Leonardo Special Project

Molten Media and the Infiltration of the Law

Curtis E.A. Karnow

The legal system infiltrates technology, like a thin mist seeping under the door, staining it and turning technology into a different animal. Programmers wonder if the code they write was patented by someone else. Graphics loose their innocence, and look like trademarks, trade names, and logos; they have that old "look and feel" of someone else's product. Trademark law reaches out its sticky hand to embrace color, sound, the overall appearance of every product and packaging on the market. Copyright law hovers like a specter, infecting every line of code, every data structure, every animation, every sound, graphic and screen layout.

And while this law spreads, it thins out, too. The types of properties that the law protects now were unknown just a few decades ago. There is an unreality to the transient audio visual image, an insubstantiality to a user interface. There is something very peculiar about patenting a three dimensional cursor or a software retrieval system. Surely these are created things, to be protected from theft, but most judges are reluctant to tread too heavily here. These judges remember "property" as tangible land, gold, cattle; this new stuff looks ephemeral. Judges have a hard time giving a user interface the same absolute, exclusive, protection provided to a house, a car, or money.

So the law expands its reach to govern the development of advanced technologies, but at the same time its touch grows more hesitant and uncertain. It is like a omnipotent Imperium in nominal control of vast territories -- every movement of the inhabitants may be the subject of Imperial decree, but none knows which actions, precisely, will invoke the Imperial attention.

This note discusses the apparent paradox of comprehensive but uncertain protection for intellectual property, and the consequences for companies engaged in high tech development.

Intellectual Property: A Spectrum of Protection

Now, the law protects the new and artificial by granting the creator a monopoly: no one else can use or have the creation. By contrast, the public and natural domains are for everyone. Copy a painting or reproduce a book, and go to jail (or worse: get sued). But take a picture of a rock or leaf, or make an imitation of the night sky, and you will be left in peace. Invent the integrated circuit chip, or the process by which rubber is vulcanized, and get a patent; but if one comes up with a new algorithm or discovers a physical law, no protection is available for the discovery and everyone can use it.

In truth, there are not two types as much as two ends of a spectrum. Some work is plainly and dully derivative or duplicative of physical reality; and so this secures little protection from the law. Other work is stunningly unexpected, re-defining a field or creating an industry, and that is strongly protected.

Trademark law participates in this spectrum of creativity. Powerfully novel terms are strongly protected, and weaker ones less so. So, for example, arbitrary words like Exxon and Kodak are given great deference by the courts; and generic terms -- those which are the most descriptive, most closely and obviously allied with the physical and natural worlds -- are given little weight and are difficult to enforce. Phrases such as The Hot Dog House, Aviation Services, and Drawing Program are useless as trademarks for the goods and services they describe. But, of course, one can be arbitrary with natural things: Just as a new collage can be made of wood and paper, so too a good trademark can be -- Apple. Or Virgin Airlines.

Patent law has analogous rules, such a the doctrine of equivalents and the so-called "means plus function" test. Both of these can broaden or narrow the effective scope of claims in a patent. Both doctrines try to discern the difference between a truly new invention which deserves a patent, and the insubstantial variation on an older invention which deserve no protection; indeed, these "insubstantial variations" would be an illegal transgression on the old patent.

Copyright law lies on the spectrum as well. Factual compendia, like telephone listings, are very hard to protect. Depictions as to which there is very little choice or creativity -- such as showing a pipeline on topographical map -- secure very little protection, or none. Creations whose structure is dictated by physical requirements or standards are difficult to protect. For example, computer code that issues obvious and necessary calls to peripheral systems, or polls input devices, is not easily protected: these works are a direct function of the physical contexts, and so share in the very weak -- if any -- protection we give to asserted rights in the real, physical world. Anyone can use them.

Normally, anything that is substantially similar to the original is enough for copyright liability. Substantial similarity catches a lot of rough approximations -- it provides a thick shield around the original work. This then establishes powerful protection for the original creation. Anything that comes close is an infringement. But where the original's originality is at a bare minimum and creativity at its lowest tide, the law provides nothing but thin protection. The new replicator will be punished only he makes a virtually identical copy. When judges apply the virtual identical test, very small differences -- just a little morph or tweak -- will be enough to distinguish the new work away from the original; and that will insulate the new work from legal attack.

The law usually has had little trouble applying this spectrum of creativity, because it has been simple to distinguish the endpoints. At the one end we have the common, universal natural, factual, historical, physical background [that's weakly, thinly, protected]; and at the other end, the artificial figments of the imagination, which are powerfully protected.

Molten Media

But our two endpoints are melting, and intersecting with each other. Nowhere is this conflation more apparent than in multimedia; and the same events will erupt shortly in the budding virtual reality industries. Developing out of computer software, classical entertainment and video games, multimedia has begun to subsume other trades such as advertising, film, and publishing. The markets for multimedia productions are expanding rapidly, the cost of production -- authoring tools and CD-ROM publication technology -- is dropping precipitously. Development tools are increasingly easier to use.

Distribution of multimedia productions is not as widespread as TV or indeed computers generally -- most PCs don't have CD-ROM drives -- but those numbers are increasing dramatically. And Internet access {which is built into the next generation of PC operating systems such as Windows95 and IBM's OS/2 Warp} will further the spread of the product. This will be especially true with the advent of graphical Internet access, such as Mosaic, and developments such as Microsoft's Blackbird, the OLE-based tool which will allow Internet access to object-oriented compound documents with text, audio, and visual components.

Widespread distribution and ease of manufacture are important only when conjoined with one more element: digital production. Digital production implies that one product is easily morphed into another; it means that anything, originally digitally created or not, can in seconds be scanned, clipped and cropped into a new product. For the digital creator, there is no difference , no difference at all , between creation and copying.

To be sure, we all stand on the shoulders of giants; we legitimately use ideas and raw material from our surroundings and our history. But before digital production, that raw material was filtered through the imagination of the mind -- which in a sense made it the property of the new creator -- before it was used in the new product. Even if inspired directly by an old painting, or hearing an old poem or reading an old play, the new creator would first abstract the old item, and apply some minimal amount of new mental energy before the new work issued forth. So the new "copy" was in fact different from the original, and encompassed new creativity.

Now, the literal replication can happen first, without the intervention of abstraction, without new creative processes. Digital replication is, by definition, exactly like the original. Now, we're not just standing on the shoulders of giants -- we're using their legs to walk, as it were. The new means of production create enormous copyright problems.

So too the new means of transmission: passing a book around from hand to hand is innocent, and violates no-one's rights. But multiple browses through a text file creates a series of copies, and may violate the copyright law, just as a series of passes through a networked multimedia database probably generates a series of "performances" of a work which may not be authorized.

The Reach to Reality

Increasingly, the world that lies behind and supports our creativity is a synthetic world. Our social and business environments are, increasingly, electronic worlds. Advertising, publishing, politics and our very day-to-day life increasingly quote the electronic worlds of T.V., film, and video games. The encroachment of terms such as cyberspace, virtual reality, and networks all point to the gradual displacement of the so-called natural world by the digitized fabricated creations of humans. Someday soon, online computing will be the sea we all swim in, and when that happens, it will be the fish the colorful, complex organisms we are beginning to call "content" that matter most [1].

Indeed, the only "fish" will be electric ones; but unlike real ones, someone owns them.

In this new world, fidelity to reality takes on a very peculiar twist. The sound of real gunshots is too tame; we need fabricated sounds that everyone who watches action films will recognize as real. References to social reality are incomplete without citations to popular t.v. shows and movies, every one of which is the subject of copyright and trademark law. The holy grail of increasing realism is aided and abetted by the movement of our day to day reality towards the electronic realm: reality is electrified, and electronic reality becomes more vivid, more tangible, more visceral, more -- real. The "culture becomes simulation" [2 ].

This is the description of a conflation, a collapse of two realms. And the legal world is not immune. These developments wash out the spectrum that distinguished the protected innovation -- the valued, novel, new, creative invention -- from the unprotected fabric of physical reality. The fusion of the real and electronic worlds destroys the frames, the contexts, the signals by which we judge whether something is true or false, real or imaginary, a joke or serious.

For example, the interface for a virtual reality battlefield simulation and a real Abrams tank -- the kind that actually kills -- is about the same. The difference between news and advertisements is very thin in the well-done infomercial. A "realistic" space wargame is more likely to rely on fidelity to Star Wars -- and Star Trek -- than NASA's ungainly contraptions. And a realistic car race game through downtown New York needs to show the signs and products and buildings -- every one of which is trademarked and copyrighted and -- for all we know -- the subject of a design patent.

The new electronic reality from which we derive our inspiration and raw materials is a minefield of proprietary rights. Its as if God copyrighted the universe. Owning Reality

Who does own the chunks of our routine electronic world? And how strong is the protection? Can the terms WINDOWS and INTERNET be trademarked? Can a three dimensional pointer really be patented? Can Lotus really copyright the basic spreadsheet design and interface? Can I stop others from cutting and pasting my posting on electronic bulletin boards?

Suppose I create a three-dimensional orange with Sense8's virtual reality development tools. The orange is complete with density, shape, surface resilience, pitted surfaces, and sound files clipped from a software package {for that schhhhlerip sound of an orange squeezed}, using textures scanned in from a Life magazine photograph. The orange floats there, visible, tangible, as real as real, indistinguishable in a electronic realm from a real orange; as real as rocks and air and stars.

Who owns the orange? Or do different people own different parts of it? Can I give you a copy? Can I sue someone who takes the orange code to incorporate it in another environment? There is no part of this virtual orange that is not subject of legal claims. Separately, the code, the structure of the code, perhaps the data file structures, the sound and image bit-mapped files, are all copyrightable; patent law might cover some portion of the code, and certainly some portion of the authoring tools and display hardware; and who knows, perhaps some company -- Orange Julius? -- will bitterly complain that its trademark is being taken in vain, diluted in its worth if not with water.

The law will indeed find enforceable rights in these contexts. But we do not know which end of the spectrum of protection will predominate. The courts may find these chunks of the electronic world deserving only of thin, weak protection, which would allow a relatively high degree of freedom in the uses to which these properties are put by others. Or the courts may invoke strong protection, severely restricting use by others.

Because the environment is an artifice, so the legal system claims a controlling interest. But as it does so, these legal doctrines of ownership begin to dissolve in uncertainty. At the same time, the legal system itself -- the mechanism of decision -- has become clumsy and intolerably expensive. And as the legal system unravels, it threatens to take the electronic world -- our world -- with it.

The Infirm Law

No one usually gets to trial within a year; and getting there can be stunningly expensive: routine motions can cost $15,000; many experts charge $300-400 an hour; lawyers at e.g. $290 an hour can spend days traveling, preparing for and taking a long series of sworn statements (depositions). It adds up, quickly. Many cases involving intellectual property are brought in state courts, under the guise of state law; but the state courts in the major metropolitan areas are grossly over-worked, under funded [3], and rarely staffed with judges familiar with advanced technology (there are exceptions). In some states, it can take 4 years and more to get to trial.

Intellectual property litigation takes a long time, it is unpredictable, and it is ferociously expensive. This is just the sort of activity that can quickly kill off the small advanced technology company. It is the land of the Pyrrhic victory: one may be innocent of infringement, but it will cost $350,000 to defend the suit. No wonder that less than 5% of cases get to trial. The rest, if not dismissed after extensive evidence-taking and motions, are settled. The terms of those settlements reflect less about the merits of the suit, and more the realities of the time and expenses of litigation.

Litigation here is an assault weapon. Fear of litigation deters the new creators, artificially expanding the effective monopoly power of older intellectual property.

We have then a potent combination: An infirm legal system ramifying throughout the digital reality that envelops us. We have bred a artificial bacillus that proliferates well in the synthetic reality.

Conclusions: Climbing Out Of The Legal Pit

The explosion of the digital context takes the concept of property, an integral aspect of creation and invention, and ramifies the notion of "property" throughout the mundane electronic world. This invocation of "property" inevitably brings with it the baggage of a hobbled, under-funded and heavy handed legal system. Every virtual gesture, each read and write to data, each poke and peek, each shift in the electronic world teems with legal implications. Those implications are complicated and ambiguous because the legal system, as a whole, is splintered.

Fundamentally, the effect is stultifying.

Reforming the legal system would help. Funding the courts at acceptable levels, increasing the quality and quantity of judges would cut down on the interminable delays and consequent uncertainties. The legal system would do better with more judges with the courage to swiftly and effectively punish those who abuse procedures, judges who no longer think of a lawsuit as simply a sophisticated game. Clarifying and simplifying the controlling statutes would help, too, of course.

But those are long term goals; civil justice reform is a long, slow, grinding process. In the meantime, the manipulators of high technology need a way to navigate out of the miasma of law.

To do so, one must by-pass the courts, and their attendant pre- trial procedures. So-called alternative dispute resolution mechanisms, including private arbitration and mediation services, are increasingly available. The World Intellectual Property Organization provides arbitrators skilled in intellectual property, and agencies such as the American Arbitration Association can provide the expertise as well. Too, new groups are springing up designed to provide these alternatives to specific industries such as multimedia companies.

In each case, these alternative procedures require us not to reach for the heavy weapons; to leave the formal legal process alone. That is not always a temptation that can be resisted.

Underlying the resort to the formal legal system is the unspoken notion that all injury must be redressable. We are quick to perceive affront, and quick to insist on the perceived "right" to sue. In the manmade domain of the electronic sphere, there are, surely, no accidents, no forces of nature: human fault surely must underpin every indignity. It is tempting to think so, for if no human is at fault -- then what is the cause?

But not every injury should be the subject of suit. Accidents and other events beyond the intent of humans happen in the natural world; and no one, we hope, sues for those. As we complete our movement from citizens of the natural, to the mechanical and now the electronic worlds, so too may we begin to see the events in the electronic domain as beyond the reach of the law. We may begin to see the electronic world as "owned" by all of us; we may come to see the design of new works as dictated by the public requirements and standards of virtual worlds, and therefore relatively safe from legal attack. We may come to think of objects in cyberspace as the patrimony of us all. That, more than anything else, will loose the bonds of an awkward and ailing legal system, and allow creativity the freedom it needs to copy from its environment.

First posted 1995

Updated 30 March 2005

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