The Future of Intellectual Property Law & Authorship
The preceding chapters of this dissertation describe the attitudes ofAmericans towards intellectual property, they describe the traditionalcopyright story, how it is constructed and how it is defended. These chaptershelp illustrate how the boundary of property is expanded around computertechnology through a process which relies heavily upon narrative strategiesinterwoven through a variety of modern discourses. While the traditionalcopyright story is a powerful one, it is not monological -- there is room foreruptions.
Room for eruptions exist because the identity of individuals working asauthors, readers, professors, and many others are multiple while copyrightattempts to unify the author into one conceptually coherent subject. Whentechnology makes it possible to exchange, collaborate, borrow, and steal likenever before, the notion of authorship changes. Copyright, however, continuesto force the dialogue into that occupied by the individual authorial subject.My general thesis is worth repeating. While complete control is impossible,what may be done in the name of controling property in the digital world is asignificant threat worth watching.
This chapter looks towards the somewhat blurry future. I want to weavetogether the prospects and probabilities of our future with the trends andpossibilities of our present. My immediate concern is intellectual propertyand the technology changing it. Unless we carefully think about the future ofintellectual property we may end up with an approach to exchange in the digitalworld which is stifled at best. First, I want to outline some of thepossibilities for authorship via computer technology if it is left to developwithout undue regulation. Second, I want to discuss what the future might looklike. These futures are both probable and preferred. They are designed toillustrate how the narratives existing now could possibly shape our future in avariety of ways. Hopefully these alternatives can spark a dialogue about whereit is possible to go if we let ourselves escape from the discourse ofintellectual property law.
TRANSFER FROM AUTHOR-FUNCTION TO DIALOGUE
The first possible potential for authorship is that the overemphasis onauthorship could be replaced with an emphasis on the dialogue. In the middleages, texts were viewed as instruments to incite action. Authorship wasimportant to assert so one could know who to hold accountable. The geneologyof copyright outlined in Chapter Two illustrates the switch from the text as anact to the text as an original and aethestic creation. This transformationcorresponded with the assertion of author's rights and copyright. We are seeing a new transformation emerge in which the text loses its boundedquality and becomes part of a larger informational network. Authorial works,can be conceived as connections between everyone, moving and changing to meetthe needs of those involved in the dialogue. The possible transformation isfrom the text as an individual creation to the text as a dialogue produced in acommunity. Exchange provides different understandings of authorship as itseparates this concept from its relationship with proprietary ownership.Collaborative constructions are facilitated by the ease with which electronicdata can be manipulated. Authorship in an electronic age can embrace facets ofcommunity, intertextuality, and instability. This perspective has qualities ofan older age when dialogue with a text was carried out in the margins. It alsohas uniquely modern qualities of which the loss of a substantive form is onlyone.[2] Discourse, not authorship is emphasized. Doug Brent explains, In short, with electronic communication the notion of the static andindividually owned text dissolves back into the communally performed fluidityof the oral culture... In the electronic world as in the oral, the latentintertextuality of print is raised to consciousness: it becomes more obviousthat originality lies not so much in the individual creation of elements as inthe performance of the whole composition.[3] Individually owned texts are the products of a carefully managed discourseabout intellectual property. As this shared vision dissipates in the face ofelectronic communication, the stage is set for a transformation in authorshipand originality. If discourse becomes the focus, there is also the potentialthat authorship can develop in a non-commodified manner where monetaryincentive is not claimed as the motivating force behind creation. Currently, the internet is a connection of individuals who show little concernfor the economic rationale offered by the copyright story. More important isthe potential for dialogue and exchange made possible in this new "publicsphere." If the language centers the identity of owner as the important partof intellectual property, then loss of control is the result. However, if onecenters the potential for creation and exchange, the internet and other formsof electronic communication become an exciting realm for discourse andcommunication. The potential for transformation lies in substituting adiscourse emphasizing dialogue for the discourse emphasizing the economicincentive of "taming" cyberspace for "real" authors. The medium helps theformer in the sense that electronic communication is an assault on thedistintion "between mine and thine that the modern authorshipconstruct was designed to enforce."[4]Hypertext, an electronic presentation of text, is a perfect illustration ofthis potential breakdown. Hypertext, easy to access via Netscape or other World Wide Web interfaces, isa form of interaction with a document that allows the reader to transgress theboundary of a text by following themes of interest which may not always remainin a single text. A linear presentation is circumvented by the ability to"point and click" your way through a document. A person can go from documentto document without ever depending upon the author function to legitimate thetext. For example, a pargraph introducing the director of a particular research groupmay have several highlighted words. I can click my mouse on any of thehighlighted words and the screen will change to give me the text, picture, orsound I want. I can chose to follow an interesting link outside the text ofthe document to another text, or to another university. This method ofinteracting with a text gives the reader more freedom to move from topic totopic easily. George P. Landow argues that hypertext creates metatexts: In the future there will be more metatexts formed by linking individualsections of individual works, although the notion of an individual, discretework becomes increasingly undermined and untenable within this form ofinformation technology, as it already has within much contemporary criticaltheory.[5] The success of hypertext in the form of the world wide web is evidence of thepossibilities of metatexts formed by linking a variety of works together. Theresult is a discourse where individual voices are lost in the cacophony of manyvoices. Additionally, hypertext documents reconfigure the role of readers and writers.As Landow puts it, First of all, the figure of the hypertext author approaches, even if it doesnot entirely merge with, that of the reader; the functions of reader and writerbecome more deeply entwined with each other than ever before.[6] The reader plays an active role in the story. A variety of texts, pictures,and sounds are available to the reader connected via hyperlinks. As the readerin a hypertext document moves through the links they produce a meaning whichsurpasses a single text. As someone links documents together in ahypertextual fashion they are creating not only a linear story, but thepossibility of much more as well. What results inside the readers' head is theretention of knowledge, but not necessarly knowledge garnered from the linearprogression of an argument by an original author. The relationship of readerto text is made clearer through the technology of hypertext. By focusing onthe text as dialogue and the function of the reader, the author-function isdiminished in importance and the possibilities a dialogue via hypertext is madepossible. As the electronic communication and the methods for communicating become morecommonplace, it could lead to a transformation in the manner in whichinformation is communicated. The reader her/himself can become part of thewriting process. It is easy to continually add and subtract from an electronicdocument and to a dialogue. Anyone using a word processer understands this.As Woodmansee points out, By contributing his or her commentary, the reader becomes an overt collaboratorin an unending process of reading and writing which reverses the trajectory ofprint, returning us to something very like the expressly collaborative writingmilieu of the Middle Ages and the Renaissance with which we began. This return occurs with the corresponding loss of the author-function. Thenegative result could be the further fragmentation of knowledge. The positiveresult, a greater degree of interactivity between the text and the reader. LOSS OF INDIVIDUAL AUTHORIAL CONTROL Second, and closely related to the transformation of the text to a dialogue,is the resulting loss of authorial control. This can occur through the processof collective authorship which transforms the subject and the way authorship isinterpreted. It can also occur by destabilizing the authenticity of theauthor's text. To quote Landow again: ...there's more than one way to kill an author. One can destroy (what we meanby ) the author, which includes the notion of sole authorship, by removing theautonomy of the text. Once can also achieve the same end by de-centering textor by transforming text into a network. Finally, one can remove limits ontextuality, permitting it to exapnd, until Nietzsche, the edifying philosopher,becomes equally the author of The Gay Science and laundry lists andother such trivia -- as indeed he was.[8] There is much to suggest that hypertext begins the process of decentering textsas well as speeding up the loss of authorial control. Foucault would mostlikely see hypertext as a mechanism which speeds up the death of the author. Mark Poster is among the first to discuss the transformation of authorship viatechnology. Poster argues that the traditional subject is destabilized viaelectronic writing. The subject is destabilized through new avenues ofcollective authorship.[9] From simplypassing the same disk from person to person to taking a text received from theinternet and changing the words then sending it on, once text becomeselectronic its stability and authorial authenticity is reduced, if not lost.For example, if I send a copy of my dissertation via electronic mail to alistserv there is nothing stopping anyone on the list from changing my words,or appropriating the work as their own. Collaborative authorship is certainlynot new, however, while copyright can only define the author as an individual(or a couple of individuals who can identify their specific contribution to acollaborative work), computers make collaborative work easier and thedistinctions between authors more difficult to make. The implicationsradically affect how the author is perceived. First, works can become collective in a manner not anticipated or understoodby copyright law. How do you assign ownership to a document when knowone knowswho exactly did what? Second, an individual author cannot maintain controlover their words. This can happen quite unintentionally. When using Eudora's"redirect" command, for example, the message which is really forwarded looksas if it comes from the original sender. This can make it quite difficult toidentify who sent what and who should be attributed and cause confusion aboutwho is the author.[10] Phil Agreillustrates with an example: If someone forwards a message from me to a mailing list, the listserv mightreject the message (because I'm listed in the From: field even though I'm noton the list of authorized users of the list) and send me an error message, orit might accept the message and tell the whole list that I sent it. Evenworse, Jane (who really sent the message to the list) might have added her owntext without it being clear whether the text was mine or hers.[11] Obviously, identifying an author becomes difficult. The technology itselfmingles authorship to the point where it becomes meaningless. By decenteringthe author, all that is left is the text. The author loses control. This hasimplications for those who wish to ensure that thier authorial integrity isintact. However, even if a name appears in the body of the text, at the pointwhere a message has been forwarded a dozen times, figuring out who authored thetext is often times harder than it might appear. Many people embrace the instability of electronic communication. As DougBrent puts it, "When knowledge inhabits a print space, it seems natural to wantto own it. When it enters electronic space, it seems equally natural tosurrender it."[12] The act of uploading afile to the internet is an act acknowledging my lack of control over the ideasI have written about. My written work can be altered by numerous otherindividuals who come into contact with it. To participate in this form ofexchange is to give up sovereignty almost completely. Electronic communication provides the unique opportunity for authorship to beseperated from the text. Furthermore, it is easy to lose site of the authorwith so much information on any topic available. If I engage in a discussion,at some point the author is separated from arguments, especially if I do notknow the participants personally. There is a challenge to traditional notionsof authorship waiting to be embraced on the internet. DEMOCRATIC AUTHORSHIP Third, electronic technologies democratize authorship by providing an outletfor virtually anyone with access the ability to be heard. One possibility inthe new technological era is the downfall of traditional publishing.Publishers have traditionally acted as a centralizing mechanism controllingaccess to the public ear. Mainstream media has been a most sucessful methodfor delivering messages to the public, in a one to many format. What wasconsidered "inappropriate," or unprofessional by these gatekeepers did not makeit to the "marketplace of ideas." The result is the commercialized televisionage where critical thinking is scorned and consumerism is the surrogate forsubstantive dialogue.[13] While the internet is no panacea for healthy subjects, its many to many formatprovides a form of access and dialogue missing from mainstream media. Theinternet allows authors to upload their texts without the gatekeeping functionof the traditional publishing houses. The motivating force behind most of thisinformation is the desire to exchange and communicate. If a copyright isadded, it is not for monetary purposes, it is simply to attempt to ensure thatthe author's name remains attached to the given piece of information. Theresult is that each information receiver is responsible for filteringinformation and the author as authority can lose its centrality. This providesroom for everyone to become an author who wants to exchange their ideas withothers. "Real" authors, those that make money writing, find this prospectfrightening because it diminishes their authority. As the potential fortransforming authorship clashes with a system for legitimating expertise andinstitutionalizing the production of printed work, the loss of controlexperienced by the publishing companies spurs the sovereignty function and theneed to make the information superhighway "safe" for "authors." The democratic affects of the internet illustrate that while the potential fora switch to dialogue and the instability of authorship exist (possibilities oneand two), the author is far from dead. Instead, what we see is a clash betweenthe interests of authors who want to exchange and authors who want proprietarycontrol over their work. The interest in author's moral rights brought on bythe sudden ability to exchange information seems to attest to authorialinterest in proprietary rights.[14] Theinability to control proprietary work has led some authors to become paranoidabout their ideas reaching the public. This provokes the following result, asAoki notes, The "lack of sufficient incentives" to creators and producers argument willinevitably be deployed by the mass-media and copyright industries to staunchany perceived threat to the value of their intellectual properties broughtabout by increasing the scope of legally permitted, but unauthorized uses ofsuch properties.[15] It would seem there is not room for democratic authorship interested inexchange to exist in the same place as proprietary authorship interested inmonetary rewards. This is true because there is bound to be a blurring of thelines with proprietary works exchanged without reward. This would seem to bean intolerable situation for "traditional" creators and producers. The danger, however, is to those who wish to engage in a noncommodified,democratic form of authorship. Those who have little respect for originalauthorship, but much respect for making a quick buck, are most likely to takeideas which are exchanged for free and turn them into profit makingenterprises. While poststructuralist authors may willingly set their ideasfree upon the internet waves, there are many people willing to profit fromideas they find but did not create. The problem then, does not lie in the factauthors are unwilling to share ideas unless compensated. It lies in the factthat a system which commodifies knowledge produces a powerful logic whichquickly overshadows any alternative system. This does not make it normativelybetter, it simply makes it more aggressive. It allows those within it toappropriate ideas donated to the public good for personal profit. If we follow the path of democratizing authorship the author as authority andboundary is decentralized. From this perspective, democracy is about balancingthe needs of authors with the needs of readers and the general public.Democratic authorship removes authorship from the confines of author as expertand creates a situation where everyone can exchange ideas, some of which willbe individually authored. Even democratic authorship will serve as a boundary.However, these boundaries will be defined by exchange instead of sovereignty.Advocating some form of democratic and decentralized authorship could helpavoid the current trends towards increased ownership of authorial work. COMPUTERS AS AUTHORS Our notions of creativity are also affected by technology. Increasingly,computer programs can create "art." Computer generated fractals are anexample. These designs embody mathmatic precision and artisitic beauty, thoughvery little human input. The "personality" traditionally assumed to be whatmakes art art is lacking from computer generated images. Our understanding of"creativity" is challenged in the process. Sam Ricketson makes this argumentin light of copyright protection and how authorship and originality should bedefined in the future. My thesis will be that this concept (authorship) has now developed close to thebreaking point. While it still embodies the values of personal creationtraditionally central to copyright law, these values have now reached the pointat which they are being steadily undermined and debased. To adopt theterminology used in the title of the lecture, the choice is rapidly becomingone between people and machines.[17] If machines can produce artistic works what does creativity as an outgrowth ofhuman personality mean? What are the implications for intellectual property?Who owns the literary or artistic work created by a machine? The requirement seems to be that human authorship is needed to definecreation.[18] In her analysis ofphotography as art, Jane M. Gaines makes the requirement for some form of humaninput clear. She states, Crucial to Edelman's theory is the idea that in order for the law to protectthe photographic work, the photographer (the creative subject who haddisappeared into the machine), had to be reintroduced into the equation; a soulhad to be found in the mechanical act, the "soulless labor" of operating acamera. The subject (and here all of the grand potential of humanism's "Man"is unfolded) "invests" the photograph with something of himself, with thecombination of humanness and particularity that we have come to call the"original conception."[19] This original conception, which is the creative spirit of the human as seenthrough the product of the machine, becomes the intellectual property of thecreator. Modern technology, which takes the creative power of machines even further thanthe camera, is much more problematic for copyright. If all a human agent doesis press a button, how is the "personality" of the human endowed in theultimate product? As artifical intelligence becomes increasingly sophisticatedand capable of acts traditionally considered creative, who will own theresults? A copyright system and authorship as a human endeavor in whichhuman labor or human personality manifests itself in a creativemedium is stood upon its head. Giving copyright to machines is one method for dealing with this problem. Asecond possibility is to embrace the cultural nature of all creative work andunderstanding the creative as a public good instead of something done forprivate advantage. Of course, as with the example of photography, theresiliance of the law to incorporate new forms of human authorship within itsfolds may provide avenues for the human soul to take control over theseproducts as well. As Gaines states, So Edelman's account reminds us, new technologies may 'surprise" oldcategories, but only to be reformed according to existing conceptions of theworld. Science and engineering may produce technologies that outstrip humancapabilities, but these strange inventions are soon reconceived -- domesticatedand humanized -- as they are put to use.[20] The possibilities of authorship and creativity are multiple. New technologyblurs boundaries that have been discursively drawn and solid for many years.New technology helps deconstruct the traditional copyright story by underminingauthorship as the work of an individual and original creation as the work of ahuman agent. Our future can be a place where authorship is not the boundary of texts, butmultiple authors and dialogues exist. The future can be a place where everyonecan put their thoughts, ideas, stories, and music on the internet for anyone touse. Authorial control can diminish in the face of free exchange if thecommodification of ideas can be diminished. Currently, cyberspace is a placewhere commodification is unimportant. However, traditional authors andtraditional industries see a vast market ready for their "goods." In makingthis market safe for proprietary goods the possibilities for an alternative maydie out. I do not have high hopes for decentralization. Absent a concerted effort toestablish this new relationship, old notions of ownership will prevail. Toquote Doug Brent, Moreover, given the economic structure that we have painstakingly built on theback of print-induced linearity and specialization, it will take more than anew attitude toward texts to make us stop wanting to charge for knowledge. Infact, the very technology that has made certain aspects of replication so easyas to make old-fashioned copyright unenforceable has simultaneously broughtinto existence new possibilities of charging by the byte for using information-- a process that Moulthrop calls "information capitalism." For every move inthe economic game there is a countermove, and knowledge has been so closelytied to economics for so long that it may never be disloged.[21] However, if knowledge is to stand a chance of being dislodged from economics itmust start through the process of recognizing the benefits of a new system andestablishing a way of talking about knowledge that avoids the pitfalls of aneconomistic discourse. As new technologies help foster increased dialoguebetween authors, texts, and audiences, the law is used to decrease dialogue andextend traditional notions of ownership to new mediums. When faced with thelargess of corporate power and governmental policing it is difficult to see hownew technologies will be able to transform the boundaries well established byprint. I have tried to outline the possibilities of authorship within a newtechnological framework. Next, I want to build some scenarios. The trendsrelated to intellectual property, authorship, and technology have shiftedthrough the pages of this dissertation in a casual fashion. This chapter, byway of conclusion, will tie these threads together and narrate our possiblefuture. Such a project is important because just as there is not solid way tointerpret authorship, there is no one future. We stand at a point in timewhere the future of technology as it relates to authorship can move in avariety of directions. INTELLECTUAL PROPERTY, TECHNOLOGY, AND OUR PROBABLE FUTURE The United States is in a legal feeding frenzy over intellectual propertyrights. As intangible items become commodified, everyone wants a share. Thereare lawsuits over who owns the images of the dead, over who wrote a phrase in asong, over reverse engineering of computer programs, over the use of the "lookand feel" of a computer program, over ideas, over body parts, and over geneticmaterial. Control over personal information is increasingly in the hands ofdatabase owners who compile information on everything from consumer tastes tomedical histories.[22] Ensuring theintegrity of government computers against attack is an important security issueand security as an issue is becoming increasingly important. Privatization ofideas and information, not to mention creative work, exacerbates the problem asproperty lines are drawn around intangible goods without acknowledging thedependency of culture on borrowing, using, rephrasing, and appropriating thework of others.[23] The question is usually phrased as how much can be owned? not, ought it beowned? When ownership is challenged, it is not challenged on the grounds thatintellectual property ought to be a public good, but rather to what degree itcan be property.[24] This distinction isimportant. When Pepsi trademarks the phrase "uh-huh," when Daffy Duck'sintellectual property lawyer calls the local newspaper to tell them they can'tquote the duck, and when a man's cancerous organ becomes the object ofproperty, things are out of hand.[25] Our current framework of intellectual property, while being enormouslybeneficial to the large information brokers of our time, is detrimental to thefree exchange of information as well as the ability of a world citizenry to bea part of future. The legal discourse of intellectual property is invitingbecause it seems natural to control your own creative work and to profit fromit if possible. The notion of the individual author who is in control of hisor her creative work successfully conceals the larger political and economicimplications of the intellectual property system where major owners such asMicrosoft own and control information systems and the information itself.However, the author maintaining copyright control is the exception, not thenorm. If an employee leaves a company for another, her ideas remain theproperty of her past employer and they can sue to regain them.[26] If you want a paper published you will have to givethe copyright to the publisher. There are even property rights in images.Elvis' image is not only popular but lucrative. His family does not own hisimage and cannot control its use.[27]Jimi Hendrix's image is another example. His father says he didn't know he wasselling his right to Hendrix's image and music and wants them back. Two things about the history of intellectual property need to be kept in mind.First, the concept of intellectual property and the corresponding notion oforiginality stemming from a persons' intellect are not natural, nor have theybeen universally embraced. They are the outgrowth of economic interests andlegal definitions within a specific historical context. That historicalcontext is the 18th century struggle over copyright ownership and thedevelopment of a concept of "proprietary authorship."[29] Second, intellectual property, specifically copyright,is designed to benefit the publishers who hold the copyrights, not the authorsthemselves.[30] Copyright usually belongsto the company the author works for or the publisher who publishes the work,not the author. With each new technology, such as photography, television,photocopying, and computer programming, the concept of intellectual property ischallenged due to the new relationships made possible. Each time a technologydisrupts the intellectual property law, the law has been revised to include thenew technology in a manner which keeps the basic relationship between "author"and "copyright owner" intact. The discourse on intellectual property obscuresthe relations of power which develop between authors and copyright owners,corporations and the public. The recent conclusion of the IntellectualProperty Task Force, that copyright law only needs minor repairs in order toaddress new technological concerns, perpetuates this relationship into theinformation age. As we mark the end of the 20th century several claims about intellectualproperty and the future can be made. First, intellectual property is becomingthe exchangeable commodity supporting late industrial societies. One final statement about intellectual property: the only way we think aboutcreative work is as private property. Our language does not allow for otherpossibilities and our economic system provides such extensive monetaryincentives (or the possibility of them) that to think of creative work asanything but personal property is foolish and naive. If you are unwilling toaccept profits for your intellectual work, there are others willing to take theidea and use it for their own personal gain.[36] Once the assumptions of intellectual property regimesare accepted and one speaks the statutory language of the law, there is noalternative but to see the expression of intangible thoughts and ideas asproperty. Given this context, it is important to stake out the ground createdby intellectual property law as we enter a technologically driven future.There are several aspects of intellectual property law which must be kept inmind. First, how does the law interpret the text? Second, how is the authordefined? Third, how is the law used? Fourth, what types of identities arecreated? Finally, what happens to creation? These are the questions I willask as I begin to look at the future of intellectual property law andtechnology. Each scenario deals with these issues in different ways and eachprovides us with different alternatives for the future. SCENARIO ONE: BUSINESS AS USUAL How does the law interpret the text? As can be imagined, the business as usual scenario began withcurrent copyright law and offered few changes. "Literary work," as defined inthe Copyright Act of 1976, had already been expanded to include works asdiverse as photography, music, and computer programs.[37] More recent recommendations did nothing to change thebasic interpretation of a text. The text remains the property of an individualcopyright owner. However, the line between ideas and expressions, whichtypically was decided on a case by case manner, became more likely to err onthe side of protection. The text, in legal terms, remained clear cut because, it was argued, it hasdecisive boundaries. A person creates an "original" work which becomes thesubject of copyright. The concept of originality was never questioned, butalways assumed. If you used part of a text it was called "fair use"([[section]]107)[38] , if you appropriatetoo much, it was called an infringement. The courts continued to decide theappropriate level of appropriation in a case by case manner which led toserious backlog as intellectual property became a more important economicissue. Derivative works provided an interesting test of originality and theboundaries of a text. Derivative works are adaptated from other works. Forexample, a play based upon a book written by a second author is a derivitivework. While these may be original in many aspects, because they are premisedupon someone else's work, it is a copyright issue. Derivative works cannot betoo similar to the original or they violate the copyright. In the business asusual future, many avenues of creativity were eliminated by strict adherence tocopyright law and the tendency to protect copyrights by not allowing forderivitive works.[39] Originality continued to be an important aspect of copyright even though itwas increasingly obvious that there is little original in the products producedby mass culture. The original author, creating an American masterpiece is alegal fiction used to shore up the culture industry. The text remained intact,even as the electronic world attempted to rip it apart, introduce alternativevoices, connect it in a hyperlinked "metatext," and pull it in directions thecopyright law was not able to address. In the business as usual world, thetension between the reality of textual creation and copyright statutescontinued to generate enormous amounts of tension which resulted in plenty ofcourt cases. How is the Author Defined? The author remained essentially untransformed by new technology,despite the possibilities of democratic authorship made possible by theinternet. The author, or creator of the work, was rarely the copyright owner.Interestingly, while traditional publishing companies had a difficult timeadjusting, they managed to transfer their copyright in hardcopy work toelectronic work quite swiftly. These companies continue to retain copyrightsand guard their rights against "inappropriate" use, even as the notion of thecreative author is used to justify such strict protection. Laws have not changed in regards to the author. The law continued to definethe author in terms of an autonomous individual. Collective authorshipcontinued to be problematic for copyright law because it is difficult to shareunder the burden of ownership. Authorship continued to be divided into"proprietary," or "real" authors -- the ones who published professionally --and those who practiced exchange of information without worrying aboutcopyright control. Because the proprietary author was emphasized, mostcultural and creative work was privatized and exchanged only for a price. How is the law used? When arguments about intellectual property and computer technologyfirst began, everyone agreed that works which already had copyrights attachedcould not be exchanged at will over the internet. This sparked a first stringof lawsuits in which traditional publishers sued electronic publishers forcopyright infringement when works they owned appeared via the internet. How todefine intellectual property over the internet became the question to answer.The law became the tool used to ensure property rights were protected. The law was used in several ways. First, the law was used to protect andmaintain property interests which may have been "liberated" from print via theinternet without the force of the law to protect them. This means people (mostoften system operators) were sued for newspaper articles, pictures, or musicwith copyrights attached which had been uploaded to the electronic world.Second, since the line between ideas and expression was traditionally decidedon a case by case basis, the law was used in an infinite number oftechnological lawsuits to determine when an infringement had occurred. Sincefair use and first sale doctrines were essentially curtailed in the electronicarena, it was easy to prove any copying was an infringement.[40] Finally, the law was used to ensure the status quo ofthe Copyright Act was enforced. Since all court cases were (and are) decidedupon the merits of the Copyright Act, there is no room for questions which falloutside the proprietary framework. The law ensured that everyone played by therules and the rules enforced a proprietary framework. Punishment for violating copyright was usually dealt in the form of criminalpenalties or hugh fines. Pirating and hacking were the most notorious of thesecrimes against intellectual property and resulted in the most severe sentences.Once the criminal justice system had defined what these new crimes were, it wasquick in assigning harsh penalities for criminals. A criminal law alsodeveloped which dealt with minor infractions such as distributing copyrightedinformation illegally. There was a significant increase in cybercops -- security officers dedicatedto stopping computer theft in all its manifestations. Security for all typesof intellectual property was the defense issue of the decade. While the 90'ssaw some computer raids, where private security forces invaded piratestrongholds, the 21st century saw an enormous crackdown on private bulletinboard operators within and without the U.S. for offenses ranging fromexchanging illegal software to maintaining a site where copyrighted materialswere often sent and discussed. What Types of Identities are Created? The identity of author continued to be proprietary. Authors thought ofthemselves as people who created for a living. They continued to helpillustrate to the general public what is "worth" reading. The "authorfunction" identified by Michele Foucault years ago continued to inform thecirculation of texts.[41] While manypeople continued to use the internet in a less commercialized fashion, thistype of discussion was relegated to the sidelines. With the increase in possible infringements of information ownership, newcriminal identities became more fully evolved. These included the hackeridentity, which is the subject of the next scenario. Outside of the polarizedidentities of proprietary author and hacker, most individuals remained lawabiding citizens. Legal enforcement and enormous amounts of education aboutthe importance of intellectual property helped ensure that the vast majority ofUnited States citizens continued to follow the rules as established by theinformation owners. What Happens to Creation? While the terminology of intellectual property rights was still used,these rights were far more expansive than anything known at the end of the 20thcentury. The lines between what traditionally could not be protected viaintellectual property law (most noticeably living organisms) and what becameallowable began blurring as early as the late 1990's.[42] Anything with a possible market was subject toownership. Cooperation was rarely seen, which made industrial espionage alucrative business.[43] The creative spirit remained alive in the business as usual scenario. Peoplecontinued to create, but the divisions between "professionals" who created formoney and nonprofessionals who created for pleasure remained quite clearlydrawn. The copyright law continued to be unreflective of the motivationsbehind creation and instead continued to rely upon the assertion that providingprotection of expressions and providing the opportunity of making moneyfacilitates creation. In fact, the heightened awareness of the proprietaryaspects of ideas led to increased secrecy and policing of property. The moreindividuals understood creative work as property the less willing they were toshare freely. Once the assumptions of the business as usual scenario wereaccepted, the only alternative was to draw the lines around what can beconsidered "original" work and ignore the connections between works, or theculture as a whole. Creation occured increasingly within the confines ofcorporations who operated under the "work made for hire" doctrine([[section]]101).[44] It was alsoincreasingly common to sign waivers of all rights to inventions made duringemployment to a specific company. Creation, in this scenario, remainedundemocratized. Intellectual property litigation had to deal with the ownership of artificialintelligence. Many people at the end of the 20th century believed cyborgs werethe next step in our evolutionary chain.[45] Cyborgs were also intellectual creations subject toproperty laws. Owning bodies was not new to the legal system. The law wasdeft at defining human from non-human as the line for what can and cannot beowned. Cyborgs were perhaps as great a challenge to intellectual property ascomputer technology generally. If they were patentable or copyrightable theycould be bought and sold. If they were conscious, what right did humans haveto treat them as property? As long as we used property laws to understand these creations, the cyborgremained property. There was no room to understand it as a person. There wasno room to give it autonomy, or think of it as anything but property. Legally,it remained the property of its creator who could produce and market the cyborgas any other object. When the question about how much of our lives should bethe subject of property was asked, instead of letting the property lawsdesigned in the 18th century disintegrate, we continued to defend them untilour very lives became the subject of property. Conclusion to Business as Usual No generation has seen the accumulation of information as property tosuch a great extent as present generations. While detailed information aboutindividuals has been privately owned and sold to whomever will pay for sometime,[46] our minds and bodies have morefully become them subject of intellectual property laws, owned and traded asany other commodity.[47] This trend willcontinue unless politically organized groups stop the process. Corporationsown personal information about all citizens, and increasingly privatize publicdocuments by "adding value" in the form of headers and commentary. They ownpatents and copyrights in genes, biotechnology, plants, and potentially lifesaving drugs. Intellectual property translates into profits, often times atthe expense of the bodies the information describes, or the people who woulduse the products if they could afford them. Ownership of information leads tothe need for secrecy and an increase in perceived insecurity. Once appropriately commercialized, the internet will become a gigantic homeshopping network. Most people will have access, but it will be one-sided andcommercialized. The majority of the United States population lives with anartificial sense of empowerment when in reality information is still controlledby a few individuals who own both the messages and the technology through whichthe messages pass. This is a world dominated by the information elite. Aworld of global capital where the trade of dollars, information, and bits ofdata make some rich at the expense of the environment, the developing world,and the poor. The law helps us move forward and provides redress for those injured.However, the logic of the law is firmly entrenched in the concept of privateproperty. As such, it is not capable of offering a transformative alternative.The business as usual scenario is not a happy one. The second possible futureis really a sub-future of business as usual. It is the hacker future. Thisscenario, relies on the desire to see information free. It is questionable,however, if hackers provide a significant alternative or merely exist in aspace which can be marked as oppositional. What would the world look like fora hacker? HACKERS AND THE FUTURE The hacker future is a recent favorite subject of the entertainment industryand this new found fame helps illustrate the multiplicity offered by hackers.Hackers are both good and evil, they are the people who can commit horriblecomputer crimes and the ones who can stop such crimes from being committed.The hacker world is constructed much like a game, where the goal is to seekinformation and be the best at getting what others cannot. Instead of seeingthe unapproved exchange of intellectual property as theft, hackers tend to seethe intellectual property itself as theft which is unjustly kept from beingexchanged. Thinking of secrecy and intellectual property as theft makes for aninteresting alternative to the business as usual scenario. Neal Stephensonoffers an excellent description of the not too distant future where our currentapproach to information is taken to its logical conclusion and the U.S.maintains its intellectual property lead. This is America... When it gets down to it -- talking trade balances here --once we've brain-drained all our technology into other countries, once thingshave evened out, they're making cars in Bolivia and microwave ovens inTadzhikistan and selling them here -- once our edge in natural resources hasbeen made irrelevant by giant Hong Kong ships and dirigibles that can shipNorth Dakota all the way to New Zealand for a nickel -- once the Invisible Handhas taken all those historical inequities and smeared them out into a broadglobal layer of what a Pakistani brickmaker would consider to be prosperity --y'know what? There's only four things we do better than anyone else: music,movies, microcode (software), high-speed pizza delivery.[48] As Stephenson's colorful scenario points out, the United States is good at afew key industries -- all of them (except pizza delivery) related tointellectual property. The hacker world will provide for a clash betweenunstoppable exchange of information and a heightened understanding of just howimportant intellectual property can be. How does the law interpret the text? In the hacker future, law as we understand it did not continue to existand what went as law had nothing to do with the text. Hackers fragmented thetext into bits of information which could be sold to the highest bidder. Theydid not understand textuality as "original" creations, but as utilitarian bitsof information. Since complete information was always better than incompleteinformation the hacker slogan was: "Information should be free and plagiarismsaves time."[49] Hackers were less inclined to believe in romantic notions of authorship. In aworld where writing computer code was the highest form of art there wascertainly room for creative people. However, these people created with theunderstanding that others would take what they had written and expand, pullapart, rewrite, and improve it as they saw fit. Hackers, at least when it cameto code, understood the communitarian context of creativity. This opened newavenues for the text while at the same time maintaining the commodified natureof information. The hacker future embraced a strange contradiction of sharingwhile trying to make a living selling information which necessitated a level ofsecrecy and ownership. How is the Author Defined? In the hacker world the author was not a smoke screen for corporatepower. Rather, it had meaning as attached to individuals. The hacker worldwas radically decentralized in a libertarian manner. Authorship became farmore collective in the hacker future. Since the boundaries of the text werenot so tightly guarded everyone felt free to add, experiment, appropriate, anduse information. Even if others complained about this activity there were veryfew avenues of recourse. The author fluctuated between a proprietary personand a communitarian person. Authorship did not serve as a clear marker for the text in this world becauseownership was so fleeting. Copies and appropriations appeared almost as fastas the "original." In such a world, authorship lost its meaning because itbecame difficult to tell the duplicate from the original and most people gaveup the notion of the romantic author completely. Making claims about theunfairness of someone copying your work because it was your "original" creationfell upon deaf ears. A "free" market was not an easy place for anauthor. How is the law used? The law can be applied to the hacker scenario in several ways. Ifhackers were the antagonists in the business as usual scenario, the law wasbrought down with force upon them. As Newsweek forecasts, the future isone in which hackers will continue to "steal" information and corporations willcontinue to "lose" millions of dollars to information theft.[50] If, however, the hackers control the discourse overintellectual property then intellectual property law will be eliminated. Iwill focus upon this second possibility. The hacker was a legitimate information broker who found information and soldit to make a living. Personalized protection devices for creative work werecontructed. If any given person could not create their own protection devices,they could buy them from someone else. In this future, people often lostcontrol over their intellectual property, but this was considered the cost ofplaying the game. Being good in the hacker world meant keeping the items youwanted private from the groping hands of others while taking what you could inorder to better yourself. It meant the law became whatever each individualcould do to protect themselves. The hacker future was one of major corporations which continued to hold legaldominion of their own. While the state-based legal system has long beenextinct due to the insolvency of the government, there were numerous privatejudicial tribunals which could help with cases affecting the corporations.Corporations continued to be a dominant force and wrote what law there was inthe hacker future. In addition, major corporations had their own hit squadswhich enforced their version of the law. This included "arresting" citizens,and confiscating their computer equipment.[51] What Types of Identities are Created? In the hacker future, people with money spend as much time as possiblein virtual reality. Virtual reality technology improved over the 20th centuryand provided an alternative to the environmentally destroyed planet. Businesscould be conducted in virtual reality, people could meet, and travel took onnew meanings. Individuals had more freedom of identity than they did in the"real" world. Characters could be created, images designed, and identitiesconstructed at will. This led to a playful approach to identity which includedchanging genders, colors, and size. Because you could walk around as apineapple in virtual reality, there were many diverse options for identity. What Happens to Creation? Creativity became the tool of those who were inspired by thecompetitive, always changing world of high technology. Intellectual propertylaws worked early on to ensure some people maintained their lead in theindustry and these corporations later created their own laws. In a worldwithout government intellectual property laws, but with hard-edged competition,everyone and everything was up for grabs. People prospered from their creativework by making what money could be made quickly, inventing security measures toprotect their "property," and taking whatever was there to be taken. It was acut throat world where dealing in information could be dangerous. Since theprimary characteristic of this scenario was libertarianism, virtuallyeverything that went as "art" was privatized. However, it was a form ofprivatization which left room for appropriation. A good idea was rarely leftwith its "originator" for long. What money could be made was made immediatelyand then multiple copies of the new item were available. Was information free in this environment? In a manner of speaking, yes.Information became a fully recognized commodity. Information could be traded,bought, and sold. Everything was up for grabs and secrecy only made theinformation more tantalizing. Hackers earned their keep through information.Any information was fair game and possibly useful to someone. Informationreached a state of movement, if not freedom. In a world dominated byprivatization, a poor economy comprised of mostly service sector jobs, and arich market for information and technology, it was logical that the bestcomputer minds would become information brokers.[52] The value of the hacker was the opposition he or she posed to informationownership. Most hackers would write code for computer companies or sellinformation to the highest bidder. In a world where rights still had meaning,the notion of private property continued to dominate. As long as thisdiscourse on property structured thinking about products of the intellect,there was no way to share information or creative work, it could only be boughtand sold. Conclusion to the Hacker Scenario: In the hacker world information is reified. It becomes a thing in itsown right. Hackers ride all sides of the fence. They are informationproducers, they are information consumers, they are pirates, and they aresecurity. Technological know-how is the commen currency and anyone withoutaccess or technological knowledge is marginalized. The hacker world would notbe fun without huge corporations to crack. The hacker would be bored in aworld where information is shared peacefully without contestation. This futureis a libertarian version of business as usual. It provides for better access,but only if you make the effort to participate. It is not transformational, itis oppositional. Our future does not have to follow the business as usual path. Nor does ithave to embrace the oppositional discourse of the hacker which provides littlein the way of alternatives to property. Instead, a truly transformationalscenario might be possible if we can give up our discourse of property. Thedecentralized nature of the internet can make a completely new approach towardstraditional "intellectual property" possible. If we should want, the fragmentsof an old and tattered intellectual property system can be discarded andreplaced with something more appropriate for the information age. What can bethe replacement? How extensive would such a transformation be? What otherlanguages can we talk in order to escape the limited discourse of privateproperty? The legal system of intellectual property is outdated and entirelytoo rigid to sustain the need for a viable free flow of information. SHARING AS UTOPIA The transformation which occured in this scenario was one from competition tocooperation. In the sharing future, competition would be tempered by anoverriding aura of cooperation. This type of sharing was especiallyappropriate for intellectual property. Sharing ideas is different from sharingtangible goods because ideas can reside in more than one mind simultaneously.They cannot "belong" exclusively to one person. Ideas, by definition, cannotbe owned once shared. Expressions, also, become more developed with each newcontributor. Each expression of an idea creates other expressions and otherpossibilities. Thus, property in expressions is a problematic concept whichhas gained legitimacy through centuries of work codifying it into law. AsUrsula Le Guin notes in The Dispossessed, "It is the nature of the ideato be communicated: written, spoken, done. The idea is like grass. It craveslight, likes crowds, thrives on crossbreeding, grows better for being steppedon."[53] What would the world look like if intellectual property rights were replacedby sharing responsibilities? This would be a communitarian future. The natureof the idea is to be communicated, narrates Ursula Le Guin, and it is upon thistheme that a communitarian future can be built. In such a future, people aresocialized to give for the public good, to share, rather than work for theirown self interested purposes. Such a society assumes that human freedom can bebest realized through collective welfare. In such a community, it could bepossible to eliminate the very idea of "private property," and individualpossession from the discourse because the needs of the citizens would be theburden of the community. There are a number of feminist utopias built uponthis basic assumption of sharing.[54] Thisscenario offers a conceptual alternative to business as usual. How does the law interpret the text? Similar to the hacker scenario, law did not exist in the sharingfuture. Intellectual Property Law was about protecting property and thisfunction of the law was no longer needed. The Copyright Act, and otherstatutory definitions of "intellectual property," were no longer applicable.These documents limited the flexibility of the text and consigned its ownershipto an individual or corporation. In the sharer future, texts and creationgenerally, were for the public good. Because it was recognized that peoplecreate for a variety of reasons, rewards were diverse and often as "cheap" aspublic recognition for an excellent idea. The work of individual's wascherished and yet the extremes of proprietary bickering the business as usualscenario fostered were very far from this reality. Texts came in a variety of shapes and sizes and could be shared freely.Electronic networks were put to their best use by providing links upon links tothe multiplicity of voices that existed in a world where textuality did nothave to be owned. Exchange was given precedence over the sovereignty of ideasand this exchange occured in an environment where everyone could realize theirpotential as an "author." In this scenario the individuals who saw theinternet as a possibility for new forms of authorship prevailed. The sharingof information took precedent over the owning of information. How is the Author Defined? Authorship in the sharer future was not a "profession." Everyoneparticipated in the creation of art and "texts." Many people utilized theircreative capacity by linking and developing already existing works. Sincecreation was premised upon facilitating cultural development and not uponmonetary rewards the possibilities opened up. It was recognized that"originality" is always culturally dependent and great ideas did not appearfrom nowhere as the romantics had believed. Rather, everything was connectedin the sharer world, including creation. While individual names continued tobe placed in conjunction with their work, it did not function as a boundarywhich marked one text from another. Since texts were rarely the work of asingle person, names did not necessarily indicate ownership. The possibilities of collective authorship were fully realized in thisscenario. Technology facilitated the free movement of the text. Sometimes acollective work would happen in which the contributors did not know each other,or even if others had contributed. Texts, in the sharer future, could developorganically and dialogically, where in the business as usual scenario they werekept tightly controled. This means authorship was less important and thedialogue became more important. It was possible to preserve a sense of individuality within this collective.Every person was acknowledged for their contribution. The reward was in thepromotion of the collective good rather than private compensation. Thecreative in everyone was encouraged to flourish. Creativity was somethingeveryone could make a part of their lives. It was not a commercializedentertainment industry, but a form of cultural cohesion. It became important to understand that there was a relationship between theauthor and the text which could not be ignored. Copyright law bastardized thisrelationship by transforming the idea into property which could be stolen. Apurely economic understanding obscured the desire each person had to sharetheir ideas and creations. In the sharer future, it was possible to think,exchange, and create outside an economistic framework. In this future, theidea and its benefit to society were placed first. How is the law used? The problem of criminality and theft was eliminated. In this future,those who would not share engaged in the problematic behavior and this couldnot be considered a crime. People who resisted the communitarian ethic werethe exception instead of the norm. Problems over intellectual works wouldarise, but they would not be couched in terms of property. What was absent wasthe desire for material accumulation. What was present was a sense ofsolidarity and freedom, a place where ideas could flourish. In the corporatebusiness as usual scenario ideas were the intellectual property of othersthrough legal agreements. In the sharing as utopia future, because there wasno intellectual property, each idea was donated to the public and becameimpossible to steal. If a person kept his or her ideas secret, then societywas perhaps injured, but there was no punishment for this behavior. Becauseeverything could be published electronically, there were no publishinggatekeepers who could steal ideas and pretend they were their own. Thus, theenvironment in which creative works were exchanged did not have to be governedby law as understood in the business as usual scenario. What Types of Identities are Created? The identities created in this future were communitarian ones. Thesewere people who understood their place within the community, theircontributions to the larger whole, and their place in the world. A sense ofindividuality continued to exist, but everyone recognized their relationship tothe community. When individuals were asked to cooperate with each otherinstead of endlessly compete, the rampant individualism of contemporaryliberalism quickly died away. As in the hacker future, technology allowedindividuals to play with identities. However, because identity was not removedfrom community, there was less fragmentation and masking as seen in the hacker(and business as usual) scenario and more self-exploratory identity creation. What Happens to Creation? Creation, as discussed above, became the glue of the community. It wasno longer a product for mass consumption. The entertainment industry ceased toexist in this future and entertainment became a local phenomenon. Everyone wasencouraged to be creative and "stars" who have property rights in their"images" were replaced by people who wanted to perform and share theircreations. Conclusion to Sharing Scenario Sharing as utopia is not based upon the law, but upon atransformational discourse. The law is helpful as long pre-arrangeddefinitions are followed. Many people might respond that we don't need analternate discourse on intellectual property, that thinking about creative andinformational works through a legal lens is fine. Over the centuries thecourts have developed a balance between protection and public use. However,this legal discourse leaves little room for normative claims about ownership ofknowledge in an information age. If new ways of thinking about what we callintellectual property are to be found, we must move outside the law and intoother modes of speaking. The sharing as utopia scenario provides thisalternative, albiet in a bare outline form. In a world where the concept ofprivate ownership is replaced with the concept of sharing everything ischanged. My point in writing about the sharing possibility is to highlight how thelanguage of property and the legal system which constructs property informs howwe think about creative work. New technology is posing a significant challengeto the traditional notion of authorship, to the traditional notion of the text,and to the traditional notion of intellectual property. The present responseto these challenges -- to shore up the boundaries of intellectual property lawaround the "original" author and the bounded text -- will only work for a shortwhile. There are other possibilities if we are allowed to enter a creativedialogue. The communitarian future is designed to point out that thinkingabout creative work only in terms of intellectual property law does little tomake the future brighter. It only facilitates the mass production and massconsumption made possible by the culture industry which seems emptier with eachpassing day. Absent a view of the future which provides for a culturaldialogue, technology will continue to be a tool for domination and theprotection of property. This is not a world I wish to inhabit. SOME FINAL THOUGHTS After spending the better part of two years reading and writing aboutintellectual property I have reached some personal conclusions about the stateof copyright law. This final section will address some of my conclusions.While I feel my dissertation editorialized at length, I will editorialize a bitmore here. I think copyright is out of control in the United States. Under the guise ofprotecting authors we have created a system which preserves the interests ofmajor copyright holders -- software companies, publishers, music producers, andmovie makers. From the outset copyright law was designed to protect theproperty of the copyright owner, not the author. Copyright is an excellentexample of how the law works to protect property and not people. I suggest the most extreme conclusion -- abolish copyright law. It doesnothing to protect authors from plagiarists bent on copying their work.Copyright only preserves the integrity of a work if the owner of the copyrighthas money to sue and the copyright infringer has something worth suing for.Copyright is used as a censor in cases like the Church of Scientology, it isused as a threat in almost every other case. The only thing copyright does ispreserve a system of cultural production where those who create are most likelyalienated from their creations which then become the property of majorcorporations. If we abolish the copyright law I can guarantee that creativitywill not come to a halt. Rather, we will see a radical decentralization ofcreativity as much of what is preserved as copyright becomes available forappropriation and reproduction. If we are to have something akin to a copyright law it should be the minimalnecessary to protect a creative work. This means first, the author will alwaysretain rights to a creative work. The work made for hire doctrine has no placein my law. The author will retain moral rights as established in Europeancopyright law and the bundle of sticks commonly sold to copyright owners in theUnited States. The internet makes it possible to bring items directly to thepublic, while authors retain control. Second, while the author retains rights to the work created, this newcopyright law would severely limit the rights an author holds regardingderivative works. Unless a creative work is directly copied there would be nocopyright infringement. This means, if someone writes a song with a few lineswhich sound the same as another song, there is no infringement. It means if aband wants to play a popular song there is no infringement. What may berequired is a careful acknowledgment of the author in order to preserve a senseof indebtedness. Instead of fostering the creation of new thoughts, by making ideas property,we become more secretive and less likely to share our ideas. In a world whereideas are money there is no sense of sharing. This bizarre property practicethwarts creation. The type of copyright I would suggest might help facilitatecreation. I agree with those who suggest education in this area is needed. Iagree it is important to teach people not to plagiarize the works of others.However, and more importantly, it is important to teach people that everyone isculturally indebted, that originality owes more to dialogue than to individualcreation. It is important to teach that everyone operates within a discursiveenvironment which facilitates their ideas and expressions. It is important tocommunicate that sharing is the manner in which creation is best facilitated,not secrecy fostered by property boundaries. I say these words in part because no on appears willing to question theassumptions of copyright or stand up to the cultural producers in the UnitedStates who are effectively making policy for the world. The debate needs to bediversified. What goes as a "progressive" perspective in the world ofcopyright lacks any critical quality. If nothing else results from thisdissertation, perhaps I can bring to the intellectual property debate a voiceof dissent regarding the direction the United States is currently headed. Iknow there are others on the internet with similar objectives. Perhaps theradical notion that copyright should be abolished is an idea which will prevailthis time around.