Rebirth of Reason


Theft At the Speed of Light!
by Barry Kayton

We're living in a fantastic age of invention. Gadgets that were the stuff of science fiction only two decades ago -- such as cell phones and handheld computers -- are now commonplace. These technologies, like all those that preceded them, bring fantastic benefits that tend to change not only our behaviour but the structure of economic relationships within and between countries. However, the arrival of digital media poses unprecedented challenges.

To make sense of some of these challenges, this article poses the following questions:
  1. What are the facts that differentiate analogue technologies from digital technologies?
  2. What industries besides the music industry are facing (or will soon face) the challenges posed by digital media?
  3. What are the facts that give rise to the concept "public domain"?
  4. What is the status of a right that de facto cannot be protected?
  5. What can Objectivism offer to protect intellectual property rights?

1. What are the facts that differentiate analogue technologies from digital technologies?

The process of copying an analogue source of music (say an LP) to another analogue medium (say a cassette tape) results in an imperfect copy. Not so with a digital source, copying process and recording medium which create perfect copies.

The analogue copying process also tends to take longer, whereas it is only a matter of time before digital copying technology makes possible instantaneous copies.

For these reasons -- imperfect copies and a long copying process -- analogue technologies posed a milder threat to the creators of intellectual property than do digital technologies.

However, there is a third distinction that is perhaps the most fundamental. For analogue technology the content of an intellectual property is usually inseparable from a physical medium: vinyl LPs; celluloid films; paper books. But for digital technology, the intellectual property takes the form of zeros and ones which can be encoded, copied and recorded with absolute fidelity in any digital medium: hard drive; RAM; ROM; DAT; CD; DVD; Memory Stick.

In other words, when you buy an analogue product you really buy two things: the right to limited use of the intellectual property and the ownership of the physical form in which it takes shape. The threat of digital technology is that it separates the intellectual property from a controllable physical medium. It makes the sale of intellectual property independent of controllable physical objects. This makes the theft and the illegal trade of intellectual property not only possible but easy. It's theft at the speed of light!

This doesn't make the theft right but it does render: the act of theft virtually invisible; the apprehension of offenders difficult; and the immorality unclear to the uninformed.

2. What industries besides the music industry are facing (or will soon face) the challenges posed by digital media?

Just as CDs threaten the economic structure of the music industry, so DVDs are threatening the economic structure of the movie industry. Both technologies make the act of piracy virtually as easy as writing down a telephone number.

But other creators are also threatened. A good friend of mine is a photojournalist who regularly finds his photographs being reproduced without permission. The response of the offending parties is always the same: "Sue me." They know that the process of seeking compensation is more costly than the compensation he can demand. Litigation tends to be more painful than profitable.

Software companies have had to battle piracy from day one, a scourge that is estimated to cost billions of dollars in lost revenue annually.

The publishing industry is under threat from the Internet, but this threat is insignificant next to the threat of future technologies that may replace books completely. (I cannot see myself ever preferring some sort of book-sized ebook reader to the real thing, but younger people may one day be more comfortable with a gadget.)

Finally, as the legitimacy of intellectual property as such is called into question by the irregularities of digital media, other industries are suffering the contagion: for example, patent rights in the pharmaceutical industry are under threat. It is argued by many activist groups that the dire need for certain drugs (particularly anti-AIDS drugs) overrides corporate intellectual property rights. Some campaign for temporary relaxation of patents. Others demand that these patents be scrapped completely and that these drugs should be regarded as having entered the "public domain".

3. What are the facts that give rise to the concept "public domain"?

Firstly, "public domain" is not a synonym for "public property". Public properties are tangible assets (land, buildings, machines and other entities) the ownership of which is vested in a government agency of some sort. By contrast, "public domain" is a state of ownership that applies only to intellectual property.

Intellectual property that is in the "public domain" is regarded as belonging to no one in particular and therefore available to anyone with no conditions attached. The concept only seems to have meaning in relation to the concept of copyright. A piece of music or a novel is protected by copyright upon its release. Only once the copyright expires does it enter the public domain.

What enters the public domain is only the intellectual property (not its physical form). My copy of Anthem remains mine. But the text can be republished in America with impunity because it is now in the public domain. (Elsewhere it remains protected by international copyright law.)

Clearly, the meaning of "public domain" has nothing to do with the ease or difficulty with which intellectual property can be stolen. However the meaningfulness of "copyright" does have something to do with enforceability.

4. What is the status of a right that de facto cannot be protected?

The rights to life, liberty and the pursuit of happiness are inalienable, meaning that they cannot be sold or transferred to another. By contrast, the right to property is alienable precisely because property can be traded.

Fundamental individual rights (especially property rights) are a characteristic feature of capitalism. Property rights are anathema to communists (who want ownership vested in the collective). Property rights are an illusion under fascism (where individuals may hold title of ownership but government retains control over the use and disposal of property). And property rights are meaningless in a state of anarchy (where ownership cannot be guaranteed).

So the meaningfulness of any particular "copyright" depends greatly on the system in which it is recognised and the process through which it can be defended.

My photojournalist friend holds copyright over all his photographs. But in order to reproduce a photo in a magazine or newspaper, the image must take digital form, and the data may legitimately pass through several computers before being dispensed with. Any one of the operators involved is able to make a copy which may then pass to other hands illegitimately. The point is that once a photo is scanned at high resolution and made available to a client for one-time use, the photographer really ceases to have control over it.

So this is really the unprecedented challenge posed by digital media: ownership of property is meaningless if you cannot control it. In other words, in what sense can we say that someone enjoys a right to something if, de facto, it is impossible to enforce the right?

Look at the issue a little more closely. With analogue recordings an artist's copyright to the intellectual property is protected by a chain of agents (the producer, the distributor and the retailer) who hold the right of ownership over the physical product (say an LP) at each step of the sales process. When the buyer takes ownership at the end of the process he or she buys the physical product and the right to limited use of the intellectual content.

But the artist's intellectual property right (to the high-fidelity or high-resolution recording) is also protected de facto by the nature of the technology employed (since second or third generation recordings are never as good as the master). Until the arrival of digital media, artists were able to retain control over the best recordings. That is no longer the case.

Digital technology eliminates both the protection afforded by the various agencies involved in selling the physical products and the even greater protection offered by primitive technology. De facto, digital technology leads to a state of anarchy with respect to intellectual copyright.

5. What can Objectivism offer to protect copyright?

Objectivism builds a philosophical defence of minarchy: government limited to its core function of defending life, liberty, property and the pursuit of happiness.

As Objectivists we ought to be debating what kind of systems and processes (that are compatible with our political principles) will eliminate the anarchy brought about by digital technology.

We are faced not with an ethical challenge but with a political challenge. How can a limited government make copyright in digital media enforceable in law and in reality without regulating the technology or violating rights to privacy?

The problem is that piracy is widespread, investigation and conviction difficult, and recoverable compensation limited.

So the solution needs to take some form that is equally widespread, makes investigation and conviction simple (yet robust enough to withstand abuse), and the recoverable compensation worthwhile.

Here is a suggestion I offer purely for debate:
  1. Establish a special system of courts that only hears intellectual property cases;
  2. Allow cases to be brought by private citizens against offenders on behalf of victims;
  3. Empower judges to grant warrants to investigators to search specifically for a particular intellectual property violation;
  4. Make the standard of proof substantial (specifically to throw out cases in which it is possible that the defendant is being framed);
  5. Make the fine substantial;
  6. Disperse the fine equally between the plaintiff and the victim.

The virtues of this system are as follows:
  1. Having a special system of courts would not disrupt the existing system (or allow the existing system to delay cases), and would empower specialist judges, prosecutors and attorneys to deal with these cases;
  2. Allowing private citizens to act on behalf of intellectual property owners may make the identification of piracy widespread;
  3. Allowing limited warrants would not jeopardize rights to privacy;
  4. Defining the standard of proof sharply would give greater protection to the innocent;
  5. Making the fine substantial would make clear the illegitimacy of piracy;
  6. Dispersing the fine 50% to the person who brings the case would incentivize people to identify pirates. (Although I admit that I am uncomfortable with this suggestion.)

It may be that technology will resolve the anarchy that results from digital technology. But technology will not spare us from the challenge to extend Objectivism. We need to go beyond theory to describe practical suggestions for law and systems that are compatible with Objectivist theory. We need to explain to people how individual rights -- especially intellectual property rights -- can be protected without giving government the power to interfere with legitimate commerce.

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