Trespass and Kyosei in Cyberspace

This chapter considers the theme of trespass in cyberspace. In order to prevent unauthorized use of their data several U.S. companies have hastily filed lawsuits alleging trespass to chattels. But some of this data usage, especially for metasites, is socially valuable. Nonetheless, the courts are generally sympathetic with these trespass claims even if this means that activities like spidering or e-mail are constrained in certain contexts. Legal scholars have criticized this trend because it creates a novel property right in factual data which is not eligible for copyright protection. These legal concerns are justified, but what should moralists be saying about this matter? We argue here that both eastern and western philosophies recognize the need to respect the common good of a community or common venture. This awareness should temper a company’s narrow focus on proprietary property rights. We attempt to define the Net’s common good (or commonly shared values) and make the case that Internet users have a prima facie duty to support that common good. Thus, prudent and morally responsible companies operating on the Net will seek to balance their property entitlements with this affirmative duty to support the Internet’s common good. There is no magic formula for achieving this precarious balance, but we offer some general criteria that will orient managers toward the right direction. Finally, we explain that a private settlement of trespass matters is clearly welfare-enhancing.

Locke and Intellectual Property Rights

This chapter considers certain features of Locke’s account in Chapter V of his Second Treatise concerning how a natural right of ownership can arise in previously unowned goods. We note that some take this theory to be still applicable in our own day in situations of original acquisition of ownership in intellectual property. The chapter explains how a quasi-Lockean theory could support a very limited natural right to a species of intellectual property. But it also notes that this theory by itself is not strong enough to support a natural right in an intellectual property of the sort given by copyright. Such property rights must be provided as a result of positive law.

New Threats to Intellectual Freedom

This chapter explores the growing threats to intellectual freedom through the loss of the information commons in the U.S. as a direct result of advances and changes in technology and laws. In particular, the Digital Millennium Copyright Act and the Sonny Bono Copyright Extension Act are considered, as is the 2003 Federal Communications Commission ruling on media consolidation. When these laws are combined with current technological developments, intellectual freedom faces serious threats. As a foundation in a democratic society, consumers should take heed of this growing erosion of rights and access to information.

Intellectual Property Rights

This chapter presents some foundational concepts and issues in intellectual property. We begin by defining intellectual objects, which we contrast with physical objects or tangible goods. We then turn to some of the normative justifications that have been advanced to defend the granting of property rights in general, and we ask whether those rationales can be extended to the realm of intellectual objects. Theories of property introduced by Locke and Hegel, as well as utilitarian philosophers, are summarized and critiqued. This sets the stage for reviewing the case against intellectual property. We reject that case and claim instead that policy makers should aim for balanced property rights that avoid the extremes of overprotection and underprotection. Next we examine four different kinds of protection schemes for intellectual property that have been provided by our legal system: copyright laws, patents, trademarks, and trade secrets. This discussion is supplemented with a concise review of recent U.S. legislation involving copyright and digital media and an analysis of technological schemes of property protection known as digital rights management. Finally, we consider a number of recent controversial court cases, including the Napster case and the Microsoft antitrust suit. Many of the issues and controversies introduced in this chapter are explored and analyzed in greater detail in the subsequent chapters of this book.

Would Be Pirates

The debate in Canada that occurred prior to the amendment of the Copyright Act regarding the regulation of television retransmission on the Internet emblematizes significant ethical issues arising from shifts in communications technologies. The alleged piracy of Internet retransmitters demonstrates the broader consequences of the regulation of communications technologies and intellectual property at a variety of levels. Future treatments of new media innovations should be spared the retransmitters’ fate, whereby the innovators were called “pirates” and the law was amended to make them appear so in response to industry pressure. Instead, appropriate criteria should be determined with ethical foundations to administer decisions regarding the responsible governance of communications technologies. Legal, political, and social observations complete the analysis in this chapter, whereby such considerations are raised to advocate a principled approach to the regulation of new media and innovations in communications technologies.

Recent Copyright Protection Schemes

This chapter critically examines current copyright protection schemes that apply to digital information. We begin with a brief examination of the way in which copyright law has evolved in the United States, from its Anglo-American origins to the present, and then we examine three traditional philosophical theories of property that have been used to justify the granting of copyright protection. Arguing that each property theory is inadequate, we next consider and reject the view that intellectual property should not be protected at all (and thus should be completely free). We then critically analyze the notion of information, arguing that it should not be viewed as a commodity that deserves exclusive protection but rather as something that should be communicated and shared. Building on this view, we argue for a new presumptive principle for approaching the copyright debate — namely, the principle that information wants to be shared. Finally, we argue that presuming in favor of this principle would enable us to formulate a copyright policy that can avoid the extremes found in the two main competing contemporary positions, both of which are morally unacceptable: (1) the view that access to all digitized information should be totally free; and (2) the view that overreaching, and arguably oppressive, copyright legislation, such as the Digital Millennium Copyright Act and the Copyright Term Extension Act, is needed to protect digital information.

Exporting Trademark Confusion

A judicial determination of “likelihood of confusion” is the linchpin of successful trademark infringement actions in the United States, and is often useful to prevail on a trademark dilution cause of action as well. Such determinations are exceedingly subjective, and often seem premised on a very low estimation of the intelligence and powers of discernment of the typical consumer. Many appear virtually pretextual, simply adopted as a necessary step in “protecting” trademarks and according trademark holders broad property-like rights that can impair competition and silence free speech. Though seemingly irrational and generally socially undesirable, U.S. “likelihood of confusion” jurisprudence has gained a foothold in cyberspace through dispute-resolution procedures addressing disputes about Internet domain names. In consequence, trademark holders generally prevail and are increasingly seen as holding inchoate rights in any domain name containing, alluding to, or similar to their trademarks across the globe, even though U.S. trademark law logically should not have extraterritorial application.

Ideas, Expressions, Universals, and Particulars

The distinction in U.S. copyright law between ideas and their expressions is of particular importance in protecting software. In literary works and software alike, the ideas that underlie these forms of intellectual property do not enjoy copyright protection, whereas the tangible expressions of the ideas, in fixed media and of sufficient originality, can have copyright protection. The idea vs. expression distinction has been the focus of many cases in the courts, especially where there was an alleged infringement of non-literal parts of a software program, such as “structure, sequence, and organization” or “look and feel.” I argue that this legal distinction relies on the metaphysical distinction between universals and particulars, one that has been a major topic of philosophical controversy for over two millennia. The unsettled nature of the philosophical debate serves as a good explanation of the meandering of case law in this area.

Intellectual Property Rights in Software-Justifiable from a Liberalist Position? Free Software Foundation's Position in Comparison to John Locke's Concept of Property

This chapter offers a new view on how justifiable the current liberalist view on intellectual property rights (IPRs) in software actually is if based on Locke’s Second Treatise and especially on Chapter V, “Of Property” (2002), which has traditionally been seen as the starting point of liberalist argument for property — be it immaterial or material. This chapter will show how in Locke, the possibility of property in the immaterial is denounced and how that, in fact, fits the position of the Free Software Foundation for both patents and copyright in software, GNU General Public License (GPL) being the main example of this.

Feminism and Copyright in Digital Media

This chapter examines the relationship between hypermedia and feminist discourse, critiquing the role of copyright in controlling or suppressing such discourses. Hypertext and related media may lend themselves to relational webs of meaning rather than linear progressions of meaning. Given the importance of non-hierarchical, associative webs to feminist discourse, digital media may lend themselves to feminist modes of thinking or, at a minimum, challenge dominant textual constructions. However, current copyright doctrine assumes that works remain linear, hierarchical, and controlled. The exclusive rights conferred by copyright and, most especially, the right of adaptation lend themselves to authorial control over not only the text, but to a reader’s use of the text. This deterrent characteristic of copyright has appeared in several recent legal disputes involving hypertext linking and annotation. Thus, copyright remains hostile to non-traditional collaborative or relational user engagement. This hostility may ultimately frustrate copyright’s purpose of promoting the “progress” of knowledge.