Design and the Law, A Simple Problem
Frank J. Martinez, Esq.

Imagine a future where every piece of music or video you play, download, or purchase is tracked, controlled, filtered – and to borrow a phrase from Wall Street, monetized. The only real barriers to that future are the technology companies who have created and continue to create the tools of the digital revolution and consumers who believe that copyright law protects their right to buy once but to listen (or watch) many times. The battle to control the distribution of entertainment in the digital age is now being fought in the halls of Congress and, if Hollywood and the music industry have their way, everyone who uses a computer will be drafted into the fray. And if you’re a designer whose principle tool is the computer, the way you create and produce the finished product is likely to be materially altered, if not permanently changed, by the outcome of this struggle.

Distilled to its essence, the problem is simple. Hollywood wants the software and computer industries to design software and computers that prevent the theft of music and film. However, as with most such disputes, the simple problem lacks a simple answer. The film and music companies both lay the rise of Napster and its successors at the feet of the software and computer companies. Apple’s recent “Rip Mix Burn” ad campaign hasn’t helped matters; Steve Jobs’s poorly timed flirtation with the hacker ethic has been seized on by the entertainment industry as evidence that the tech industry is doing nothing more than creating a virtual version of Pinocchio’s Pleasure Island, a place where copyright truancy is abetted, even encouraged, without concern for the financial consequences.

In contrast, the tech industry views Hollywood’s demands as a threat to innovation and open competition. Silicon Valley has heard these arguments before. In fact, over the last 30 years, the computer industry has created a bone yard full of once-thriving industrial-age businesses. Any designer over the age of 40 can tell you about the death of handset type, the ruling pen, airbrush retouching, type specification, and even the lowly mechanical. With few exceptions, the trade-offs for these extinct devices and practices could really be described as trade-ups. For instance, the modern type industry, indeed, the entire design industry, would hardly exist without the tools commonly found on almost every designer’s computer. Abilities and business opportunities that were once the domain of highly skilled artists are now commonly available to any designer willing to invest a bit of time. Despite the constellation of benefits society has derived from computers, Hollywood and the recording industry aren’t persuaded that unfettered technology is good for their industries or their bottom lines. Surprisingly, they have some pretty strong arguments to back them up, including at least one in the Constitution of the United States.

Article I, Section 8, Clause 8 of the Constitution establishes the power of Congress “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” At first blush, it would seem that the owners of those writings and discoveries would have an absolute right to control their work and any benefits derived from them. However, implicit the mandate drafted by the Founding Fathers are several important concepts. First, those “writings and discoveries” must eventually fall into the public domain. Second, exclusivity doesn’t exist as a fundamental right under natural law; it’s a grant from the people via their government. Third, any exclusivity granted to an author or inventor is limited by and dependent on its service to the “progress of science and the useful arts.” Fourth, the benefits of encouraging “science and the useful arts” are a vibrant economy resulting from the growth of in the arts. Fifth, since each writing or discovery will fall into the public domain, the ultimate beneficiaries of any original writing or discovery are the people. Sixth, since the people are the intended beneficiaries, society’s early access to those writing and discoveries may create a benefit far greater than the property rights of the individual author or inventor.

These mandates described in the Constitution have given rise to the laws of the people that form the basis for the doctrine of fair use under copyright law and, to a more limited extent, fair use under trademark law. These implicit rights are now part of those laws, either by statute or recognized in case law. But computers have created an elastic definition of implicit rights along with property rights. The ease with which a computer facilitates borrowing, such as copying or sampling, has changed what is perceived to constitute a fair use, transforming the doctrine from a legal defense of copyright infringement into what some believe is a right. At the same time, the political and economic climate outside of the computer community has become more conservative, more hospitable to the notion that business and property rights should be responsive only to the marketplace, not the needs of a few creative types. This trend has found its way into the courts and even the halls of Congress in the form of the Sony Bono Term Extension Act, the Digital Millennium Copyright Act, and now, more ominously, the hearings conducted by Senator Fritz Hollings, chairman of the powerful commerce, science, and transportation committee.

The Sony bono Term Extension Act has so increased the length of time a work is protected for as long as the life of an author plus 70 years, and for a work made for hire, for a term of 95 years from the year of publication for120 years, whichever expires first. It’s worth noting that the original term of copyright in 1960 was a mere 28 years, requiring constant and costly renewals to maintain registration. Supported heavily by the film and music industries, the Bono Act has been criticized as private legislation for Disney, in part because it prevented Mickey Mouse and Donald Duck from falling into the public domain. Such allegations are probably unfair, in that every copyright owner in America has, in theory benefited from the extension to the copyright term. The Digital Millennium Copyright Act, in effect, criminalized almost all non-academic or industrial hacking. A cursory reading of the Act quickly reveals that the protected copyrighted works sound a lot like encrypted CD-ROMs, DVDs, and the new generation of playback devices that don’t have encryption devices built into them.

The antagonism between the entertainment industry and Silicon Valley springs from differing interpretations of primacy of rights – private versus public, innovation versus control of use and access. Are Steve Jobs and Andy Grove pirates? Are Michael Eisner and Peter Chernin of News Corporation reactionary capitalists? Your answer depends on your view of when exploration crosses into piracy and just how much freedom to investigate or experiment with the assets of another’s business is justified as innovation. In fact, it could be argued that every business that depends of creativity and originality has benefited from both of these Acts. Hollywood alleges that the makers of computers are earning too much money from piracy to seriously challenge its growth.

Silicon Valley counters that the limitations that Hollywood seeks are an impediment to innovation and that Hollywood is thereby missing a golden opportunity. Though the two camps have been working together over the past decade to create the Copyright Protection Technical Working Group, the differences in the work ethics of both have been a constant source of friction. The computer makers prefer to examine issues individually and, in engineerlike fashion, develop a solution for the specific issue at hand. Hollywood, meanwhile, has seen the MP3 players and CD burners evolve into consumer goods during this period, and feels burned by the process. Always prone to mogul-like decision-making and tired of a process that seems to have no end, Hollywood would like one quick, all-encompassing agreement.

For designers, this battle is likely to have serious repercussions. If the entertainment industry has its way, the computer of the future will be so stuffed with non-removable anti-piracy tools that it may be nothing more than a fancy box built almost exclusively for a single task, receiving commercial-laden content delivered by the media conglomerates. Contemporary design is inextricably bound to powerful desktop computers and the simple principle that the creators of design have a right to control work. For the average designer, that means the right to sell or license his or her work. For Hollywood, it means having a reasonable certainty that a multimillion-dollar investment won’t end up on the Internet available free to anyone with a high-speed modem.

The versatile computers that designers depend on are the same tools that challenge the economic model of the entertainment industry. A visit to various sites such as LimeWire or ShareReactor lends credence to the charges made by the Record Industry Association of America and the Motion Picture Association of America that almost 12 billion dollars was lost to piracy last year. The entertainment industry has responded with an aggressive legislative agenda that is rapidly gaining steam and is embodied in a bill conceived by Hollywood, sponsored by the powerful Fritz Hollings, and now before the Senate. The stakes are nothing more than the future of an information revolution created by a convergence of computing and entertainment. The battle is over who will control that future, Hollywood or Silicon Valley.

In the face of this economic power struggle, the creative community’s interests are little felt. The technology industry, which has been the traditional but unofficial representative of the design and creative community, is faced with a daunting task – that of keeping that community vibrant by developing a more powerful computers and peripherals designed to satisfy a customer base that demands additional options, all the while trying to fend off a formidable, determined opponent. If events continue to develop as they have, designers would be wise to hold onto their current computers, since the next-generation machines aren’t as apt to be as versatile. The CD that you rip, mix, and burn today is not likely to play back on the next generation of devices without prior payment of a royalty fee





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