Ethics and Law in New Media/What About the Future?

As seen from the previous chapters, the new century has seriously challenged the 'intellectual property' as a concept. The traditional model that was somewhat effective until the mid-XX century, gradually lost the grip and became increasingly irrelevant by the end of the century. However, what about the future?

Too flawed to repair?

Many authors have been pointing out that there are too many innate problems in the current WIPO model. James Boyle writes in his Manifesto:

"Where the traditional idea of intellectual property wound a thin layer of rights around a carefully preserved public domain, the contemporary attitude seems to be that the public domain should be eliminated wherever possible. Copyrights and patents, for example, were traditionally only supposed to confer property rights in expression and invention respectively. The layer of ideas above, and of facts below, remained in the public domain for all to draw on, to innovate anew. Ideas and facts could never be owned. Yet contemporary intellectual property law is rapidly abandoning this central principle. Now we have database rights over facts, gene sequence, business method and software patents, digital fences that enclose the public domain together with the realm of private property... the list continues. And while these rules differ from nation to nation, the pressure is to harmonize them only upwards, adopting the strongest protections of facts, the longest copyright terms, the greatest scope of patentability."

The first problem is balance. Today's globalising, networked world is not the same as in the 1860s when the first Atlantic telegraph cable was built. Today's large multinational corporations wield economical and also legal power comparable to smaller countries, and are able to influence the highest levels of politics. This has led them to seriously imbalancing legislation (copyright-related issues are not the only ones). Thus, when in the 19th century it was possible to allow creative rights to be guided by profits only, it is not so any more.

Boyle continues: "The assumption seems to be that to promote intellectual property is automatically to promote innovation and, in that process, the more rights the better. But both assumptions are categorically false."

This can be well seen in the world of software. The domination of Microsoft and other large players have seriously distorted the market and actually slowed down innovation. An example: Microsoft's web browser, Internet Explorer, was developed actively when there was competition from Netscape - its versions 4, 5 and 6 followed each other in a two-year cycle (1997, 1999 and 2001) which can be considered quite adequate. However, after securing the monopoly following the defeat of Netscape, IE 7 followed only in late 2006, when a new contender in Firefox had risen visible enough.

Moreover, the role of non-technical competition in forms of patent wars has increased remarkably in the recent years. Instead of striving to develop a better product than competitors, more and more players turn to the inflated intellectual property legislation. This has led to the ridiculous situation where patents could block nearly all online activities when enforced - the sample webshop of FFII reviewed in earlier chapters is a really telling illustration.

Is imitation bad?

A paper co-written by the Nobel Prize in Economics 2007 winner Eric Maskin already in 2000 concludes: "Intellectual property appears to be one of those areas where results that seem secure in the context of a static model are overturned in a dynamic model. Imitation invariably inhibits innovation in a static world; in a dynamic world, imitators can provide benefit to both the original innovator and to society as a whole. Patents preserve innovation incentives in a static world; in a dynamic world, firms may have plenty of incentive to innovate without patents and patents may constrict complementary innovation."

This is a very good point. Imitation is a prime enemy in the current legislation, where most measures are targetted towards preventing or controlling it. Yet, was only so in the earlier "slower" or "static" world. But even then, a good lesson can be learned from the USSR industrial espionage attempts during the Cold War. The Soviets were expert spies but much poorer implementers - by the time the stolen info materialised as an imitated product, the West had moved on. Eric Raymond in his Magic Cauldron quotes a former KGB chief Oleg Kalugin (regrettably, the CNN interview formerly at http://edition.cnn.com/SPECIALS/cold.war/experience/spies/interviews/kalugin/ seems to be available no more):

"For instance, when we stole IBMs in our blueprints, or some other electronic areas which the West made great strides in and we were behind, it would take years to implement the results of our intelligence efforts. By that time, in five or seven years, the West would go forward, and we would have to steal again and again, and we'd fall behind more and more."

Actually, in Free Software and free culture in general, imitation is often an initial stage - but it is followed by another, namely improvement. Preventing the first stage by legal means will also cut off the second.

What will happen online?

Both in content and software, the tendencies will probably be the ones listed by Yochai Benkler:

• Information production is inherently more suitable for nonmarket strategies than industrial production
• Rapid spread of nonmarket production, widening base
• Effective, large-scale cooperative efforts in peer production of information, knowledge, and culture

The points are quite effectively proven by the Web 2.0 applications all over the web (which incidentially are almost all run as commercial projects, a big exception is Wikipedia): YouTube, Orkut, Flickr, Shelfari... The widening base is evident too. And Wikipedia is perhaps the most obvious example of the third - a giant project put together by volunteers which would have been utterly impossible even 20 years ago, before the Web explosion.

Software

Disclaimer: This is purely a personal opinion of the lecturer. :)

I would predict that the bulk of mainstream software will move gradually to free licenses. GPL will continue its prevalence, with LGPL, BSD and X11/Apache licenses each filling their own niche. In general, some consolidation of free licenses will also happen - instead of the current 50-60 licenses there will be perhaps a dozen, but each one will have clearly distinct features.

Proprietary licensing à la Microsoft will not disappear, but will keep perhaps about 10% of the market - mostly in turnkey applications which are meant for very narrowly specialised, well-paid, non-IT professions (top designers, musicians, composers) who a) need very specific software, b) can afford expensive tools and c) will need guidance in everything not directly related to their profession. This will also raise the quality of proprietary support quite remarkably, the tragicomic anecdotes about telephone support will be a thing from the past. Customers will demand more quality for their money - or alternatively they will move to free solutions. Artificial customer binding mechanisms like DRM will be gone (possibly also outlawed by jurisdiction as counterproductive).

Non-software content

Non-software content will probably have a more varying picture than software. However, the Founders' Copyright by CC will gradually conquer the current, far too prolonged copyright method. The CC family of content licenses will be developed further and given better compliance with international acts and jurisdictions of different countries (as opposed to the relative US-centeredness of the current version). While the GNU FDL will develop further and lose some of its contradictions, CC will possibly prevail.

To sum it up

In the previous "static" era, large corporations fought each other in a similar way to armies during the World Wars. For example, Microsoft has largely been defined as fighting against others - be it WordPerfect or Lotus in the early days or Netscape later. Today's reality is different however - to continue with the metaphor of war, it is rather more similar to the guerilla tactic in Iraq and Afghanistan than the organised warfare of World War II. The only way to survive is to embrace the changes - much like IBM, Sun and Google have done.

Likewise, the traditional "intellectual property" mechanism is coming from the days were rules were much simpler. Artificial barriers like DRM seem to be an attempt to block a river by stepping into it. So it is either going back to a totalitarian system with universal control, or an inclusive, freely competing way of doing business where "the best player wins".

References

• BESSEN, J.E., MASKIN, E. Sequential Innovation, Patents and Imitation. MIT Dept. of Economics Working Paper No 00-01, January 2000
• BOYLE, J. A Manifesto on WIPO and Future of Intellectual Property. Duke Law and Tech Review, 0009, 2004
• RAYMOND, E.S. The Magic Cauldron.