I was inspired to write this post following Josh Fenton‘s recent appearance on TWiL. Denise Howell asked Mr. Fenton whether he believed that existing laws should be interpreted to encompass the internet and applied accordingly, or whether new laws should be drafted and previous laws updated in lieu of the omnipresence of the internet. The relevant transcript from the podcast follows:
Denise Howell: Josh, you had a piece on your JetLawyer site that I read that was basically urging . . . we’ve talked about cyberspace exceptionalism before on the show — a term that Eric Goldman uses quite a bit, and your piece on your site was basically arguing against that. That you should treat property in the real world and property when it takes the form of bits the same way. I’m wondering if you feel like there’s a parallel here as we’re talking about communications. Should you treat them differently when they’re in the form of bits?
Josh Fenton: I don’t think so. I think that the easiest way to deal with the questions that arise in the digital age is to make the connection to the analog concepts that existed before the internet came along. And to that extent, things like piracy, and conventional larceny, they are comparable.
I don’t mean to pick on Mr. Fenton here because I think that his position that old laws should be interpreted to encompass the internet is perfectly reasonable. In fact, such a position was my gut reaction when posed this same question by Professor H. Brian Holland during his cyberlaw course. More to the point, I can appreciate that it might be the default position of a digital progressive. The internet is a ubiquitous part of our lives, and many of our daily activities on the internet have real-life analogs: chatrooms are like parties; instant messages are like phone conversations; email is like snail mail; YouTube is like television; blogs are like newspapers (or journals, depending on the blog). So it’s easy to appreciate why people like myself, who have effectively grown up using the internet, might assume that the easiest solution to legal questions arising in light of the internet is to treat the virtual world like the real world.
If advocates would simply acknowledge the issue as a legitimate concern, and offer an argument as to why it should not govern, their counter policy arguments would seem much more credible.
The problem is that every single example I gave above is far more complex than its real life analog. Imagine that I’m hosting a party and I want to play a board game with my friends. I’ve already gone out and purchased the game, it’s in my house, and we’re ready to go. No complex issues of law arise. Now imagine that I want to play the same board game in a chatroom. Perhaps the easiest solution is to take a digital picture of the actual board or stream a video of the board over the course of the night. Can I transmit those images to the chatroom? Have I already violated various trademarks and copyrights just by taking the picture? Suppose I digitize the entire board game for archival purposes, converting manuals into PDFs and using high resolution images for the content, and then my computer is hacked, and a copy of the game is made and downloaded from my computer. The latter hypothetical is particularly apposite because traditionally speaking, I will have been entirely divested of the tangible property if it’s stolen from me. This is especially true where the original copy of the “good” was digitally distributed. The hacker now finds himself with an exact copy of the software I purchased, with no degradation in quality whatsoever. Am I now culpable for negligently assisting in infringement?
Regardless of how superficially similar the virtual world may appear to the real world, we are faced with an entirely new set of problems that have arisen merely by virtue of the prevalence of goods that can be infinitely copied without loss of quality. For the most part, these problems could never have been anticipated by the legislature, and expecting their rationale for enacting these laws to hold up in light of new problems that arise only in a digital medium is presumptuous at best.
I am strongly in favor of giving citizens the traditional property rights to which they have grown accustomed over the centuries
Does that mean that intellectual property owners should have a trump card that reads, “I need X because my property is infinitely reproducible and I need protection?” No, it doesn’t. But it does mean that these arguments shouldn’t be thoughtlessly dismissed. I read far too many scholarly articles that advocate for laws more favorable to internet consumers, that subsequently fail to address the issue of harm to producers in light of infringement. In actuality, I have found that these types of arguments made by content producers generally are meritless (e.g. the producer claims to need more stringent protections on its IP even where its revenue derived from IP is consistently outperforming other aspects of its business and thriving in an economic downturn). If advocates would simply acknowledge the issue as a legitimate concern, and offer an argument as to why it should not govern, their counter policy arguments would seem much more credible.
Please do not misunderstand me: I am strongly in favor of giving citizens the traditional property rights to which they have grown accustomed over the centuries, but in our fight for digital equality, I firmly believe that ignoring the fact that tangible property and virtual property are fundamentally different only hurts the cause.
[Photo Credit to Erik Mallinson]