MORE WAR
Denise Howell

Denise Howell is an appellate and intellectual property litigator in the Los Angeles office of Reed Smith, where she has handled matters for a wide variety of industries and individuals, including Internet technology and bioscience companies, video game companies, real estate developers, professional sports teams, manufacturers, distributors, professional service providers, financial institutions and non-profit organizations. Denise enjoys broad industry recognition for her expertise on the intersection of emerging technologies and law, having been quoted or featured in the New York Times, the Wall Street Journal, Wired News, the ABA Journal, the American Lawyer, the California Lawyer, Law Technology News, Law.com, The Legal Intelligencer, the Lawyer's Guide To Marketing On The Internet, "The Screen Savers" (TechTV), "Life and Times" (KCET television), and other outlets. As a speaker on technology law topics, Denise has presented to Deloitte's Disruptions conference, the Portable Media Expo, BlogHer, Gnomedex, Digital ID World, the New Communications Forum, the ClickZ Weblog Business Strategies Conference, the Association of Business Trial Lawyers, the Haas School of Business, and the Boalt Hall, Yale, UCLA, and Chapman University Schools of Law. Her writings on online communication and syndication techniques are widely referenced as pioneering texts that examine the legal and cultural ramifications of these media. Over the past 10 years, Denise has gained in-depth familiarity with several key sectors of technology law, including the legal considerations surrounding all forms of online publishing and syndication, digital copyright, digital rights management, and Internet jurisdiction, as well as the nuances of Creative Commons and other generalized licensing strategies. Denise's appellate law career is characterized by her passionate interest in intellectual property, technology, media and emerging forms of communications. Denise received her B.A. in English from UCLA, graduating with departmental honors, and her J.D. from Boalt Hall, where she won the briefing component of the McBain Moot Court Honors Competition. She writes one of the first law-related weblogs, Bag and Baggage (http://bagandbaggage.com), and contributes to Between Lawyers (http://between lawyers.corante.com). Denise hosts a regular audio series at IT Conversations, Sound Policy (http://soundpolicy.net), probing the areas where technology and society intersect in ways that present new, unique, or difficult issues under existing and developing law. She is a member of the Identity Gang (a Harvard Law School/Berkman Center affiliated working group examining digital identity issues; http://identitygang.org/), and an advisory board member of the Attention Trust (http://attentiontrust.org/).

I.  INTRODUCTION

First, a word about the title. "More War" is not an exhortation to an even higher degree of global conflict than what we already see today. It is rather a reference to the ongoing and escalating conflict between the mores and norms of most 21st century forms of online communication and publishing, on the one hand, and intellectual property law's 20th century roots and legacy, on the other.

I've been asked to speak on the topic of "blogs and intellectual property" -- a capacious subject if ever there was one, mostly because blogs are just one part of the "World Live Web."(1) The "Live Web," "Living Web," and "Read/Write Web" all refer to a medium whose destiny is dictated by its enormously distributed mass of users, and not by any centralized cadre of commercial or governmental interests. As a corollary, the terms also refer to the malleability of that medium, its accessibility, convenience, and ease of use. My approach to the topic of blogs and IP adopts this perspective. Using the myriad tools of the Live Web, including blogs, anyone with a mind to do so can be a source of virtually any information and material at their disposal. Of equal importance, this is a two-way street. Thanks in large part to the vibrant growth of the Live Web, users of the Web in general expect to, and do, look to the network for whatever information and material they may require; how it got there and whose intellectual property it may be are of, at best, secondary importance. Some recent journalistic observations underscore and illustrate this collision between the policies underlying the Live Web and the traditional world of intellectual property law:

• "Computer hardware and software sales still represent a huge and growing part of the economy... but today's users are employing these tools differently. For example, 50% of Internet users are posting an array of multimedia content -- from audio, video, and still clips to blog posts and MySpace profiles -- on the web. The generation that grew up chatting in real time on the Net, Googling and Facebooking their friends, downloading music, and playing video games instead of watching TV is now invading the professional world with these personal operating behaviors -- and the only choice is to get on or get out."
(2)


• "What makes the Web alive is, quite simply, us. Our presence, most often conducted at the speed of broadband, is constant and mandatory. Thanks to our activity, the Web has replaced phone books, and is in the process of replacing phones. It's the place that answers our questions in four tenths of a second and ships us funny clips that mix the 'Back to the Future' guys with the 'Brokeback Mountain' soundtrack. It's the main news source for the non-arthritic population, and a megaphone for those who make their own media. As we keep offloading our activities to the Web and adding previously unmanageable or unthinkable new pursuits, it's fair to say that our everyday existence is a network effect."
(3)


• "Just watch a kid with a new videogame. The last thing they do is read the manual. Instead, they pick up the controller and start mashing buttons to see what happens. This isn't a random process; it's the essence of the scientific method. Through trial and error, players build a model of the underlying game based on empirical evidence collected through play. As the players refine this model, they begin to master the game world. It's a rapid cycle of hypothesis, experiment, and analysis. And it's a fundamentally different take on problem-solving than the linear, read-the-manual-first approach of their parents."
(4)


• "The day may not be far off when companies receive résumés that include a line reading 'level 60 tauren shaman in World of Warcraft.'"(5)

Far from being an isolated phenomenon or a passing trend, the Live Web is here to stay. It already has brought tens, perhaps hundreds, of millions of people into routine, multifaceted, interactive relationships with the global network -- relationships on which they rely for every aspect of information exchange, learning, work, production, and entertainment. As participation and reliance continue to increase, the network's fabled dexterity at routing around obstacles -- including what some may view as bedrock legal principles but others consider merely inconvenient speedbumps (if they see them at all) -- improves at an equally exponential rate. There really is just one question that remains to be answered: how will the law resolve the war of the mores? In the short term, the extremes will continue to clash, with a middle road being charted by an increasing number of rightsholders (large and small) who recognize the practical advantages of using private, contractual means to lessen the litigation potential that flourishes in the divide between Live Web norms and existing legislation and precedent. In the long term, courts and legislatures will be compelled to make policy that "promote[s] the Progress of Science and useful Arts" by taking into account the fundamental and profound impact of ubiquitous networked technologies on science, art, and progress itself.(6)

II. DISCUSSION

a. The Cultural Impact Of The Live Web On Intellectual Property

i. Live Web Realities

Among the Live Web's distinctive characteristics are:

• it puts the ability to reach potentially large and globally distributed audiences and groups with text, audio, images, and/or video into the hands of any individual with access to one of any number of Internet-connected devices (e.g., cell phone; camera; computer; PDA; music player; video game device . . . sofa cushion ... the possibilities proliferate even as I type);



• it is almost indescribably and irresistibly attractive, with ease and convenience of use, constant availability, and speed all on its side (and improvements on all fronts unfolding daily);



• it can and does become part of an individual's routine on the individual's terms, using resources that are not meted out or controlled by third parties;



• it is socially and personally compelling, if not indispensable, starting from a very young age (i.e., a child's first exposure to networked technologies); and



• it makes locating, using, and redistributing various forms of intellectual property not just possible, but almost intuitive.(7)

In the words of Paul Davies (noted author and Professor of Theoretical Physics at Adelaide University), "[i]n an infinite universe anything that can happen will happen, and happen infinitely often." The Live Web is best characterized by noting its ability to expand possibilities toward the infinite -- and by the fact its architecture puts the considerable burden of knowledge and compliance with applicable intellectual property laws on its users.

ii. Creative Commons, Open Source, Open APIs

Given the greatly heightened potential for repackaging, redistribution, and reuse facilitated by Live Web technologies, and growing recognition by rightsholders or potential rightsholders that, within reason, these things can be good for their business, their "brand," their productivity, and/or society, intellectual property restrictions that may apply in law are increasingly being consciously and voluntarily scaled back or waived altogether. One could write lengthy tomes devoted to phenomena such as Creative Commons and the open source software movement, and I will not do so here.(8)  Suffice it to say both are examples of rightsholders reacting to the experience of the Live Web by privately reshaping the legal framework to reap the benefits afforded by fewer restrictions and more collaboration. As Creative Commons puts it, "We use private rights to create public goods: creative works set free for certain uses. Like the free software and open-source movements, our ends are cooperative and community-minded, but our means are voluntary and libertarian. We work to offer creators a best-of-both-worlds way to protect their works while encouraging certain uses of them -- to declare 'some rights reserved.'"(9)

While it is tempting to question the wisdom and appropriateness in all instances of a generalized license, the fact remains that a great many and growing number of rightsholders (and, on the Live Web, anyone and everyone is a rightsholder), would rather risk an overbroad or insufficiently nuanced license than join the ranks of those whose works might not be quoted, sampled, or otherwise copied, reused, and redistributed in light of the rights-clearance requirements imposed by the existing intellectual property law framework.

On a parallel track, open and publicly available software APIs (application programming interfaces), available for use by anyone without payment of royalties, are further proof that, at least in the software industry, the culture of giving away what would otherwise be protected intellectual property to reap the resulting economic benefits (in this case, most commonly, the more widespread adoption of the platform, which in turn has other sources of monetization) is becoming institutionalized. "Google, Yahoo, eBay, and Amazon all have Open APIs built into their data and systems. Any software developer can access and use them for whatever creative purposes they wish. This means that the API provider becomes an open platform for everyone to use and build on top of. This notion has expanded like wildfire throughout the blogosphere, so nowadays, open APIs are pretty much required."(10)

iii. New IP Forms

Further to Professor Davies' observations about infinite possibilities in an infinite universe, and my observations about the Live Web's possibility-expanding tendencies, it bears mentioning that in addition to challenging and perhaps eventually altering intellectual property law frameworks as they exist today, the Live Web quite likely will give rise to its own, heretofore unknown or unrecognized forms of intellectual property. Some possible examples:

• Attention. "When you pay attention to something (and when you ignore something), data is created. This 'attention data' is a valuable resource that reflects your interests, your activities and your values, and it serves as a proxy for your attention."
(11)


• Gestures. "The Gesture Economy's power derives from its obedience to the time constraints of the user-in-charge. The key to understanding the inevitability of this transformation is the profound effect the gesture dynamic has on the content that it refers to. Where current information is created in a broadcast, attention-seeking environment, Gesture-triggered data is generated as a result of multiple proffered contracts with users. It's the opposite of invasion of privacy, the invitation of privacy. A request for proposal, complete with cues as to how to prioritize the inflow of information to deliver the most time-efficient transfer."
(12)


• Digital Identity. "The digital representation of a set of Claims made by one Party about itself or another Digital Subject. A Digital Identity is just one set of Claims about a Digital Subject. For any given Digital Subject there will typically exist many Digital Identities...."
(13)


• Tags. "A tag is a keyword which acts like a subject or category. A keyword is used to organize webpages and objects on the Internet. Each user 'tags' a webpage or image using his/her own unique tag. An image or webpage may have multiple tags that identify it. Webpages and images with identical tags are then linked together and users may use the tag to search for similar webpages and images."
(14)


• Objective And Weighted Reputation Ranks. Each of the tens of billions of pages indexed by Google has a PageRank, an authority ranking steeped in the search giant's algorithms that carries potentially sweeping economic implications. (Google has already faced lawsuits grounded in objections to PageRank adjustments.) In his novel Down and Out in the Magic Kingdom, Cory Doctorow envisions a future where all human interactions are informed by the participant's reputation metadata(15). eBay sellers do a brisk business in virtual objects indicating the attainment of levels of proficiency and authority in video games.(16)

Absent ranking, identity, organizational systems, and other forms of informative metadata, the network is incomprehensibly vast and undifferentiated. Such systems develop and deploy with particular rapidity on the Live Web. Reputation is uniquely critical to the Live Web's ecology and economy, and blogs are no exception.

iv. Boundary Blurring

Considerable intellectual property doctrine, including specifically the fair use principles applicable to copyright and trademark, stems from the law's desire to protect the ability of rightsholders to exploit economic opportunities associated with a work or item. The nature of a use thus routinely plays a role in the analysis and defense of infringement claims.

The Live Web is adept at blurring the boundaries between various types of use. Is a college professor's personal blog that participates in Google's AdSense program (which shares advertising revenue with Web site owners whose sites drive traffic to the ads), commercial, noncommercial, educational, or, more aptly, its own unique blend of all of the above? As California Supreme Court Justice Janice Rogers Brown noted in her dissent in Nike v. Kasky, we now live in a world in which "personal, political, and commercial arenas no longer have sharply defined boundaries." Justice Brown was discussing the commercial speech doctrine, but her comment applies with equal force to the intellectual property arena, particularly given the tendency of the Live Web, and those who use it, to transcend the quaint notion that it is possible to separate entities from the individuals who comprise them, or to distinctly compartmentalize "business" and "personal" pursuits and interests.

b. Inevitable Hot Spots

Having set the stage for the capabilities of Live Web technologies, and the culture of shared and distributed intelligence they engender, it's a straightforward matter to issue-spot several likely areas of potential dispute when it comes to blogs and intellectual property.

• Business IP. As more individuals within organizations make use of blogs and other Live Web tools (either on their own initiative, with express company endorsement, or somewhere in the vast gray area between), the potential for the unauthorized, disclosure of business trade secrets multiplies. Employees have always had the ability to talk out of school; the primary difference blogs bring to bear is the scope of the audience and the visibility of the information they contain.



• 3rd Party IP. Copy, paste, publish. Images, audio, video, text. On a personal blog. On a corporate or institutionally sponsored blog. One feature of blogging tools is they render it intellectually and technologically more natural than not, and certainly more effective, to make or illustrate a point by incorporating someone else's intellectual property. (And certain parasitic ventures exist, such as "spam blogs," that rely on the wholesale, unauthorized copying of 3rd party IP to lure search engine traffic and associated advertising revenue.) It is the rare blogger who is scrupulously schooled in the parameters of fair use and licensing, or inclined to let these roadblocks slow down the freeflowing media stream the tools facilitate. Absent education, guidance, and an affirmative desire to uphold existing intellectual property laws, blogs can be rife with technically actionable infringement, potentially subjecting the individual blogger and, as applicable, their employer or other sponsor, to liability. (Interestingly, as Shel Israel points out, "According to Charlene Li, of Forrester Research, there is not yet one case of a lawsuit being started because of a corporate blog. Nor has there been one example of intellectual property being stolen."(17)  This situation, while encouraging, can't last long.)



• Collaborative Efforts. Bloggers and their employers stand ready to give the corporate opportunity doctrine a challenging workout. (Who owns what, where? Does it matter how, where, or when it's posted? How about domain names and other trademark related considerations?) Ownership conflicts are destined to arise between sponsoring companies, hosting companies, individual authors, individual contributors to a group blog, guest contributors, podcast hosts and guests, and 3rd party blog commenters.



• Grokster and the DMCA Safe Harbor. The lesson of the U.S. Supreme Court's 2005 MGM v. Grokster decision is that if one hopes to avoid indirect liability for the infringing activities of one's users, one had better take pains to demonstrate those infringements are not being actively encouraged. For bloggers and their sponsors and/or hosts, this might be an incentive toward active monitoring and policing of comments or other third party contributions for potential infringements. Ironically, however, to trigger the DMCA's safe harbor provisions (which, while they pre-date Grokster, somehow were not mentioned in the opinion), a much more passive approach would seem to be required; an online service provider must not have actual knowledge of infringement (17 U.S.C. Section 512(c)(1)(A)(1)), and must not know of facts or circumstances from which infringing activity is apparent (17 U.S.C. Section 512(c)(1)(A)(2)). Live Web tools, given the ease with which their users can knowingly or unknowingly infringe intellectual property rights, seem likely to bring this conflict to a head.(18)

III.  CONCLUSION

For the time being, blogs and the rest of the Live Web will continue to render almost second nature the manipulation of information, media, and other data, and they will do so under an intellectual property regime pursuant to which a great deal of that manipulation is actionable. As these forces keep colliding and garnering the attention of the legislature and judiciary, the law will respond. How it responds will reflect the cultural values we as a society deem most important, and will likely involve attempts to balance the interests of technological convenience, flexibility, creativity, and progress, against those of the considerable economic interests aligned with the intellectual property status quo. I don't pretend to be able to sketch the contours of that eventual resolution, but am confident the technologies becoming prevalent today, and the ever growing ranks of entities and individuals who rely on these technologies (and will rely on their even more powerful successors), make it a foregone conclusion.

(1) A term coined by Allen Searls in 2001: http://kbcafe.com/iblogthere4iM?guid=20050909075304

(2) The AlwaysOn Blogozine, Winter 2006, pp. 5-6.

(3) Newsweek, The New Wisdom of the Web: http://msnbc.msn.com/id/12015774/site/newsweek/

(4) Will Wright, Dream Machines, Wired Magazine 14.04: http://wired.com/wired/archive/14.04/wright.html

(5) John Seely Brown and Douglas Thomas, You Play World of Warcraft? You’re Hired!, Wired Magazine 14.04: http://wired.com/wired/archive/14.04/learn.html

(6) See U.S. Constitution, Article I, Section 8.

(7) My locating and redistributing the following Paul Davies quote is but one example.

(8) See, e.g., Minjeong Kim, An Analysis Of The Creative Commons As A Solution For Copyright Protection In The Digital Era, and Thomas Friedman, The World Is Flat: A Brief History of the Twenty-First Century.

(9) Creative Commons, “About Us:” http://creativecommons.org/about/history

(10) Marc Canter, Breaking the Web Wide Open!: http://www.alwayson-network.com/comments.php?id=12412_0_1_0_C

(11) Attention Trust, “About AttentionTrust”: http://www.attentiontrust.org/about Attention Trust goes on to characterize attention as property that one owns and controls.

(12) Steve Gillmor’s Inforouter, GestureBank: http://blogs.zdnet.com/Gillmor/?p=189

(13) The Identity Gang, Definition of Digital Identity: http://identitygang.org/DigitalIdentity.  One can readily imagine digital identities, which are poised to play a critical role in one’s navigation of and access to the network, as warranting protections similar to other uniquely personal attributes, such as name and likeness.

(14) Wikipedia, Tags: http://en.wikipedia.org/wiki/Tags. Tags are a user-imposed organizational and navigational system, thus bearing some similarities to domain names -- without the associated registration infrastructure or individualized ownership.

(15) Wikipedia, Whuffie: http://en.wikipedia.org/wiki/Whuffie

(16) See Ogre to Slay? Outsource It to Chinese, David Barboza, The New York Times, 12/09/05.

(17) Shel Israel, IP, Blogs, email & Fear of Flying: http://redcouch.typepad.com/weblog/2006/03/ip_blogs_and_em.html

(18) See my related post on Bag and Baggage, Grokster: A Rocky Shoal in the DMCA’s Safe Harbor?: http://bgbg.blogspot.com/2005/10/grokster-rocky-shoal-in-dmcas-safe.html