Posted By: Drew Weigel
The notion that copyright, in part or in whole, might be an inadequate theory of property for digital media is not new. Some have responsibly argued that the statutory distinction between performance and distribution falls apart when applied to digital media, creating a false and unnecessary distinction between interactive and non-interactive digital communications. Others have gone off the deep end and argued that copyright itself had developed into collective brain damage, fostering a permission culture where expression in a digital era is diminished or completely silenced by fear of infringement. We’re going to descend even further into madness and explore why the heuristics of copyright law—inherently based in property traditions from nobody remembers when—fail to protect that which is demonstrably too elusive to be protected under the same theory.
INTRODUCTION: The Sharing Economy. Argument Made, You Can Go Home
Oho! Thought you could get off that easily, matey? Well there’s no sign of land, so run up some rum and relax while I tell a tale of tentacled monsters, living skeletons, and priceless treasure that spans the seven seas.
In the beginning, so they say, Copyright law struggled to define electronic media as a protectable property interest. The laws it settled on for protecting earlier media such as radio and television—which digital media rights were eventually based in—did not require a perfect logic to enforce copyrights. One-way transmissions were de facto controlled by centralized media corporations. For decades, companies were able to compensate for lack of legal protections by exclusively maintaining systemic control over the means of production and distribution. Lawsuits were mostly limited to matters of unauthorized transmission relay. Legal analyses applied to airwave transmission generally lacked a need to question the character of the media itself or the potentiality for systemic, cultural dissemination.
This system began to degrade with the advent of facsimile machines and later the personal computer. Now consumers had access to means of digital production and distribution. Several foundational cases established a legal ambivalence to mere possession of replicative technologies through the “substantial non-infringing use” defense. But the temptation was too strong, and, drunk with power, computer users developed the internet, throwing the entire system into chaos. By then it was too late, and legal precedent had effectively encouraged widespread reproduction of works as computing continued to integrate with society. Today, 84% of Americans own computers, at least half of whom pirate casually.
The impracticality of digital copyright derives from this computer network effect. Although there are creative aspects to personal computers, their fundamental function will always be the storage and transmission of information. The creation of such a versatile machine, (literally) virtually untethered by material, manufacture, or capture, has all but destroyed the doctrine of copyright. Nearly 20 years later, the slow and limited protections afforded by the Digital Milennium Copyright Act remain disappointingly impotent. Only a few large service providers have been held to any level of accountability, to marginal degrees of success. Cyberspace remains vast enough to harbor countless smaller distributors of pirated or repurposed content. Sniping individual infringers is resource-prohibitive, and only serves as a mild deterrence for sharing culture at large.
When rules fail to consistently interpret reality, as the present failure to adequately align abstractions with proprietary interests evidences, this often suggests the application of heuristics to facts they did not derive from. Below is a contextualization of digital media with respect to several fundamental principles of copyright, and why they are crude at best, or castrated at worst. Just follow the P’s.
And alas and lackaday, the whale is always smaller than described. This article will not address the strong-arming of service providers by tentacular conglomerates nor the questionable legitimacy of corporate authorship. Conversely, the repeated ignoring of calls for an unconstitutionality ruling on post-mortem term extensions and the often unafforded fair use defense will also not be addressed. Undoubtedly, much of the equivocation behind digital copyrights is motivated by opportunism, but operability is the primary focus of this discussion. And treasure.
Furthermore, the musings herein will hopefully call into question the tired and barbaric presumption that property rights can and ought be extended to everything, in turn forcing careful reconsideration of whether digital copyright infringement is a solvable problem. Or perhaps whether it is a problem at all.
THE PRODUCTION FALLACY: Artificial Scarcity Amidst Creative Oversaturation
At the heart of every theory of intellectual property is commercialization, the belief that creativity is incentivized by facilitating monetization. The spoils, the loot, the booty. Congress justifies economic incentives through the Progress Clause of the Constitution, granting it the power “[t]o 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.” It primarily achieves this through artificial scarcity, imposing access restrictions on otherwise countlessly reproducible items, including the creative works of artists under the doctrine of copyright.
In previous centuries, it was reasonable to approach copyright in terms of the reproduction of chattels, since physical artistic works take considerable time and expense to produce. “The sweat of one’s brow” was often justification enough to claim any sort of property right in absence to a stronger claim of priority. However, after the ability to cheaply produce publications assumed ubiquity in American culture, mere effort was discarded as a standard of copyright originality.
Scarcity of creativity, particularly digital creativity, is rapidly becoming a thing of the past. Anyone with a computer can make digital art using any sort of freeware or open source software available (or pirated software, for some brave souls). The exponential advancement in processing power and applications in computers has effectively reduced cost of production (and reproduction) of many works to zero. Moreover, despite abysmal or nonexistent copyright protections, creative output has never been higher in the history of the United States.
Many content-generating communities such as Linux, Wikipedia, and Raspberry Pi continue to thrive despite being substantially open source and relying on volunteer content contributions. Content has become infinitesimally cheap to be proffered freely on mega-hosting sites like Youtube, Spotify, and Apple Music, yet as sites like Patreon, Kickstarter, and Steam have demonstrated: users will still pay fair market prices for quality products and services even if they can get them for free elsewhere. And even a cursory glance at creative hotbeds such as DeviantArt, FanFiction, and KnowYourMeme shows the extent to which artists are willing to create and publish content—often narrowly skirting if not outright infringing copyright—with no expectation of commercial gain.
The failure of copyright to protect digital work product is not inherently detrimental to promoting the useful arts; instead, it forces digital authors to maintain a reputation of quality if they hope to retain patronage. Thanks to the internet, commercialization is becoming de facto less dependent on the creativity expressed in the art, but the creative reputation of the artist. What’s more, in a medium where creative space is quickly filled by thousands of freely-developed and obvious variants, any argument of original authorship becomes not an argument of individual creativity, but of whether opposing parties have the resources to locate substantially similar works—with each day, more assured to exist somewhere—in an ever-growing sea of content. As copyright abolitionist Nina Paley has noted, innovation these days is a largely matter of hiding your sources. The current threshold of creativity in this light appears no more than an argument from ignorance when applied to the limitless digital black-marketplace of ideas.
THE PROTECTION FALLACY: The Enforcement Race Against Zero Marginal Reproductive Cost
Copyright originated in English jurisprudence under the Statute of Anne in the 18th century to create a proprietary, public right for authors to protect their works against exploitation by publishers. The East India Companies of printing presses, monopolizing distribution. A similar theory of copyright was adopted by the United States in its first Copyright Act of 1790.
Until the Copyright Act of 1976, the rationalization of copyright was intuitive and practical. The proper machinery (or manual labor) could mass produce physical media at a cheaper cost than to create the original from scratch. Reproduction was limited to whatever the machine could produce and the availability of raw materials, so there was always a prohibitive cost, range, and speed of production. Therefore copyright derived from physical media copies, irrespective of method of manufacture. Enforcement of copyright was not unreasonable with respect to chattels, given that, on average, printing a docket and delivering a notice of appearance required a comparable amount of time and resources to manufacturing a product and shipping it, even with the assistance of machinery. Copyright law continues to derive itself from this archaic definition of fixed expressions in tangible media, and although this relatively minor flaw does not substantially obstruct copyright of chattels, it belies deeper issues of utter inoperability in cyberspace.
Personal computers, particularly when connected via the internet, are substantially more versatile than machines contemplated by the foundations of copyright theory. Unlike physical machinery, limited to producing specific articles of manufacture, the design of computers is generally nonspecific to their replicative capabilities. They are designed to reproduce any digital media with the proper instructions. With increased processing power that can be combined and organized into clusters, grids, clouds, and peer-to-peer based systems like blockchain, finding the proper hardware is typically easy, leaving software as the primary barrier to access. And, as noted previously, chances are fair that most software or code of obvious utility has already been developed, and can be found through many sites which encourage online collaboration and free dissemination of information (albeit many requiring licensing; another flavor of questionably effective copyright enforcement).
More importantly, the cost and speed to reproduce digital media is nominal. Distribution has been democratized to an alarming degree, where tens of millions of users can support a system of content sharing. An important aspect of physical copyright is the inherent limitations of physical production; this allows a legal framework constrained to physical due process to keep pace with and eliminate infringement with some degree of efficacy. Digitally, when media enters cyberspace, it could feasibly be replicated millions of times before the owner becomes aware of infringement. The ocean is no longer harboring pirates; the ocean is made of pirates.
Not even auto-adjudication through takedown notice loopholes, ignoring issues of unconstitutionality, have managed to adequately mitigate infringement. The application of any theory based in personal property to something so easily replicated and distributed is almost fated to fail without a means of enforcement that is equally swift and pervasive.
THE PROPERTY FALLACY: Capture and Control of the Intangible and the Unfixed
The origins of property itself are found in a rule of capture. When much of the natural world was still unsettled and unclaimed (and, by extension, “original”), a common law right to ownership was established by a rule of “capture,” essentially granting proprietary rights to whoever acquired and maintained control over an object first. This is a reasonable foundation of ownership: humans are ultimately limited by our own physicality, and so too is our ability to control property.
In modern times, nearly everything capturable has been laid claim to, although the rule still applies to a few niches such as underground reservoirs, game animals, and extraterrestrial objects. In absence of a rule of capture, property has since derived from a general principle of control. Issues of title and trespass, including curtilage, adverse possession, loss or misplacement, nearly every basic theory of property depends to some extent on the claimed owner’s ability to maintain a reasonable degree of exclusive control. You are captain of the ship, provided you can defend against boarding, mutiny, and capsize. Intellectual property follows this pattern by granting exclusive rights to authors and inventors if they can establish some element of control over the property, be it the secrecy of business methods, the detailed description of patents, or the establishment of secondary meaning in trademarks.
The rule of capture finds poor purchase in digital media. The most obvious complication is that digital media is not physical property one can maintain physical control over. Unlike chattels, digital media is not reassuringly discrete and tangible, able to be measured in karats, surrounded by a fence, or locked in a vault. It might even be argued that one can’t have absolute control over digital media, given that ownership is always contingent on having an uncorrupted hard drive, a functioning user interface, and in many cases a subscription to some sort of software provider. If the user is fairly computer illiterate, their ownership is completely within the good graces of several layers of sophisticated yet easily damaged technology. And, with an internet connection, any claim to exclusivity can be compromised by hackers or malware.
A right to digital media is predominantly dependent on incorporating security features into the “work” itself and declaring anticircumvention after the fact. Yet, unlike other forms of property and copyright, staking a claim through encryption is a desperate, singular barrier against complete dissemination and dilution of the property interest. If that fails, the work may as well be considered in the public domain and the copyright prematurely abandoned. More importantly, the idea of devoting any encryption resources to mere commercial entertainment seems petty and myopic when there are more important and delicate systems to protect like user privacy, financial banking, and national security.
Conversely, evasion of digital copyright infringement is often as simple as physically removing digital copies from locations reachable by cyberspace. Much of casual piracy is still performed through the exchanges of “physical” copies; the rate of in-person sharing in the United States remains roughly equal to that of online filesharing. In a cruel sort of irony, the transposition of digital media to physical property, illicit or otherwise, also establishes a reasonable degree of control over the copy. Removing online accessibility but retaining access to the work in any form in effect restores the necessary elements of de facto capture and control.
Undoubtedly a major fear motivating digital copyright was the disappearance of physical copies into the unrestricted possibility space of the internet; curious that digital art is so abstracted from the matter projecting it that the reverse is equally problematic. The Crown can’t touch your schooner if you’re hiding it along the Barbary Coast, or better yet left it beached up the Nile.
THE PERFORMANCE FAILURE OF DIGITAL COPYRIGHT: The Law of Infinities
Taking these fallacies together reinforces an observation that the theory of copyright was narrowly developed for and best suited to an economy of physical media. Nearly the entirety of classical copyright theory was developed long before virtual copies were ever viewed as anything resembling property. Historically, virtuality was protected from reproduction by the inherent intangibility of mental projection. Virtual property simply did not exist; a right to one’s thoughts was and continues to be presumed as the indispensable matrix from which all other freedoms derive implied by the First Amendment. Similarly, the protection of communicating thoughts is presumed under a right to free speech.
Today, computers in many ways function as extensions of users’ minds, storing and transmitting ideas as equally intangible as thoughts. The virtual world of cyberspace connecting them functions predominantly as an optimized community of instantaneously communicated and accurately reproduced information. Cyberspace quickly developed into a global conversation between users; applying a blanket theory of proprietary rights to expressions in digital media is tantamount to claiming copyright over any incidence of human dialogue. If computers are, in many ways, cognitive extensions of our mental identity, then digital copyright amounts to censorship of expressions that might as well be thought and spoken by the users themselves. And yet this model is inherently unconstitutional, since the barrier separating cyber-thought and cyber-speech is too thin to maintain a reasonable expectation of privacy. The question is further begged whether the fragility of privacy for infringers precludes expectations of private digital property for all internet users, including copyright holders (the answer is… yar?).
The Copyright Office attempted to justify registration of software as protectable art under a “Rule of Doubt” by comparing it to the blueprints for a bridge, a reasoning it maintains to this day. However, if an argument from doubt isn’t shaky enough a foundation, the bridge analogy too is a weak rationale, since bridges are primarily functional, as are the blueprints encoding their functionality. They are only protectible inasmuch as the buildings they describe are nonfunctional, monumental, or substantially decorative. Courts have similarly attempted to institute the same “literal” requirements for copyrightable software, however they neglect to observe that the separability of concept, authorship, and property found between blueprints and architecture would equally apply to software and the “art” it encodes. Separability which in fact does exist between a CPU comprising instructional code and the interface used to assemble the art into a display or performance.
It seems a strong tradition of entitlement has imposed a property paradigm by argument of analogy while skirting issues of actuality. Digital information is virtual, not actual, regardless of the semantic gymnastics performed to argue a protectible physicality. A more valid analogy is the comparison to thought under a computational theory of mind. Until an agent fixes the idea of a thought in a medium there is nothing expressive to protect, just disorganized, representational ideas. The thought “encodes” the art but is not itself the medium or expression, instead informing assembly as purely functional instructions.
Certain expressions of digital media might in theory be protectable if assembled and fixed permanently, but assuming anticipatory protection over the code which produces it is akin to extending copyright of a book to the printing presses, the manual transcribers, the authors themselves. Copyright law may allow for seizure or destruction of means of reproduction, but for digital media the code to construct the work is defined as part of the work. This is the inherent paradox of digital copyrights; any digital publication inherently invites reproduction because the (as defined) media in which it is “fixated” also serves as the means of production and distribution. Efforts to establish evidence of infringement are further complicated by the fact that the media—and therefore the art—is easily alterable at any iteration. The only true way to maintain control comparable to physical reproduction over digital works is not to publish digitally and prevent them from entering the meme pool.
There are, of course, other ways to protect digital media. These largely remain impractical due to the inability of the legal system to modernize. On one hand, the quickest courses of action are still subject to a classically reactionary legal framework. Only the largest companies engage with content-detection algorithms, whereas most content creators are usually too late to prevent dissemination by the time they discover infringement and file a takedown notice.
The difference is that, under stricter registration guidelines set by the USPTO case law, anticipatory enforcement is required to retain a patent or trademark monopoly, and each successful infringement claim strengthens future infringement claims. Digital copyrights, despite arbitrarily existing for long periods of time with minimal registration requirements, are typically only enforceable retroactive to infringement.
On the other hand, seeking actual restitution is almost always too time- and cost- prohibitive to perform on a scale coincident with the dissemination. Infringement suits are usually leveled at major offenders like in other areas of intellectual property, but enjoining the first or most obvious copyright infringers does not prevent dissemination by entities the owner failed to sue. The protection of digital copyrights is more akin to trade secrets than a legitimate intellectual property, one perhaps better regulated by fair business practices or at least limited to works of substantial craft and effort. Indeed, it gives one pause why a theory of property is used to justify an enforcement model which invariably cares more about circumvention than the copies themselves.
With this, we arrive at the crux of why digital copyright is (presently) unenforceable. Patents and trademarks—with some conceivable but rare digital exceptions—can relate infringing use of their ideas to individual practitioners. X person is selling Y product under Z mark. Digital copyrights cannot do this; when digitally copyrighted information is infringed online, it is almost certainly at the hands of entire internet communities freely exchanging information. These communities are large and diverse, and will continue to organize and share content faster than the law can effectively police them. Copyright is opening fire on internet users when its war is against the internet itself, the very thing which allows mass distribution and commercialization of art in the first place. And it is losing.
CONCLUSION: We Crew the World, a Fact Copyright Should Embrace
There are entire websites dedicated to pointing out that nearly every work is derivative. Critics argue that art is selecting from and arranging decidedly finite elements, or question whether the identification of creativity with compositionality is even sound to begin with given a finite semantic vocabulary. Part of the confusion surrounding “what is art” with respect to copyright is this ideal of “originality,” Too often, “originality” rides on patent-esque reasoning which prioritizes novelty over aesthetic. This is a nonissue for patents since utility always remains a more central consideration, but in copyrights represents clear usurping of their foremost purpose. In a culture with access to so much content, the threshold and its rationale would best be acknowledged as obsolete.
But more at fault is the ideological divide between treating copyright as communication and as design. All “art” by the minimum creativity threshold is communicative, but communication is merely speech, the conveyance of perceived facts. Any argument from interpretation appears to be misapplication of trademark’s secondary meaning doctrine, which doesn’t change the author’s intended message nor the amount of thought and labor invested in the work. It is only design, the labor and skill with which the medium is crafted—much like the original “sweat of one’s brow” doctrine—which reliably correlates to a quantifiable investment in aesthetic value beyond mere communication. It is the effort of design which imbues and encourages additional meaning and value.
This is a much clearer distinction than the idea-expression divide, and it is unfortunately the equivocation of “expression” as encompassing both communication and design which allows for such a low threshold of originality to persist. Returning to a model which focuses on form and rewards craft rather than promoting easily misconstrued standards of “expression” and “originality” might result in a narrower and more manageable scope of protection for the digital age. It wouldn’t prevent webwide appropriation of content, but it would waste fewer resources on the inconsequential and the unavoidable, and simultaneously provide a clearer standard to reform takedown bullying.
Surely, in a world of 50 billion webpages circulating over 1 trillion gigabytes of content a year, most “art” practicably cannot and deservedly should not carry a legal claim to federal protection. In absence of jurisdictional reach over 7 billion creators (or even 300 million creators), it would still be within the goal of promoting the useful arts to expect a stronger display of creativity from authors claiming copyright. An added bonus of strengthening the legal construction of copyrights would be obviating the farcical existence of design patents.
Another option that would be to consider instituting a nationwide web-based court and arbitration system, complete with digital service of process, to deal with cyberspace-related claims. Investing in a proper navy would go a long way toward enforcement where it matters. However, the considerations for this extend far beyond the present scope of discussion, particularly dissecting how it would operate under the current political regime. And only slightly less daunting, developing ensurances that its resources wouldn’t be hijacked and throttled by big media interests.
Functionally speaking, a majority of all content ever published online has already been democratized (or has been deleted altogether), regardless of author consent. The concept of “creativity” even seems to shrink in the looming shadow of perpetual reproduction, recombination, and reappropriation of expressions occurring across the globe. And this fathomless cache of art can be accessed by anyone with an internet connection, too vast to be witnessed and appreciated in totality. As propounded by Open Web advocate Jeff Jarvis, the creative class has expanded to encompass everyone; we should be moving toward a model which manages creative abundance rather than stifles it. It’s easy to be ideological and ask why anyone would want to silence the sirens, singing collective wisdom across the virtual oceans of our species’ greatest achievement. It’s even easier to be practical and ask how anyone still thinks it possible to sue the internet. BOOM!
That is not my cannon.