Copyright In Cyberspace: Unshaken But Not Unchanging.

I read two articles over the weekend. They were completely at odds. One was in an Internet-specific journal, suggesting that the Internet mandates new thinking about law, commerce, technology, and culture. The other was in my metropolitan newspaper and it was basically a call to arms, boldly declaring that property is property, regardless of the Web. The status of ideas and creative verve is central to the function of the systems integrator and the OEM. Therefore, the issue of copyright is relevant to your work.

Right now, two major technology issues are very much in the news. One is the Solomon-like decision to split Microsoft into two non-cooperating entities. The other is the war over music copyrights. The war begs a number of questions about the nature of ideas and how or whether they are shared. It is this latter issue that needs some exploring.

On one side, cyber-protectors insist that the Web is a different breed of cat. They cultivate a world view that says that no one can clearly define what copyright and intellectual property mean in virtual space. Those people who haunt the Web have built their own cultural databases, if you will. They are made up of Web bookmarks, movies, music, trendy home pages, and more. They represent a point of view well expressed by Lawrence Lessig in Code And Other Laws Of Cyberspace: "If you 'take' my idea, I still have it. If I tell you an idea, you have not deprived me of it. Your consumption does not lessen mine. Ideas, at their core, can be shared with no reduction in the amount the 'owner' can consume. The difference is fundamental..." Finally, they suggest that the structure of the Internet alters the way that one must view many traditional ethics and values, including definitions of theft, content, and property.

On the other hand, my newspaper reprinted a "Perspective" piece based on the speech of a music industry executive. The content was what you would expect from the business community. Intellectual property is property, period. Ideas are property and, if intellectual property is not protected in every situation, it will face extinction. References are made to the My.MP3.com case in New York and the Napster case in Northern California. This thinking also condemns anonymity on the Internet as the digital equivalent of wearing a ski mask while robbing a bank. The implication is that privacy and anonymity are blurred in the speeds and feeds of cyberspace and the lack of distinction would harm our culture, our society, and the long-term growth of the Internet.

The truth, if there is a truth, lies somewhere between the free-wheeling views of cyberspace dwellers and the narrow, profit-inspired views of those who exploit ideas and creativity for sometimes outrageous profit. Many of the original settlers in the New World that became the United States came here to establish rights to property ownership. Such rights were denied by many European nations due to religious affiliation or political alignment. Nothing is closer to the American idea of freedom than the ability to enjoy the fruits of one's labor.

Yet even America's founding fathers were not united in their views on the issue of exploiting ideas for gain. Thomas Jefferson might have been in the middle of the cyberspace/copyright dispute when he wrote: "That ideas should be freely spread from one to another over the globe, for the moral and mutual instruction of man and improvement of his condition seems to have been peculiarly and benevolently designed by nature when she made them like fire, expansible over all space without lessening their density at any point, and, like the air,... incapable of confinement or exclusive appropriation. Inventions, then, cannot in nature be a subject of property."

Music is a particularly difficult area of intellectual property. It is a multibillion-dollar industry and dynasties can rise and fall based on ownership of a songwriter's vision or a performer's interpretation, but music is more than a cold piece of property, like a telephone or an automobile. Music has a cultural presence, impacting listeners whether they are consumers of the music's medium or not. There is likely some point at which music that molds our culture belongs "to the ages." It is the province of philosophers, musicians, and legislators to identify such a point. It is too important an issue to leave to the business community. Intellectual property is property...but it is often much more and this added dimension is what makes music a difficult area of IP.

In information technology, the same kind of impact isn't always obtained. The newest processor or operating system is unlikely to excite the same kind of cultural tidal wave as the newest musical release from a popular rock group, but the theory is the same. Are the copyright laws, as currently instituted and enforced, protecting the users of intellectual properties, as well as their owners?

The assault made by music industry executives and their legal attack dogs on anonymity on the Web deserves comment. They suggest that we must restrict the anonymity behind which people hide to commit crimes and that anonymity must not be equated with privacy. I believe the logic is flawed from both legal and historical perspectives. It is the same logic that bigoted legislators, especially in the deep South, used to argue that membership lists for the NAACP or the Congress on Racial Equality should be made generally available. Anonymity is valid to protect a user from embarrassment or to shield a user who elects to speak out on a controversial issue. (Check out the court opinion in ACLU vs. Miller in 1997 down Georgia way.) Wiping out this protection of free speech and association could be considered too great a sacrifice. At the beginning of this editorial, the analogy was used likening anonymity to wearing a ski mask to rob a bank. That does not mean that you should not be making ski masks. They have their place: on the slopes or on a public street, if the user wants.

If we were living in Voltaire's "best of all possible worlds," or Shangri-la, or Erewhon, or Thomas More's Utopia, the views of the cyber-guys and cybergals would probably hold forth and all ideas would be freely flowing. If we were in the Renaissance, the brilliant composers, performers, artists, and inventors would have patrons who would support them as they provided creative product for the betterment of the human condition and the development of cultures.

Yet we have very few modern-day Medicis and, for the time being, the composers, performers, artists, and inventors need to exploit their creativity financially. This is tremendously sad... I would prefer to live in the Utopia or Shangri-la, but creativity could suffer if there is no recompense for creativity and originality. Anthony Trollope summarized it well in his An Autobiography: "Take away from English authors their copyrights and you would very soon take away from England her authors." Yet true as this is, the current copyright laws are inadequate because they are focused on property rights alone. Those we trust with legislating such issues must make some kind of provision for culture: "the moral and mutual instruction of man and improvement of his condition."