Revista Informatica Economică, nr. 3 (43)/2007 83

Copyright, an Incentive or a Burden?

Wolfgang BEIN, University of Nevada Las Vegas, USA [email protected]

A copyright provides protection for original artistic or literary work and is valid for the life of the owner plus 70 years. There is a growing tension between creative practices that require access to content that is often copyrighted, and increasingly restrictive intellectual property laws and policies governing access to copyrighted content. Very recently this has played out in the law suit between the media corporation Viacom and the Internet portal YouTube, which is owned by Google. This is against the background of a steadily emerging open source and creative commons culture. Milestones in the open source movement are the OpenOffice office suite, Netscape’s publication of the source code for its product as open software, Google’s library project, various free archives for scientific dissemination, such as Cornell University’s ArXiv.

ntroduction Copyright Act (DMCA) of 1998 declares as I The gap between the cost of digital media criminal acts production and dissemination of and storage, and a copyrighted digital item (a technology whose primary purpose is to CD or DVD) continually increases, as circumvent measures taken to protect Internet is readily available, and the price of copyright, not merely infringement of digitally duplicating anything capable of copyright itself, and heightens the penalties being transmitted via digital media dropped for copyright infringement on the Internet, to near zero [1]. The use of a copyrighted while limiting the liability of online material is less restrictive than other providers from copyright infringement by intellectual properties (patents, trademarks, their users [2], since free online access to service marks), even though the copyrighted digital scholarly material is offered in material cannot be photocopied, scanned or educational institutions for the purpose of copied in any way. But portions of it can be learning (school, universities, and public used for non-commercial purposes. libraries). Similar to DMCA, EU Copyright The First Sale Doctrine (Copyright Act, Directive (EUCD) passed on 2001 by the 1976) does allow you to resell or give away European Union. the copy of the copyrighted item you bought. DMCA also requires built-in some form of But it does not allow you to distribute copies copy prevention to non-digital recorders, of that item. For example, it is OK to give to commonly known as Macrovision. If a data someone a DVD that you previously bought. stream is encoded with Macrovision most But, the First Sale Doctrine doesn't allow you home recorders will fail to record it. For a to give the DVD away and keep a copy for VCR, the picture either is scrambled picture yourself, or to give away copies of your as if the tracking was incorrect, or fades DVD. Whether or not you are being paid to between overly light and dark. For a DVD commit an infringement to the copyright law recorder, it causes a message saying the is irrelevant under the copyright law. If you source is "copy-protected" to be displayed don't hold the copyright, you can't sell or and the recording is stalled. Since the signal even give away unauthorized copies of the is created by the DVD player during the sound recording without permission. In fact, playback and it is not stored physically on in 1997 US Congress amended the copyright the DVD itself, some DVD players give the law to impose criminal liability on infringing user the option of ignoring such an activities for non-commercial purposes instruction or disabling the Macrovision (under the No Electronic Theft ("NET") Act, technology [3]. passed in 1997). The Digital Millennium In 1984, in Sony versus Universal Studios (or 84 Revista Informatica Economică, nr. 3 (43)/2007 the Betamax case), the Supreme Court ruled II. Legitimate and Illegitimate file that a company was not liable for creating a Networks technology that some customers may use for Having a home device is not the same as a copyright infringing purposes, so long as the personal computer. As a mention, general technology is capable of substantial non- purpose computers are not covered by the infringing uses. In other words, where a AHRA. Downloading music from the technology has many uses, the public cannot Internet is not the same as borrowing a be denied the lawful uses just because some musical CD from a friend. , a file (or many or most) may use the product to sharing service created by Shawn Fanning, infringe copyrights. A VCR can have legal was the first widely-used peer-to-peer (or usage (time-shifting, rentals, home movies) P2P) network. It offered an online music but also users to make a copy of a TV service by allowing users who log onto program (which she was invited to watch for Napster's servers to obtain MP3 music files free) so that it can be watch later. Thanks to that are stored on the computers of other the Betamax ruling, the makers of not just users who are connected to the Napster VCRs, but also every other technology system at the same time. Napster provided capable of being used for infringement (e.g., advanced search capabilities, as well as direct photocopiers, personal computers, Cisco hyperlinks to the MP3 files housed on its routers, CD burners, and Apple's iPod) can users' computers. Recording Industry continue to sell their wares without fear of Association of America (RIAA), the trade lawsuits from copyright owners. Home group that represents the US recording recording devices are covered under the industry, sued Napster on December 7, 1999, Audio Home Recording Act (AHRA) of and later won the case on the grounds that 1992 that offers some protection from Napster software enables and facilitates contributory copyright infringement claims piracy of music on an unprecedented scale to devices (thus manufactures) designed or [4,5]. Companies Elektra Entertainment marketed for the primary purpose of making Group Inc., Virgin Records America Inc., digital musical recordings. It thus allows the UMG Recordings Inc., BMG Music and digital copying of music, but the devices are Sony BMG Music Entertainment, required to incorporate technology to prevent coordinated by the Recording Industry serial copying, and the manufacturers of Association of America (RIAA) have sued covered devices also pay a royalty to more than 18,000 people, including many copyright owners. DVD players do not fall in minors, accusing them of pirating music the same category. Jon Johansen developed through file-sharing computer networks. and published the software called DeCSS They track to a computer address that permits users to use owned DVD players and then contact the Internet service provider not approved by the entertainment industry. to find the name of the computer owner [6]. The software stirred at that time a great Just as a note, these five companies distribute public interest, especially in the Unix more than 70 percent of the world's music. community. 2600 Magazine, The New York Just because Napster itself did not house the Times, the San Jose Mercury News, the infringing recordings, it did not mean Village Voice, and others had published an Napster was not guilty of copyright article containing the DeCSS computer infringement. By NET Act, whoever software and gave a link to obtain it. In materially contributes to infringing activity, December 1999, eight major motion picture with knowledge of that activity, is liable for studios sued 2600 Magazine for publishing copyright infringement as if that person did an article containing the DeCSS computer the copying him or herself. It is technically software and linking to DeCSS. The lawsuit possible to create a file-sharing system that result went on their favor. only index or allows searches for artists or songs that have been authorized. Before Revista Informatica Economică, nr. 3 (43)/2007 85 using other people's copyrighted works, the Distributed Anonymous Information Storage user is then responsible for getting and Retrieval System" was the most cited permission to use them. Some legitimate computer science paper of 2000 distributed file-sharing networks still left are: (citeseer.nj.nec.com/articles2000.html). , Gnutella2, WASTE, GNUnet, has also inspired papers in the worlds Freenet, MUTE. Afraid that the labels (the of law and philosophy. Ian Clarke, Freenet's nickname for the big music producers creator and project coordinator, was selected company as EMI, Sony, Universal, Zomba, as one of the top 100 innovators of 2003 by TVT) will see the idea of as a MIT's Technology Review magazine. In threat to their industry and ban it, two of the summer of 2006, Google paid four students employees Justin Frankel and Tom Pepper to work full-time for Freenet. created a distributed file-sharing program III. Open source called Gnutella [7]. As of December 2005, The term open source describes any kind of Gnutella is the third most popular file sharing creative work published in a format that network on the Internet, following eDonkey explicitly allows the copying and the 2000 and FastTrack. When you run Gnutella modifying of the data by anyone. Open software and connect to the Gnutella source software refers to any , you choose what information to software whose source code is available (nothing, a file, a directory, or your under a license that permits users to study, entire hard drive) [8]. The development of change, and improve the software, and to the Gnutella protocol is currently led by the redistribute it in modified or unmodified GDF (Gnutella Developer Forum). Freenet form. Open source licenses define the is a free (open source) software privileges and restrictions a licensor must implementation of the system described by follow in order to use, modify or redistribute Ian Clarke in [9]. It is a decentralized the open-source software. Open source censorship-resistant peer-to-peer distributed software includes software with source code data store that allows users to anonymously in the public domain and software distributed publish or retrieve various kinds of under an open-source license. Examples of information. Nowadays it is used for the open source licenses include Apache distribution of censored information all over License, BSD license, GNU General Public the world including countries such as China License, and Mozilla Public License [19]. A (www.freenet-china.org) and the Middle East much less-restrictive concept, [10]. One group, Freenet-China, has is different from open source software. Free translated the Freenet software to Chinese software is mostly created under no license, and distributed it within China on CD and thus it can be used, copied, studied, modified floppy disk. Freenet uses a kind of key based and redistributed with little or no restriction routing similar to a distributed to beyond the requirement that source code locate peers' data. It can be thought of as a must be made available free of charge large storage device. When you store a file in (charging for selling the software is against it, you receive a key which can be used to the definition of free software). A software retrieve the file. When you supply Freenet licenses must have the following four with a key, it returns the appropriate file (if it freedoms to qualify as being free: (0) run the is located). If the document is not found in program for any purpose, (1) study and the local data store, the finds the node modify the program, (2) copy the program so in its routing table that it thinks will be able you can help your neighbor, and (3) improve to locate the key the fastest, and forwards the the program, and release your improvements request to that node, remembering that it has to the public [11]. Richard Stallman, founder done so [10]. Ideas and concepts pioneered in of the free software movement and Free Freenet have had a significant impact in the Software Foundation, launched in 1983 the academic world. The 2000 paper "Freenet: A GNU. In 1992, Linux, the Unix-based 86 Revista Informatica Economică, nr. 3 (43)/2007 operating system developed by Linus related to open source and free software is Torwalds, was release as free software, and freeware, that is software made available free over the years became the major opponent to of charge, but generally proprietary (users are Microsoft’s Windows operating system. not allowed to copy, study, modify or Linus was inspired by Minix (an operating redistribute it). system developed by Andrew S. Tanenbaum). FreeBSD is another Unix-based IV. Conclusion free operating system descended from AT&T With free software, businesses have the UNIX via the Berkeley Software Distribution freedom to fit the software to their specific (BSD) branch. Unlike Linux where the needs by changing the software themselves kernel is developed by one set of developers, or by hiring programmers to modify it for the device drivers, utilities and applications them. The Free Software Foundation by others, FreeBSD is developed as a maintains a service directory of people complete operating system. Kerberos, X.org, offering their free software services for hire. and Apache software licenses originated in It shows free software developers offer their academic institutions (University of services ranging from $35/hour to $250/hour, California, MIT, and University of Illinois at a fraction of the cost for Urbana-Champaign), are substantially similar [11]. in intent and implementation [11]. Some References example of free software follow (the list is [1] Wikipedia, "Open source culture", taken from [11]): en.wikipedia.org/wiki/Open_source_culture [2] Wikipedia, “Digital Millennium Copyright Act”, 1. Operating systems: GNU/Linux, BSD, en.wikipedia.org/wiki/Digital_ OpenSolaris, ReactOS Millennium_Copyright_Act 2. GCC compilers, GDB debugger and [3] Wikipedia, “Macrovision”, libraries. en.wikipedia.org/wiki/Macrovision 3. Servers: BIND name server, Sendmail [4] Recording Industry Association of America (RIAA), Press Room, mail transport, Apache web server, Samba www.riaa.com/news%5Cnewsletter%5Cpress1999%5C1 file server. 20799.asp 4. Relational database systems: MySQL and [5] Recording Industry Association of America (RIAA), PostgreSQL. Press Room, www.riaa.com/news/filings/napster.asp 5. Programming languages: Perl, PHP, [6] Associated Press, “Piracy suit being dropped against NY mom”, December 20, 2006 Python, Ruby and Tcl. [7] Wikipedia, http://en.wikipedia.org/wiki/Gnutella 6. Graphical User Interface (GUI)-related: [8] Gnutella, http://www.gnutella.com/news/4210 X Window System, GNOME, KDE. [9] I. Clarke, "A distributed decentralized information 7. OpenOffice.org office suite, Mozilla and storage and retrieval system", undergraduate thesis, Firefox web browsers, GIMP graphics editor. Division of Informatics, University of Edinburgh, 1999 [10] The Free Network Project, http://freenetproject.org/ 8. Typesetting and document preparation [18] Wikipedia, “Open Source Software”, systems TeX and LaTeX. en.wikipedia.org/wiki/Open-source_software Acknowledging the impact on the market of [19] Wikipedia, “Free Software”, free software, in November of 2006, en.wikipedia.org/wiki/Free_software Microsoft and Novell announced their [11] R. Paul, "A visual timeline of the Microsoft-Novell controversy", January 28, 2007, partnership in order to improve arstechnica.com/articles/columns/linux/linux- interoperability between 20070128.ars and SUSE Linux [11]. Another term closely