July 18, 2003

The IP wars

- by John O'Sullivan -
The first shot in the intellectual property wars was fired by no less than William H. Gates III on February 3, 1976. In a famous letter decrying the theft of his programs, Mr. Gates set out the philosophy that IP was essentially the same as traditional property, and that the same rights and laws should apply.

If the traditionalist camp was epitomized by Mr. Gates, the community camp for a long time had no leader as such. Rather, the community philosophy evolved from 1960s Bay Area values, sometimes misleadingly labeled hippie culture.

The war smoldered for 25 years within the computer industry. A technological arms race progressed as companies tried to protect their software from copying while users tried to find ways around the protection. It was not a noble struggle.

As the 1990s progressed, the IP wars became more pronounced and important. The ease of large-scale data copying via the now ubiquitous Internet and the rising value of intangible assets combined fatefully with the debut of Napster in 1999 to bring about a full-scale revolution. Millions of people started trading music files with impunity and record companies could but look on in horror.

When my mother, a retired kindergarten teacher, got broadband in 2001, the first thing she did was call me for help with installing Napster. When we downloaded her first song, Louis Armstrongââ¬â¢s "What a Wonderful World," I informed her she had just broken the law by stealing the song.

ââ¬ÅHow can I be stealing from Louis Armstrong?ââ¬? she asked. ââ¬ÅLouis Armstrong is dead.ââ¬?

ââ¬ÅBut a record company owns that song,ââ¬? I replied.

She dismissed this with a wave of her hand. She, and millions of others, felt they were doing nothing wrong. They might be stealing, but they were stealing from thieves.

This is what the RIAA has never understood. While it is 100% correct in its assertion of legal property rights, it has no moral authority. As a result, its increasingly shrill self-righteousness instills not fear, but contempt, in the minds of most music traders.

Meanwhile, the IP counter-revolution was already underway. With trademarks, patents, and copyrights, corporations attempted to assert rights over IP that far exceeded those in effect before the revolution started. For example, Mattel attempted to shut down Barbie fan sites for trademark violation. On the patent front, Amazonââ¬â¢s one-click patent and Rambusââ¬â¢ subversion of the DDR standard signaled a new front in the war. One could apparently patent anything and make millions before the issue could be resolved in court. More than one company used the DMCA to silence critics or cover up shoddy security. Where civil courts had been the only legal recourse, companies could now call on the DMCA to mobilize criminal courts to do their bidding.

Intellectual property rights ceased to be defensive. They ceased to be tools protecting creators and nurturing innovation. Rather, they had become offensive business tools and profit centers. Where technology had been the enemy of IP traditionalists, it now became their friend. Digital rights management (DRM) could represent the Holy Grail of continuing and complete control over content for studios and music companies. Each instance of content could become a recurring revenue stream rather than a one-time sale. DRM enforces payment every time the content is used; the DMCA keeps DRM secure.

Meanwhile, though Napster is long gone, file trading has become more and more mainstream. Some estimate file trading at 60% of the Internetââ¬â¢s total bandwidth. Where Napster allowed one to get many different kinds of songs, one can now get almost any song, many movies and TV shows, and just about all computer programs. Popular songs can be had in minutes. This is the ultimate nightmare for the RIAA. It is now more convenient to steal music than it is to buy it.

And so the war continues with no resolution in sight. Control of information and content is central to corporations, so the IP wars will continue until the corporations either prevail in their control or are subjugated to the will of larger institutions. The future is unclear, partly because control of IP is so dependent on technology, whose evolution is unpredictable, but mostly because the IP wars have become part of a larger struggle.

What is to replace the nation state? The nation state has outlived its usefulness, and its replacement will take the rest of the Twenty-first Century to evolve. Right now, there are two contenders: the corporate state, epitomized by the USA, and the regional state, epitomized by the European Union.

To paraphrase Marx, the struggle for control of information has become a political struggle. We must face this fact before we citizens can reshape the IP agenda to include our rights and our values.

John O'Sullivan takes care of sales, marketing and product management
at Hotsprings Inc., a Toronto
company creating open source applications and development tools. Hotsprings
technology was acquired from Hotline Communications, developer of Hotline
Connect and a pioneer of P2P applications.

Click Here!