IP Challenges

P2P technologies, remixing, and hacker culture's cycle of rapidly breaking technological protections is steadily eroding the position of intellectual property protection of content worldwide. Some commercial entities have responded by altering business models to reflect this change.



The increase of copying, piracy and modification of media in the digital era has put pre-digital intellectual property regulation in the crosshairs as producers and owners of media struggle to fight, adapt or co-opt these and other forms of copyright abuse and IP rights violations. As new protection mechanisms are developed, they are often quickly broken by hackers, feeding a substantial, complex global network of illegal digital media. At the same time, legal owners’ ability to transfer licensed media from one device to another, fed by the media ecosystems that have been marketed by technology companies, have been curtailed. The net result has been shifts in both legal and commercial thinking about the role and rules of intellectual property protection in the digital age.

Signals:

• Peer-to-peer digital media platforms such as Napster, BitTorrent. LimeWire and hundreds of similar systems enabled possibly millions of Internet users to exchange copyrighted digital media illegally over the past decade, starting in the late 1990s.
• Pirate Bay, a Swedish Website that has undergone continued legal challenge, scaled up torrent distribution to a global, and very public, level, confronting legal authorities as it continued to act as a distribution point for copyrighted media. Founders of the group and Web site have since formed a political party in Sweden, the Pirate Party, which won 7% of the vote in 2009 elections in Sweden.
• Created by noted legal scholar Lawrence Lessig in 2001 with colleagues, the Creative Commons framework sought to establish a means of licensing works in an alternative fashion to traditional copyright, in order to facilitate sharing and reuse of intellectual property. Created originally with US IP frameworks in mind, the CC system has since been “ported” to 52 countries and jurisdictions.
• After resisting a flexible digital rights management system that would allow purchased digital media to play on other devices and platforms than its dominant platforms, Apple introduced iTunes Plus, which provides media DRM free in return for a higher cost. Other digital media distributors have followed suit.

Implications:

• Rather than solely rely on increased DRM protection, some major media owners have begun to shift to new frameworks. This movement is likely to continue and spread as media owners seek greater revenues from interconnected digital platforms.
• Costs for digital media, and media in general, to the end buyer will likely continue to increase, as both direct and indirect result of looser IP protection.

Countertrends:

A number of public and private international negotiations and draft treaties seek to tighten IP protection with a specific view to staunching digital media piracy. As digital tracking and surveillance capabilities grow, some groups and governments will continue to fight loosening of IP frameworks.

Extrapolations:

National governments and international bodies may continue to rethink IP frameworks as they seek to adapt to the digital era. Frameworks such as Creative Commons may begin to be accepted within formal IP frameworks, altering how we think about property rights and trade.

Other Resources:

Lawrence Lessig, “The Future of Ideas: The Fate of the Commons in a Connected World,” (Vintage, October, 2002)
Berkman Center for Internet & society, http://cyber.law.harvard.edu/

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