Illicit innovation is still innovation

Today is “World Intellectual Property Day,” a day, according to WIPO, designed to “demonstrate how IP works to contribute to the flourishing of music and the arts and to driving the technological innovation that helps shape our world.”

Apart from the obvious begging the question, this description does offer a chance to consider what the effects of bad intellectual property laws might be. Take, for example, the DMCA. The DMCA has been widely panned as a bad law, particularly its anti-circumvention provisions (the safe harbor provisions are actually quite important). It has been abused by companies seeking to prevent competitors from making generic garage door openers or inkjet printer cartridges; to stifle research into computer security; and to censor critics of Scientology and creationism.

Critics of the DMCA say that rather than promoting or protecting innovation, the law in fact stifles innovation.

I think this claim needs to be clarified: maybe the DMCA stifles some innovation, but it innovation is still happening in spite of it. It’s not always profitable or commercial innovation, and because of its sometimes dubious legality, it is often limited in scope or distribution. But it’s innovation nonetheless, because illicit innovation is still innovation.

Consider MythTV and XBMC, two open-source Home Theater PC software suites. These programs were released several years before comparable commercial alternatives like the Apple TV or Roku.* Even today, because of their non-commercial nature, these projects are able to offer features that commercial alternatives cannot. For example, MythTV has long had not only a manual commercial skipping feature (similar to the 30-second skip feature that brought lawsuits to ReplayTV), but also an advanced commercial detection feature that automatically scans through recorded programs, flags commercials, and allows viewers to watch recorded programs without any commercial interruption (or user intervention) whatsoever. As far as I know, there are no proprietary products that offer this feature, likely because of the implications it has for copyright law.

MythTV has also long had other advanced features that DVR set-top boxes provided by a cable or satellite company only offered recently, or still have yet to offer, usually because of copyright concerns. For example, MythTV allows viewers to record their favorite shows, then transcode the recordings to be played on other devices, like iPods or iPhones. Recordings can even be live-streamed to remote locations and viewed in a web browser with a Flash plugin. Recordings can be easily archived to DVDs, eliminating the need to purchase seasons of shows that have already been aired and recorded.

There is no question that many of MythTV’s features can facilitate the infringement of copyright law. In fact, due to concerns about the DMCA, MythTV users frequently refer to a DVD decryption library used in the software by a code name (“pineapple”).

The general point that illicit innovation is still innovation applies to many other computer-related innovations that are designed to circumvent or otherwise avoid copyright protection mechanisms. Peer-to-peer communication protocols (such as those used in Skype) have achieved widespread use in large part due to their application in illicit file-sharing. Digital music distribution as a whole only exists because the music industry was dragged, kicking and screaming, into it under the threat of ubiquitous piracy.

And the conclusion? Maybe we should take a more equitable approach to innovation. Rather than deeming some innovation good (the kind that is protected by copyrights, patents, trademarks, etc.) and some innovation bad (shanzai, advances in information duplication and distribution technologies), maybe we should remove the component of moral approbation/opprobrium. As its name indicates, World Intellectual Property Day isn’t really about innovation, it’s about intellectual property. Let’s not ignore the innovation that comes as a result of violating IP rights.

*TiVo and ReplayTV were both released a few years prior to MythTV, but MythTV’s functionality quickly outpaced that of commercial alternatives to the point where they no longer were comparable.

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About Gabriel

Ph.D. in political science. Postdoc and resident fellow at Yale Law School's Information Society Project. Tech geek. Mechanically inclined. I study the politics of intellectual property.
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