectual property on the internet. London, United Kingdom: University of London Press.

Gibbons, T. (2009, March 15). Google submission hammers section 92A. PC World.  Retrieved from http://www.pcworld.co.nz/article/483729/google_submission_hammers_section_92a/

Goldman, D. (2016, April 25). One million people watched pirated copies of the Game of Thrones premiere. Retrieved from http://money.cnn.com/2016/04/25/media/game-of-thrones-piracy/

Lenz v. Universal Music Corp. (2015). 801 F.3d 1126. Retrieved from https://scholar.google.com/scholar_case?case=12567649168680108221&hl=en&as_sdt=6&as_vis=1&oi=scholarr

National Research Council. (2005). The digital dilemma: Intellectual property in the information age. Washington, D.C.: National Academy Press. 

World Intellectual Property Organization. (n.d.). What is intellectual property? (WIPO Publication no. 450E). Geneva, Switzerland. 

6 comments:

  1. Nice post. Your point about weak form of intellectual property seems to align with the points Larry Lessig made in his TED Talk - that in a digital age, copyright can “choke creativeity.” See – https://www.ted.com/talks/larry_lessig_says_the_law_is_strangling_creativity?language=en

    Lessig developed Creative Commons as a means for individuals to take control of their licensing. I have used Creative Commons on my blog and in Slideshare for 8 years now – anyone can freely copy and use my words so long as they (1) share their own work in a like manner, (2) give me attribution for my work, and (3) do not profit from my words. Lots of people have taken me up on that.

    https://creativecommons.org/

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    1. I agree that newer and less restrictive forms of licensing can help increase creativity. Similar to the Creative Commons license is the GNU General Public License (GPL), which is a very successful software license. Linux for example falls under the GPL. Both GPL and Creative Commons are examples of so called Copyleft (https://en.wikipedia.org/wiki/Copyleft), which as technologies continue to become more pervasive and intertwined in our lives we will see a larger push for in order to remain viable.

      Chris

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  2. Christopher:
    I appreciated your post since we both selected the same topic. I was curious if you looked into parody versus copyright/intellectual property infringement. When I worked at the advertising agency, we often would "parody" song lyrics/famous quotes to help our client stay engaged with trending topics. Have you ever experienced this or researched the topic?
    Thanks-Krista

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    1. Parody is an interesting case because the courts have often ruled that it a form of fair use and therefore, many of the things I discussed under that topic apply there as well (see: https://en.wikipedia.org/wiki/Fair_use#Fair_use_and_parody). However, I do admit that there seems to be a finer line especially because parodies can often be monetized and still be protected. Another issue I find that walks that fine line is satire, with more direct "copying" occurring it can be much harder to rule whether it should be protected or not, although I personally believe that both satire and parody should fall under fair use more often than not.

      Chris

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  3. Great post! Really nice job with the research and resources, and a fascinating discussion. It is interesting to consider that 57% of the takedown notices Google received under DMCA were simply attempts to cripple the competition, and another 37% were spurious. Doing the math, only 6% of the complaints were actually valid copyright claims. Sorting through mostly unfounded claims seems like an unreasonable burden to place on a company. It looks like Google is fighting back by decreasing rankings for sites that submit a large number of unfounded takedown requests (http://searchengineland.com/dmca-requests-now-used-in-googles-ranking-algorithm-130118).

    I love the xkcd cartoon you shared, the one that shows that we are going to be criminals if we switch operating systems. It reminded me of Men in Black, when Agent K shows Agent J a new mini CD and says “This is gonna replace CD's soon; guess I'll have to buy the White Album again” (https://www.youtube.com/watch?v=q3OTEdZkBaQ). I found the clip on YouTube, of course. Part of YouTube’s early success is attributed to not paying much attention to copyright laws. A Harvard Business Review article by Edelman (2015) noted that YouTube estimated it would lose about 80% of its content if copyright infringement was monitored, and therefore made a strategic decision to adopt a weak copyright policy.

    It will be intriguing to see how intellectual property and copyright laws adapt to a networked world. It seems that the Internet is forcing us to rethink the entire patent system. While I see a need for change, I appreciate that America’s founders wanted strong copyright protection to encourage inventors, people like Bell and Tesla who made America great. Are those same laws are now hindering innovation? You have given me much to think about!

    -CatOnKB


    References

    Edelman, B. (2015, January 6). Digital business models should have to follow the law, too. Harvard Business Review. Retrieved from https://hbr.org/2015/01/digital-business-models-should-have-to-follow-the-law-too

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    Replies
    1. CatOnKB,

      You bring up an interesting point concerning Youtube's content early on and the stance it forced them to take. One of the most difficult problems facing copyright on the internet is that there can always be a new competitor pop up. I agree with Youtube that had they removed that target they probably would have never broken out of the crowded market space like they did. Edelman makes some good points and I believe that ultimately he is right that regulations need to be adapted to the industry otherwise companies will continue to ignore laws/regulations that are hard to implement in order to remain competitive. One of the biggest issues is figuring out a way that companies can both work to protect intellectual property and the user experience. With the inherent interactive and community nature of the internet, should companies be 100% liable for actions taken by their users?

      Chris

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