Intellectual Property: Rights in Conflict?

The Recording Industry Association of America (RIAA) grabs headlines regularly as it goes after—in law courts and the court of popular opinion—individuals who share files online using peer-to-peer (P2P) networks. By targeting pirates, as file-swappers are called, RIAA hopes to make such sharing so socially unacceptable that it eventually withers away. The fact that file-swapping is illegal under copyright law sure doesn’t seem to be persuasive.

One reason why legality isn’t persuasive is that pirates don’t view their activities in the same light as RIAA does. Most share files not because they’re trying to profit from them, nor claim credit for them, but simply to share them with others who want them. To pirates, file sharing is like loaning out a book, or recording a favorite TV show on video to watch at one’s convenience. It’s “fair use”, they claim. But is it really fair use when the scale changes from one or two people sharing information, to thousands of people sharing information? What about those who created that content, usually with the expectation of customers paying for access to it? Don’t creators have rights over the distribution of the works they create?

Shift of scene: a woman is working late at home, when she realizes she left a vital file on her office computer. Since they’re networked, it should be no big deal to download the file. Her attempt fails. Thinking it’s a glitch in the file, she tries to download the software she used to create the file. That also fails.

Welcome to “digital rights management” (DRM). In part due to piracy concerns, software companies are controlling the use of digital files, through various mechanisms that restrict access, file use, modification, and printing, among other things. The new Microsoft Office suite uses DRM. Whether “locking” files is an answer to unauthorized copying is unclear. Critics of this approach claim that the technology can be used to lock individuals in to brands of hardware and software, and force them to remain locked in. It gives the seller unprecedented control over an individual’s computer and the files he creates. What about the people who need flexibility in creating and using files among machines and applications? Shouldn’t the owner of a computer be able to use his machine the way he wants to?

These scenarios highlight just a few of the many complexities surrounding intellectual property issues: creator rights and user rights inevitably collide. Teasing out the details, and the market principles underlying them, is torturous.

Even so, many have waded into the murky waters. Stephan Kinsella wrote a thoughtful analysis [essay no longer available] of various approaches, and concluded lawyers are too financially invested to be unbiased. Douglas Clement examined a controversial economic analysis that rejects the need for copyright and patent protection, and labeled the theory “a formidable attack” on the validity of intellectual property concepts. Roderick Long and John deLaubenfels engaged in an interesting exchange of essays debating this issue, while a popular discussion forum wrestled with the question of music piracy and crashed repeatedly due to high interest.

David Freddoso claims that allowing unfettered copying will “destroy civilization” [essay no longer available]. But many of the artistic works prized today were created without the protectionism offered under copyright, patent, or trademark law. As mentioned earlier, most P2P sharing can be viewed as large-scale fair use, while in places like China pirated content is packaged and sold as legitimate material. Are there attempts to bring the perpetrators to justice? Arguments like RIAA’s would be much more convincing if those pirates, not college students, were their targets. Unchecked, the control offered by DRM would create real market monopolies, and a digital divide far higher than the access-based one, as individuals are both locked into and out of software, systems, and hardware choices.

Ilana Mercer disparages copyright protections as “nonsense on stilts”. The realities of easy file-sharing and the continuing ability of people to crack security systems necessitate acknowledging that current legal systems are inadequate to deal with the challenges they bring.

Artistic creations may not be the same as physical property—in many respects they aren't property—but there must be a market willing to exchange value for the value artists create in order for them to have incentives to create. Direct sales between artists and consumers are blossoming on the internet in large part because of the flexibility of the free market; it provides an easy way to bypass record company bureaucracy and desire for control. Other voluntary means, such as donor-funded projects (like JPFO’s documentary film Innocents Betrayed) or a private patronage system (which still exists, but on a much smaller scale than existed during the Renaissance) are two other possibilities that avoid much of the conflict between creator and user rights that exists today.

However, solutions that work for the artistic world will likely not work well for other industries struggling with copyright and patent issues, such as the pharmaceutical industry. In both areas, onerous regulations help create conflict between creator and user, and highlight the need for private solutions rather than regulatory ones to the challenges illuminated by new technologies. State intervention, whether by RIAA’s attacks or DRM’s looming techno-totalitarianism, will only serve to widen the chasm between market players.