Abstract
In contemporary society, information unsurprisingly morphed into commodity. The IT industry that functions in the market economy and that perceives information as commodity encountered numerous problems that are related to specific features of information. These problems triggered two parallel developments aiming at the protection of intellectual property claimed for the creation of informational contents. On the one side, traditional intellectual property laws were expanded to cover certain aspects of privately owned or privately claimed cultural information. On the other side, new technological devices were developed to provide technological protection for information defined as private property. Tensions and rivalry between both areas of regulation, legal and technological, became particularly visible within the debate about Digital Rights Management (DRM). This debate emerged as a response to institutionalized legal protection of intellectual property that was frequently perceived in the concerned industry as rigid and inadequate. Nowadays, tensions between legal and technological means of protection remain problematic in the emerging law of information. These tensions are rooted in mutually excluding economic interests, yet also in the concepts in which they are expressed and regulated. Therefore, this essay analyzes processes of concept creation in the named approaches to information perceived as commodity. It shows that the adequate solution of regulatory problems depends upon the clarification of conceptualization processes in legislative initiatives rather than on compromises related to economic interests of stakeholders taking part in the debate about the appropriate attribution of digital property rights. This essay concludes upon the idea that legislative measures constitute the most efficient mechanism to regulate social conflicts, not only in the area of digital law. As a further consequence of this finding, the author proposes an overhaul of the concept of copyright as the first step towards a better conceptual framing of the law of cultural contents.
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Notes
It is however essential to keep in mind that in the information theory no relation was established between information and market mechanisms, and that in the theoretical approaches that were based on mathematics it was never intended to turn information into commodity. Some structural features of information might suggest that commodification is unlikely to take place and that it is cumbersome to implement. Especially, features such as credibility and nonappropriability make commercialization of information cumbersome for enterprises [see 10, p. 112]. Credibility may be largely neglected in our context, yet nonappropriability is a challenge to economic and legal approaches to information. Information cannot be owned like an item of personal property, for instance, a pen. Meanwhile, in terms of cultural transmission this problem is not the point of my main concern. Structurally, the most challenging issue in the legal approach to information is how to establish property rights to something as volatile as information. Second, and largely neglected, is the question whether property rights in information should be established at all. However, the discussion of this fundamental question goes beyond the scope of this essay that starts with the analysis of concepts in enacted legal regulation at a point where fundamental choices were already exercised by legislators.
Gillespie [19, p. 248] reflected upon the emergence of encryption in the debate about protection rights in DRM: “Cryptography presumes that the primary goal is keeping the message secret…” It seems that the concerned IT industry all too eagerly adopted this stance without considering notional fundamentals of ‘information’. Meanwhile, the existence of inflationary tendences in processing information does not mean that information would need to be kept secret by the very fact of its existence. There may exist situations in which information would need to be protected due to specific social conditions under which it functions. Yet these situations, such as planned police actions against criminal gangs or details of a country’s military defense strategy are rather exceptional. Secrecy of action performed under such circumstances is, as a rule, timely limited. This conclusion does not surprise as no sign system exists in perpetual isolation; sign systems are constituted in interrelation with other sign systems. They function and become meaningful in these complex interrelations. Therefore, attempts at semiotic appropriation of information do not correspond with the conceptual structure of information and with its social value that is constitutive of society. As a result of such attempts, something else than information might be appropriated, for instance ‘freedom’.
Doubtless, information acquires value also beyond market-economic considerations. First, in communicational contexts its value tends to zero when it conveys banal messages such as ‘This summer was really hot in Athens’. In turn, the value of information increases when it offers contents extending our daily experience such as ‘This summer, there were heavy snowstorms in Athens’. What is more, accessibility of information also determines its social value. The easier a piece of information can be accessed, the lower will be its social value. Indeed, what everyone knows or can know will not have any decisive impact upon communicational processes that steer society. In my view, it is unclear whether the debate about accessibility of cultural contents that are present online is related to this type of differentiation of information or whether it concerns exclusively market-economic determinants of processing information in society.
The court in Gorman v. Ameritrade Holding Corp. (293 F.3d 506 D.C. Cir. 2002) argued about the adaptation process in legislation and courts: “Just as our traditional notions of personal jurisdiction have proven adaptable to other changes in national economy, so too are they adaptable to the transformations wrought by the Internet. In the last century, for example, courts held that, depending upon the circumstances, transactions by mail and telephone could be the basis for personal jurisdiction notwithstanding the defendant’s lack of physical presence in the forum. There is no logical reason why the same should not be true of transactions accomplished through the use of e-mail or interactive websites.”
As an example of misunderstood technical innovation, the internal memo of Western Union from 1876 is regularly quoted in the research: “The telephone has too many shortcomings to be seriously considered as a means of communication,” [see 18, p. 158]. Beyond its entertainment value in scholarly literature, this quote uncovers a deeper truth. New technologies are always a challenge to us as their novelty makes it impossible to decide whether they actually fit their purpose. More generally, it is impossible to assess whether technological innovation is beneficial or harmful to society at the time of its emergence. Even future generations might have problems answering such questions as they might be aware of the status quo yet not of the status quo ante that they would need to be able to compare and to evaluate the assumption that progress took place in society due to technological innovation. ‘Disruptive technology’ is an example that challenges researchers at this point. Additionally, Mireille Hildebrandt [22, p. xi] remarked: “If computer systems diminish the substance of human rights or render legal remedies ineffective, they diminish human agency and could even destroy the architecture of constitutional democracy.”
Wild et al. [39, p. 9] refer to the English leading case Adams v. Lindsell (1B&Ald 681) from 1818 to solve the problem whether an email will be treated as effective in accordance with the traditional English mailbox rule at the time when it is sent rather than when it is received. This is a good example of integrative tendences in the law of information.
For instance, the court in Gorman (cf. footnote 4) remarked about this issue: “Cyberspace, however, is not some mystical incantation capable of warding off the jurisdiction of courts built from bricks and mortar… Ameritrade is quite wrong in treating ‘cyberspace’ as if it were a kingdom floating in the mysterious ether, immune from the jurisdiction of earthly courts.” This statement marks the beginning of a process that could lead to the creation of an integrated law of information that would combine and adjust the regulation of offline and the regulation of online informational contents.
For instance, Robert Cooter and Thomas Ulen [10, p. 112] asked some fundamental questions that steer the legal reasoning in this area of property law: “1. What can be privately owned?; 2. How are ownership rights established?; 3. What may owners do with their property?; 4. What are the remedies for the violation of property rights?” These questions clarify the legal interest in the debate about cultural rights, yet they also narrow it down to interests of societies dominated by the rules of market economy.
Exemplary for this state of affairs is a Delaware court decision where the owner of an estate tried to prevent the access to his ‘dirt road’ to owners of a landlocked estate that could have been reached solely via his private road. The owner of the estate referred to an absolute right that would guarantee the protection of his private road and the right to decide himself who is using it. Applying the common law doctrine of implied easement, the court granted to the plaintiffs an easement to enable them to use the road (cf. Walker v. Quillen, 622 A.2d 1097, 1993). As can be seen, not even real property law sets protection standards that would apply without exception. Therefore, courts regularly have to correct socially inadequate attitudes of citizens in respect of the concept of property that does not guarantee any absolute protection.
Industry regularly used this argumentative framework when claiming the ‘freedom of entrepreneurship’. Already this fundamental argument proved illusory as industry functions in Occidental societies only within the limits of law. Hence, it is free only within these limits [see also 41 about industry self-regulation].
The anthropologist Erich Kasten [26, p. 3] remarked about the risky analogy between tangible and intangible property: “While tangible property is relatively easy to deal with in the sense that objects can only be in one place at one time, knowledge and ideas are continuously in flux over space and time.” Therefore, treating knowledge and ideas as intangible property appears doubtful in this approach.
Trond Thuen [33, p. 88] characterized his method as distinct from legal approaches: “I will treat the concept of property in a metaphorical sense, and avoid the question of legalizing copyright to objects, tangible or intangible, of cultural heritage.” The anthropological method allows to distinguish characteristic features of an object of legal regulation that are not expressed in legislative acts. Studies in legal conceptualization need such insights that uncover pre-legal processes of meaning formation.
Gillespie [19, p. 27] remarks about the concept of possession in culture: “…cultural expression does not work like other tangible goods, even in its most tangible forms, it is a problem because we have chosen to embrace the legal metaphor of possession. With the ‘intellectual property’ frame in place, other qualities of cultural expression are systematically ignored.”
Cf. C.B.C. Distribution & Marketing Inc. v. Major League Baseball Advanced Media, LP, 505 F. 3d 818 8th Cir, 2007.
Cf. Rupa Maya et al. v. Werner Chappell Music Inc, 131 F. Supp. 3d 975, C.D. Cal. 2015.
Cf. Estate of Martin Luther King, Jr., Inc. v. CBS, 194 F.3d 1211, 11th Cir. 1999.
In Mattel, Inc. v. Walking Mountain Productions (353 F3d 792 9th Cir. 2003) the holder of the copyright to the doll Barbie sued a photographer for having used parts of the doll in situations where Barbie appeared in a fondue pot or wrapped in tortillas. The photographer argued that he attempted to “critique the objectification of women associated with Barbie.” Although the constellation described here is a school example of the application of the doctrine of fair use, the photographer was sued, nevertheless. The indicated reason for the suit was the threshold question whether a parodic character of the work and not, for instance. the intention to tarnish the image of the product was leading the photographer in his work. Similarly, the suit from September 2020 by Beredskapmuseet in Stockholm against the author Aron Flam who on the cover of his book Det här är en svensk tiger used the picture of the famous Swedish tiger decorated with Nazi symbols, shows problems in the application of analogous Swedish provisions. In this case the court found the use of the original copyrighted picture legally justified. Meanwhile, the court procedure was necessary to reach this outcome.
Exceptions to this rule are identifiable conceptually as over-interpretations of copyright protection, for instance in the European court decision Levola Hengelo BV v. Smilde Foods BV as far as legal protection for the taste of a food product was perceived as precluded by existing provisions in the EU law (cf. ECJ C-310/17). Meanwhile, the color ‘pink’ could be registered in the US as trademark (cf. In re Owens-Corning Fiberglas Corp., 774, F.2d 1116, Fed. Cir. 1985).
The IT industry reacted itself to this challenge, for instance through regionally different pricing strategies for its products. Therefore, there is an element of arbitrariness in argumentative positions based on the claim of damage in such situations.
The remark about some aspects of cultural transmission on the internet made by the writer William Gibson, who also coined the term ‘cyberspace’, is revealing: “The ‘Net is a waste of time, and that’s exactly what’s right about it.” Sean Geer [18, p. vii] while describing the internet mentioned “the rawness and anarchy of the medium.” One can learn a lot from such remarks. In the research into digital contents that are accessible online, the idea that there is frequently not much truly protectable content in the cultural offer on the internet needs to be taken seriously. This is clearly not the case in some approaches associated with internet activism and in contrary approaches based on strict doctrinal standards about protection of ‘private property’. Jordan Zlatev wrote in The Semiotic Hierarchy [42, p. 187]: “Information technology and the internet are sometimes hailed as providers of a ‘new level’, but it is arguable that they are nothing but a new technically sophisticated medium for visual and linguistic representations, (with both positive and negative consequences for the quality of human communication and thought), and not a qualitatively new type of semiotic resource.” A contrary view was expressed by Robert Logan [28] in The Sixth Language: Learning a Living in the Internet Age. Unavoidable commitments in the research to one of the two quoted approaches or to some intermediate views that follow from these intellectual commitments steer conceptualization processes in the legal regulation of access to cultural contents. It clearly matters whether we deal in the area of the law of information with substantial issues or with matters perceived as trivia and social pathology. Research into the legal regulation of access to cultural expression online can always be positioned in the mentioned framework of intellectual and ethical reference.
Cf. Metro-Goldwyn-Meyer Studios Inc. v. Grokster Ltd. 545 US 913, 2005.
Among many precedents dealing with this issue is BMG Music v. Gonzalez (430 F3d 888, 2005) that concerns legal sanctions imposed for the abuse of rights of copyright holders. The defendant downloaded copyrighted songs from a file-sharing network. Therefore, the copyright owner instigated legal proceedings against her. Such legal actions are rare, yet they take place. The court deciding the suit mentioned about the defense argument forwarded in this case: “Nor can she (i.e., the defendant) defend by observing that other persons were greater offenders. Gonzalez’s theme that she obtained ‘only thirty’ copyrighted songs is no more relevant than a thief’s contention that he shoplifted only thirty compact disks.” The court assessed twenty-two thousand five hundred dollars in damages against Gonzalez.
The first edition of the Esperanto textbook that appeared in print in Russian included the following waiver [14]: “The international language, like any national language, constitutes a social achievement. The author renounces any personal rights to it forever.” Zamenhof also drafted a text for the back cover of his booklet: “This brochure will soon be printed also in German, French, and Polish. Everyone has the right to translate it into other languages.” (Translation by the author).
These research materials are published with added disclaimers such as: “CRS Reports, as a work of the United States Government, are not subject to copyright protection in the United States. Any CRS Report may be reproduced and distributed in its entirety without permission from CRS. However, as a CRS Report may include copyrighted images or material from a third party, you may need to obtain the permission of the copyright holder if you wish to copy or otherwise use copyrighted material.”.
Can artists make photographs of their sold works accessible on their websites without the consent of new rights owners? Apparently yes, provided they do not exceed the limits of thumbnails and offer information valuable for the public and not the access to the work as such. This follows from the court decision Perfect 10, Inc. v. Amazon. com, Inc. (508 F.3d 1146, 9th Cir. 2007). In this consolidated decision against Amazon and Google, the court had to decide whether thumbnails that refer to original work that are provided by search engines such as Google and that are present online legally or illegally might be perceived as violations of copyright. In an advanced way of dealing with the legal problem, the court distinguished between the display right and the distribution right. It finally held that Google’s use of thumbnails, framing and hyperlinking were justified by fair use as it served the interest of the public. Thus, ownership appears in this perspective as a limited right. Owning a cultural artifact does not necessarily mean having the right to keep it concealed from others and to prevent accessing it by all means. The information about its existence and general parameters needs to be tolerated by rights owners. Meanwhile, like in many cases concerning digital rights, the materials in question oscillate on the lowest level of artistic creation.
Gillespie [19, p. 248] remarks critically about the technological regulation of copyright: “DRM is not a means to regulate duplication and distribution; it is a way to guide and track purchase, access, and use in ways that monetize what users do, and not only then to constrain redistribution and reuse through commercial and technical boundaries.” Cooter and Ulen [10, p. 131] commented on the same issue less critically: “Cheap encrypting will allegedly enable producers of digital information to control who uses it without much need for law.”
Cf. Campbell v. Acuff- Rose Music, Inc. 510 US 569, 114 S. Ct. 1164, 1994.
Meanwhile, also this test for patentability was criticized, mainly because it might impede real progress in parts of industry, for instance in pharmaceutical industry due to the general practice to refurbish already existing molecules and patent them as novel drugs. This tolerant handling of the element of ‘novelty’ in the patentability test incites senior managements in pharmaceutical industry to offer legal novelty instead of truly new pharmaceutical products. The harm to society is evident in this situation engendered or facilitated by the interpretation of the patentability test by competent authorities. In the area of copyright, similar strategies become effective with legislative support.
Cutter and Ulen [10, p. 133] reflected upon tensions between law and technology from the perspective of Law and Economics: “According to one version of the future, most users of digital information will download it from a few large sellers who impose uniform charges…(C)opyright will become the dominant law of the digital age…According to an alternative vision…, copyright law will die because technology will make law unnecessary. In the model of ‘digital libertarianism’ technical protection through cheap encrypting will be more efficient than legal protection of intellectual property.” There is however a lot of bargaining space between the two radical positions, especially when the different nature of law and of technology are considered.
Comer [9, p. 308] writes: “(Librarians) realize that in the future, knowledge will not be copied and placed in physical books. It will be stored in digital form, indexed automatically, and transmitted over networks only when needed. They expect that in next generation, computer networks will be used to locate and access information.” Meanwhile, the assumption that information is found on the internet does not necessarily mean that the book as the vehicle for transmission of knowledge disappears. Furthermore, in order to ‘need’ a piece of information, a level of epistemic awareness is necessary that causes ‘needs’ to become manifest. Information that is stored, yet not consciously present does not satisfy this ‘need’.
Kasten [26, p. 15] explained the situation from the anthropological point of view: “Rigid legal norms and authorizing a specific group to use a particular tradition as its exclusive property are questionable…Just as any intellectual work builds upon the knowledge and ideas of others, so the origins of Native art and handicraft traditions can almost never be traced to a single Native group.” Under such conditions, other implications may prevail: “The growing perception that certain kinds of cultural property are a unique joint property belonging to all humankind implies a shared responsibility to maintain it, to save it from extinction” [see 26, p.21]. It also opens a new perspective for a better defining of culture as a concept in law.
Concerning the issue whether the clause limiting consequential damages can be validly included in shrink-wrap licenses that accompany computer programs, US courts supported software developers (cf. Mortenson v. Timberline 140 Wn.2d 568; 998 P.2d 305, 2000 Wash.). Their decisions were perceived by some scholars as controversial because they reshaped traditional contract law by allowing unilateral modifications of contractual obligations after the contract was concluded. In these matters, the courts might have shown too much understanding for the pretended needs of software industry.
In Nitke v. Gonzales (413 F. Supp. 2d 262, 2005), a photographer posted on her website artwork that focused on sexually explicit, sadomasochistic behavior. The U.S. Communications Decency Act (CDA) prohibits to transmit “any comment, image, or other communication which is obscene or indecent, knowing that the recipient of the communication is under eighteen years of age.” As all websites can potentially be accessed by minors, the artist sued claiming that the provision was overbroad, while also stressing that it was not very probable that minors would have an interest in obtaining her internet address to see her work. In her view, the First Amendment of the U.S. Constitution would have been violated by the CDA provision in question. Meanwhile, the court that decided this case approached the issue formally. It was ready to accept only two exceptions (called affirmative defenses) mentioned in the statute, namely that “the defendant has taken in good faith, reasonable, effective, and appropriate actions under the circumstances to restrict or prevent access by minors to any obscene communication” or “has restricted access to such communication by requiring use of a verified credit card, debit account, adult access code, or adult personal identification number.” As these measures were not taken by the photographer, she had to assume that she might violate the law, should some of her posted images be perceived as obscene under the famous Miller test (cf. Miller v. California 413 U.S. 15 L. ed. 2d 419, 93 S. Ct. 2607, 1973). According to the test, a communication is obscene, if (first) “the average person applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest”, (second) “the work depicts or describes, in a patently offensive way, sexual conduct” and (third) “the work lacks serious literary, artistic, political or scientific value”. Needless to mention that due to the interpretive potential of the Miller test, the artist was exposed to incalculable risk while pursuing her online presence, “in furtherance of her artistic goals,” as she asserted. The court perceived however that the burden of proof relative to the risk due to the alleged overbreadth of the provision was not met and it dismissed her claim.
Gillespie [19, p. 247] mentioned about this result: “By considering encryption it its historical concept and asking why it is now being used in cultural distribution in the way it is, we can examine the consequences of this strategy not only for the copyright, but for something larger, the further commodification of culture.”
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Galdia, M. Cooperation or Confrontation Between New Technologies and Law of Information. Int J Semiot Law 36, 2219–2246 (2023). https://doi.org/10.1007/s11196-023-09978-x
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DOI: https://doi.org/10.1007/s11196-023-09978-x