The following is a reposting of my entry into "The Future of Copyright 2.0 Contest"
500 YEARS OF COPYRIGHT LAW
The history of modern copyright can be broken down into three basic periods:
- Cognitive Era (1710-circa 2020)
- Existential Era (circa 2020–2097)
- Metalegal Era (2097–present)
I. COGNITIVE ERA
The beginning of what could be identified as modern copyright law occurred with the enactment of the Statute of Anne in 1710. The Statute of Anne was the first statute to provide for copyright regulated by the government and courts rather than by private parties and royal privilege.
Since then the law has had to struggle with the problems that arise from the application of a protected copyright monopoly. One of the most common factors to virtually every jurisdiction when it comes to copyright is the idea—expression divide; which divides an idea from the expression or manifestation of that idea, thus limiting the scope of copyright protection. However, this simplicity can be misleading. Some ideas can only be expressed intelligibly in a limited number of ways which would make the expressed idea unprotected or limited to verbatim copying only. For example, a time travel story is expected to contain elements such as the method of traveling to the past, a time traveler, ect. These elements are not protected by copyright. Specific sequences could be protected by copyright such as a story about someone taking this pamphlet back in time for some personal agenda.
II. EXISTENTIAL ERA
Other terms for the second era of copyright law such as ”Ephemeralization Era” are also used by scholars and there are just as many beginning dates as alternative era names. The ”Existential Era” refers to the popular art form at the time known as ”copypunk”. Copypunk is a hybrid of two other forms of speculative fiction: Cyberpunk and nowpunk. Cyberpunk often used techniques from detective fiction while copypunk would borrow methodology from legal drama. The popularity of copypunk seems to reflect a general realization of progressive nature that copyright protected an artificially scarce good. The availability of copyrighted material as a resource was by any definition unlimited due to technology but hampered by law.
III. 3D PRINTING
Most of the Cognitive Era only addressed what could be printed or recorded. The 3D printer made it easy for whole objects to be copied. Attempts to put digital rights management into 3D printers were sooner or later unsuccessful against hardware hackers. There were open sourced 3D printers but many perceived them to be inferior to the commercially patented ones. When the commercial 3D printers were used to make other printers most companies left the marketplace. This left many still infringing the 3D printers with the excuse that the printers became ”abandonware”.
There are many possible reasons why 3D printing quickly became a copynorm. Some might have copied 3D objects because they perceived no difference between an object or a copyrighted book. The copyrights were often infringed when the ”physibles” were placed under Creative Commons’ ”NoDerivs”. Changing properties, such as color, against the creator’s wishes was a common form of infringement. There are several accounts of individuals comparing the rules preserving the moral rights of a sculpture to Henry Ford’s apocryphal quote, ”People can have the Model T in any color — so long as it’s black.” It’s also possible that many thought of 3D printing as just another way a program is executed. One unsuccessful defense in court tried to argue that the torrent files for 3D printers were recipes which did not have copyright protection.
Of course, there were many positives. Many who could not afford to buy expensive products could afford the energy and raw materials the 3D printer needed to produce products. By 2050 the fabrication tablet (or ”fab tab”) made it possible for every home to have a recycling center which could break down and reuse material on demand. The ability to print objects inspired innovation and many inventors no longer needed the services of a machine shop to produce parts for prototypes. Many small businesses owed their success in large part to 3D printing.
IV. AUTODIDACTIC DATABASE (ADD)
The evolution of database software from ”intelligent” to ”self-learning” posed a challenge to both database right and the ”sweat of the brow” doctrine in some jurisdictions. AdD software could easily identify information lacking in a database and could go into cyberspace to find the needed data without human supervision. AdD was capable of autonomously arranging, selecting and presenting the data. If it needed to AdD could create patterns in the database without the user requesting it be done.
Under the ”sweat of the brow” doctrine an author gains rights through simple diligence during the creation of a work. Originality or creativity was not required or was set at a minimum in these jurisdictions. Since AdD had basic artificial intelligence it could easily mimic the same kind of diligence with basic thought. A person with AdD on their computer could create a ”seed” database and the software could rapidly expand it without any further need of the user. When a large enough database was created the user could print out a hard copy of the output and claim legal copyright without anybody being the wiser that a computer had done the grunt work.
V. SOUL CATCHER TECHNOLOGY
In November 1996 Personal Computer World magazine described the concept of a ”Soul Catcher” memory chip which could theoretically be implanted behind a person’s eye and record all the thoughts and experiences of their lifetime. At that time it seemed the only limitation to that technology was storage of the vast data that would be accumulated. By the Existential Era the limitation was legal. After accumulating a lifetime of data how do you legally use the data when there was a vast amount of copyrighted material encountered during daily life?
Copyright only protects material that is fixed in a tangible form. People daydreaming about something they watched or listened to couldn’t be accused of infringing because thought was not tangible, therefore no actual copying occurred. Then along came brain-machine interface technology. Suddenly a memorized favorite song only sung off-key in the shower became a derivative copy.
In 2011 UC Berkeley scientists decoded brain activity and reconstructed it as digital video clips on a computer screen. This experiment captured the brain signals using an fMRI machine and the computer was able to reconstruct an approximation of what the human eyes saw by analyzing 18 million random video clips from an internet site known as ”YouTube”; each clip being one second in length. This analysis built a database of potential brain activity for each clip.
Video quality was low at first. As the technology improved and better software was created it became commercially possible to make a ”dreamcam” product. By this time the databases had over 100 million licensed clips but hackers used specialized AdD software to increase the databases to billions of unauthorized clips.
People using the modified dreamcam were often guilty of copyright infringement twice. First, by recording the dream. Second, by uploading it to a social media site. If any of their friends shared the dream with other users then the friend would be guilty of contributory infringement.