Satellite television provider Dish Network, in a bid to obtain a competitive advantage over other home video delivery systems, is offering its customers a DVR with a twist – a built-in feature called Auto Hop, which automatically skips over commercials during playback. The broadcast networks, naturally, are appalled at the threat to their principal income stream. ReplayTV introduced a commercial-skipping DVR over a decade ago, but found its introduction ambushed by lawsuits brought by content providers. The legal basis used then, and probably in store for Dish Network if it persists, is copyright infringement. Simply put, a television network offers its content in exchange for the opportunity to present advertising. Providing a method to skip those ads, according to their lawyers, constitutes a breach of the implied license and a violation of the content copyright. It remains to be seen how the courts might rule. Most interesting is the evolution of the copyright in general, making content ownership the linchpin in any media-centric business model.
The concept of intellectual property has become a backdrop to a passion play pitting the individual content user against a system designed to control the use of such content. We have watched Congress attempt to enact laws intended to root out terrorists lurking in cyberspace, laws which also come in handy when pursuing unauthorized sources and tracing receipts of pirated digital software, for the purpose of prosecution and the recovery of damages. Let us not fool ourselves for one second regarding the failed SOPA legislation, and its more successful cousin, CISPA. Those laws were written to allow the Federal government to spy on its citizens on behalf of private, content-owning interests.
We’ve grown so accustomed to the hyperbolic FBI warnings displayed in advance of viewing pre-recorded material that we think nothing of them. The degree of criminality connected to the unlawful exhibition of a motion picture seems of such a low level of importance that it is hard to imagine even the guy cleaning the toilets on the third floor of the Hoover Building would see it as worth the bother. After all, there are toilets needing a scrub. Should Federal police play watchdog for private, global businesses like the motion picture industry? And should Congress be passing laws that reduce our rights to privacy on behalf of those same industries? This is especially urgent when considering the issue of content ownership under copyright laws, laws that were originally enacted to protect the creative rights of individuals.
Let’s take the movie that follows in the wake of the FBI logo. Who, in fact, owns that motion picture? Is it the production company, or the distributor? Is it the creative team, or any single member thereof? Everyone attached to the production signs a contract, and somewhere in the depths of the fine print is verbiage that describes the collective rights and limitations as they apply to the production. It’s all neat and legal and vetted by teams of corporate lawyers. What those contracts are meant for, in reality, is to signify the surrender of certain rights, rather than the bestowal of them. If we get enough people to agree that they have no rights beyond those called for in the contract, then whoever is left wins the big prize. In essence, this is a corruption of the copyright license; a system of bribes designed to silence erstwhile claimants.
There is another way to look at the methodology surrounding the branding of creative property. An idea belongs to its moment, rather than as the property of one person or group of people. An idea is the product of its environment, which means that it cannot have risen from nothing. An idea has a past … it has ancestors. It sprung from the bowels of a thought that began in another mind, which grew from yet another. We cannot say where any idea originated, simply because we are ultimately all of one mind. This is so obvious to us when viewing popular content through the prism of a classical education. We see the connections from mythological or biblical storylines emerging from so-called “original” screenplays. In music, we hear the rhythms of our past carrying the load for the latest sounds. At what point do we say that Mozart stops deserving credit? At what point do we say that he never deserved any to begin with?
The original intention of the copyright was to insure the literary integrity of a written work. Its attachment to its owner was finite in duration. That changed at some point, prompting literary theorist Northrup Frye to quip,
“In our day the conventional element in literature is elaborately disguised by a law of copyright pretending that every work of art is an invention distinctive enough to be patented.”
What Frye is telling us is that the ideas from which all forms of art spring are age-old and should ultimately be viewed as communal property. The idea is the seed, which is born from the result of an earlier seed. There is no true beginning until we reach a moment in our past that holds our first thought. No one holds the rights to that moment. No one has the right to claim a license that belongs to us all as a heritage of our collective mind.