âI would like to leave you with the impression that if you make a single illegal copy of our software, you will spend the next five years in court, the following ten in prison, and forever after your soul will suffer eternal damnation.â
âV. Rosenburgh, âCopyright and the New Technologyâ1
Introduction
Access to ideas, and to the physical embodiments of ideas, fundamentally shapes our opportunities, goals, and lifelong projects. The explosion of computer technology and the proliferation of digital networks has radically altered the way that ideas and information are gathered and manipulated. New models of information access and control promise profound changes for each of usâas life-altering as the changes that flowed from the introduction of Gutenbergâs press, Darwinâs theory of evolution, or Pasteurâs germ theory of disease.
In modern times the debate over the control and ownership of digital information and intellectual property has been waged by two factions. Standing in the way of the cyber-punks, hackers, and net surfers who claim that âinformation wants to be freeâ and that intellectual property rights give undue credit to authors and inventors, are the collected cannons of Anglo-American copyright, patent, and trade secret law. Defenders of these institutions typically argue that granting rights to authors and inventors is necessary for the optimal production of intellectual works and the corresponding gains in social utility. Information, like any other commodity, can be bought and sold on the open market. Following Nathaniel Shaler many defenders of intellectual property argue that âthere is no property more peculiarly a Manâs own than that which is produced by the Labour of his mindâ2 or â[I]t will be clearly seen that intellectual property is, after all, the only absolute possession in the world. . . The man who brings out of nothingness some child of his thought has rights therein which cannot belong to any other sort of property.â3
Conversely, opponents argue that intellectual property rights give undue credit to authors and inventors and serve to restrict the free flow of information that would otherwise benefit everyone. Another reason why many individuals find it difficult to recognize intellectual property rights is that they see ideas as part of oneâs common culture. Ideas are not to be corralled or hoarded upâthey are the common currency of thought, speech, and language.4 Thomas Jefferson wrote:
If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of everyone, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should 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 in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property.5
Jefferson was impressed with the non-rivalrous nature of intellectual propertyâintellectual works can be used and consumed by many individuals concurrently. He was certainly opposed to granting intellectual property rights to ideas already in the public domain. While Jeffersonâs metaphor of passing light or fire along to others is a strong one, I wonder if he would defend this view if the creator of the light had labored ten years to produce it. In subsequent chapters I will argue that the non-rivalrous nature of intellectual works leads in a different directionâtoward intellectual property rights.
Modern day disciples of Shaler and Jefferson push further and argue in a similar fashion as exhibited by the quote that begins this chapter and the following view expressed in the Bellagio Declaration:
In general, systems built around the author paradigm tend to obscure or undervalue the importance of âthe public domain,â the intellectual and cultural commons from which future works will be constructed... [w]e declare that in an era where information is among the most precious of all resources, intellectual property rights cannot be framed by the few to be applied to the many... We must reimagine the international regime of intellectual property.6
Moreover, international treaties like Trade Related Aspects of Intellectual Property, known as TRIPS, seek to pattern the global information infrastructure after Anglo-American copyright law. Defenders of rights to intellectual property find this agreement promising in that the rights of authors and inventors can be protected internationally. Many hackers, cyber-punks, programmers, net surfers, and others, support âidea anarchyâ and argue for complete access to all kinds of information. This latter view is echoed by the policies of many developing countries who hold that intellectual works are social, not individual, products. It is claimed that the result of these latter attitudes about intellectual property has led to an explosion of copyright violations and international piracy. Consider the following table which focuses on international computer software piracy.
Table 1.1 Worldwide Software Piracy Table
Source: Business Software Alliance, 1992/1999
â... a 36 percent global piracy rate (1999) is still substantial. Currently more than one out of every three software applications installed in the world is pirated. This translates into $12 billion lost due to software piracy. In the U.S. alone, software piracy cost 109,000 jobs . . . â7 While this overstates the case because it is assumed that those who obtain goods from software pirates would have purchased legal copies, these numbers in the area of software ownership are alarming to those who would defend institutions of intellectual property.8
Things may be even worse for the recording industry where music swap sites like Napster make piracy easy and cost free. âNapster allows you to search for almost any song . . . finds the song on a fellow enthusiastâs hard drive and then permits you to get the song for yourself, right nowâ9 You can then bum your own CD, download the song to an MP3 player, or simply cue it up on your own computer. Millions of college students and music junkies have been flocking to Napster or similar sites and amassing huge music librariesâfor free. One artist manager claimed, âBasically theyâre saying our art is worthless . . . music used to be collectable now it is disposable.â10 Lars Ulrich, the drummer for Metallica, put the point the following way. âThis is an argument about intellectual property . . . where does it end? Should journalists work for free? Should lawyers? Engineers? Plumbers?â11
Even so, many argue that the information age has passed by the old, and now outdated, copyright paradigm. Where institutions of copyright may have worked well for the written page they cannot be retrofitted to accommodate the bit streams of digitized intellectual works. John Perry Barlow, a writer for Wired Magazine, echoes this view:
This vessel, the accumulated canon of copyright and patent law, was developed to convey forms and methods of expression entirely different from the vaporous cargo it is now being asked to cany. It is leaking as much from within as from without... Legal efforts to keep the old boat floating are taking three forms: a frenzy of deck chair rearrangement, stem warnings to the passengers that if she goes down, they will face harsh criminal penalties, and serene, glassy-eyed denial... Intellectual property law cannot be patched, retrofitted, or expanded to contain digitized expression any more than real estate law might be revised to cover the allocation of broadcasting spectmm (which, in fact, rather resembles what is being attempted here). We will need to develop an entirely new set of methods as befits this entirely new set of circumstances.12
The problem generated by the digitization of intellectual property for copyright and patent is that these institutions protect durable physical expressions, but digital property is hardly physical or durable in the same way as books, movies, or processes of manufacture. Intellectual property law has always sought to separate the idea from its physical expression, granting ownership rights to the latter but not to the former: âthe rights of invention and authorship adhered to activities in the physical world. One didnât get paid for ideas, but for the ability to deliver them into reality.â13 Many within the Anglo-American tradition claim that ideas are public property while physical embodiments of ideas may be privately owned. A major problem for an online age is that there may be no way to separate idea from expression. If so, modem Anglo-American institutions of intellectual property will have to be reworked, or maybe even abandoned altogether.
Complicating things still further are the issues that surround individual privacy, public accountability, free speech, and information control. There is an obvious tension between privacy and free speech. While thought, expression, and a free press are recognizably beneficial they are not always soânot when what is expressed unjustifiably invades private domains. The balance struck in the last century between privacy and free speech is being overturned by digital networking and information trading. For example, with the right kind of computer savvy, I can now go online and find out intimate personal details about almost anyone and offer it all up for public consumption. Moreover, if I am sly enough I may be able to do this anonymously.
Information gathering technology is promising to turn our work environments and public streets into an Orwellian nightmare. Video surveillance, genetic screening, global positioning systems, and purchasing profiles may leave us with little privacy. Information about our medical histories, phone numbers, addresses, and eating preferences is owned and traded by information brokers, including our government. Computer technology and digital networks such as the Internet or World-Wide-Web have changed the game, so-to-speak.
These issues raise deep philosophical problems. What is intellectual property and can rights to intellectual works be justified? Are abstract ideas and information, even sensitive personal information, the proper subjects of ownership? Can computer software and other digital information be protected? How should legal systems accommodate the ownership of intellectual property in an information age and what role should privacy rights play? Should protection extend to the electronic frontier of the Internet and the World Wide Web? What is the moral position of those who violate the intellectual property rights of others and how does this compare to the violation of physical property rights?
Throughout this work I develop answers to these questions or at least try to provide strategies for answering them. As we move further into what many call âthe information age,â clarity is needed at the philosophical level so that morally justified policies and institutions can be adopted with respect to intellectual property and information control. It is my hope that this work will facilitate and further philosophical inquiry in this important area.