Legal Issues 1

Unisys GIF/LZW algorithm. 

amazon.com v. Barnes & Noble. 

BT's Hidden Page Patent. 

Perhaps the problem here is that it is easy to “dress up” a very simple idea or process as a highly technical programming technique, which can often get past the Patent Office scrutineers.

Copyright law exists primarily to protect your investment of research, analysis or creativity as a producer of media and ideas. Anything that you yourself create can be claimed as copyright. So when you create a web page, all that you write as original material is yours, and can't be used by others without your permission.

However, creating web resources often involves reusing other people's original works, and there the boundaries become blurred. How much rewriting must you do to claim it as your own work? What if you incorporate graphics, HTML code or scripts from other's sites?

The hyperlink positively encourages the author to link to other people's material. HTML also makes it possible to seamlessly incorporate outside material into web pages. Is this appropriate?

And of course, the web is an open, accessible medium where it's easy to copy and paste material without thinking about copyright - so how do authors protect their creations?

In the test case mentioned here, a website owner was found to be reusing the news reports of another site, presenting them as articles that he had written himself. This is considered by the UK courts as 'passing off', as presenting information not owned by you as your own work.

Other legislation and cases that apply here include the Copyright and Rights in Databases Regulations (1997), which safeguards the effort invested in data gathering and encoding for large-scale databases, particularly those made available to the public. It prohibits the reuse of significant amounts of information contained in the database by a third party without permission or acknowledgement. This was recently tested in the case of the British Horseracing Board vs. William Hill.

Traditionally, the concept of a “commons” relates to land use, and we often think of common land as having shared ownership. In fact, land, facilities or objects deemed to be part of the commons are owned by everyone and no-one.

Think of the street outside your house. Most likely, it is maintained by the local council, who take money from you to do so. However, they don't own the land in the normal sense, though they have responsibilities towards it. Everyone has equal access to it, and can use it almost as if it were their own.

In intellectual property terms, the equivalent is the creative work that has fallen (or been placed) into the public domain. No-one can claim ownership of it, and hence cannot charge royalties for its use. Everyone should have equal access and equal right to use the work.

In the early nineties, Eric Eldred was a hobbyist who scanned works of literature and placed them onto his website, so that anyone could access them. He took works which had passed out of copyright, and made them available for free in a new format. However, as he accumulated a larger and larger collection of works, he began to hit a problem. More recent works, which were nearing their release from copyright, were suddenly put out of reach of this cultural service, through the extension of the copyright term. And this happened repeatedly.

Eldred began to question why this was happening, and why some works never seemed to be released from the restrictions of copyright (Lessig 2004, Ch.13). He argued that this extension, brought about by the 1998 Sonny Bono Copyright Term Extension Act (CTEA), and if perpetuated would lead to indefinite copyright for certain works, and thus was unconstitutional (violating the first amendment).

The US Supreme Court upheld the CTEA, but only after a massive lobbying effort on both sides, by libraries and libertarian groups on one side, and by the music and film industry on the other.

The limitations of traditional media have meant that passing off a copy as an original has been difficult to achieve and easy to detect if done on a large scale, though generally copies have become acceptable in quality for personal use. This has led to a concept of “fair use”, which permits making personal backups etc., of traditional products. Certain copyrighted material is subject to fair use when quoted, criticised or parodied, though much material (especially new media) is not covered, though most of us have developed our own idea of fair use, as applied to the text, music and video we use.

With digital media, we need to re-examine the fair use idea, and there have been several attempts to formalise it in the courts, with little success. Many copyright holders still consider any copy to be an illegal one, and some refuse to publish works digitally because of this.

These problems are similar to those inherent in protecting the copyright of software, which has never been satisfactorily solved.

In an attempt to curb the illegal distribution of music and video, some companies have introduced copy-protection on CDs and DVDs. The CD protection has been particularly problematic, as it relies on the user not being able to read the disk in a purely digital form. It works by introducing errors which are normally corrected by most audio CD players, but which cause the digital copy to break or skip in computer CD players, which don't have error correction mechanisms.

Of course, the protection was quickly broken by hackers reverse-engineering the error correction mechanism, by using more sophisticated CD players, or in one case, by obliterating a section of the disk using a marker pen... within hours of a CD being released, there are usually digital copies on the net.

In fact, there is a subculture on the Internet now which competes to produce the earliest digital copies of the latest films and music, generated by taking hidden video cameras into premiere showings, leaking material from the record companies themselves, and so on.

Companies such as Microsoft have a difficult position; they want to tap into the popularity of digital media and encourage its use, but in such a way that the powerful media companies do not object to.

Password protection. A password is sent independently of the download, which is then needed to use the media or software. Ineffective, since passwords can easily be exchanged with the copied file.

Digital signatures. ensuring authenticity of both supplier and consumer, can be used to prevent unauthorised playing or copying;

Encrypted downloads. attempts to copy-protect the media, preventing use without authorisation;

Digital Rights Management. encompasses all these ideas, usually integrated into a digital media player;

Micropayments. A very small charge (perhaps less than 10p) is made for each view or play, but accumulates to significant amounts if sufficiently popular. The key to this is the ease of making the payment.

Media tax. In some countries, a more rudimentary solution has been tried, which tries to add a surcharge on blank media used for copying, the revenue from which is used to compensate copyright holders. In most cases, this has been quickly abandoned, not least because the compensation mechanism is usually too complex to work well. In addition, there is a sense that this approach legitimatises the copying process - if the downloader is paying the copy-tax, then the act of downloading will seem “less illegal” in some way. Many European countries still use this method for “fair-use” copies for personal use only.

Some commentators are concerned about the implementations of DRM technology that are available, and in particular regarding the way they limit certain actions on the product which would normally be considered “fair use”. In fact, argues Lawrence Lessig [ Code and Other Laws of Cyberspace , 1999], the implementations of “fair use” embedded into these products effectively become the law, since they cannot be circumvented without contravening other laws (such as the Digital Millennium Copyright Act).

Are we consumers, users or owners of media? Some advocates argue that we should move away from the traditional idea of the consumer of media, since the ability to make perfect copies means that nothing is physically lost when media is given away. They also argue that fair use should mean that if we buy media, we should have the right to back up that media, and to copy it for use on any or all devices we own.

Businesses are keen to re-sell us our previous media purchase in new formats (e.g. vinyl, cassette, CD, mp3, SA-CD, DVD-Audio, etc., etc.).

Is copying damaging the music industry? Of course, the music publishers see each digital copy as taking away revenue from their legitimate business. But according to various studies, this is a shaky conclusion; media sales have remained roughly static (even in a time of general market depression in the US), and when interviewed, those sharing media often use it as a 'try-before-you-buy' idea, and buy as much media as before, but make more informed choices about what they buy.

What does the popularity of media sharing tell us? Perhaps the sharing technologies have shown us that we consider the price of music and video to be too high, or not good enough value. The media companies need to reevaluate the way they create revenue, perhaps switching more to 'value-added' products and more 'collectible' packaging, which would make us feel as though we have bought something valuable to us.