Intellectual Property (IP)

On Thursday, music labels sought to add nearly 500 more sound recordings to a lawsuit accusing the Internet Archive (IA) of mass copyright infringement through its Great 78 Project, which seeks to digitize all 3 million three-minute recordings published on 78 revolutions-per-minute (RPM) records from about 1898 to the 1950s.

If the labels' proposed second amended complaint is accepted by the court, damages sought in the case—which some already feared could financially ruin IA and shut it down for good—could increase to almost $700 million. (Initially, the labels sought about $400 million in damages.)

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The Great 78 lawsuit is clearly focused on sound recordings, with music publishers claiming IA's ambitions to preserve music history are a "smokescreen" to justify alleged infringement. They claimed that IA's project isn't fair use for educational purposes because the Great 78 Project's account on X (formerly Twitter) would announce recordings were available without sharing "historical facts associated with the recordings; it simply advertised that the recordings were freely available to download or stream and encouraged users to go and obtain them."

But David Seubert, who manages sound collections at the University of California, Santa Barbara library, told Ars that he frequently used the project as an archive and not just to listen to the recordings.

For Seubert, the videos that IA records of the 78 RPM albums capture more than audio of a certain era. Researchers like him want to look at the label, check out the copyright information, and note the catalogue numbers, he said.

"It has all this information there," Seubert said. "I don't even necessarily need to hear it," he continued, adding, "just seeing the physicality of it, it's like, 'Okay, now I know more about this record.'"

Now, free software advocates – and free culture advocates – hate the term “intellectual property.” The argument against IP rails against its imprecision and its rhetorical dishonesty.

Prior to the rise of the “intellectual property” as an umbrella term, the different legal regimes it refers to were customarily referred to by their individual names. When you were talking about patents, you said “pat­ents,” and when you were talking about copyrights, you said “copyrights.” Bunching together copyrights and trademarks and patents and other rules wasn’t particularly useful, since these are all very different legal regimes. On those rare instances in which all of these laws were grouped together, the usual term for them was “creator’s monopolies” or “author’s monopolies.”

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Seen in this light, “intellectual property” is an incoherent category: when you assert that your work has “intellectual property” protection, do you mean that you can sue rivals to protect your customers from deception; or that the government will block rivals if you disclose the inner workings of your machines; or that you have been given just enough (but no more) incentive to publish your expressions of your ideas, with the understanding that the ideas themselves are fair game?

When you look at how “IP” is used by firms, a very precise – albeit colloquial – meaning emerges:

“IP is any law that I can invoke that allows me to control the conduct of my competitors, critics, and customers.”

That is, in a world of uncertainty, where other people’s unpredictability can erode your profits, mire you in scandal, or even tank your business, “IP” is a means of forcing other people to arrange their affairs to suit your needs, even if that undermines their own needs.

Right now, it seems to me that, in a number of respects, we are at the stage that the American environmental movement was at in the 1950s or 1960s. At that time, there were people-supporters of the park system, hunters, birdwatchers and so on-who cared about what we would now identify as "environmental" issues. In the world of intellectual property we now have start-up software engineers, libraries, appropriationist artists, parodists, biographers, biotech researchers, and others. In the 1950s, there were flurries of outrage over particular environmental crises, such as proposals to build dams in national parks. In later years, the public was shocked by burning rivers and oil spills. In the world of intellectual property, we currently worry about Microsoft's allegedly anti-competitive practices, the uncertain ethics of patenting human genes, and the propriety of using copyright to silence critics of the Church of Scientology. We are notably lacking two things, however. The first is a theoretical framework, a set of analytical tools with which issues should be analyzed. The second is   perception of common interest among apparently disparate groups, a common interest which cuts across traditional oppositions. (Hunter vs. Birdwatcher, for example.)

What kinds of tools am I talking about? Crudely speaking, the environmental movement was deeply influenced by two basic analytical frameworks. The first was ecology, the study of the fragile, complex and unpredictable interconnections between living systems. The second was welfare economics, which revealed the ways in which markets can fail to make economic actors internalize the full costs of their actions. The combination of the two ideas yielded a powerful and disturbing conclusion. Markets would routinely fail to make economic actors internalize their own costs, particularly their own environmental costs. This failure would routinely disrupt or destroy fragile ecological systems, with unpredictable, ugly, dangerous, and possibly irreparable consequences. These two types of analysis pointed to a general interest in environmental protection, and thus helped to build a large constituency that supported governmental efforts to that end. The duck hunter's efforts to preserve wetlands as a species habitat turn out to have wider functions in the prevention of erosion and the maintenance of water quality. The decision to burn coal rather than gas for power generation may impact everything from forests to fisheries.