Creativity and ownership: where is the balance?

Ram Samudrala, Ph.D.
Department of Structural Biology
Stanford University School of Medicine
Stanford, CA 94305

This paper was presented at the Third Annual Ethics and Technology Conference held at Santa Clara University, Santa Clara, CA, in June 1998, and was published in Libres Enfants Du Savoir Numérique, 129-140, éditions de l'e´clat, 2000.


New technologies emerge from existing ones at an exponential rate. This growth usually outstrips any legal or government machinery designed to handle the implications of technology on society. Ethical decisions made by creators, producers, and users of new technology influences not only how the technology is regulated and who can access it, but also its acceptance and longevity in the mainstream populace.

The nature of emerging technologies in two specific situations, in the music and the software industries, was analysed. The different ways in which they have been embedded into society or have failed to "catch on" were compared and contrasted.

In the case of the music industry, a correlation exists between copying controls in the digital media and the failure of technologies that incorporate such controls. Copying controls in digital media have become law. The technologies with copying controls, even though superior to existing digital technology in some cases, have failed to become popular in the marketplace. One hypothesis is that it is the copying controls incorporated into these technologies that effectively led to their demise. This hypothesis is supported by the fact that the media/device currently popular for digital recording, the compact disc recorder, is largely available without digital copying controls, and that professional digital recording devices, also available without copying controls, have become an industry standard.

In the case of the software industry, there is widespread distribution of freely re-distributable software which has resulted in technological innovations that may not have been possible using traditional proprietary models. There is presently a thriving commercial sector built around freely-redistributable software, and commercial software vendors have begun incorporating this model to distribute their software.

These two scenarios illustrate that whenever new technologies emerge, it is the ethical decisions initially made by the inventors and creators regarding the ownership of information in these technologies that influence the governmental regulation of such ownership, the acceptance of new technologies in the marketplace, and the subsequent growth of superior technologies.


Intellectual property (IP) laws generally exist to further the public interest of having a wealth based on creativity in society. This is accomplished by providing an economic incentive to creators, allowing them to control the use, copying, modification, and distribution of their creations.

In the United States, this principle is codified in the Constitution, by authorising Congress "to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." [1]

It can be argued that IP "rights", as secured by law, are "natural rights", à la the freedom of speech, and that every creator has the "right" to control his/her creations. It can also be argued that IP "rights" are justified solely given the "sweat of the brow" that creators put into their works. Focusing only on copyright, the latter doctrine has been discredited in Feist vs. Rural Telephone Services [2], and as noted in the U.S. Copyright Act of 1909:

"The enactment of copyright legislation by Congress under the terms of the Constitution is not based on any natural right that the author has in his writings... but on the grounds that the welfare of the public will be served and progress of science and useful arts will be promoted." [3]

I start with the premise that the "progress of science and useful arts" is indeed a valid ethical reason to abridge the individual freedom of copying, modification, and distribution of published information, and that it is worthwhile to expend society's resources in abridging these freedoms for the welfare of the public. It behooves one to then ask, are copyright laws serving their purpose? In other words, are science and useful arts being promoted through copyright legislation?

I examine two scenarios, one in the music industry, and the other in the software industry, where the effects of ownership of IP and its protection (or lack thereof) via copyright legislation correlate with the degree of new innovative technology that is developed and disseminated for general use. From these correlations, I hypothesise a cause-and-effect relationship. The implications derived from these comparisons with regards to technologies developed in the future are discussed.

Copyright and the music industry

A few years after the copyright in sound recordings was first instituted (in 1971 [4]), cassette tapes began replacing vinyl records. Given the ease with which it could be done, home recording of tapes from vinyl records began to flourish. The recording industry attempted to introduce several technologies that would abridge the ability to make cassette tapes from vinyl records [5].

One of the most publicised attempts by the industry was to introduce a "spoiler signal". When encoded with a such a signal, a vinyl record taped to a cassette would result in a high-pitched noise whenever the tape was played back. When recording artists started objecting to this (Elvis Costello released his album Almost Blue with a sticker indicating that it didn't contain a spoiler signal), the industry gave up this effort [6].

Contrary to industry expectations, home taping did not detract from the sale of vinyl records and the industry as a whole enjoyed massive profits through the late 70s and the early 80s. Industry pundits attributed this to the fact that people who heard tapes of music they liked, which provided a convenient means of distribution, went on to purchase the vinyl version (which is superior in quality).

When digital recording technology made its way in the form of Digital Audio Tapes (DATs), the recording industry, not having learnt its lessons from the past, attempted to do exactly the same thing it had done before. This time, they introduced a technology called the Serial Copy Management System (SCMS) that prevented more than one digital copy being made when consumer DATs were used. They further lobbied congress to pass what is generally known as the Audio Home Recording Act of 1992 [7, 8]. One of the major provisions of the act is that it prohibits the import, manufacture, and distribution of any digital audio recording device or medium that did not conform to the SCMS, and any device that attempted to circumvent the SCMS.

The DAT is a superior technology in comparison to the compact disc (CD), an example of digital media that is commonly in use today. While it is only slightly better in terms of sampling frequency (48 KHz vs. 44 KHz), it also allows enables digital recording. The technology could have become entrenched into the mainstream populace before CDs entered the market, providing a better substitute for cassette tapes. Yet the DAT technology failed miserably in the consumer market. Since then, attempts to introduce new copy-controlling digital tape devices and media, such as the Phillips Digital Compact Cassette (DCC) and the Sony MiniDisc (MD) have been high-profile failures [6].

It can be argued that the correlation between copying controls and the failure of the superior technologies to penetrate the marketplace is a coincidence. In this particular case, however, there are valid controls: only "consumer" DATs (those intended for general public use) were equipped with SCMS. "Professional" DATs (those used by recording studios or professionals) did not have this copy-controlling feature. DATs today have become a professional standard for the recording of music. Further, recordable CD (CDR) technology, presently distributed without copying controls, are the first digital recording devices to gain mainstream popularity. While CDR technology has its uses, it is inferior to DAT technology in some respects, particularly with regards to the amount of information it can store, and the number of times it can be over-written. It is a shame that technology as promising as the DAT, which existed years ahead of CDs and CDRs, failed to gain a foothold in the consumer marketplace.

Copyleft and the software industry

Unlike the situation in the music industry where strong copying controls, instilled in part by the industry itself, effectively killed off promising technologies, the case study we will examine illustrates how adopting a philosophy of free copying has led to the emergence of better technologies in the computing and software industries.

In the software world, there is a wealth of free software. Free software, in this context, is a term that generally refers to software that is freely copiable, modifiable, and distributable, and not to the price. Free software is developed by thousands of individuals who, for various reasons, write software and choose to distribute it freely, sometimes under the terms of the GNU General Public License (GPL). The GPL is a legal document that uses copyright law to guarantee that a work created will always be freely copiable. It does this by imposing the restriction that any copy made will be distributed under the same terms it was received (i.e., freely copiable, modifiable, and distributable). Applying the GPL, or a similar license, to software has generally come to be known as "copyleft". The GNU project, started by Richard Stallman, has largely been responsible for the creation of some of the best software in the computing world. This software model is supported and used by educational institutions, industry (such as NeXT, Intel, Motorola), and government (including NASA and the U.S. Air Force) [9].

Given the volume of free software that exists, there is one example of free software that is a true testament to the power of free re-distribution: the Linux operating system. An operating system is a set of programs that essentially perform housekeeping tasks enabling the end-user to utilise a computer efficiently. The first version of the Linux operating system was conceived by Linus Toravalds in 1991, and since then the system and software for use with it has grown rapidly. Toravalds was primarily responsible only for a small portion of the system, known as the kernel, even though a significant portion of Linux development occurs due to his inspiration. Today, the operating system thrives from the contributions of thousands of programmers from all over the world, who develop software for it that is freely copiable and usable [10].

From a theoretical computing standpoint, it could be argued that Linux is one of the most superior operating systems ever developed. In reality, however, it is the marketplace that determines the software that is best suited for general use. Today, it is the Microsoft Windows 95 operating system that dominates in the general operating system market. However, if we focus on operating systems that fall into the same category and are suited for the same tasks, i.e., workstation- and network-based multi-user server-client systems such as Unix, Linux is the predominant Unix-like operating system in the market today, soundly surpassing all other proprietary Unix-like systems, both in quality and in use [11,12,14].

Since Linux is a freely copiable system, the number of copies that are in use can only be estimated roughly, and many such estimates exist [11]. Some estimates indicate that the Linux operating system not only out-surpasses the number of Microsoft Windows NT setups (a multi-user server-client system with the look and feel of Windows 95), but is also growing at a faster rate [11]. Further, in areas where Linux and Microsoft Windows NT/Windows 95 can directly compete, such as Internet server platforms, it is Linux that is superior, both technologically, and in the marketplace [15, 16, 17]. There is now a thriving commercial sector that revolves around Linux, ranging from providing distributions and support to developing customised enhancements [18,19,20,21,22]. One such free software enhancement, by Redhat Software, a distributor of Linux systems, known as Redhat Package Management (RPM) [23] is, in this author's opinion, one of the best technological advancements to grace the Unix world. In a non-free software marketplace, the incentive to develop such an enchancement (which makes installation between various set ups highly portable and transparent) is very low.

Freely re-distributable software technology is not a new concept (indeed, much of the Internet, including the World Wide Web is based on such technology); having a thriving commercial sector around such software is. The Linux distribution model has been so successful, from a commercial perspective, that recently one of the web browser giants, Netscape Communications Corporations, has adopted a similar policy and has made its software freely copiable, modifiable and distributable. The motivation for doing this, according to Jim Barksdale, the President and CEO of Netscape Communications Corporations, is that "[b]y unleashing the creative power of thousands of programmers on the Internet and incorporating their best enhancements into future versions of Communicator, we think we can fuel great new levels of innovation in the browser market." [24]

"Institutionalised" free software is a relatively new phenomenon, and its success in promoting "the progress of science and useful arts" is instructive when considering ethical or legal actions when confronted with new software technology.

Discussion and conclusions

I have examined two specific situations, one in the music industry and the other in the software industry, to determine the effect that copying controls have on the emergence, utility, and dissemination of new technologies. In these situations, the rush to prevent copying is highly correlated with the stagnation and death of promising technologies. Further, encouraging free copying and modification is strongly correlated with the widespread dissemination of new technologies and greater innovation [25]. Similar scenarios exist in other industries as well and are not just limited to copyright issues. Consider the biotech industry where gene patenting is rampant: Would abridging the ability of an academic institution or a company to perform research on a given gene help progress in finding a cure for a disease related to the gene?

In both the music and software industry scenarios presented above, the creators and inventors of the technology made the initial decision (an ethical one, to be sure) to encourage free copying or to abridge it. In the case of the music industry, some of these decisions became law, which has ramifications for the present and the future. Unless the law is repealed, ignored or bypassed (which appears to be case as far as CDRs are concerned, possibly accounting for their popularity), the industry appears to be doomed to repeat its failures just as it did with other digital recording technologies such as DATs, DCCs, and MiniDiscs. In the case of the software industry, the paradigm of freely re-distributing software appears to be becoming more and more acceptable, particularly as a means of marketing, even by mainstream software companies [24]. This has led to software becoming more of a service-oriented industry, to support development, rather than a product oriented one.

The scenarios presented here do not present a comprehensive picture about intellectual property laws as a whole. They do raise questions of the general mantra chanted by many pro-IP advocates that creativity and innovation cannot occur without controlling copying, modification, and distribution, and that this control generally results in the promotion of "progress of science and useful arts."

More importantly, the above scenarios illustrate important lessons as to what should be done the next time a new technology to reproduce audio and video recordings emerge, or a way to revolutionise how software is used is developed. It remains to be seen whether the inventors and distributors of new technology will make ethically responsible decisions based on this history.


The failure of DIVX (a copy-protected version of DVD) and the Secure Digital Music Initiative (SDMI) are further indicators that consumers do not support copy-protection technology.


  1. U.S. Constitution, Article I, Section 8, Clause 8.
  2. Feist v. Rural Telephone Services, 499 U.S. 340 (1991).
  3. U.S. Copyright Act (1909).
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  6. Guterman, J. How home taping fuels the record industry, Forbes Online (accessed April 5, 1998). <>
  7. U.S. Copyright Act (1976).
  8. 17 U.S.C. § 1010
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  24. Barksdale, J. Software development for the greater good (accessed April 5, 1998). <>
  25. Raymond, ES. The Cathedral and the Bazaar (accessed April 5, 1998). <>

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