Writing Examples
Copyright and Piracy
This example was written as the final paper for an upper-division Communications course at Alma College. It is an in-depth examination of the history of copyright and how copyright laws are employed today as well as a discussion of current issues such as piracy and the ever-shrinking public domain.
Copyright and Piracy
by Kacie Schaeffer
Introduction
The United States has established itself as a land of ambition and technical know-how. With a rich history of law to support its citizenry, America has encouraged its people to pursue their most intimate desires. Many have sacrificed comfort and security in the hopes that their ingenuity will bring about success or their own creative genius will launch them to fame and fortune. Many Americans are constantly willing to risk stability, knowing that their original ideas, should they become popular, are protected under modern copyright law.
Unfortunately, with the birth of new telecommunications technologies and the evolution of the Internet, the illegal acquisition and distribution of other people's intellectual property has ballooned out of control. Under the guise of protecting artists from this theft, multi-billion-dollar corporations have aggressively pushed for legislation that borders on undermining the legal structure of America and unraveling the rights of its citizens. Copyright, while an immensely broad subject with a rich and complex history, is ultimately a tool used to promote the democratic ideals of expression; in taking a critical approach to dealing with the rapid advances in technology and piracy we face, we must reflect closely upon our copyright legislation and its relation to our superlative objective of allowing society to evolve through the creativity of its people.
Literature Review
History of Copyright
In order to examine the state of copyright legislature and piracy today, one must first understand the history of the term. The Constitution of the United States provides various protections to artists and intellectuals in establishing control of their original work and grants exclusive control over distribution, public performance and display, reproduction, and derivative use. Through the "copyright clause" of the Constitution, Congress has the authority to regulate copyrights as follows:
Clause 8. The Congress shall have Power...To promote the Progress of Science
and the useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries (U.S. Congress, Copyright and Home Copying, p. 65).
This statement has been regarded as paramount to encouraging ingenuity and inspiring creativity in our culture since the founding of our nation.
Historically, copyright protection has not only provided incentive for citizens to produce works of fine art, but it has furthered the democratic process as well. The American notion of copyright spawned from the Statute of Anne, passed by British Parliament in 1709. This act granted authors control over their own works when printers had previously enjoyed full authority over all material submitted to them. The governmental protection lasted for a term of fourteen years and was renewable for another fourteen to still-living authors; after the copyright expired, the work fell into the public domain and was usable by all people in all fashions. Given the success of this statute in quelling the chaotic printing environment of 18th century Great Britain and promoting the trade of literature, the drafters of the U. S. Constitution included a copyright clause in their legislative mandates. Soon after its adoption, the Copyright Act of 1790 granted the creators of books, maps and charts a monopoly on their works for fourteen years, renewable for another fourteen upon expiration of the first term. The Statue of Anne clearly affected American copyright law as the framers of our Constitution looked to emulate the thriving English market in literature.
Over time, the scope of copyright has broadened incredibly. Following the Copyright Act of 1790, Congress extended the term of protection to twenty-eight years through the Copyright Revision Act of 1831. This act also allowed for copyright renewals of a period of fourteen years and grew to define music as a protected creation as well. In 1856, dramatic compositions fell under the blanket of copyright protection; later, in 1865, photographs were included as well. With the Copyright Revision Act of 1909, the term of copyright completely doubled, awarding authors and artists a twenty-eight year monopoly on their creations, renewable for another twenty-eight years. 1912 saw the addition of motion pictures to the expanding list of original works shielded under law, and by 1953, non-dramatic works of literature enjoyed protection from illicit recording and performances. The 1976 Revision of Copyright act extended copyright to the author's life plus an additional fifty years in a broad interpretation of the term "limited time" set forth in the Constitution. The pace with which copyright law is amended has not slowed in the past three decades; computer programs became protected in 1980 and architectural works joined the party just ten years later. Copyright renewal became automatic in 1992, firmly establishing the drastic increase in the duration of legal protection. Most recently, the Sonny Bono Copyright Term Extension Act of 1998 increased the term of copyright to the author's life plus seventy years.
The dramatic leap from a firmly established twenty-eight year period of protection to the somewhat hazy "life of the author plus seventy years" rule has led to the considerable shrinking of the public domain. Considerable debate on the history, original intention, and rapid growth of copyright legislation is taking place as technology spurs controversial issues into the view of the public eye.
Copyright, Trademarks, and Patents
America provides a solid legal foundation for property of all kinds, including intellectual property. Copyright, trademarks, and patents all provide protection of various sorts to creators of original works, but often there is a general misunderstanding as to what will protect whom in which case. Maxine Retsky testifies to the confusion:
At least once a week, I get a call from someone telling me that they want to patent something. After a short discussion, many times what they really seek is trademark or copyright protection...[M]any business people have a hard time understanding the difference between these three types of intellectual property (Retsky, p. 35)...
While all three of these terms imply protection of personal property, their nuances can confound those who do not have experience in dealing with them.
First and foremost, copyright protects the right of expression. This means that copyright law deals with the protection of ideas only once they are reduced to a physical form. As Jordan Blanke of Mercer University explains, "One can obtain a copyright for a particular song, but not for the concept of mixing lyrics with a background melody" (Blanke, p. 226). On the issue of tangibility, Retsky further explains that while one could copyright "a manuscript about a dog who could talk," that protection would not encompass "the idea of a talking dog" (Retsky, p. 35). Copyright also does not protect works that are "trivial or utilitarian," which include titles, slogans, simple designs, ballroom dance steps, and typefaces (Strong, pp. 14-15). Furthermore, in the Feist v. Rural case of 1991, the Supreme Court additionally defined raw, unoriginal data as falling outside the scope of copyright protection. Thus, names, dates, scientific theories, mathematical formulae, and other non-inventions all fall within the domain of the public.
To earn copyright protection today, a work must meet three criteria: originality, expression, and fixation. Originality implies uniqueness; however, existing material may be used in the creation of an original, copyrightable design. For example, this allows collages created from magazines, newspapers, and other protected works to become protected themselves. The idea of expression holds that only one's own development of an idea can be copyrighted. William Strong again reminds us that for example, "...a literary critic who publishes a new theory of the structure of the novel cannot obtain a copyright in that theory; he can copyright only his written expression of that theory" (Strong, p. 11). Fixation is the process whereby unique ideas are made tangible or perceivable to the general public. Federal copyright is granted as soon as a work is fixed regardless of whether or not a copyright mark appears on the material; once protection is granted, the powers of the law extend almost universally.
Patents vary from copyright largely in the scope of the protection they afford. First, only the government can award a patent as no "common law" rights exist. Second, the amount of protection afforded is not clearly defined as it varies depending upon the claims that are filed along with the patent. They can cost anywhere between $5,000 and $10,000 (Retsky, p. 36) to file, expire after a period of time, and are not subject to renewal once their term of use has run out. Finally, patent holders themselves are not required to utilize the patents they might own, but are free to license them to other people or organizations, often for profit.
Trademarks also differ from patents and copyright law in that their scope is very narrow. As with copyright legislation, owners of a trademark are entitled to protection regardless of whether or not the mark is registered with the federal government. However, trademark owners are only entitled to preventing others from using their marks. This applies only if they are currently using the mark, and only if there is reason to believe that the illegitimate use of the mark will confuse confusion with the one who owns it. Filing for a mark is extremely inexpensive, and trademark protection never expires under U. S. law so long as the mark is in current use and the registration can be maintained.
In many cases, entrepreneurs can and do have multiple legal claims on their intellectual property. Often, people choose to take advantage of all the legal protection that is afforded them by the federal government through trademarks, patents and copyright protection. Through exercising these measures, the ambitious and creative people of our society can rest assured that they will reap the benefits of their industry as envisioned by our founding fathers.
Copyright and Books
The law as it pertains to copyrighted books is perhaps the easiest to understand and apply. As the common medium of information exchange for several centuries, the general public is aware that the pages within a book contain a fixed expression of an author's ideas. Most would agree that photocopying the pages of a bound medium directly violates copyright restrictions put in place to ensure that the author is duly compensated for the use of his or her ideas.
Copyright and Computer Software
Computer software is a bit more abstract in terms of copyright as it has only been afforded protection for a few decades. Before the Copyright Act of 1976, software engineers had difficulty in protecting their material; source code is not as easily viewed or understood by the general public as are published works of literature, after all. Despite its transparency, today all software is protected regardless of its origin or the medium through which it is transported. This includes programs transferred via floppy disk, CD-ROM, DVD, and downloaded off of the World Wide Web.
Because of the rapid advances in technology and the extreme point to which software is made available online, software companies began installing security features into their code in an attempt to regulate illegal reproduction and distribution of their products. This has proven mostly useless as the general population is often clever enough to design software that circumvents such protective measures. These so-called "cracks" are available in massive quantities online and are produced at a rate that almost equals that of new security mechanisms. As Debora Halbert explains, "Technology has made possible more sophisticated piracy" (Halbert, p. 84). Despite restrictive license agreements and educational campaigns to promote copyright awareness, software piracy is a cause for concern around the globe, and especially in China, where 96% of the software used is suspected to be illegal (Halbert, p. 85). The U. S. alone lost $110 million in revenue to software pirates in China in 1993 (Halbert, p. 82), and the problem has continued to seriously threaten legitimate business practices in the past decade.
Copyright and Video
One of the most debated issues in copyright history, the advent of the videotape recorder saw furious struggles over the definitions of "Fair Use" and "copyright infringement." Advocates of the television and movie industries feared that the use of video recorders would increase illegal reproduction and distribution of entertainment broadcast on the public airwaves; in 1982, several movie and television studios sued Sony for contributing to copyright infringement. Upon showing that a typical user of a tape recorder owned only three or four blank videocassettes, the Supreme Court decided in favor of Sony, finding that its recording technology had legitimate uses, including time-shifting. Time-shifting refers to the notion that a person can freely record material distributed at an inconvenient time to watch later.
The Sony v. Universal decision of 1984 set the standard for encouraging the development of new technologies while balancing their uses with the needs of those trying to protect their intellectual property. The decision was actually very narrow in scope and does not allow for tape-to-tape transfers of copyrighted material, nor does it legalize the recording of broadcast shows for the building of a personal library. The court did, however, set a standard of tolerance towards new technologies that have potentially legitimate purposes, a stance that recent judges have been recently reminded of as they continue to sort through testimony which might settle the modern debate over peer-to-peer file sharing applications.
Copyright and Music
Copyright and the way in which it applies to music is perhaps the most hotly debated point in the subject of intellectual property rights today. As Sony dealt with the furor over video recording devices, digital audio tapes (DATs) and compact discs (CDs) have met with their share of resistance. Fearing that this new technology would allow the creation of exceptional copies of audio recordings whose quality would never deteriorate, the music industry successfully lobbied Congress to prevent the sale of DAT machines in the United States, effectively killing the medium until 1992, when the Audio Home Recording Act was passed. According to Blanke, the AHRA "requires that every digital audio recording device contain a Serial Copy Management System that prohibits or impedes the copying of a copy" (Blanke, p. 231) while siphoning off a portion of every DAT sale to be used as a payment for royalties.
Music piracy has recently become another major issue with the advent of compression techniques and technologies that allow the transmission of large quantities of copyrighted material in a matter of seconds. The Recording Association of America (RIAA) filed a lawsuit in 1999 against the Rio, a portable music device capable of playing music downloaded from the Web in MP3 format. In the RIAA v. Diamond case, the courts relied upon the precedent set by the Sony case to find that the Rio did not infringe upon copyright as it used "space-shifting" as Sony's Betamax used time-shifting. Around this same time, Napster appeared to create a new thorn in the RIAA's side. A so-called peer-to-peer file sharing application, Napster allowed several million users to swap files over a standard network connection at no cost. As many of these files were copyright-protected music, the RIAA sued Napster and eventually forced it to shut down.
Since the controversy sparked by Napster, several more peer-to-peer applications of varying architectures have appeared. Extremely popular, students and colleagues utilize them to exchange valuable information and files; unfortunately, the birth of these clients has also seen a dramatic increase in the illegal distribution of protected audio and video creations. While many artists welcome the free advertisement, many scorn the loss of control over their own intellectual property. As the Supreme Court listens to testimony on both sides of the issue, we can expect several major decisions to set the standards for our future to roll down from Capitol Hill very soon.
Copyright and DVD
Digital Video Discs (DVDs) are a relatively new technology that allow for the storage of vast quantities of data, which makes them ideal in the world of entertainment for the production of movies. Taking a cue from the Sony case of the 1980's and employing the digital nature of the medium, DVD manufacturers use encryption code that makes the discs difficult to copy. Fearing the appearance of various "cracks" with which to easily decode DVD encryption, Congress passed the highly controversial Digital Millennum Copyright Act (DMCA) in 1998. This legislation made circumventing anti-piracy provisions a crime despite the "Fair Use" precedent that had reigned for decades.
The movie industry is in a state of turmoil, much like the recording industry. With DVD recorders becoming massively available on the horizon, the appearance of illegitimate and perfect digital copies of movies will become problematic soon. With the Internet as a transport, these pirated copies will have an infinite range of distribution, much to the dismay of those who claim protection through copyright.
Discussion
Several issues are clearly at hand when one pauses to consider copyright. First and foremost is the issue of the definition of "limited time" as it relates to the subject in the Constitution. At this pinnacle of copyright-induced monopolies, the public has begun to voice serious concerns over the quickly evaporating public domain. While artists are entitled to the protection of their works, many average people are concerned that copyright has overstepped its bounds and is dampening the ability of democratic citizens to expand upon ideas that rightfully should belong to the public. At the heart of the issue seems to be a corporate interest to generate as much revenue for as long as possible, with little heed paid to the original intention of copyright—that is, to encourage social interaction and expansion upon one another's ideas for the betterment of culture as a whole. When financially powerful companies lobby for legislation that protects their "bottom line," the public cries foul. In the case of Disney, whose Steamboat Willie version of Mickey Mouse was due to enter the public domain in 2003, the Sonny Bono Copyright Term Extension Act has deprived the public of a beloved character whose creator passed away almost a lifetime ago. Well-known show tunes and plays are also off-limits for the time being, to the dismay of several.
Similarly, attempts to discourage piracy have in effect trampled the rights of the average citizen. At the DMCA's behest, Americans are no longer entitled to the archival copies of legitimate software, movies, and music that they once enjoyed. The act has also stifled research on decryption, hindering the education and progress of our country. Meanwhile, the RIAA and MPAA continue to bully peer-to-peer file sharing services into submission, filing lawsuit after lawsuit and throwing subpoenas at would-be pirates across the nation. The paranoia has met with little success; pirates are bolder than ever while ambitious entrepreneurs shy away from expanding upon file-swapping technologies. While rights to intellectual property must be protected to the fullest extent possible, the restrictive legislation and business practices of the modern day do little to alleviate the problem, and instead infringe upon the rights that we, as Americans, hold the most dear.
Conclusion
In all, one cannot discuss copyright and piracy without examining the many facets of these issues completely. While technology makes illegitimate practices easier than ever, we cannot simply ban the Internet to remove the problem—at least, not without ruining the very foundation upon which this great country stands. Similarly, we cannot allow corporations to throw a tantrum every time one of their precious icons is due for release into the realm of the public, or to balk at every infant technology that might make a pirate's job that much easier. We certainly cannot simply allow people to fling each other's private intellectual property all over the World Wide Web without recourse. Ultimately, our legislation will be shaped by balancing a series of evils against one other. We must voice our opinions as the courts issue judgments on these controversial issues, lest more freedom-stripping DMCAs and money-grubbing Copyright Term Extension Acts find their way into our legal system. Most of all, however, we must remember the original intent of copyright to inspire us to build off each other's experiences and ideas, to cooperate, and to challenge one another to build a better tomorrow sooner.
Sources
Alderman, J. (2001). Sonic Boom: Napster, MP3, and the New Pioneers of Music.
Cambridge: Perseus Publishing.
Artz, J. M. The Central Problem in Cyber Ethics and How Stories Can Be Used to
Address It. Found in Brennan, L. L. and Johnson, V.E. (2004). Social, Ethical and Policy Implications of Information Technology. pp. 274-293. Hershey: Information Science Publishing.
Blanke, J. M. Copyright Law in the Digital Age.
Found in Brennan, L. L. and Johnson, V.E. (2004). Social, Ethical and Policy Implications of Information Technology. pp. 223-233. Hershey: Information Science Publishing.
Campbell, R. et al. (2005). Media & Culture. Pp. 97-101. Boston: Bedford/St.
Martin's.
Clement, D. (2003). Creation Myths.
Found in Peloso, J. (2003). Intellectual Property. pp. 5-16. New York: H. W. Wilson Company.
GartnerG2. (2003). Copyright and Digital Media in a Post-Napster World. Berkman
Center for Internet & Society: Gartner, Inc.
Halbert, D. J. (1999). Intellectual Property in the Information Age: The Politics of
Expanding Ownership Rights. Westport: Quorum Books.
Hoffman, G. M. Ethical Challenges for Information Systems Professionals.