The Internet has spun the global intellectual-property debate into a whirlwind. It is a distribution channel of seemingly limitless, infinite scope. Skeptics are encouraged to remember the last time the infamous Neiman-Marcus cookie recipe myth appeared in their e-mail (Believe it or not, as of February the mythical story and recipe were still making the rounds.)

Changes to copyright legislation in the United States alone have been subject to continual modification, amplification, and amendment in the past decade. As a result, the issues are complex, their nuances glossed over.

"I think people do not understand copyright," says Jonathan Zittrain, executive director of the Berkman Center for Internet & Society and lecturer on Internet and Cyber Law at Harvard Law School. "They both overestimate and underestimate it."

This leads, he says, to infringements going unpunished and the mistaken concept of copyright "as something that lasts forever."

Among the latest legal challenges is Eldred v. Reno, a case that challenges the Copyright Term Extension Act (a.k.a. the Sonny Bono Act). Under the provisions of this legislation, 20 years are added to the term of copyrighted works. Typically, an individual's work is protected from the date of its creation through the creator's lifetime plus 50 years; that term is now life plus 70 years. For corporate works--film studios or publications, for example--the term was typically 75 years from the date of creation; it is now 95 years. Plaintiffs want this extension rescinded. The assertion is that this change robs the public of works that would normally be in the public domain.

"I would not wish to encourage anyone to violate the law and copy anything illegally," says Eric Eldred of Eldritch Press, the plaintiff in the suit and proprietor of a Web site that republishes books in the public domain. "I approve of copyright and feel it has a very useful purpose as the framers of the Constitution intended, and that it is not time to give it up and turn to technical means of protection such as encryption and licensing. I believe authors and inventors should be rewarded for their work. However, the new laws such as CTEA go too far and contradict the constitutional purposes. If the Internet is to continue to flourish and our individual rights are to be respected, then we must fight CTEA and other extreme forms of intellectual property protection that favor large corporations and other companies that seek to control all intellectual property, including vaccines, drugs, agriculture and music. And we must do everything we can to ensure that fair use and free speech are encouraged and that the public domain has a place to flourish, for it will be the source of the next Internet.

"I think we ought to hang on to the old Constitution a little longer, and not box ourselves in with these new laws."

The advent of new distribution channels such as the Internet has indeed made legal eagles and entrepreneurs think about how to exploit the technology for commercial purposes, but it has also created a haven for free expression. Nowhere is this more evident than in music use and distribution. How these works circulate online is under ongoing scrutiny, thanks in no small part to copyright infringers.

The most traditional electronic manner of compact-disc distribution takes place through click-and-mortar businesses designed to replace traditional record stores. The CD is ordered online and sent via mail. Another method is distribution via download. No intermediary is needed to download an entire album or create a compilation--provided you have a valid credit card. And of course, the advent of MP3 technology has sparked controversy.

Perhaps the most disputed distribution method involves streaming media. Analogous to a radio broadcast, anyone can listen to streaming media at any time, anywhere in the world where listeners have the appropriate technology. The question is, how are performers compensated for these broadcasts?

This has created an unholy mess between performers; trade organizations such as RIAA, BMI, and ASCAP; distributors such as MP3.com and Napster; and fans who just want to hear new music via the Internet. Who's got the rights and who's wronged? The answer depends on your point of view, especially when royalties seemingly can't be properly collected for online performances or sales, and unauthorized distributions are common.

"Everybody's stalling," says Llyswen Vaughan, an intellectual-property expert who specializes in copyright clearance, speaking of major record companies. "It has to shake down. They're losing revenue. The only way they're going to collect that revenue is to license."

Vaughan says it seems that parties involved in the online music debate--apart from RIAA, which has sued and is suing sites including MP3.com and Napster--are waiting for licensing organizations such as ASCAP and BMI to take the lead on blanket licensing. "Something has to give. They all could be making money if they were licensing material. But no one wants to make the decision that loses money for someone. So nobody agrees." The result: myths and misconceptions about how copyright applies to streaming and downloading music and how to properly clear music for online use.

"I think the new technologies of the Net pose challenges to people who care about intellectual property," says Zittrain, adding that the challenge will be transforming the "quality of the Internet itself so that technology helps rather than hurts." Watermarking, encryption, and other means are increasingly employed to give consumers access to materials and monitor use. Technologies can give copyright owners "much nuanced ways of spinning out property--selling reports only to Democrats or selling an unbundled album, perhaps with different quality levels," he says. A poorer-quality recording could be free, for example, with higher-fidelity recordings commanding a price. And in fact, some of these scenarios have begun to take place.

In addition to watermarking technology to protect images and audio files, Zittrain says technologies exist to secure text as well, such as Adobe Acrobat PDF and secure PDF, which "make it hard to edit or make derivate works."

But copyrighted works are commonly used, says Vaughan, without the proper legal clearances. Copyright holders--both individuals and corporate entities--often don't have the time or resources to troll the Web looking for violations. When those are found, a cease-and-desist letter asking the site creator to remove the material is often sent. This seems to work in many cases. Vaughan knows of a person who used the word Orca on a Web site. The individual was asked by Sea World, home of Orca the killer whale, to remove the information. Sites with questionable MP3s have shut down, and legal threats have closed sites such as OLGA, an archival source for amateur musicians to trade guitar chord tablatures and song lyrics for personal use. (Even so, several renegade OLGA sites have popped up in the wake of the shutdown.)

Because the Internet is so vast, some smaller entities have adopted a "don't ask, don't tell" strategy. But then again, flagrant offenders are indeed punished. In late 1999, Jeffrey Gerard Levy, a 22-year-old University of Oregon student, was given two years' probation after pleading guilty to illegally distributing copyrighted materials including MP3 files, movie clips, and software. The first pirating conviction under the relatively new No Electronic Theft (NET) Act, Levy could have faced a sentence of three years in prison and fines up to $250,000.

"So much stuff is being used by individuals without them knowing they can't use it," Vaughan says. "It's interesting that we have scanners, technology to digitize video, but these people have no idea that this material might belong to someone else. It's the same attitude with copying a videotape for a friend. People see the FBI warning, but it doesn't sink in. They say, 'I'm not pirating this videotape. I'm not selling it in Asia.' There is an attitude that this is harmless."

Vaughan said the climate is similar to that found in the mid-1980s in regards to photocopying. Kinko's was at the center of copyright problems involving unauthorized use of material from books and publications being duplicated by college and university professors for use in class. There's a mindset, she says, that if someone has purchased a book, they own the book and are free to copy it.

"It doesn't belong to you," she says. "That intellectual property belongs to someone else. A lot of people think the Web should be different. It shouldn't. People have worked hard to create something. It still belongs to them."

This rights confusion has caused Web architects to hire contractors to create components on a work-for-hire basis, or to use public-domain works covered under a blanket license, says Vaughan. A good example is the use of royalty-free clip art collections.

Rather than centering the issue on economics, Eldred says it is more constructive to discuss "the bigger issues of the progress of science and the useful arts, of creative works in literature, art, and music.

"The big music publishers, Hollywood, Microsoft and a host of other monopoly enterprises claim they own most new intellectual property, they are responsible for creating new works and they deserve to be rewarded for this forever by a permanent monopoly," he says. "Their attitude is that you and I are the consumers of this stuff, and we should gladly give up personal information, and gladly pay money for the locks and chains--such as eBook reader appliances--that will turn our common culture into pay-per-view infotainment.

"This is not how we feel the system should work," he adds. "We would like to have these great tools of the Internet and the World Wide Web and personal computers used by everyone in our democratic society to freely express their views and share their creations. Original copyright laws are more than enough to allow this to happen, as long as government and the media monopolies keep their hands off. In fact, pretty soon many companies will see the absurdity of their enterprise of privatization and will be suing each other to overturn the new laws because they don't allow fair competition. And authors will see that they don't really need those obsolete publishers as they did before, and that the Internet gives them new powers of expression and new markets."

Contributing Editor Linda Dailey Paulson writes from Ventura, Calif.

Sidebar: For Further Information

Readers interested in learning more about the issues presented here can find volumes of material online. The list below represents but a fraction of the information available. Those wishing to learn more about copyright issues should start by reading materials found at these URLs:

10 Big Myths About Copyright Explained

The American Society of Composers, Authors and Publishers (ASCAP)

BMI

The Berkman Center for Internet & Society

"The Copyright Grab"--from WIRED

"Digital Copyright Law on Trial"--from WIRED

Digital Millennium Copyright Act Summary

EFF

EFF "Intellectual Property Online: Patent, Trademark, Copyright" Archive

Eldred v. Reno

Eldritch Press: Battle of the Books--the ebook vs. the antibook

Library of Congress

Library of Congress' Copyright Basics

Napster

Recording Industry Association of America

"Rio Grande: The MP3 Showdown at High Noon in Cyberspace" by Paul Veravanich

Secure Digital Music Initiative (SDMI) FAQ

TechLaw Journal Summary: Eldritch Press v. Reno

United States Copyright Law

The UCLA Online Institute for Cyberspace Law and Policy