2000-07-23

What's Important? Intellectual Property Rights and Fair Use Laws

Intellectual Property (IP) isn’t like physical property. You can’t locate IP with a physical address like you can a house. IP is abstract and requires different forms of protection than a house or a car. Do the majority of Americans want their laws changed to protect the financial interest of wealthy corporations? Did you know the term for copyright protection was extended in 1998 by 20 years? This means that copyright protection lasts the life of the author plus 70 years. The term for Works for hire last for 95 years from the date of publication or 120 years from the date of creation (whichever comes first). The recording industry is seeking to make record contracts works for hire. How does this promote the arts? What purpose does it serve? For starters, the extension of the copyright protection term kept Disney’s beloved Mickey Mouse from falling into the public domain. Money helps protect your interest.

One of the bill’s strongest supporters was the Walt Disney Co., which lobbied hard to keep Mickey Mouse, Donald Duck, and other Disney characters in copyright for an additional 20 years. Disney Chairman Michael Eisner made his concerns known to Senate Majority Leader Trent Lott, while the company’s political action committee used its influence on other legislators.

Secondly, making musical contracts works for hire increases the revenue for the recording industry, a.k.a. the major labels. This helps the labels keep the fruit of their contracts, i.e. the band’s songs, for life. Even though the artist wrote and recorded a song, the band member’s could only use it with the permission of the copyright holder, the label. If an artist left the label for another, he could lose his songs. Congress is empowered “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries” [US Constitution, Section 8]. This power is carried out through copyrights, trademarks, and patents. Recently, this power has been abused and used to promote profit at the expense of science and useful arts.

Copyrights

What’s wrong with copyrights? For starters, they are abused by industry to prevent fair use. The record companies would like you to believe that you need to buy a copy of a CD for use in your house and a copy of the same music on tape for you to use in your car. Fair use allows you to make a taped copy of the CD for use in your car. Why would the record industry want you to believe this? Simple, about $10.99 for the price of the tape versus no money if you legally copy what you own. It is also legal for you to lend this copy of the CD to a friend. Napster and MP3s increase the scale, not the concept, of sharing music. The Senate has held hearings to discuss the issues.

Corporations would like you to believe that this copying will lead them to bankruptcy. Lawsuits have been filed by the RIAA against anything MP3 related. Industry research has indicated that trading music online actually increases record sales.

Patents

Patents are flawed mostly due to the Patent’s Office inability to effectively determine if software concepts should protected. Many obvious items have recently been granted patent protection. (See CSS, HTML Banner Advertising, and POST)

The consequences of the Amazon “One Click” patent may stifle innovation on the web. Only time will tell.

Trademarks

Trademark law is extremely complicated. If you fail to adequately protect your mark you may lose the protection it affords. It has long been established that different markets could have the same term trademarked. For example, there can be a Longhorn Moving and a Longhorn Grocery. The consumer is expected to be smart enough to afford a distinction between the grocery market space and the moving market space. If the moving company began to sell groceries then there could be a problem, until then all is well.

On the internet things aren’t so simple due to limited top level domains (TLD: .com, .edu, .org, .gov, .mil, .net, etc). What if Longhorn Grocery and Longhorn moving both apply for the domain name Longhorn.com? Is any one company more entitled to it than the other? What if I as a Texas Longhorn fan registered longhorn.com as my personal tribute site to the Texas Longhorns? Should either of these companies be allowed to take the site away from me? Am I cyber-squatting?

In this simple case, the problems of only a few TLDs become painfully obvious. Until their is a fair and accepted method for resolving domain name disputes, the little man will be the victim of corporation’s legal department. Often, domain name disputes are solved by large corporations sending cease and desist letters to the ISP of the domain owner. The ISP will pull the site, as required by the DMCA, and the domain owner will effectively lose the site, unless of course they can also afford an army of attorneys. One such case involves Verizon Networks (formally PrimeCo) letters to

2600 to cease and desist from using verizonREALLYsucks.com and VerizonShouldSpendMoreTimeFixingItsNetworkAndLessMoneyOnLawyers.com.

Find out more about Napster’s legal defense.

In a related note, read about the MPAA’s case against linking to DeCSS [link removed on Feb 25, 2004 because the domain no longer exists–ed.] by 2600.com.