Luncheon speaker: Jessica Litman

by David Todd

The ownership of ideas and the control over their representation, both virtual and tangible, has long been manifested in the realm of intellectual property. Intellectual property laws have typically been based on a number of assumptions, including the structural characteristics of the industries for which they are created to protect and assign rights. Embedded within these assumptions are the concepts of authorship, inventorship, distribution, and an implicit demarcation of territoriality. As businesses redefine and reorganize themselves to take advantage of computerization, the elimination of trade barriers, and the adoption of the Internet as a stable platform to build a new economy, the traditional underlying assumptions surrounding intellectual property issues must be called into question.

Jessica Litman challenges the assumptions of both the past and present by problematizing the intellectual property regime in a global marketplace in which territoriality collapses and distribution is no longer faced by the constraints of space and time. She understands the current state of copyright law as equatable to the "demonization of unauthorized use". a precedential move that is marked by a fundamental shift from the copyright tradition of the past.

200 years ago, copyright reserved a limited number of rights for a limited time to a limited number of authors. The logic of this was rational enough - controls held by authors were consciously structured to narrow the author's rights while allocating enough control to provide for the extraction of some commercial value. The purpose behind granting this type of copyright system was first and foremost to provide the fruits of the author or inventor's labour to benefit the public at large and to ensure modest protections on the owner's work.

Over the course of some 200 years, however, the copyright system has changed on a fundamental level, and Jessica Litman notes that the United States is on the forefront of re-defining these changes. Over the course of the past century, copyright law has evolved from a quid pro quo framework into a model that is rooted in economic analysis embodying an economic incentive to distribute works. This established a direct relationship between copyright extension and authorship. The principle of "fair use" thus established its paramountcy, as authors and publishers alike required a level of protection as an incentive to produce works.

Over the past five years or so, copyright has shifted away from an incentive model and has now become an issue of control. Control. however. requires the assignment of power over the uses of a product. Thus, the RAM copy issue, and the copying of MP3 files, to name a few examples, represents a watershed moment in the development of copyright control. Here, anything that might be resemble the "effect" of piracy is deemed to be an act of piracy. The industries which have a vested interest in copyright protection now interpret unauthorized use as theft, as an act of piracy. The negative connotations of theft and piracy resonate, and the "demonization of unauthorized use" pervade socially, politically, and legally. This has been manifest by a call for action to obtain extensive legal protection against behavior that was deemed legitimate, and desirable, only a decade ago, when control by copyright owners over some uses while leaving others to the public was a desirable feature of the copyright legal scheme.

How do we work within the parameters of this emerging control regime, where the cyberpirate/unauthorized user is reifed as the evil other? Jessica Litman offers two possible solutions: Attempt to persuade the courts to read the law in a way that is more reasonable, or, failing that, engage in widespread non-compliance of the law that has transformed unauthorized use into the demonization of piracy.