Intellectual Property Protection in the Internet Age

Last month, I bristled in print over Microsoft targeting small businesses and home users with its Windows Product Activation (WPA) process. (And in case you're thinking, "Oh, no, not another WPA piece," please stay with me. WPA isn't the focus of this commentary, just the catalyst.) Many of you wrote to tell me that you agree with me, but many others wrote to tell me that my view of the world wasn't quite accurate. Those folks said that, although many of us are careful about our software licenses, they'd seen plenty of software piracy in homes and in businesses large and small. Clearly, I need to listen when that many readers talk. I was wrong, and Microsoft's claim that it loses at least some money to piracy is justified.

That doesn't mean I think WPA is a good or justified idea—I don't. I still believe that although Microsoft has the right to protect its copyrights, the company doesn't have the right to do so in a manner that wouldn't be available if the company weren't a monopoly. If you don't think Microsoft is doing just that with WPA, then ask yourself why Microsoft doesn't use a WPA-like tool in its Windows CE/Pocket PC OS. I believe Microsoft doesn't use WPA on these devices because the company has only a small share of the PDA OS market and faces stiff competition from the Palm OS world.

Unfortunately, I think Microsoft's experience with software piracy is part of a larger problem in society: a lack of ethical education about intellectual property. I'm tempted to call this mind-set the "Napsterization" of copyright attitudes, but truthfully, Napster simply made easier a class of theft that too many Americans don't see as theft. If Napster creator Shawn Fanning had invented a simple-to-use, low-risk tool for breaking into houses and stealing money and valuables, the public would have vilified him for his creation. Most of us would be horrified by a tool that enables the invasion of our homes and theft of our property. But we don't feel that same horror about the theft of intellectual property from music, text, and software artists, as shown by the success of Napster, the Napster clones, and, worst of all, Aimster. (For those readers who don't know, Aimster is a more-decentralized Napster. Napster stored MP3 files on client disks but kept a central list of servers and content. So, although one could argue that Napster-owned servers held no pirated intellectual property, Napster's opponents argued that maintaining a central directory of servers where one could find stolen intellectual property was tantamount to hosting the swag. Aimster, in contrast, doesn't maintain a central database of MP3-filled servers. Instead, the software helps you find "buddies" so you can build your own file-sharing community. Instead of suing Aimster, defenders of intellectual property rights would need to find and sue each of the millions of people hosting Aimster servers.)

Don't misunderstand me: I have no problem with file-sharing systems in general or the Aimster/Napster/Gnutella/whatever users who don't host stolen intellectual property on their servers. But a bit of lurking on those systems shows me that illegal files are the rule rather than the exception.

Far too many people have tried to convince me that they have a right to use copyrighted materials because doing so costs the artists nothing. These people argue that if they'd had to pay for the content (e.g., software, music), then they'd never have bought it. Or they argue that they just wanted to try the item before they bought it, or they didn't think it was reasonable that they should buy something that they'll use only once. Others argue that the cost of copying a CD or CD-ROM is mere pennies, so why should they pay dollars or hundreds of dollars for the CD that contains the copyrighted work?

All of these arguments miss a crucial point: They're consumer-side arguments. Consumers don't have the right to make those judgment calls—the artist does. An intellectual property's control—or most of it—lies in the hands of the intellectual property's creator: the artist, developer, or author. In many cases, the artist signs that control away to someone else (e.g., a publisher, distributor), but only the identity of the controlling individual changes.

An artist's control is not absolute; consumers have the right to resell or otherwise dispose of copyrighted materials. No matter how much Garth Brooks dislikes it, you can resell your old CDs. And eventually, copyrights expire and works become public goods: There are several rules, but in general, a copyright expires 70 years after the artist's death or 120 years after the work's release if built "for hire." (Just think, in 2120, you'll be able to give away Windows 2000 Server for free!) If you're interested in more information about copyrights, see the URLs at the end of this commentary.

An artist's control of his or her works is also affected when the artist's rights conflict with other laws, as in the case of Microsoft: Which is more important, Microsoft's right to change the rules for distributing its products or society's right to make laws restraining the power of a monopolist to arbitrarily price its goods? Microsoft forcing customers to deal with WPA effectively raises XP's price, so who has the greater right—Microsoft or society? I've offered my opinion, but I can easily see the other side of the argument.

The most righteously delivered argument that I hear goes like this: "Look, Mark, things are different now. You can't turn back the hands of time; Napster changed the world, and the law is behind the times." But current copyright law is not some musty 18th-century edict—it's actually less than 3 years old. Yes, that's right: The last time that Congress and the White House overhauled US copyright law was October 1998, with a bill called the Digital Millennium Act—a revision of the copyright act that aimed to bring copyrights into the Internet Age. If anything, the Act strengthened artists' and publishers' rights to protect their intellectual property. Nor is the Act just some backward American notion; one of the Act's main goals was to bring our copyright law more in line with intellectual property laws of other countries (some of its content came from a United Nations agency called the World Intellectual Property Organization). So, like it or not, copyrights are the law of the land.

Some societies still exist that offer little or no protection to intellectual property creators. The result has been a very small output of creative works from those societies—except for those works the rich and powerful commission. It's possible in modern Western society for a J.K. Rowling to cook up a terrific series of Harry Potter books and go from rags to riches. It would have been a shame if only a few hundred people bought her books, and the rest just downloaded them from Napster. I doubt we'd have ever seen "Goblet of Fire" in that case.

People's minds are the hardest thing in the world to change, but I've seen it done a few times in my life (attitudes about drinking and driving, racism, and sexism spring to mind). I'd like to see the part of the world that considers itself civilized start to teach its children—and perhaps its adults—to value and respect the fruits of other people's creative endeavors. If not, we won't have many of those works to enjoy in the future—just the ones that the government and the rich pay for.

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