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Part One: In A Virtual World, Who Owns Ideas?
from the redefining-culture-law-and-copyright dept.
Note:This is the first of a two-part analysis.
Who owns ideas?
It isn't an abstract or academic question. Some of the greatest prosperity in history has been created by an economic system -- capitalism -- which permits private parties to do business freely through a system of contract and property laws, agreements and understandings. Governments have always had a vested interest in defining rights to private property, and enforcing laws that protect it.
Private property is essential to creating a functioning system for economic relationships that -- theoretically, at least -- benefit everyone. No one has come up with a better or more efficient system.
But property rights have never been absolute, unyielding or static. There is no such thing as property rights that aren't at some point subordinated to other interests. Your car can't be driven at any speed over somebody else's lawn; your dogs may be turned over to the local Humane Society if you mistreat them; your house can be auctioned if you don't pay taxes.
Now, the Net and Web have put the idea of copyright and intellectual property on the table for the first time in centuries. At the moment, nobody can clearly define what these things mean in virtual space, let alone how they should be regulated or policed.
Cyberspace has also highlighted the differences between intellectual property and other kinds. "If you 'take' my idea," writes Lawrence Lessig in his book Code, "I still have it. If I tell you an idea, you have not deprived me of it. An unavoidable feature of intellectual property is that its consumption, as the economists like to put it, is 'non-rivalrous.' Your consumption does not lessen mine. Ideas, at their core, can be shared with no reduction in the amount the 'owner' can consume. This difference is fundamental, and it has been understood since the founding."
Contemporary "patriots" -- especially those who would who would restrict the free flow of intellectual property via the Internet, would do well to read Thomas Jefferson, who eloquently expressed one of his fondest wishes for intellectual property in his new country as follows:
"That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density at any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property."
But the authors of the Digital Millenium Copyright Act, under intense pressure from corporate lawyers and lobbyists to curb the spread of free music and movies, obviously didn't spend much time reading Jefferson. So the new, Net-spawned reality -- being played out most visibly at the moment in the free-music wars raging between the recording industry and millions of fans - has challenged traditional ideas about law, commerce, technology and culture.
In the Digital Age, can anyone own ideas? Apart from moral issues, is it even possible to own something that's distributed globally through a representational medium like the Internet? The question is unsettled whether institutions like Congress will ever grasp what geeks and corporatists both know is at the center of the growing collision over ownership of ideas: code.
Codes are the building blocks of cyberspace. Laws passed without comprehending of or considering of code and software can't possibly determine whether the new ways of life evolving online are moral or not, whether they should continue to exist. As Net scholars like physicist Paul Davies have written in books (such as Davies' The Mind of God, The Scientific Basis for a Rational World, the sudden existence of both a real and a virtual world -- a new kind of dual property -- is of "cosmic significance." With the advent of computers, the world is being reordered.
The structure of the Net, and of the Web in particular, is altering the way younger Americans view many traditional ethics and values -- the definitions of theft, content and property, among others. (To see one expression of this sensibility clearly, check out the Netropolis Collective, founded by the Open Chronicles Clan.) This collective describes itself as "an organized group of people who will not give up their culture to join the norm. The Collective is non-violent," declares its manifesto, "and would prefer to start revolutions in a fashion much like Dr. Martin Luther King Jr."
Another manifestation of this new sensibility is evident in an e-mail I received from from Elizabeth Durack, a Star Wars fan concerned because the series' official Web site (www.Starwars.com) has begun offering free Web sites on its subdomain fan.starwars.com. "This is seriously scary to me because it seems to be an attempt to lure fans into their territory in order to better control the content of fan Web sites."
In an insightful essay, Durack argues that fans paying for culture and supporting entertainment should be allowed leeway in the use of copyrighted and trademarked properties.
The notion of fan "rights" is a growing political instinct online, where people feel passionately about their culture, from ground-breaking representational experiences like Quake, Doom, Ultima and The Sims to followers of Star Trek, South Park, The Simpsons, and Star Wars. These games, movies and television programs transcend mere entertainment; they are an integral part of people's cultural experiences the same way music is. Durack's essay reflects the growing tension between "fans" and the companies that want to take their money -- but otherwise keep them at arm's length.
Durack's point of view is radical. It isn't widely held in political and media circles -- especially not in Washington.
"In your writings on the Digital Millenium Copyright Act earlier this week," e-mailed a Congressional aide, "you are obscuring the fact that the Internet is creating a generation of culture and content pirates. They steal other peoples ideas, and they don't pay for them, and they take no moral responsibility for that. People like you are celebrating and enabling and helping raise a culture of thievery that is not only institutionalized but which considers itself morally superior. We are a nation of laws and you seem to celebrate a nation of law-breakers."
A number of musicians have expressed similar feelings, accusing me and others of turning a blind eye towards an epidemic of online theft of intellectual property.
The DMCA, responsible for a growing wave of threats, legal assaults on free music and DVD code-sharing sites, codified this conventional legal, political and corporate wisdom into law. It holds institutions (like colleges) liable if they dont act to prevent the distribution of software that violates existing copyright laws.
For more than a century, copyright laws have governed the sale and distribution of many artifacts of culture. People who create music and literature have never been particularly good at selling their work, which tends to be collected and distributed by increasingly monopolistic corporate entities: publishers, record labels, Hollywood studios. Although such companies -- Disney, AOL/Time-Warner, Wal-Mart, Blockbuster Video -- sell and profit from the work of individual creators, they have organized into enormous corporatist collectives that are the antithesis of individualism and creative expression.
Corporations, from record labels, to book publishers, to the owners of TV networks, exclude idiosyncratic, individualistic or "non-commercial" voices. They directly and indirectly censor culture by pressuring artists, writers, filmmakers and musicians to produce bland, packageable entertainment suited to their synergistic marketing structures. The book (if there is one) becomes the Web site, then the movie, then the CD and video. The more inoffensive, the more lucrative.
These global conglomerates -- among the worlds most profitable and influential business entities -- earn billions of dollars by collecting various distribution and user fees.
The Net is beginning to dismantle this economic model of culture, and it isn't going quietly. Not only music, but also many other forms of information and entertainment -- from games and term papers to legal documents and movies -- are becoming instantly available to millions of people for free as broadband access spreads from institutions like universities and large corporations to small and mid-sized workplaces and to private homes via cable and high-speed phone lines.
My response to that congressional aide: It's disingenuous to use terms like "theft" and "piracy," ancient notions of law and property, in the 21st Century. They have little contemporary meaning in cyberspace.
Artists, musicians, writers and other creators of intellectual property can still be paid fairly for their work. There are all sorts of options beyond conventional royalties. They can sign contracts with music distributors that draw revenue from Web site advertising or subscription fees, or that sell music and other cultural offerings in smaller, less costly units. They can offer contracts to cadres of music lovers who agree to pay for access if they're offered more choices at cheaper prices.
The fact is anyone who writes or designs on the Web understands immediately that culture can't be copyrighted online: there are simply too many means of transmission. The linkage inherent to the Web presents too many distribution channels to patrol. Music, open source software, cultural and political opinions are memes -- they travel to anyone who cares to partake, all over the Net, instantly.
And there's no taking them back.
End Part One. Tomorrow: Criminalizing access to technology, freedom and choice.
This is just it... (Score:4)
This is the problem with the name "intellectual property." You may own a patent, copyright, or whatever, but you don't own the idea behind it. Nobody does. This is where software and media companies have gotten confused (or simply ignored?)
It only gets worse when people misappropriate things. Software, for example, when you come down to it, is thought (on a relatively primitive level, but thought nonetheless). The patent office was not established to handle thought; that's the job of copyrights. When you write a science-fiction novel, do you try to patent science-fiction? Of course not; you copyright your work without trying to patent the idea behind it. Why, then, should software vendors (who do essentially the same thing) be allowed to patent software, when copyrights fit the type of work being done better, are cheaper, and last more than four times as long (for corporations; for an individual it's at least three times as long as a patent and can theoretically go for far longer than a corporate copyright can)?
Anti-copyright... and reality! (Score:5)
Katz provides a useful recap of what's afoot at present in the online copyright battle, but leaves it up to us to decide where our alliegances stand.
The question of "fan rights" sounds dubious to me. Where does one draw the line between fandom and making a quick buck? I can think of any number of fan sites that look professional enough to earn money and of official sites that look like cheap knock-offs! I desperately want to see studios/corporations give fans the right to use material for non-commercial purposes, but where are they gonna draw the line? When someone has affiliate programs on their site to finance it? When they provide character email postcards? When they start selling merchandise?
At the same time, the studios should be prepared to "turn a blind eye" to the majority of sites. It's a little like marijuana use in certain parts of Europe - nowhere is it actually "legal" - but in some places it is "decriminalised" though the police being instructed to not arrest / prosecute users or certain sellers.
At the same time, it is clear that the copyright laws we have are becoming exceedingly outmoded. I find it hard to sympathise with a music industry who one the one hand complain of the effects of piracy and on the other report staggering annual profits and increased sales! It seems clear that simple copying techniques are set to spread thanks to digital techniques (and more power to them) - at the same time as overall music sales grow thanks to people getting better and better exposure to the music they like.
The music industry (film, software etc) is simply going to have to learn how to subvert these techniques to it's own use - and believe me they will! At the same time, we are going to have to put up with ever increasing amounts of noise about the dangers/evils/threat/spread of piracy, because they cannot be seen to just sit back and accept what is happening. It is in a record company's interest to be seen to advance technology on the one hand (release an MP3 version of a record for instance) and obstruct technology on the other (complain about piracy affecting sales). These two actions provide "shareholder value" at two levels - satisfying both consumer and investor needs.
So I should probably think about a summary to this rant! I guess I'm saying that we should pretty much carry on as we have done - use the technology, copy stuff for personal use, but don't expect to publicly use other people's work and make money from it without attracting some serious big-lawyer attention!
Re:Can't own what you can't defend/revoke (Score:3)
Interestingly, I tend to agree with the law (and the older precedents) on copyright and patents. It is only lately that abstract ideas as vague as "look and feel" and "inventions" with both obviousness and prior art going against them have become common.
I think the solution is to scale back both copyright law and patent law to something enforceable. That, and a little attention to obviousness and prior art, would get us back to a good starting point for reevaluating the whole thing.
Unfortunately, if it is already a lost cause, we will surely plunge into another "drug war" shortly.
Oh, lordy, here we go again (Score:4)
I am beginning to believe that communication between people in different categories simply isn't possible, because each of these positions follows perfectly logically from the right set of initial postulates. In fact, let's see a show of hands; how many people have revised their positions on IP in the last four months based on a discussion on Slashdot? Is there any actual communication happening here?
I suspect that which set of postulates you start with (and therefore which position you wind up at) depends primarily on whether you stand to gain or lose from a change in copyright laws. For instance, based on the software license agreements I have seen over the years, I'd say there are a lot of software companies (and individual developers, for that matter) in category 1. Phrases like "Free for noncommercial use...," and "You may not modify, disassemble, or reverse engineer...," and "This license is nontransferrable...," presuppose that the developer has a right to dictate the terms on which you use the product. In fact, I daresay that this is so much taken for granted in the industry that even suggesting publicly that it might not be so would draw some strange looks, if not outright hostility.
Category 2 seems to include most publishers of "traditional" media. Of course, many slashdotters have their suspicions that the RIAA and MPAA are really closer to category 1, but those organizations at least claim to be in category 2, and I think position 2 is ultimately most in line with their interests. The reason is that demand for entertaiment is very elastic, and there are a lot of substitutes for whatever entertainment some particular company is selling. In fact, you can't go too far wrong in modelling an individual's demand for entertainment by saying he has a fixed budget for entertainment, and he will buy exactly as much as he can afford on that budget. Taken to its logical extreme, this would seem to imply that entertainment companies shouldn't worry too much about piracy because consumers with money to spend will find something to spend it on; however, this is a huge leap of faith for entertainment companies to make, and some industries (like recording, for instance) worry that their goods are more easily copied than those of other industries (like movies, for instance), and therefore that they will lose out if consumers' entertainment dollars go primarily toward the stuff they can't easily get for free. Consequently, they want to protect their copyrights, and they don't much care if consumer rights become collateral damage in the "war on piracy".
Incidentally, it is interesting to look at why entertainment and software companies come out with slightly different positions on this issue. The demand for software is much less elastic than the demand for entertainment (once you already have an office suite, a second one is not of much value to you); consequently, companies have a lot to gain from tactics like per-use licenses and charging more for commercial use. Simultaneously they have a lot more to lose if you choose an alternative; if I go see a movie from TriMount pictures, I might still go see ParaStar's movie next week, but if I buy WordPerfect, it's unlikely that I will buying Word any time soon. Consequently, software companies have more of an interest in locking consumers into their product line than entertainment companies.
Category 3 seems to be the mainstream view on slashdot (although the others do have some very vocal supporters). Phrases like, "I want to watch my DVDs under Linux...," and, "Time shifting is my right," are the battle cries of people in category 3. The difference between category 2 and category 3 is crucial for the survival of free software, for a variety of reasons. The obvious reason is that free software often has to rely on reverse engineering in order to interoperate with nonfree software that uses secret formats and protocols to lock in its customer base. Less obvious, but more important, is that free operating systems like Linux are an anathema to category 2 types because copy protection really isn't possible on an untrusted client. In other words, the only way category 2 types can achieve their objectives is to make sure their content is only usable in closed environments where they can shut the users out of the inner workings of the codec. I predict that if position 2 becomes entrenched in the law, free operating systems are going to be in a world of hurt.
Finally, there isn't much left to say about category 4. They have a vocal (but I think minority) presence on slashdot, so they pretty much speak for themselves.
My personal opinion is that position 1 would be disastrous if it ever became the dominant theory of IP. The end result of position 1 is software filled with backdoors, and the associated orwellian monitoring of everything you do on your computer. Restrictions on the use of software simply aren't enforcable any other way. Position 4 is pretty bad too. It might be made to work, if for instance we adopted something like Richard Stallman's proposal for handling the "DAT tax", but it would require setting up a whole bureaucracy to administer the plan, with associated opportunities for graft and corruption. It's also not clear that a tax on storage media can raise enough to support all of the industries that currently depend on copyrights. Certainly it would inflate the cost of storage media significantly, which would be bad for people who generate a lot of their own data (astrophysicists spring to mind, for some reason). Position 2 is less evil, but the problem is that copying digital media is so easy that rigorously enforcing copying restrictions will require fairly draconian restrictions on what people can do with their own equipment in their own homes. While I am not opposed to rigorous enforcement in principle, the price in this case seems to high. In the end, position 3 is the only one that seems to balance consumers' rights with the need to "promote science and the useful arts," and so in the long run it will be the healthiest for our society. Now, all we need to do is to convince the lawmakers.
-r
Re:Theft is still theft on the net (Score:3)
Piracy is robbery committed by guys with stinky beards, wearing funny blue and red suits, sometimes with missing legs, often with parrots on their shoulders, always on a boat, and always against other stinky guys on other boats (and usually the other guys all have dirty white doo-rags on). This doesn't happen much.
Theft is stealin' stuff. Taking it back to your place without permission.
Copyright infringement (or, in more "artistic" cases, appropriation or parody or satire; in "fansite" cases, free advertising or freeloading, depending on intent) is what this is about. And I think it's "bad," mostly, but it's not the same "bad" as mugging or bodysnatching.
Conservative types would call this kind of messying-of-terms a false assumption of "moral equivalence" (though I doubt many would spot it in this case), because based on flawed premises (or flawed language (=premises)(sorry; been learning LISP
I think a good first step for "both sides" in this non-debate would be to stop doing the PR-trained equivalent of calling each other cocksuckers.
Theft is still theft on the net (Score:5)
My response to that congressional aide: It's disingenuous to use terms like "theft" and "piracy," ancient notions of law and property, in the 21st Century. They have little contemporary meaning in cyberspace.
I've got to disagree with that. Theft on the net is still theft. Yes, the original work is still present, you're not depriving anyone of someone they own, but if someone chooses to use the net to sell something then taking it without paying is still theft. It maybe more benign than breaking and entering, but given enough people doing it it can be more damaging.
Artists, musicians, writers and other creators of intellectual property can still be paid fairly for their work. There are all sorts of options beyond conventional royalties. They can sign contracts with music distributors that draw revenue from Web site advertising or subscription fees, or that sell music and other cultural offerings in smaller, less costly units. They can offer contracts to cadres of music lovers who agree to pay for access if they're offered more choices at cheaper prices.
Yes, but it's still incredibly difficult for an unknown artist to gain serious exposure or make more than a pittence on the net. It may be easier to set up a distribution system, and there are certainly a lot of ways to generate revenue, but the last thing they need is hordes of people downloading there stuff for free, claiming the net is "uncopyrightable" and that "information should be free". Yes it's a noble sentiment but people often put a lot of work into these things and deserve a reward - which will often be used to buy more equipment or allow the time to do more work.
Given the opportunity artists can market and sell their work far for far better gain than they could do in the corporate marketplace where immeadiate profit is the only concern. But if people aren't prepared to support these people then they will eventually have no choice but to return to the corporate market, whether they want to or not.
Not inevitable.. (Score:3)
The breaking up of copyrights is not by any means inevitable. If companies start making their technological defenses against copying it doesn't matter that it's possible to copy the information, %99 of the user population won't have a clue of how to do it. There was recently an artical on Slashdot about end-to-end encryption. IOW The whole data line right into the (digital) monitor would be encrypted. Good luck making a perfect copy of *that*
New games can't be copied without a cd burner. They are just too big. Lots of high-end software needs dongles. Music companies are pushing protection systems, they'll probably fail in the end but it will be a long, drawn out war.
There is a all sorts of fuss about DeCSS. Enough that it may very well be the most heavilly mirrored peice of software in the world. You can even get it using DNS of all things! But %99 of the users still won't have a clue of how to copy a DVD. And the developers trying to make practical DVD players for Linux are probably going to be hit with lawsuits soon.
And for those who want to know, here's how you can get DeCSS using DNS. Just type the following lines as a single line under Linux and have fun!
dig @138.195.138.195 goret.org. axfr |
grep '^c..\..*A' |
sort |
cut -b5-36 |
perl -e 'while(){print pack("H32",$_)}' |
gzip -d
Can't own what you can't defend/revoke (Score:3)
The only thing that has kept the music/film industry alive is the fact that up until this point, distribution of the intellectual property has required the distribution of physical media (film, cd's) that they control. With digital technologies bridging the quality gap, pirating will soon become rampant and commonplace, most likely resulting in many companies simply throwing in the towel.
Katz Misrepresents the Old Guard (Score:4)
By quoting one Congressional aide (from among thousands and thousands), Katz supposedly gives us the point of view of the Old Guard. Concerned with things like theft and stealing and morality, such people seem not to understand (as Katz and many /.ers have argued) that the social shift going on here is vast, and that the technology itself is a driving force - not merely a "culture of thievery."
But that is not a fair representation of the Old Guard view. During my time in Washington, I've witnessed firsthand the plans and desires of trade groups and corporations concerned with the protection of intellectual property. Their paramount objective is not to quash the Internet and destroy the free flow of information - in fact, they see in information's freedom a tremendous opportunity for profit.
But information cannot be totally free, they argue. There must be some obstacle to reaching information (whether you mean literature or movies or economic data when you say the word "information"). That obstacle is the one where money is made.
Artists who cannot make money (and thereby feed themselves) will cease to be artists. Companies that collect economic data and publish it will no longer have an incentive to continue working. If information was totally free and Lexis-Nexis freely available to everyone, then the company that runs Lexis-Nexis (Reed-Elsevier) would no longer have a reason to run it. And not every business model can operate like Britannica's; it is not always possible to offer all your content and information online by slathering advertisements upon it. (And we should be glad of that.)
Theft is certainly a big fear, but the corporate and creative interests I've encountered here in Washington, D.C. are well aware that there may soon be technological solutions to technological problems. Lessig's book has been frequently misinterpreted (and perhaps here so by Katz) as arguing that nothing can be done counter to the code that defines cyberspace. But of course that code can be changed and built upon, and new methods of protecting intellectual property will be developed.
The traditional systems of protecting intellectual property have bequeathed upon us a rich history of invention and a marvelous universe of creativity which we must not squander by assuming that "anything goes." We must not arrogantly believe that recent technological changes completely undermine the value of safeguarding intellectual property. Certainly, the old system is under threat - the DMCA/DVD/DeCSS madness, the Amazon patent tribulations, even the debate over genome patents, all these prove that we must reconsider how we think about intellectual property.
But we needn't scrap our old notions entirely, in a rush to judgment we might regret later.
I look forward to the second half of Katz's post.
A. Keiper
The Center for the Study of Technology and Socety [tecsoc.org]
Screw the publishers (Score:3)
I think it's great that they are following these new avenues of distribution. Even authors are discovering the benefits of providing material online. I checked out this free online book site, Abika.com [abika.com], and it appears that they provide stock options for writers, as well as revenue from advertising. And from the look of things, the authors are doing it!
It's a brave new world.