It cannot be denied.
Modern America has an acute and widespread fascination with newness.
New things have a charm that we simply cannot resist and bring with them a unique sense of satisfaction and prestige, however fleeting, in plentiful supply.
Fueling this phenomena is the consistent and prolific advancement of technology.
In almost every area of human life and capacity, 21st-century technology has given us a life of conveniences and abundance our predecessors only dreamed of – and it shows no signs of slowing up.
Then, there is the law, whose developmental pace is notoriously not so similar.
As technology hurtles forward at warp speed, our laws hustle to maintain many precarious and traditional balances.
Particularly, copyright law, and it’s unique cost/ benefits rationale, is routinely challenged as technological advancements continue to revolutionize an ever-evolving cultural climate thriving on newness.
1. Digital Property and Mobile Technology
The most familiar notch on the newness timeline is increasingly prevalent – and increasingly mobile – digital property.
This category of new technology can be defined as electronically stored copyrightable works – words, photos, music and performance art – digitized and frequently transferred, copied and shared across the airwaves.
When copyright law steps in to curb and control piracy and plagiarism, inevitably, it’s the sharability of digital property that poses challenges.
This brings up the issue of balance within copyright law. The ultimate goal is to create an equilibrium between the rights of consumers and users and the rights of authors, artists and creators of original work.
With digital property, this can be tricky. When the contours of this delicate balance slant toward users, traditional benefits to the public can mean big losses for rights holders and costs are high.
On the other hand, rigorous policing, especially of digital property, can mean that users lose, ultimately devaluing the point and purpose of copyright law itself.
2. Social Media
Of course, it must be noted that many authors and creators welcome the free sharing inherent in social media, as it makes marketing that much easier.
Social media has monumentally changed and rearranged our worlds in just a few short years – seconds, in technology time – and it’s constantly on the move.
Can copyright keep up? The question has more than one proponent of legal restraint wondering and grasping for solutions.
For instance, every Tweeter is an author of his own tweets. Is every original tweet copyrightable?
Also, consider the fact that many social media users assume that giving original authors credit is the same as getting permission to publish or use their work. However, credit doesn’t always cut it. It’s permission that ultimately keeps users out of legal trouble.
The well-networked voice of social media users is quite powerful as well. It proved strong enough to sway Facebook when the company attempted, in 2009, to acquire ownership of posted material using sweeping license agreements.
These changes were cut back just 12 days after introduction due to numerous user complaints asserting rights to their posts.
3. Open Source Software
Open source software stands at the forefront of efforts to improve access to new technology by making source code, as well as the ability to distribute the software, available to anyone for any reason, for free.
Though not technically a form of new technology, OSS is rather inventive in terms of method. The software is often produced in a collaborative way, with many individuals contributing to the end product.
Copyright problems arise when downstream users take the liberty of modifying and adapting the software beyond what is allowed in an OSS license.
Since there is no monetary value to the software, most assume there is no illegal loss if the source code is modified.
However, courts have ruled differently. The most relevant and recent case, Jacobsen v. Katzer, finalized by settlement agreement, was an extremely important one.
In Jacobsen, courts held that certain modifications to source code could, in fact, trigger the Digital Millennium Copyright Act.
The decision and settlement send a reiterated message to downstream OSS users: modifications to software made free and open source are not necessarily unenforceable under copyright law.
4. 3-D Printers/Scanners
Representing the height of current techie newness is the 3-D printer/scanner.
If you haven’t by now googled this genuine piece of cutting edge you should, definitely. You’ll see everything from Pez dispenser print outs and 2D gun parts physically recreated into actual three dimensional devices, in real time, right before your very eyes. Amazing.
But is it legal?
While the method may seem like magic made real, the logic of the 3-D printer seems unlikely to defy the limits of copyright law.
The problem is that many of the items printed three dimensionally are already legally protected in two dimensional form.
So while that 3-D printed bust of Yoda that miraculously sprung up from just a piece of paper may be fascinating, it could also be quite illegal, despite the new dimension.
5. ‘Invincible’ File Sharing
Copyright limitations on our current, limitless access to content is at the heart of an ongoing conflict between law and use.
Evidence of this is clear in the highly controversial BitTorrent and digital piracy world – where quick and easy file sharing is king.
When top file hosting site Mega Upload was shuttered in early 2012, pirates, though ruffled from the rough treatment, were widely unphased.
Mega Upload founder, Kim Dotcom has now launched a new system for file sharing, seemingly ‘invincible’ due to its incorporation of powerful end-to-end encryption.
Thus, the nonchalant nature of the piracy world – it understands that technology always has a way of outpacing law and policy.
Tribler has also found a way to make technology work past the reach of copyright law using a decentralized BitTorrent network that’s currently in full swing.
Also of honorable mention is Pirate Box, on offline file sharing system that cuts out the Internet middle man just enough to get copyright enforcers’ nerves addled.
The Empire Strikes Back
As a result of all the freebooter frenzy, Internet and content providers have decided to take matters into their own hands.
A veteran of the Internet policing trend is YouTube’s Content ID system. This software runs like a policing search engine – a database loaded with protected content is employed to detect copyright infringements as they happen.
By now most have already heard of the infamous “Six Strikes” system, brainchild of several ISPs partnering together to curb Internet piracy by policing downloads on individual Internet service accounts.
The Six Strikes system may prove to be a formidable foe for unlucky casual pirates, but serious sharing, and the technology that bolsters it, seems unstoppable.
What to do?
Perplexities like these plague our current system. The law seeks to encourage sharing, use and distribution of creative information as a benefit to the public while simultaneously upholding the rights of copyright holders.
However, technological innovation, and it’s use, surges forward, coaxed by increasing demands for the next new thing, but oblivious to the legal world’s need for balance.
More and more heavy hitting corporations are attempting to police ubiquitous digital media and control its use to prevent infringements.
Ultimately, this is because copyright law, as it stands, simply isn’t powerful enough to accomplish such feats. It’s safe to say, however, that emerging new technology certainly is pushing its buttons.
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About the Author: Veena Veana is currently a legal document specialist, freelance writer, poet and community activist residing in west Texas. She earned her JD from Chicago-Kent College of Law, specializing in Intellectual Property, and holds a degree in Microbiology from the University of Texas at Austin.