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.