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Who Should Own Ideas?

The courts and legislatures should preserve copyright – but carefully.

This spring, lawyers for MGM Studios argued before the U.S. Supreme Court that Grokster, the maker of a peer-to-peer Internet file-sharing system, should pay damages to copyright holders for facilitating mass piracy of their digital content.

One simple fact underlies the current debate over intellectual-property rights, the theme of this special issue of Technology Review: every time you download a music file or use some other artifact of digital culture, you are making a copy. If you don’t have permission, or the use is not “fair” (that is, very limited), you may be breaking the law and infringing the rights of copyright owners. Until recently, there was little that copyright owners could do about it; but there are now effective digital rights management (DRM) technologies designed to limit copying, remixing, and redistribution. Is this increase in the potential power of copyright owners a good thing?

Stanford University law professor Lawrence Lessig, who submitted a friend-of-the-court brief in the Grokster case, leads off with an essay on copyright and free expression. Healthy societies, Lessig argues, give citizens the freedom to “remix” bits and pieces of copyrighted works such as songs, writings, images, and software (see The People Own Ideas!). But today, he warns, those very bits and pieces are disappearing behind DRM technologies. If communities want to hold onto their ideals of open communication, Lessig says, they should look to the free-software movement, which encourages software developers to let anyone run, analyze, adapt, improve, and redistribute their code.

It’s an attractive vision – but an idealistic one, according to Richard Epstein, a professor at the University of Chicago Law School, where he and Lessig were once colleagues (see The Creators Own Ideas). Epstein asks where Lessig expects to find his free-culture volunteers if they must give up their livelihoods – that is, their exclusive right to profit from their own intellectual labor – in the process. Without state-enforced copyrights, there’s little incentive to create, argues Epstein.

Finally, we turn to a more pragmatic argument for free culture. Charles Ferguson, who wrote about the threat to Google from Microsoft in our January issue, now writes about the threat to Microsoft from Linux and other products of the open-source movement, a direct descendant of the free-software movement (see How Linux Could Overthrow Microsoft). Releasing its products under open-source licenses isn’t just good karma for a software company, Ferguson concludes: it’s good business.

U.S. society seems destined to divide into two camps: communities that thrive on free copying and others that profit from copyrights. These are probably unstoppable trends. The courts and legislators should strive for balance: preserving a place for reasonable and limited copyrights, while simultaneously abjuring extreme limits on society’s ability to “remix” culture.

In the case of Grokster, the Supreme Court could do worse than look to its own 1984 decision in Sony v. Universal Studios. In that case, Universal charged that Sony’s Betamax VCR encouraged copyright infringement. The Court let Sony off the hook, citing the VCR’s “substantial noninfringing uses.” The Court was right at the time. Let’s hope the Grokster decision is just as far-seeing.

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