In his book The Public Domain: Enclosing the Commons of the Mind (2008) professor of law James Boyle discusses the concept and history of intellectual property and why it is of particular importance in today’s information society. Boyle argues that the current intellectual property policies are eating away our common cultural heritage. He claims that we are in a middle of a second enclosure movement (the first enclosure movement being the enclosure of common grazing lands in England from the 16th century onwards) which is extending intellectual property rights to areas heretofore considered common property.
Boyle discusses a prevailing way of thinking in the culture industry that he calls the “Internet Threat.” According to this way of thinking, the easy copying on the Internet presents a dangerous threat to culture production that needs to be answered by longer and more extensive intellectual property rights, harsher penalties for infringing those rights and more protective measures to stop such infringements. As the cost of copying approaches zero, intellectual property rights protection must approach the state of perfect control. This means we must regulate technology that could be used for copying, we must outlaw tools that could be used to break copy protection, we must abolish anonymity on the Internet, we must get rid of exceptions to the intellectual property rights such as fair use and we must extend those rights to include things like databases and gene sequences. This means we need laws like the Digital Millennium Copyright Act (DMCA), the No Electronic Theft Act (NET Act) and the Sonny Bono Copyright Term Extension Act (CTEA), also known as the Mickey Mouse Protection Act. These are, of course, US laws, but similar legislation is being implemented in the EU countries as well.
Boyle laments how intellectual property laws have been extended time and again even in face of empirical evidence that has showed such extension would actually have negative economic and cultural effects. Never mind the cheaper copying actually benefits the culture industry and never mind that less control can oftentimes mean more profit, protection must still be tightened. Obviously, the process that has multiplied the scope and the length of copyright protection in just a few decades has been purely ideological in nature and has had nothing to do with rational legislation that would consider advantages and disadvantages to the society as a whole.
Boyle argues that we are suffering from a kind of cultural agoraphobia where we tend to undervalue open technologies and nonproprietary modes of production even though there is plenty of evidence that such modes of production work extremely well. To combat this agoraphobia he suggests the idea of a cultural environmentalism where, like with the concept of “protecting the environment” in the case of ecological issues, disparate interests to limit the scope of intellectual property would be brough together under the notion of protecting the public domain. This would make the interests more visible to the legislators and could lead to more balanced laws.
Boyle also makes one important point that is often ignored when discussing copyright. He outlines the 1984 legal case of Sony v. Universal City Studios where Universal tried to find Sony liable for contributory copyright infringement because their Betamax VCRs could be used for copying copyrighted material. The judges in this case dismissed Universal’s claims, pointing out significantly that such a finding would have effectively granted the copyright holders a monopoly to control and suppress any new technology that could conceivably be used for copyright infringement. Boyle formulates this into a “Sony Axiom” where new technologies that enable easier copying of copyrighted material make the limitations to the copyright law especially important.
The Sony Axiom is today more current than ever as the copyright holders have repeatedly sued or threatened to sue developers of p2p software for copyright infringements committed by their users, often managing to shut down their services. The judges in the Napster and Grokster court cases found the defendants liable mainly on the basis that they knew about the infringements and had not taken steps to prevent them. Similar logic has been used to shut down BitTorrent trackers. I would argue that the real motive of these cases has not been to make the infringements stop or to receive compensation, but to gain control over these distribution channels. Thus, the Sony Axiom would apply here. I claim that these cases represent a misuse of copyright legislation to stifle competition rather than to protect any legal rights.