The Common Law #5

The Common Law #5
(The following column originally ran in the January 2, 2008 edition of the Moody County Enterprise.)

The Common Law:
Who Owns an Idea?

By N. Bob Pesall 
Attorney At Law 
Flandreau, SD 

The First Maxim of Computers states, “to err is human, but to really screw things up requires a computer.” Computers were supposed to make our lives simpler and easier. Anyone who ever stood in a checkout line when the scanner quit working knows how false this notion can be. The maxim exercises almost crippling potency when applied to the law. Consider for example our national copyright law. 

Copyright laws exist to encourage authors and artists. The idea is simple. If an author writes a good book, for a few years at least, he gets to control what happens to that book. Our national Constitution enshrines this principle by letting Congress pass laws which, for limited times, protect the artist's right to control his works. Nobody was allowed to make or distribute copies without his permission. If they did, he could sue them for damages. This protection originally lasted for only ten to twenty years. After this time was up, the works became public domain, and other people were free use and copy them as they pleased. This encouraged authors and artists to keep producing new material. 

Over time, Congress extended these rights to new media, like music, movies, and computer software. Congress also greatly extended the period of protection. Today, most new works will not enter the public domain until 95 years after the author has died. (Yes, if you want to legally sell copies of an old book, you have to figure out when the author died.) These changes to the law, mixed with our our modern technology have produced a system which is almost impossible for ordinary people to use. 

In the past, if you wanted to copy a book, you had to pay for paper and ink. If you wanted to copy a movie or a song, you needed buy a tape. Because copies cost real money, nobody was handing out Casablanca for free. Computers, and the Internet, have removed this limitation by bringing the cost to copy a book, movie, or song down to nearly zero. 

What happens is this: Bob buys a music CD with a dozen songs on it. He takes the CD home, puts it into his computer, and converts each of those songs into a digital file. Now he has a copy of each song on his computer as well as the original CD. He can keep the CD in his car, and still listen to the songs on his home computer. If he has a portable player like an iPod, he can make additional copies of those songs, along with hundreds of others, and take them with him wherever he goes. He has no need to carry each individual CD with him. Isn't technology wonderful? 
So far, so good. Everything Bob has done up to this point is probably a fair use of his legally purchased CD. But most home computers also have access to the Internet. This means that Bob's computer can potentially connect with millions of other computers all over the world, and share those songs, at almost no cost, at the speed of light. This is exactly what Bob does. 

By this point, however, Bob has probably violated a copyright, and may get sued. In the past few years the Recording Industry Association of America has filed thousands (literally) of these lawsuits, on behalf of it's members, against ordinary people for doing what Bob did. This is where things really get complicated. 

In the old days, if you sold illegal copies of a book, and you got sued, you would usually just have to turn over your ill-gotten gains. Bob, however, is giving these songs away, so we really don't have a dollar value for how much damage has been done. In file sharing cases, we often don't know how many songs were copied. We don't how many people would have purchased the CD otherwise. We don't know whether people further down the line made copies of Bob's copies, and so on. In short, we know Bob did something bad, but don't know exactly when, and we have no way to figure out how bad it was or who should get compensated. 

There are a lot of things we can do to help clear this mess up. Education is vital, but perhaps first we should reconsider what we really want our copyright laws to do. The original idea was to encourage authors and artists to create things by giving them a temporary monopoly on their product. After a few years, these works would go into the public domain and others would be free to build upon them. Today, however, works are protected for generations after the author is dead and gone, and we keep extending the deadline. In fact, almost no works have entered the public domain since the 1920's. As a result of this cultural drought, countless movies, songs, and books from the last 90 years languish in warehouses because we cannot legally copy them. Some have completely decayed and are lost forever. 

As a nation, we want to have access to good music, art, and literature. We want it to be widely available, and we want to be able to build on it from one generation to the next. The question is, how can we encourage those among us with talent to create, make it widely available, and at the same time avoid the legal mess and record keeping swamp that our current system has created? Maybe we just need to go back to the old ten to twenty year system. 

The foregoing column is written for informational purposes only, and does not constitute legal advice. For those desiring more information, see the Digital Millenium Copyright Act and the Sonny Bono Copyright Term Extension Act(s) of 1998. N. Bob Pesall can be reached at P.O. Box 23, Flandreau, SD 57028, by telephone at (605) 573-0274, or on the web at