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Gone Surfin'.......

I love the internet. I love everything about it; it allows me to work quite efficiently here in the woods of Housatonic, with instantaneous access to my clients, to the biggest law library in the world, and to resources that are limited only to the knowledge and imaginations of those millions of other people who also are online.

Not only that, but the internet has spawned the much ballyhooed "information age" which has generated the kind of economic activity in ideas and expression (commonly known, perhaps tragically, as "content") that requires managing and creates disputes. And "content management" forms the basis for a big part of my livelihood.

A common misperception is that the internet has made everything free. Of course, that's not the case, even though it's understandable that one would think so. "Easy" is not the same as "free." The laws of intellectual property, copyright, trademark and all, work exactly the same in cyberspace as they do in the real world. The problem is that stuff moves around so quickly on the web that conventional means of intellectual property protection are largely ineffective. And copyright owners, especially the huge media companies, are scrambling to come up with new ways to protect their "content" from being "liberated" online.

What we are experiencing today is a massive and virulent clash of expectations. On one hand, you have your average Joe, who goes online, finds stuff for free, and likes it. Free is good. On the other hand are the content owners, who own copyrights and trademarks to images, songs, words, movies, logos, and the like, who do have the legal right to protect these things from abuse and appropriation. For the owners, free is not so good. They want to get paid for the use of their stuff.

It's an interesting time to be in the intellectual property business, perhaps the most interesting time since the notion of intellectual property first arose, some 600 years ago when Mr. Gutenberg combined cut-block letters and the wine press and started mass-producing Bibles. New paradigms are forming, new balances are developing, and nobody knows exactly where the intersection of ownership and use will finally end up. It's a messy process that sometimes resembles an elaborate game of chess, sometimes an all-out war. People will get hurt and fortunes will be made and lost as the new rules and new ways of thinking define the internet space.

Right now we are experiencing a flurry of activity that parallels what we saw during the first internet boom six years ago, a boom that resulted, in very short order, in the first internet bust five years ago. This time, though, I think it's for real, and the reason is that more people have better access to the internet today than they had five years ago. In 1999, most folks were still getting by with agonizingly slow dial-up service and hideously anemic computers; that's all changed now with cable modems, DSL, and rocket-fast and cheap computers. It wasn't that all those who bet and lost the farm on the internet in 1999-2000 were wrong; they were just five years ahead of their time. But the game is back on after a short hiatus, and the clash of expectations is also back on, and at full volume, once again.

In the literary arts, the battle lines are most clearly seen in the fight between Google, which wants to put online a searchable database of every book ever written, and publishers and authors, who understandably are a little freaked out by this. Never mind that Google isn't planning to make entire texts available, just a sentence or two around the search term; this is a war of degrees, and I suspect that we'll see this one wind up at the Supreme Court in a year or two. In my opinion, the Google initiative could be the best thing that happened to the ailing book publishing industry in years, and the publishers and authors are really shooting themselves in the foot by opposing it. When you do a search, and Google tells you that your search term has been found in a certain book, guess what's going to appear in blue letters next to your search result? That's right, a link to a bookseller, so you can acquire the entire work with a point and a click, if you're not satisfied with just a few sentences. Really now, what's not to like?

In the visual arts, the major issue would seem to be what I discussed here a few months ago-the ascension of appropriation art as a major movement in the fine art world. It only stands to reason that artists are going to use whatever's at their disposal to make art, and images of every type are available online, a mere cut-and-paste, point-and-click away. Existing images, a computer and a mouse are the new paint, canvas and brushes for the visual artist. The problem with this brave new scenario is that the existing images are, in all likelihood, owned by somebody who may not take kindly to having their images re-imagined and re-used. In the name of expression and in the name of art, the rules about fair use of existing works are going to have to change to allow for appropriation art, which has long passed the point of no return.

Nowhere is the clash more pronounced, or more developed, than in the world of music. If you don't believe me, ask one of the twenty or so clients of mine who are under the threat of a devastating lawsuit by the music industry for downloading free music off the internet.

There are a couple of reasons why music is the Big Kahuna of the information wars. More than any other artform, music has an egalitarian appeal-everybody listens to music; not everybody reads literature or buys paintings. For kids especially, music has long been the defining cultural marker of personal identity - you are what you listen to. We're all conditioned to free music from always having radio around. And radio, for a variety of reasons, is hardly a factor anymore, and we're looking for something to fill that void.

But the main reason why the big internet battle lines involve music is because the music industry was stupid in not embracing the internet 5-6 years ago as its main product delivery vehicle. Driven by a combination of greed (the industry was afraid of putting easily copied digital files into the stream of commerce) and ignorance (most industry executives refused to acknowledge the importance of the internet), the music industry only recently began selling music online on a grand scale, years too late. As a result, a free-music culture was born, an entire generation of people have grown up believing that music should be cost-free, and the industry has to resort to suing thousands of kids, the target demo of the industry, to try to maintain it's dwindling market share by creating a climate of fear.

Compare what's happened to the music industry to what's happening online with movies and TV shows. Before an underground online free culture has had an opportunity to fully develop, the movie and TV studios are falling over each other to get their stuff online for people to download conveniently and cheaply. The public will naturally gravitate towards these new and innovative services, and the free (some would say pirate) underground will be kept to a dull roar.

Happy surfin'.

© 2002 Paul C. Rapp
This article originally appeared in The Artful Mind, and is intended to provide the reader with an awareness of copyright law and not legal advice.