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Is IP Law at Odds with Innovation?

By: Contributor - May 18, 2015, 2:31 pm

By Chris Dobrogosz

The popular music-streaming website Grooveshark has shut down in the wake of cumbersome legal challenges from several large record labels. Grooveshark allowed listeners to upload, play, share, and organize songs into playlists. Despite an impressive eight-year run, the website ultimately faced thousands of claims of copyright infringement for sharing songs without owning the rights.

Though there remains a multitude of other ways to access free music on the internet, a believer in the idea of “no victim, no crime” may still wonder if that was really necessary. Without much clear evidence that the musicians and songwriters were adversely affected, the benefit of strict copyright laws should be called into question.

Most people, even techno-skeptics, have a basic understanding of why innovation in good for society: it makes our lives longer and more convenient. It would make sense then that laws put in place to protect innovation would also be good. The thing about technological advancement, though, is that it requires regulations to move forward and adjust to keep that innovation alive. Unfortunately, what we have here looks more like a dead shark.

It is often quite easy to see the practical purposes or good intentions of a law and still disagree with its implementation over time. This is how many have begun to see patent/copyright law and so-called intellectual-property (IP) rights in general. One can simultaneously defend the right of an artist or innovator to claim the fruits of their labor and still be opposed to certain people or companies claiming a monopoly on a broad idea. Although the Founding Fathers did see the need for some legal IP protection in the US Constitution, rapidly evolving technology and the growing scope of patents and copyrights is leading to more frivolous lawsuits and likely less innovation, both in arts and sciences.

It is important to remember that IP law is bigger than the entertainment industry. Recently, large manufacturing companies like General Motors and John Deere have challenged the very idea of ownership as we know it with their interpretation of the Digital Millennium Copyright Act (DMCA). In the eyes of most Americans, purchasing something means it becomes your property. If enforcement of the DMCA comes down on the side of these companies, however, they would maintain exclusive rights to the software that makes your vehicle work; what you own would just be the hardware, i.e., a collection of scrap metal, rubber, and other physical materials. In other words, the consumer buys the rights to operate the vehicle, not the vehicle itself. Because the software is copyrighted, the companies assert that buying the privilege to use their machine is different than owning it. This could also mean that modifying your own car or tractor would be in violation of copyright law.

John Deere apparently even suggested that the computer systems in vehicles could be used to pirate music. It is not entirely clear how this would work, but presumably, in-car internet used for a variety of practical purposes like navigation could be also used to download music. You know, that thing that almost anyone between the ages of eight and 85 can easily do on his computer without having to buy a new car or an expensive piece of farming equipment.

Intuitively, it may sound absurd for companies like John Deere and GM to advocate policies that would be so widely opposed by consumers. But history shows that in many cases, if big businesses think they can get a helping hand from government, they won’t hesitate to reach for it. If politicians are willing to bail them out with everyone else’s money, it’s hardly farfetched to think they could be granted more special privileges in the future.

In other cases, the problem with IP law may not be as clear-cut. It is easy for a retro music fan to shrug at someone like Robin Thicke getting slapped with lawsuit for allegedly ripping off a Marvin Gaye song. Even if you are a fan of Thicke’s music, the court’s ruling that Thicke and collaborator Pharrell Williams must pay a hefty fee to Gaye’s estate for copyright infringement in their 2013 song “Blurred Lines” seems to make sense in a poetic-justice kind of way.

If you want to call yourself an artist, think for yourself and come up with your own ideas. It also makes intuitive sense from a property-rights perspective. You shouldn’t be able to just claim someone else’s product and market it as your own. It would be hard for anyone to profit from a good idea if everyone constantly stole good ideas from everyone else. Unfortunately, like many of our country’s dated rules and regulations, what makes the most intuitive sense is not always the smartest solution.

A recent piece by Ed Krayewski at Reason.com points out just how loosely the court defined intellectual property in the “Blurred Lines” case. It wasn’t that the song was using the same lyrics or melody as Marvin Gaye’s “Got to Give it Up,” but rather, Thicke and Williams simply recreated the “feel” of the 1970s soul hit via the “defining funk of the cowbell accents,” among other common elements in the genre.

This is where the bad legal precedent being set by such cases gets clearer. Virtually all forms of creative work are inspired or influenced in some way by earlier creative works. An artist may have the right to his piece of art, but he certainly does not have a monopoly on the mood or vibe that the art produces.

Even the fiercest critics of “Blurred Lines” probably wouldn’t expect indie-rock bands like The Vaccines to be financially liable for using similar guitar distortion effects as older acts like The Jesus and Mary Chain and My Bloody Valentine. Similarly, most probably wouldn’t argue that the band Daft Punk ought to be sued into oblivion for emulating the musical “feel” of older bands (Fleetwood Mac, Steely Dan, The Alan Parsons Project, among others) on their album Random Access Memories. The same goes for the realm of television, that the creators of Star Trek should have gone after shows like Farscape and Stargate SG-1 for producing stylistically similar sci-fi adventure series. This is, however, the aggressive direction that IP lawsuits could be headed if existing laws are not reformed in some way.

All this suggests that it is time to reexamine IP law in a way that makes sense for the 21st century, so that it isn’t merely a weapon used by companies to ward off competition.

Chris Dobrogosz is a Young Voices Advocate who lives in the Washington, DC area. Follow @ChristDobro.