Slashdot Mirror
Part Two: Who Owns Ideas?
No existing copyright law -- the Digital Millennium Copyright Act included -- has taken shape with the Net and the Web truly in mind. Traditional views of property have involved tangible products, and the DMCA seeks to uphold those traditional views, as manifested in laws designed for the real, not the virtual world.
These old laws have also had much to do with a society's willingness and ability to police itself. Theft is easy to understand, and easy to deal with, when stolen goods can be quantified, and the thief caught and prosecuted. But such concepts pre-date the Internet era. If you loan a CD to a friend who burns himself a copy, have you stolen from the music industry? What if your friend would never have purchased that particular CD anyhow?
Conceptions of property, ownership and value since the eruption of the accidental empire that is the Net, in ways few institutions have begun to consider rationally.
The Digital Millennium Copyright Act (DMCA), passed 16 months ago and now being used to shut down music-sharing Napster sites at colleges across the country, is a classic example of how irrelevant ideas about law and culture are being unthinkingly applied to a completely new reality.
The kids who download free music from a young age as a matter of course have little awareness that they are appropriating someone else's property. Most wouldn't dream of shoplifting in a store: they consider it stealing and they might face arrest, humiliation and punishment as a consequence. But acquiring movies, music, games or other intellectual property online is so simple, so ubiquitous, that it's become almost instinctive.
From early adolescence, kids lucky enough to be both savvy and connected pass around games, music and movies gathered online. These transactions are virtual, hence not traditionally associated with property. It's often irresistible -- how can one reasonably expect an adolescent (or older) music lover to refuse to acquire a 1,000-song playlist she couldn't possibly afford to buy in the manner the recording industry prefers to distribute it? Most important, and most troublesome about attempts to reign such informal trading in, is that it's also fun, and social.
Does American society (or the people running the music industry, for that matter) really want to criminalize the passion for diverse forms of music that new technology makes possible? In effect, laws like the DMCA make it a crime -- and a meaningless one at that -- for kids to love and use technology, to access information freely and to share a passion for a particular culture.
Certainly, notions of exposure and punishment no longer apply. No kid in America has been jailed (yet) for downloading free music, though millions have been doing it for years.
Unenforceable laws like traditional copyright restrictions don't promote morality or lawfulness; they undermine them. What kids learn isn't that it's wrong to steal, but that these kinds of laws are antiquated and toothless. Younger Net users have been able to acquire free music and other culture for so long they understandably view it as a right, not a sudden opportunity to steal. People tend to react most intensely to the loss of rights they already have.
They evolve into older kids, college students and adults for whom the personalization of culture - by no means just music - becomes an integral part of their lives, a right conferred by practice, not by law. Millions of younger Americans , online much of their lives, have acquired vast cultural archives, almost akin to individual libraries.
So the Congressional aide, part of an institution responsible for governing issues like this, is demonstrating that he lives in a completely different universe than he's supposedly helping to represent. For him and the lawmaker he works for, the downloading of music is simple theft, in the same way a bank robber commits a crime. But a generation of Net users will never view property that way again. A rational legislature grasping this will would seek laws that reflect the new reality, rather than an outdated one.
The growing number of powerful conglomerates that have increasingly come to dominate culture in recent years don't seem to grasp these new realities about culture and young.
These companies generate billions in revenue not just by selling content, but by controlling it. The notion of free music threatens the way they work -- which is why the DMCA was passed, and why the music industry is spending tens of millions to shut down free music sites on the Web. So we have the escalating spectacle of unthinking industries aggressively alienating and prosecuting their most important customers and future consumers - an inverted, nearly unbelievable reality possible perhaps only on the Internet.
"Piracy" isn't a very accurate term for what amounts to a bloodless file download, so the usual moral inhibitions apparently don't apply. Popular culture and its distribution are being defined so continuously and radically online that laws like the DMCA are almost instantly pointless. College kids who have lost their Napster sites, for example, are already using other software to strike back, with the help of increasingly politicized geeks. Dozens of sites are cropping up in messaging systems and elsewhere on the Web, say music lovers, most of whom are understandably coy about details.
But to see how immutable the spread of culture is, and how it's being constantly re-defined, go to www.strangecompany.org where an organization called Strange Company is creating a new film form called Machinima. Originally derived from modifications made to computer games like Quake, Machinima is a new animation technique that permits animators with little money to create films rich in special effects -- Hollywood-quality movies on college budgets. If the motion picture industry doesn't like open-source software to decrypt DVDs, wait'll they get a load of this.
"That sounds like the kind of thing the entertainment moguls aren't going to want," Hugh Hancock, Strange Company's CEO, messaged me, "for exactly the same reasons [that] they don't want people releasing their work on MP3. Do you think that Machinima could be next, or soon, against the chopping block?"
He can bet on it.
Empowerment is one of the words most over used to describe the effect of the Net, but it's also one of the most apt. Giving people the ability to access vast music archives, to make films, to download games and acquire other kinds of entertainment is a landmark of the Information Age.
Corporatists are the biggest modern menace to free speech and individualism, more powerful and predatory than most governments. If corporatism has an Achilles heel, it seems to be that it is astonishingly short-sighted, spewing legal warnings, lawsuits and copyright infringement claims and lobbying intensely for legislation to curb the open distribution of software and ideas. Like giant ocean liners, mega corporations and their captains can't maneuver quickly or accurately. They also have a tendency to mow down smaller craft in their path.
Still, it seems increasingly clear that conventional notions about ideas and ownership are doomed. The issue is no longer whether "piracy" is right or wrong, but how long our backwards-looking corporations and politicians will persist in believing they can stop it.
Thomas Jefferson saw this coming centuries ago:
"If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character too, is that no one possesses the less, because every other possess the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening mine."
And that was written more than two centuries before the Net. Perhaps the geeks, nerds and kids fighting the culture wars online intuitively grasp more about law and freedom than many of the elders branding them thieves and pirates.
Even as more and more people ask the question "Who Owns Ideas?," the answer becomes obvious: We all do.
A contributor wrote:
"[Thomas Jefferson] also wrote the Constitution, which gives us the rights to patents and copyrights"
Jefferson did not write the Constitution. He was in France at the time it was written. When the constitution was adopted by nine states, he wrote to Madison expressing his pleasure, but added that the bill of rights (which many were calling for, but which hadn't yet been drafted) should include a restriction against monopolies. He went on to elaborate: "The saying there shall be no monopolies lessens the incitement to ingenuity, which is spurred on by the hope of a monopoly for a limited time, as of 14 years; but the benefit even of limited monopolies is too doubtful to be opposed to that of their general suppression." After the bill of rights was adopted, he wrote to Madison proposing that it should contain an explicit time-limit on copyrights and patents.
The Constitution does not "give us the right to copyrights and patents", it gives Congress the power to grant these exclusive monopoly privileges, for a limited time (a phrase which recent legislation makes a mockery of). We have a "right" in our writings only if Congress passes a law creating such a "right". If Congress doesn't pass such a law, the "right" doesn't exist.
The underlying right, which copyright laws are supposed to preserve and reinforce, is the right of all mankind to a public domain in letters and inventions. Copyright and patent laws are supposed to increase the size of the public domain by providing a credible incentive to writers and inventors to make their works public. Hence they need to be strong enough to make the incentive credible. At the same time, the laws are supposed to protect the public domain by placing clear limits on the author's and inventor's privileges. The underlying good point Katz makes, which is only partially obscured by some of his overreaching language, is that the drafters of the DMCA (I would add the CTEA also) have an imperfect grasp of the notion that copyright laws are constitutionally required to provide for the protection and enlargement of the public domain, and that the laws reflect the lawmakers' distorted view.
I honestly believe there was something behind where Katz was going, but it got lost in the melodramatic ending. As a result, the notion of redefining what property is in a virtual world has been thrown to the wolves to rip and shred because, essentially, of poor packaging.
Doh, maybe the next person who takes a crack at it will be more successful.
We have to choose now...are we going to let mega-corps decide how the world is run, or are we going to do it ourselves. The more power we hand over to the mega-corps, the harder it will be to wretch it away from them latter. The time to fight it is today, not years from now. We want to empower the people, not give mega-corps power-over the people.
ttyl
Farrell
CAN-CON 2019 - Ottawa's only book oriented Science Fiction Convention! October 18-20, Sheraton Hotel, Ottawa, Canada h
But if the cost of duplicating and distributing something is negligible (as is the case with a lot of information), then the assumption that that resource is limited is invalid. The concept of "intellectual property" is attempting to force a model of a limited resource onto something that isn't limited. But you note this below.
(I'd also quibble with the notion that demand is unlimited -- even if storage space was perfectly unlimited and free, there's a lot of stuff I'd have no interest in.)
Capitalism nominally operates on the presumption that a free market with perfect information is the most efficient way to distribute resources. Whatever the truth of the presumption (and the few markets I've seen that really are free with good information, such as the market for free software, are rather convincing on a microscale), producers (and others, such as governments) inevitably attempt to rig the market in some way or other. Everything from restrictive software licenses to government regulation to the sheer difficulty an individual has in evaluating a complex, unfamiliar product reduces some of the freedom of the market. I'm not arguing that government regulations should be scrapped en masse -- there are very good reasons for a lot of them -- but rather to recognize that there are very few markets that are truly "free" in the classical sense.
Nor would a truly efficient market ensure that all members of a free market society would eventually end up richer. Certainly many people on all sides believe that restrictions on the freedom of markets allow them to enrich themselves beyond what they would achieve in a truly free market economy, and surely many of them are right. I find it hard to see how record company executives, for example, would be richer in a truly free, unencumbered market than they are in the current situation, and it's evident that they agree most strongly.
My problem with "intellectual property" in a free market system is that it enacts artificial barriers to the spread and use of information. The issue isn't so much with the initial sale -- one could construct a transaction in which the purchasers of a piece of music explicitly enter into a contract with the seller not to further distribute the CD -- but that it imposes restrictions on third parties not party to the transaction. Patents do this in a very obvious way, but so does copyright and trademark (to a lesser extent).
Exactly. If we're very clear what it is and what its purpose is -- the Constitution of the United States makes it clear that the purpose is "to promote the progress of useful arts and sciences" or some such -- then we can start discussing it on a more rational plane. But we have to stop using the term "intellectual property", since it carries the wrong connotations. If we choose terminology that makes it clear that the purpose of this law is to promote progress by giving potential creators of information extra incentive to create and distribute their work, then we start from a position of "the producer, consumer, and third parties who otherwise legally come across the information all have rights, let's work out how they should best be balanced" rather than "the producer inherently owns all rights, and let's find the minimum set that must be given up to allow things to function at all".
What would it look like? Well, I have some ideas:
The idea that a song or book should be free because it's in an electronic or virtual format is not where, I think, the real fight is. They (the authors/companies) should be able to seek compensation and should be able to protect their copyright. If we throw out copyright law, remember, we throw out the GPL. Tossing everything into the public domain is not the answer. Should electronic media versions be cheaper and sometimes free? Certainly. The entertainment industry needs to step up to the plate and move into the digital age.
I think the real fight that needs to be addressed in the intellectual property rights arena isn't about music or books or movies. It's about patents on algorithms and processes. That's where we as a society stand way too much to lose.
We also need to protect fair and personal use parts of copyright law. We should be able to make backups or convert things into different formats as we see fit. We need to protect our rights to rip our cd's to mp3's, or record a cd to tape, or vice versa even. We need to protect even our free speech rights to open discussion of products.
Katz's arguments about kids growing up downloading stuff and thinking it's ok is bogus. Warez is warez, pirating is pirating. Do most of us do it? At one time or another, yeah. Does that make it legal or morally right? Not at all. Do 99.999999% realize that's it's not exactly kosher? Yup. Is ignorance of the law ever an acceptable excuse for violating the law? Nope.
Another thing that bugs me. Katz keeps calling the music on the net "free" music. That's a fallacy. It's commercial music he's talking about, like commercial software. Free (as in beer) music, is perfectly legal and morally acceptable to download and redistribute - look at MP3.com.
I can see where you are coming from and want to agree, but cannot.
Ideas and expressions are closely related, as you said. However, they can be seperated. Take, for instance, a cover of a song. The underlying structure of the melody, feel, etc. are essentially the same, i.e., it's recognizable, but the expression of the notes are different than someone else's performance. Put 1000 guitarists in a room, get them all to play Stairway To Heaven and you'll get 1000 different interpretations - I can almost guarantee that.
As for your calculus example, all you need to do to get around the original expression of the idea is to change the notation. You're using the same idea but just saying it differently. Another example is movies: the idea of a deranged killer that is seemingly unstoppable has been expressed god knows how many times.
Copyrights are given (in music) to protect not only your physical representation of the music (the CD), but also the performace of the song. That's why you get royalties from airtime as well as sales.
The original poster was right in saying ideas are not the same as expressions. However, people don't seem to care about that and laws like the DMCA raise the question as to whether or not we make laws for the people or for the people that make lots of money. Now that we have a very easy way of distributing intangibles to a massive number of people and everyone seems to like it, should we deny them of it? (The counter to that is, is it good for them in the long run?)
Maybe this is the first step toward a less profit-oriented society (I, for one, hope so). Who knows.... Regardless, it's gonna be interesting.
Woz
Problem is, that creating a "clone" of a game with various improved features is NOT the same as doing a cover of a song.
When you create a "clone" or some variation on a game, you are not copying the original. The underlying concept is the same, certainly, but the expression of that idea is different. The creator of the original game has rights to their *expression* of the idea "game in which a ship shoots at rocks" (ie Asteroid), but not to the *idea* itself (ie a ship-shooting-at-rocks game). (Unless they have a patent on the idea, in which cases their exclusive rights end after a certain period of years. And patents are the exception, created to promote creative invention through ensuring inventors the opportunity to profit from their inventions. If they don't have the patent, they don't have the exclusive rights to the concept itself)
If you were to do a cover of Dark Side Of The Moon, however, you would be copying the *expression* of the original artists (ie the lyrics, melody, etc). (And thus owe royalties). Now, if you were to take the *idea* (namely, what the song is about) and make a new song based on the same idea, then you're not copying their work - you were inspired by them, but didn't actually copy anything of theirs. This latter case is what is happening with the software developer in your dialogue.
I would disagree with this viewpoint -- I would argue that one has a legitimate claim of ownership to the proceedings of one's labor , whether tangible or otherwise.
However, there are disagreements about this. At the very least, it should be clear that if the authors of creative or intellectual works are not given the means to claim due compensation for their labor, it will undermine industries based on intellectual work.
It's interesting to note that the countries with stronger copyright laws tend to be the most productive in this sense.
Another way of saying this is that creators of intellectual works should be forced to share their work. And that to me seems absurd unless you put it in the context of a society where everyone else shares.
Today the information as property group has the most power and they can cause a great deal of pain to the information as freedom group
Firstly, I object to your attempt to oversimplify the issue by making out that there are only "two groups". Secondly, it is simply not true that copyrighted works will hurt the "freedom group". What I ask is this -- if the freedom group are so damned savvy, why can't they compete on their merits instead of advocating vandalism against the copyright system ? In practice, of course, very few OpenSource developers advocate dismantling of the copyright system ( most of the advocates of the copyright system are leeches, and leeches are not very good at volunteering to produce OSS )
This group will grow up and when they do they will have money and political power
When they grow up, and get real jobs, if their real jobs require them to contribute to intellectual works, it seems plausible that they will expect compensation for their work ( oh, if they don't then they will not have much "money and power", will they ? )
How do you suppose that free software will become a "multi million dollar industry" ? Free software is not about money, it's primarily about volunteerism, and the vast majority of free software developers are working on their own time, or are funded by public money ( ie universities )
The artist would get to keep their only money rather than some huge media company.
NOt if you trash the copyright system, they won't. However, the internet itself will help the artist, because it will give them ( and small record labels ) a means to distribute directly without bringing in a large greedy record company.
Answer: because they don't own "copyrights on algorithms". Learn the difference between a copyright and a patent, and then we can have an intelligent discussion about copyrights.
Yes, but if it's perfectly legal to freely give away copies of the artists work, it undermines the price of the CDs. Who would pay for it if you can simply copy it ?
(Though on second thought, perhaps this is better viewed as a civil rather than a criminal matter.)
If it only occurs on a small scale, yes. I am not in favor of throwing someone in jail because they make one illegitimate copy of a CD.
There's nothing to say that they can't sell CDs even though they can be freely copied; Red Hat does.
If you want to name examples, could you please name someone who is making a profit ? Redhat are losing money, precisely because they are having a hard time building a revenue stream on a product that can be given away. I'll add that Redhat are not selling the software. They are selling support ( and their manual ). That's what you pay for when you buy the box set. Musicians just want to sell a copy of their music, not support.
The audience is not the composer's or performer's employer; there is no agreement or contract that the audience will pay the artist.
So who should pay the artist ? Or should they just panhandle ? I'd argue that purchasing the CD should activate a binding agreement between the user and the artist. Anyone who copies the CD illegaly would be violating that agreement.
A fat lot of good that does if the copyright system is disabled.
Venues that pay performance royalties. People who make voluntary sponsorships. A portion of people who buy concert ticket to bands that play their songs. Website sponsors. All of these are enhanced by having as many people as possible hear their music.
So in other words, someone who just wants to create some music and sell CDs has to panhandle for donations or make their money through other activities. This hardly sounds very fair. How many jobs have you held where you had to beg your employer for your paycheck each week ?
If you own every expression ever produced by another person, then every person owns every expression ever produced by you.
You're confused about what "own" means. We're not trying to "own" every expression ever produced. We're just interested in having access to those expressions, which is a far cry from claims of ownership. You're addressing an issue that no one has even raised.
Jon, and anyone who agrees with him, no longer have the right to complain when Wired runs a story by stealing comments, unaccredited, off of Slashdot; it's perfectly within their rights to do so, as they own your expression as much as you own the right to the expression of today's Top 10 hits.
You're confusing the issue of ownership yet again. We don't care that they get comments from Slashdot. It's the unaccredited part that bugs us. You see, when Wired takes quotes but does not give credit, they are implicitly claiming that they created these remarks, which is false. However, if I get a Metallica MP3 I'm not claiming I wrote the song, I just want to listen to it.
Take your FUD and go feed it to someone who might be fooled.
"Power corrupts. Absolute power is kind of neat." -- John Lehman, Secretary of the US Navy 1981-1987
Note I am not saying it's ethical, and it's certainly not legal...
It's a bit like speeding, except that pretend instead of going fast, it was illegal to drive with exactly three people in your car. Two and four are okay, but not three. With current speeding laws, people can at least see why, but with the No Three rule, no one understands...oh, and to make the analogy complete, no one ever gets a ticket for this crime, except people selling three seater cars. Now...how many people would follow this law? Not many. It's the same with MP3s. You can argue it's unethical to 'steal' like that, but that doesn't really accomplish much, does it?
And, yes, I put steal in quotes for a reason. You can certainly argue it's unethical, but calling it theft is stupid and confusing. There are millenniums of philisophical debate on theft, and all of them, AFAIK, are based on depriving someone of their property. Changing it at this late date does nothing except force people to put footnotes explaining what those people meant by theft on thousands of documents.
-David T. C.
If corporations are people, aren't stockholders guilty of slavery?
Ok, I am going to get scored down on this off-topic rant and I don't care.
Getting rid of government is not the answer. Whether you call yourself an anarchist or a liberterian is pointless. The ideas are all the same. The world would be a better place without government they always say.
The sad part is that most conservatives really just want is a laisez-faire business policy. Some people merely take the ideas way too far. The key is not to abolish government to assert your freedom. To do this is to only drift into a mire of chaos. The real key is to take back government from the media, the corporations, the politicians, the university liberal or the aliens depending upon your personal paranoia fix. The real key is to get the power back to the people. Until we make this representative democracy more representative of the people we will always have the problem of a mistrust and even hatred of the government.
I am not going to argue the role of government because most people will simply take a stand on one extreme or the other and there will be no meeting place in between. Nobody wants government regulations on a food processing plant so severe that most small plants go under trying to get out of the red tape. However, I for one do not want to return to the days when canned meat took down military servicemen during the Spanish American war because meat processors were not regulated at all. There has to be some middle space.
Anarchy is not the answer it is merely a reaction.
ACK
This thread has, so far, produced the highest ratio of ``filtered out'' posts after setting my threshold up: nearly 50%. I expect that after a few more hours, this rejection percentage will fall (Gawd, I hope so) as more thoughtful people begin posting. Apparently, it's easier to dash off a flaming post about Jon Katz than it is to take some time and think about what he's trying to say. If only there were a way to limit the ability to post to people who've actually read the article.
--
CUR ALLOC 20195.....5804M
group of well-meaning individuals has similarly shrank down to a tiny portion of what it used to be.
No, I'm willing to bet that group is even larger than what it used to be. The problem is the other group is growing at an exponential rate.
Everyone said we need Linux for the masses, welcome the masses. They outnumber the origional users and they have very different beliefs.
Finkployd
In the last few months, I've had alot of time to sit back and examine what happens when people give out ideas freely, myself included in that..Giving it out in the name of "community", and the ideal that we should all work together on important things..
After alot of thinking, I've petty much come down to one simple conclusion. What happens to people who decide to be generous within the Linux community, ultimately, they get screwed.. And screwed hard. They get screwed hard because the Linux community is no longer the same because there are huge inequities between the key players. The distance between common users and key players used to be measured in terms of popularity. Now the distance is measured in billions of dollars of market capital. New motives (motives which have nothing whatsoever to do with community improvement) have woven their way into what it means to support the Linux movement.. The main goal of development has turned from simple joy into a profit-making frenzy.
Now, in my own case, I can look back over what I've done in the past 10 years, and I see two things. I see a group of people who have absolutely no qualms about ripping me off, and a group of people who were honestly thankful for the things I and others had contributed -- In the past, the group of people who had no qualms about ripping me off were comparably small, compared to the number of people who understood and appreciated the work I and others had done. Nowadays, everything is turned around. The group of people who have no qualms about basically using people has grown to an enormous size, and the group of well-meaning individuals has similarly shrank down to a tiny portion of what it used to be. This is what happens when people stop caring about the effort, and begin caring more about the money. It happened to every single company and project I can think of when it comes to Linux.
The party's over, as far as Linux is concerned. As time goes on, more and more people are going to figure this sort of thing out for themselves. If you're looking for an example, look at Red Hat. Right now, they're sitting on $11,000,000,000 in market capital. Eleven billion dollars, guys. Now, do you see Red Hat going out of their way to make amends for the fact that so many people got screwed out of their IPO invitations last year because they refused to lie on an investor quesitonairre? Were the efforts of countless Linux developers good enough to deserve the offer, but not good enough to try and remedy the situation now that they have ample resources, time, and opportunity to do so? They're still making money hand over fist with your work, aren't they? If you were at the helm, would it be different? Why are they (and other Linux companies making money off the free labor of others) doing nothing about this?
As long as this sort of thing remains commonplace, people will get hurt. Conditions aren't right anymore to share ideas openly. There are too many sharks in the pool willing to advance their careers at the expense of small users and developers.
At least thats how I see it. Just putting my 2 cents into it.
Bowie J. Poag
Project Founder, PROPAGANDA For Linux (http://propaganda.themes.org)
Bowie J. Poag
Hence, as Katz implicitly senses (though he might have expressed himself a little more clearly) it is up to the proponents of a copyright and patent system--those who want to create the exception that will limit the freedom of others-- to come up with a rational, workable system, and to justify its existence.
They did, they have, and we now live under it. I reject your burden of proof; you tell me why we should abandon the carefully forged distinction.
It's hardly unusual for clear distinctions to emerge in later eras as the times change. What soldier of Attila the Hun ever heard of copyright? Why would Thomas Jefferson care about the distinction of "idea" and "expression" when expressions were the more expensive things to produce?
Now we have such a distinction, and we toss expressions around more cheaply then anything else. Other distinctions will emerge in the digital era; for instance, we will be forced to define "expression" more clearly, to handle 'dynamic expressions' (such as this very webpage; odds are, slashdot almost never serves the same page twice, so what's protected and what isn't, and how?).
I doubt Jefferson would say the same things if he were alive now and in the discussion; I won't presume to guess what he would say, but I doubt he'd be that blurry today.
I have to repectfully disagree, because there are an infinity of expressions of one idea, esp. in an artistic sense. You are right in that you cannot have one without the other, but I submit that the distinction is almost exactly the distinction between an algorithm (idea) and an implementation (expression). That leans too strongly towards practical ideas, but it holds for philosophical and artistic ones as well. For any idea (bubble sort), there are many implementations (as many as there are languages at a _minimum_, plus variations within). The key about patents is that you do gain possession of an idea/implementation/device, regardless of the various ways of communicating. In the case of copyright, you do not gain the ideas, just the expression. (In fact, there is at least one case [you'll have to look it up yourself] where two mucisians composed essentially the same piece of music; both got a copyright on it, as they came up with it independently.) (BTW, thank you for the respectful tone of your reply; I appreciate it :-) )
"How can one reasonably expect an adolescent (or older) to refuse to acquire expensive clothes she couldn't possibly afford to buy in the manner the garment industry prefers to distribute it?"
Gee, I guess kids just can't help themselves... how can we expect them not to shoplift? Oh, wait, but that's supposedly different... somehow.
Shoplifting isn't excused, but society does allow the purchase of cheap, off-label clothing by those who couldn't possibly afford the genuine designer-label stuff. In fact, the vast majority of people buy off-label clothes. Sure, the designers squawk, but they don't try to have laws passed saying that only the person who "invented" this season's fashions can market them. Maybe that's because it's easier to intimidate the guy who runs an MP3 site than it is to prosecute a multinational clothing company. Or maybe it's because the same multinational owns the designer label AND the cheap knock-off, and it'd be stupid to sue themselves.
Unlimited copying without paying for it is not a good thing. But the industry needs to recognize that some copying is inevitable, and that it can even be profitable to allow some copying and sharing of copyrighted material. Just as lending libraries have been profitable for book publishers, and video tapes have been profitable for moviemakers, MP3s can be profitable for the recording industry.
I am amazed how short-sighted and old-school so many of you posters are.
YOU CANNOT OWN AN IDEA. You cannot own something that is intangible. Let that sink in.
Katz is 100% correct in this essay. If you disagree, try to realize this: you're stuck in ancient, inappropriate ways of thinking. It makes no sense to try and treat the intangible as if it was tangible.
Say it to yourself: I cannot own an idea. I cannot own the intangible expression of that idea. Lather, rinse, repeat.
I, for one, welcome our new Antichrist overlord.
This is probably a difficult concept for a lot of people to grasp (I think it has something to with the majority of people not actually being able to think . . . ;-), but simply because something is prohibited by law does not mean that it is fundamentally immoral. In fact, a morality based on the laws of whatever country you happen to live in would be pretty damn warped . . .
But this isn't really a case of something being immoral (though those who are affected like to try for the high moral ground (on both sides), because it tends to make it easier for them to win arguments with people who don't think much). What this is, in reality, is a case of society changing, and redefining/refining it's thinking on morality as a result of that change.
Morality (though I'm sure lots of philosophers woulud argue with this) is not something fundamental, it's founded on what the society in question considers acceptable or good. Sex before marriage was considered immoral for a long time, but now it is entirely acceptable. Homosexuality was highly immoral by the standards of most of the world until recently - society changed, and now it's an accepted behaviour. Hell, in some societies, drinking alcohol was (and still is) considered worthy of hellfire . . . Even something as extreme as killing can sometimes be seen as morally acceptable - how many people would be prepared to kill an armed robber who was threatening their family?
In the light of all this, how can you say that downloading mp3s is immoral?
What is happening with the RIAA and the MPAA and so forth is that they are attempting to drive the current redefinition of morality in a way that allows them to profit. Jon Katz is trying to redefine our moral thinking in a way that agrees with his views on the matter. The EFF is doing the same, you are, I am, everyone is. But as long as most people think they're arguing about fundamental moral imperatives they're going to keep spewing out large steaming piles of shit.
Which isn't to say that your argument is one of those piles . . .
However, I do have a bit of a problem with one part of your argument (though it's probably the foundation of it):
Do you know what you'd do? You'd sue my ass. You'd prosecute me for criminal theft. Why? Because I have taken your intellectual property and distributed it without your permissions, effectively taking property that's yours and removing it from your control. That's stealing, Jon. Plain and simple, and it happens every day with MP3s.
My problem isn't just that you have no idea how Katz would react to the action you describe (he might put his money where his mouth is, you never know), but most importantly that I think you're ignoring the whole point of this discussion. You're saying, basically, that because this particular action is prohibited now, that it should be prohibited in the future. The whole point of this discussion is to think about whether that should actually be the case.
The important question here should be: Do you really want to live in a world where ideas and their expressions are considered property? (and you should take into consideration the fact that most property isn't held by individuals but by corporations, which tend to screw individuals over as much as they can) Personally, I don't want that, but I'm only one person, so I can't decide the future moral direction of the world.
himi
--
My very own DeCSS mirror.
Since ideas are not a limited resource (at least in the sense that a particular idea can be replicated essentially infinitely), their real value isn't owning them, but using them . . . Open Source/Free Software is the quintessential example. So rather than putting a monetary value on those ideas, we should focus more on use value.
Also, I don't think we really need to worry too much about "maximumally encourag[ing] the creation of new idea" - they'll come along as fast with or without any particular encouragement (I mean, has the OSS world ever suffered a dearth of ideas?). What we need most is a way to maximise the efficiency of our idea creation and development. In a sense, that's what the patent/copyright laws are intended to do - they encourage people to publish the ideas they come up with, by offering a temporary monopoly on the use of the idea's expression. This system doesn't work particularly well in the case of software, because the monopoly granted reduces the efficiency of the idea creation system enormously. It's not so bad with things like music and movies, because people get to listen to them and copy ideas (as opposed to the actual expression) without getting their arses sued to hell and back . . .
Ultimately, I think what we need most at the moment is a better focus on the intent of IP - not the enrichment of `content creators', but the enrichment of society. If lawmakers were less interested in campaign funds and more interested in good laws, I think we would be in a much better position here. As it is . . .
I don't think we should be making such a big stink about these laws being unenforceable, immoral, `anti-free-speech', evil, or whatever katzianism you want to use. Instead, we should be trying to convince the people responsible for them that there are better ways to achieve their ultimate aims. Unfortunately, that's probably really, really difficult . . .
Hmm. I'm rambling rather here, but I couldn't be bothered rewriting this . . .
himi
--
My very own DeCSS mirror.
Excellent point, however freely pirated creative works CAN mean a zero-sum game, or one close enough anyway. Again, the idea of capitalism is to make as much money as possible. Given the widespread use of open content, one might be disinclined to invest in a company that conducts most of its business with the distribution, et. al., of content. This is not because the company definitely won't make money at all, but that there's too much of a chance that it won't be able to at least show acceptable gains on investment.
A great example of this would be LinuxOne. Although LinuxOne has many other problems aside from this, a potential investor might be wary to buy their stock simply because what they sell will also be available freely necessarily. Knowing this, there's still a market for LinuxOne to sell their Linux distro and make money off of it, but even if it turned out to be a very good distro, that's still not enough reason to prevent me from saying that a company like Red Hat would be a better investment option... simply because Red Hat sells other services too.
Meanwhile, if Red Hat ever wanted to really increase profits, they could simply by dropping their distro development team and any intentions of releasing new versions of Red Hat Linux, and just deal with supporting all distros of Linux. Of course, there's many reasons why they SHOULD maintain their distro, but you see where this kind of thinking comes from. The idea is that a new company can just do support services only and, if they're really good at it, be a better investment option because they're not losing money on maintaining a distro.
Errr, through of the land of increasingly poor examples... it's like trying to sell Charlie Chaplin movies, obviously the copyrights on some of them are way expired. You could make money selling them, sure. But it's not the most fantastic of ideas, especially if you can download them off the net or if they're always on TMC or some classics movie channel. Another farfetched example, if the copyrights expired on "Titanic" on release, I bet Fox or Paramount or whoever wouldn't have made a cent on that movie. So knowing that in advance, the movie wouldn't have been made at all.
Finally, if Sony couldn't patent the PSX2 or copyright the games, would they make them? No. Sure, they'd sell a lot of stuff anyway. But some small start-up company might start copying all the games and then sell them cheaper, eventually knocking out some of Sony's profits. Knowing that the margins are initially tight anyway, Sony can't afford to only have first grabs at the market... they need to make profits grow over time. And that's ridiculous to even think about if anyone can just jump in at any time and undercut you.
The idea is that if you don't have decent IP protection, it's not like you can't make money anyway. It's that, ideally for consumers, you wouldn't. That possiblity alone discourages even trying. That can be applied to any IP at all, even if certain companies have a case where they'd always make money off of new concepts and ideas even if they lost their exclusive rights to them.
Here, Katz is on to something. Industry grabs for new special rights (control over format and access, blocking of archival backup and format conversion) in addition to their recognized legal rights (control over production of copies) represents one of two possibilities:
Naturally, many suspect that they can't all be excusable by the former, and that the real agenda must therefore be the latter.If so, the industry may come to regret its smokescreen. It works both ways -- instead of giving the new special rights the credibility of traditional copyright protection, the effect may be to tarnish traditional copyright protection with the disdain engendered by the access controls.
/.
/. If the government wants us to respect the law, it should set a better example.
Sorry, no; your interpretation of Justice Brandeis's words is incorrect.
;-)
The general rule of law is, that the noblest of human productions -- knowledge, truths ascertained, conceptions, and ideas -- become, after voluntary communication to others, free as the air to common use.
The clause in the US Constitution that empowers congress to establish copyright and patent law is Article I, Section 8, Clause 8: "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."
The philosophers of the time of the Constitution believed in the notion that the highest purpose of intelligent people was the search for a metaphysical "Truth". They believed that as we debated and discussed such subjects as philosophy, law, metaphysics, mathematics and all that high-falutin' stuff, we would inevitably move towards a higher "Truth", and hopefully even gain insight into the face of God.
Little did these folks know we'd go off and invent B-movies and sitcoms...
Anyways, our founding fathers realized that producing things like books and newspapers and other "expressions of ideas" would cost time, effort and money. And they knew they wanted to promote the useful sciences by protecting people's ability to make money producing expressions. Thus, they defined a dichotomy between "expression" and "idea", and granted congress the power to protect "expression" for a limited time so that an author can make money writing books and plays and newspaper articles.
Justice Brandeis's words must be interpreted within this framework. That is, he was expressing a general idea, outlined in the Federalist Papers and other sources, that the purpose of the First Amendment and of Clause 8 was to promote the free exchange of ideas, yet protect author's expressions so that an author can make a living. The balancing point is at what point can we maximize people's ability to express their ideas. And that necessarly means we must guarentee that an author (or writer or musician or computer programmer) is able to make some sort of a living--otherwise, expressions can only be produced by the independantly wealthy and by amateurs on their spare time.
His specific point is that as a point of law, our founding fathers have required that "ideas" themselves must be free. He did not suggest that expressions of those ideas can be free in any way. That is, he was very clear, as is the law on the subject and as are all previous ruling by the courts and all political philosophers, that there is a very clear line between an abstract idea, and the expression used to convey that idea. That is, just because someone wrote Moby Dick doesn't preclude me from writing an essay about white wales and obscessed ship captains. Nor does it preclude me from talking about Moby Dick.
Just because you cannot see the difference between the two doesn't mean Justice Brandise made the same mistake.
Bare with me.
:-)
... continued."
The fact that a product of the mind has cost its producer money and labor, and has a value for which others are willing to pay, is not sufficient to ensure to it this legal attribute of property.
What Brandise was refering to here is all categories of items that are considered a "product of the mind." This includes the relm of ideas, as well as the relm of expressions for those ideas. And this is a valid notion: just because someone expresses the idea of an obscessed captain hunting a white whale doesn't therefore make that idea off limits, or make that idea "property"--even if coming up with the idea took time and effort.
However, you will notice that this particular sentence refers to all categories of products of the mind: everything from the idea of "blue flying whales" to the words I'm typing are products of the mind--even though the latter (what I'm typing) is an expression, while the former (the idea of blue flying whales) is not protectable, though arguably the phrase "blue flying whales" may be, depending on the context.
This is entirely compatable with the notion that I brought up--that of the founding father's notion of the hunt for a metaphysical "truth" which they believed can only be achieved with the free flow of ideas.
However, Brandise does not confuse "ideas" from "expression", as witnessed by the latter part of the quote:
The general rule of law is, that the noblest of human productions -- knowledge, truths ascertained, conceptions, and ideas -- become, after voluntary communication to others, free as the air to common use.
What he is refering to is not as you suggest: "'a product of the mind' is strictly equivalent in this passage to 'the noblest of human productions -- knowledge, truths ascertained, conceptions, and ideas', which is strictly equivalent to 'these incorporeal productions'".
In this case, "a product of the mind" is a superset of "the nobelest of human productions...". To suggest otherwise is to suggest that Brandise is suggesting that all products of the mind are "the nobelest of human productions"--including the idea floating in my mind about the cold-blooded murder of my boss by disemboweling him over his BMW. I'm sure that both you and he would agree that this idea is not exactly "nobel" in any sense of the word--except perhaps by others who work for my boss.
All joking aside, not only are ideas products of the mind, but so are expressions--such as the words I'm writing, or an order of notes into a musical composition, or the specific statements I use to implement bubble sort on a computer. Each of these expressions are products of the mind as well--used to embody ideas, but are not the ideas themselves.
At any rate, the interpretation that you suggest, that these are being used in the aformentioned phrase as "equivalent" flies against any reasonable interpretation of the 8th clause of the Constitution which permits Congress to define certain intellectual property rights in order to promote the useful arts and sciences. Further, to suggest that these are equivalent would mean that Justice Brantise is both simultaneously suggesting that the products of human mind be both "free as the air to common use" and yet to also have "the attribute of property
This is absurd.
Upon these incorporeal productions the attribute of property is continued after such communication only in certain classes of cases where public policy has seemed to demand it.
The "public policy" that Justice Brandise is refering to is the Article I, section 8, clause 8. That public policy is to grant the attribute of property onto certain expressions in order to permit the sale of those expressions. Otherwise, there would be no need to pay authors, as the moment they write what they do, those expressions become "free as the air"--an absurd notion which flies in the face of 200 years of legal thought on the matter.
Besides, I cannot decide if you are for or against the notion of expression as protectable, or if you believe Justice Brandice is for or against the idea.
Equally it is a mistake to assume that every use by John Katz of the word "idea" must be held to this technical, infringement-analysis sense.
Well, of course, but only because Katz can't seem to make up his mind on the matter. That is, sometimes he uses the word "idea" to refer to abstract notions conveyed by expressions (as he does when he quotes Thomas Jefferson), and sometimes he uses the word "idea" to refer to specific expressions (as he does when he talks about downloading MP3s).
He is, or should be, saying that creating ever more complex and draconian laws is not be the correct approach to these challenges.
"Should be?" Doesn't that mean that Katz ain't saying what you think he is?
Look, I do agree with you that there are better solutions to dealing with the protection of expression in an era where the duplication and transmission of expressions is essentially zero than the DMCA. DMCA is absurd as it essentially strangles the free flow of ideas in one area (R&D in interchangability and data transmission) in order to keep the cost of data transmission in other areas (movies, music, television) artifically high. These sorts of artificial barriers are at best a stop-gap measure, and at worse totally strangle the very notion of the free market of ideas that our founding fathers strove to set up in the first place.
But that's not what Katz appears to be saying, as far as I can figure. He seems to be discussing essentially throwing the baby out with the bathwater when he starts "Unenforceable laws like traditional copyright restrictions don't promote morality or lawfulness; they undermine them." and goes on to "Still, it seems increasingly clear that conventional notions about ideas and ownership are doomed. The issue is no longer whether 'piracy' is right or wrong, but how long our backwards-looking corporations and politicians will persist in believing they can stop it."
That is, Katz is essentially saying about copyright law in the era of the Internet what many pro-drug advocates are saying in an era of increased intercity gang violence: legalize it now because we're wasting our time and resources trying to keep it illegal.
But I think he made his point reasonably well without introducing these points.
Yes, he did:
Even as more and more people ask the question "Who Owns [Expressions]?," the answer becomes obvious: We all do.
I've deliberately substituted "Expressions" for "Ideas", as Katz has hopelessly muddled the two throughout his essay, as is clear by the quotes (and the article surrounding it) that I've given above.
Of course Katz didn't discuss copyright duration. He's advocating that the duration is meaningless, and should be set to 0.
Tom Swiss | the infamous tms | my blog
You cannot wash away blood with blood
Musicians might not be able to make a lot of money off of selling copies of their recordings; but on the other hand, they can be heard by many more people without signing their soul away to a record company, which make other sorts of income (concert tickets, band t-shirts, corporate sponsorships) more possible. And ironically it makes it possible for them to have more control over their music; the artist, not the record company, gets to decide whether their song gets turned into a jingle for some car commercial.
Tom Swiss | the infamous tms | my blog
You cannot wash away blood with blood
Tom Swiss | the infamous tms | my blog
You cannot wash away blood with blood
Indeed so - but I doubt there are many movie fans that don't have at least ONE film recorded from broadcast TV - and don't feel the slightest guilt about it. Similarly, When I was younger and couldn't afford all the latest releases, I used to record them from the radio chart shows
Pause while the moral majority gasp at my criminal past!
I didn't (and still don't!) see anything morally wrong in doing this; It wasn't as if I was depriving them of a sale, and if I liked the music, I was more likely to go out and buy a copy for my singles collection. in any case, it would be taped over a week or so later.
If one truly has a passion for music, shouldn't they be out supporting the artists they like by actually purchasing their CDs, going to concert, etc?
Yes, of course they should - and as far as we can tell, the MP3 revolution has Increased rather than decreased sales - which must be a terrible dissapointment for you. Many of these increased sales could well be credited to mp3 distribution - listeners actively seeking out Albums from bands they have enjoyed individual songs from.
--
-=DaveHowe=-
For me this battle has never been about "the right to pirate a product" but rather "when I 'buy' a product have I bought the actual product or just a license to use it under certain circumstances?"
I have no interest in collecting entertainment "licenses." I can be forced into buying licensed software for many other things, but I'll never be successfully forced into buying licenses for movies, cds, book, or games. Myself, I'd rather do without than have a collection of stuff that was actually owned by someone else. I mean I feel that these people are trying to turn us into a society that can never buy anything, only rent it.
Imagine if when an auction house was selling a van Gogh painting saying, "We are selling a license to posess this fine painting as long as it is kept in this city with a tracking device in the frame and we have the right to repossess it at any time." I don't think they'd get many bids.
Right now, for example, I'm not "pirating" MPAA movies. I'm just not watching them. (Though, if my brother, who has no intention of ever joining the MPAA boycott, shows me a movie on his DVD player, am I then a pirate? I'm sure the MPAA would like me to think so.)
Incidentally, I recently re-bought Enchanter (as part of an Infocom collection) though I'm pretty sure I could easily have downloaded a pirated copy from somewhere (I mean the game is ancient). I hate having to still fight the pathetic (look at this page in the manual) copy protection they have on it.
There are a couple of things going on currently:
1. Stuff like Region Coding and DIVX are pretty disgusting ways to screw a purchaser who used to be able to just buy something and use it. Divx is not dead! It's just being retooled for a new release. The DVD makers have admitted as much in their comments to the copyright office:
Consumers don't want it, it's a new way of extracting revenue from content that has nothing to do with piracy, and the big media corporations want to force it on people.2. Anything that is available on electronic media is more easily copied than anything on traditional media. This is why book publishers aren't as woried about photocopiers as they were when they first came out. Unfortunately, the old media companies would rather kill or cripple the new technology (DVD is just crippled MPEG-2, I believe. You have to jump through hoops to watch something that could've been released in a standard readable format. Back in the days of vinyl records, films, and even video tape, crippling things wasn't as much of an option.) than try to find a way to work within the new technology. If these people had gotten their way, VCRs would never have become available to the general public! (Check out SONY CORPORATION OF AMERICA ET AL. v. UNIVERSAL CITY STUDIOS, INC., ET AL. for the actual court case.) I don't like seeing good usable technology crippled, and I hate seeing good usable technology completely suppressed just so Monty Burns can have another ivory back scratcher. (Digital Audio Tape, anyone?)
Of course, I wish Jon had made these points instead of saying that people ought to put up with piracy because "making money from ideas is wrong."
All the creatures will die, And all the things will be broken. That's the law of samurai. (Jubai, 1605)
Bad example, I think.
No. If you want to record your own Dark Side of the Moon, then you get permission and pay royalties. The people who rip off game designs because they can't think of anything better don't want to do this. They just whine that they have the right to swipe the idea.
I don't see how people who pirate music can be defined as "music lovers." When was the last time a car collector had a collection of stolen cars? Or to compare apples to apples, a movie collector's collection consisted solely of bootlegs? Never, a true movie collector has a virtual library of DVDs, Laserdiscs and *gasp* tapes. I consider myself a music lover and collector and that's why I have somewhere around 300 cds and virtually no mp3s, aside from out of print/live things. If one truly has a passion for music, shouldn't they be out supporting the artists they like buy actually purchasing their CDs, going to concert, etc?
Steve
Businesspeople (I include myself here) generally pride themselves on being pragmatic. Business models are born, live (make money), and inevitably die. A bad businessperson will fail to detect when a business model becomes outdated. Bad businesspeople will eventually stop making money.
IP is only relevant in the context of a business model, I.e. how do I add value and make money from this? Most of the industries struggling with the free IP distribution over the net New World had a very similar business model. The mode was to add value by placing the IP into the hands of the consumer.
The business model of IP distribution is dead. The value has evaporated because essentially free distribution is now available to consumers. Why pay for something you can have for free? (free in a big way - free from a monetary sense - free from a punishment sense, 0.0 chance of being punished so who cares if it's illegal).
A good businessperson will move on when a business model is dead. WRT to the industries being threatened there are many alternative ways to make money apart from distributions. Some examples:
Music industry: Apart from the very top tier of musicians most of their income is derived from live performances. Free distribution is essentially free advertising for the primary revenue stream. BTW ever wondered why live performances cost more than a CD, odd considering a CD lasts forever, but a concert is over is an hour or two? There is more value add with a concert - emotional connection between the artist and the audience, social interaction with people who share a similar interest, etc. With free distribution the artist can still win. Only the outmoded distribution company looses, which is only natural when their business model no longer adds value.
Movie industry: Consider the often-uttered reviewer phrase "Wait for it to come out on video." This sums up the concept of a particular movie not taking advantage of the value add a big screen, big sound, theater experience provides. For movies existing in a new world of free distribution they better take advantage of the movie theater value add. Perhaps we loose the straight to video class of movie - so be it.
Words/Books: Technology has yet to improve on the paper page interface provided by a book. The distribution value add proposition still holds for now.
Software: The OS movement is killing the old proprietary software business model. New models are currently being invented and tested. Most famously business models based on service, not license - see ESR's writing for other obvious OS business models.
Long post - my apologies. Summary: Business models based on IP distribution are dying. Businesses wanting to survive long-term need to reinvent themselves or die too.
If other people are looking for a MP3 made me buy it story check this one out.
I heard Fatboy Slim's Praise You on the radio one morning as I got a ride to school, I loved the song, when I got to school I headed for the lab and searched audio find for praise you (I didn't know who it was by, but I guessed that was the name), found it and saved it to a zip disk.
When I got home, I put it on repeat and started looking for other songs, I found the album We've come a long way baby on IRC and downloaded it over two days.
I loved it, I went out and bought the album and then noticed a few other's sitting there, so I went home and downloaded a track of Better living through chemistry, and the the next day bought the album.
The cycle repeated and now I own 4 albums, and 5 singles, plus some other CD's that he has mixes on.
So without mp3's I would have just forgot about it and said oh well, but now I'm a serious fan, and was about to pay for tickets to his show but I got carded (18+ show) and couldn't.
So MP3's don't always screw artist over
Aaron "PooF" Matthews
E-mail: aaron@fish.pathcom.com
To mail me remove "fish."
ICQ: 11391152
Quote: "Success is the greatest revenge"
Maybe the amount of money lost is not large, but it can still be enough to make or break a company, or at least influence its decisions.
A long time ago, back when Windows was still a "new thing", I owned an Atari ST. It was a very capable computer, running on the same 68000 chip that drove the Amiga and Macintosh of the time, with a GUI (in ROM) that outperformed Windows dramatically. But various factors, including its low price (and the implication that the owner was of limited means), Atari's legacy as game machine manufacturers and the extensive piracy on the Atari 400/800 platforms pretty much frightened away any business application developers, and led the game developers to rely on elaborate (and often annoying) copy protection schemes. (Atari managed "Power Without the Price" by buying cheap components; I had a number of legitimately purchased games that required tweaking of my drive speed in order for them to manage the gymnastics required of them by the copy protection.)
The moral? Piracy may not cause as much harm as the corporations claim, but it does cause harm.
OTOH, while some software is developed for fun or personal fulfillment, most is create in anticiaption of making money. Until that last part changes, piracy will continue to be an issue (and continue to be surrounded by hyperbole). Maybe there is a way to reconcile the ideas of "Information wants to be free" with "I spent three years working on that code and I'll be damned if I'll just stand here while some kid downloads it for free."
Damn if I know what that way is though...
"I'm a scientist! I don't think, I observe!" - Dr. Clayton Forrester
The poster brings up a good point about ethics when he says the DMCA does not support morality. However, he does not support his claim with any argument at all, so apparently it was just a weak, mean jab at the thing and not a seriously held position.
But let's look at this. Way back when the RIAA first formed, they were formed to protect artists and record companies from the mafia which was reproducing records and selling them at slashed prices, totally bootlegging the music industry. What has changed from then and into today? As I've seen other people mention, it has become extremely convenient for individuals to take on the role of the mafia in redistributing music which they had no part in creating (and most likely don't have the talent to even conceive of creating such a thing). I know a few people will argue that money is evil and since no one is getting any money at any point of the chain, the interaction must be holy. That's bunk. We've got to trade something in order to be able to get paid justly for our work and in order to pay other people justly for their work which you use. If we stop trading money, we'll have to go back to trading men, and I don't think anyone wants that.
So, in a day and age when thievery has become extremely simple, does this change the principle behind thievery? Is it moral to do anything easy? How about immoral to work hard?
Think about the principles behind your arguments and not the end result (ie you getting to get every song you ever like for free).
Esperandi
Now, I don't care if more people end up hearing the music because they steal it first. That's a question for the marketing people from the industry. So what if they're stupid? So what if it's a better marketing decision in the long run for them to allow people to do this? The point is, you can't make the decision for them.
Your argument is that since all these new-generation net kids have grown up pirating software and music already, we might as well not change it now. Of course, the only reason they got away with this in the past is because nobody in a position to do anything about it payed any attention. Software companies have indeed been trying to fight it for a long time, though. The Buisness Software Association, for example, is just such a group that has been around for a long time. But nobody really payed much attention to them.
Thus goes the saying, "Thick as thieves"? ^_^Seriously, though, this is a moral issue that you completely blow by. Say there's a cart of apples standing on the street, with a sign on it saying "DO NOT STEAL!" Should you still steal the apples? How can one reasonably expect an adolescent (or older) apple lover to refuse a nice juicy apple?
This, to me, is a statement of the problem. This is what should be changed. The laws should not be toothless, children should be taught that what they are doing is indeed stealing, and not a right. So maybe we should just call it "theft". It's rediculous to take the choice of words used to describe the act as PROOF that it isn't wrong.I think mp3.com has shown that it's quite possible that music may go to being all independantly produced and distributed online, without the need of a recording industry, and that's what they're worried about. Mp3 piracy hasn't made a dent in their sales, in fact sales have gone up, so there isn't even any apparent theft being committed.
Here's my DeCSS mirror. Where's yours?
Here's my DeCSS mirror, where's yours?
> It is not an "IDEA" or a sound - it is a song.
> It is a unique, non-obvious construction built
> from basic materials (pitch, harmony, rhythm).
> The basic materials are not IP, but the final
> construction is.
This is where we have our fundamental disagreement
I do not believe in intellectual property.
The very notion that something that is purely
intellectual...something like an idea, or a
set of sounds that weave into the rich tapestry of
a song can be "property" and "owned".
I realize that this is a common idea...one that
alot of peole like (or at least accept). However
it just doesn't jive for me. The entire concept
of "information as peoperty" seems very
unnatural and just plain wrong.
I realize that the concept of IP was invented
for good reasons...and had very good intentions.
Making sure artists have incentive to work. Thats
great...increace the amount of art in the world.
Very nobel goals. However, just because the goals
are nobel, doesn't make the means correct.
The very idea that i can have a music CD, I can
play it...but I can't copy a song for a friend
who likes it, because it is "morally wrong" is
just so absurd to me. The idea that I can't share
the information on a CD or my hard drive because
"I don't OWN the information, just the hardware"
is absurd to me.
Lois de Brandice (whose name I probably just
murderd) said "If we desire respect for the law,
we must first make the law respectable". I am
sorry, but any law that would state that "You
can own the physical media, and not own whats
on the media...and can't share whats on it with
friends, or do whatever else you want with it"
is just too absurd to be respectable.
Of course...thats just my viewpoint. I realise
that my view is in the minority in many cases.
Copyright was a great idea 200 years ago. I think
it is quite outdated and I would not weap a tear
to see it go away completely. I realize that wont
happen very soon...but I will certainly be out
here trying to spread my dissenting opionion
to try to get my concept to infect enough minds
to destroy the currently dominent concepts.
-Steve
"I opened my eyes, and everything went dark again"
> To continue to elevate common theft to the idea
> of freedom of IDEAS is intellectually dishones
I disagree. I think that to call an IDEA or a
sound...or information in general, property
that can be owned, hoarded or sold is
intelleectually dishonest.
A million or a billion CDs can be stamped out
for no more real cost then a blank CD of the same
type. NO more resources are needed to stamp out
the information gathered by sampling the sound
waves of Barry Manilo singing than it does to
stamp out a CD of Windows 2000.
When it is online...its even worst. The download
takes only time...no real resources (maybe a few
miliwats of electricity to run the data lines)
To call mere bits...or magnetic fluctuations on
a tape "property" is a severe warping of the
term. So what...you strummed a guitar or put
a string of words together that tells a story.
Good for you...you deserve credit as a true artist
fine. However...these are not property. Yes...the
physical medium that they sit on is property...
but what is on it is information. Not something
you can actually own...not something tangible.
"I opened my eyes, and everything went dark again"
> Jon, with all due respect, I don't think you
> have any idea what the hell you're talking
> about. Who owns ideas? I know that I sure as
> hell own *my* ideas. In fact, I own this comment
Hmm thats funny...cuz I don't own my ideas. Oh
sure....legally I own the words I am saying here.
However...I only own it in the sense and to the
extent that armed men are willing to persecute
any person who uses my words in a way that violate
my supposed rights.
However....I don't own this comment. I don't own
these ideas. The ideas, even these words, belong
to anyone who wishes to use them, they belong
to anyone who agrees with them. They are
transmitted out by me, they are being thought by
me. They do not belong to me. I do not have sole
right to think them, or to say them.
"I opened my eyes, and everything went dark again"
I don't think JK is claiming so much that these kids are ignorant of the law (and why just kids? plenty of adults do this too) as that they find it irrelevant. IP is a very sticky issue, but I think the bottom line is always the way to tell whether something is acceptable in our Western culture. Does it hurt the bottom line? Clearly not, the MPAA and RIAA are making more money than ever, and if it's too early to claim that MP3 and DVD-copying are HELPING them, it certainly can't be argued that they are HURTING them.
I don't see a clear solution here, but the laws must change. There is a critical period in which Expression (as defined by the poster above) is most valuable to the creator. Regardless of the copying that's going on, any form of intellectual Expression ramps up in value very quickly, then peters out almost as quickly. Not all forms of expression have the same curve--for example, books may take years to peter out once they get on top, while feature films can blow themselves out in a weekend--but the curve can be examined. New laws should take into account the particular curve of the industry and make allowances for copying once most of the value to the creator has dissipated. Given the current state of affairs and the recent unveiling of the RIAA's profit numbers for 1999, it would be difficult to argue that such laws would result in ANY loss of value to the industries, but it would definitely help the consumer. As it stands now, they are simply antagonizing the consumer by telling her that her computer can't be used as a radio, that her software is actually still owned by Microsoft even though she has the CD in her hands, that she can't watch DVD's in Linux because it's not an industry-approved (read: sufficiently profitable) OS.
These industries should not forget that the consumer body has more dollars and more heads to fight with than the corporations themselves do, and they can fight by not paying. Or the industries can try to get along, stop antagonizing us, and receive our dollars with a clear conscience. And here's the real bottom line: We will disobey until they comply with our demands.
It's rare that you're presented with a knob whose only two positions are Make History and Flee Your Glorious Destiny.
Well... If A. a CD can be stamped out for the cost of a blank (or a few cents, if only digitally copied via the 'net) and B. the actual musicians get hardly any of the money from the sale of music (cd, tape, lp) then C. arn't the consumers being royally screwed for the price of a product (which suddenly seems to be monopolistically controlled) followed by D. it's even worse if you only want the music in digital form "buying the shoes without the box" and still having to pay for the box. Therefore: perhaps its time to apply freeware/shareware/full license agreements to music? If I know that the true value of digital music is pennys-per-song and the musician is only recieving pennys-per-song from the record labels, the anwser seems fairly simple to me. If a record lable was smart they'd do this: release all of their artists' music on the net in mp3 (or flavor-of-the-day) format. With additional services such as promotions, tours, contests, stats, links and sales for physical media. Access to the site is 19.95 per month or whatever. They pay the artist on a per-download basis. I'd be willing to pay for the convenience, central indexing, steady high-bandwith downloads and more certain availability. Oh well.
Jon is a master at picking what seems like a reasonable set of assumptions until you look at them. Normally, I'm willing to pass that by, but in this case he's actively hurting the position he's arguing for, one I happen to believe in. I used to make the mistake of thinking that he was a man of principles, but I've come to the conclusion that he's just a well paid troll, who does not care about the results of his statements, only that he causes something to happen. He is a mad bomber with a word processor, causing explosions for the sake of explosions.
Let's look at this paragraph. From there you can sort out the rest of the article by yourself.
So the Congressional aide, part of an institution responsible for governing issues like this, is demonstrating that he lives in a completely different universe than he's supposedly helping to represent. For him and the lawmaker he works for, the downloading of music is simple theft, in the same way a bank robber commits a crime. But a generation of Net users will never view property that way again. A rational legislature grasping this will would seek laws that reflect the new reality, rather than an outdated one.
What makes a bank robbery different from downloading copyrighted music without permission? Hmmm. In the case of the music, the original item is still there, and in the base of the bank theft the original item is.. hey wait... it's still there. Who got hurt?
Well, in the case of the bank robbery that money is insured through various means, and much like stupid lawsuits, we all end up footing a small part of the bill. Face it, when your doctor is sued, his insurance picks it up, passes the cost onto your insurance who pass the cost onto your employer, who pass the cost onto their clients, who pass the cost onto... Well, you get the picture. The bank robbery and music theft work the same way. Anyone with a yellow sheet knows the game.
There seems to be an attitude in this country that anyone who has been sucessful doesn't deserve it. Even worse there's a serious "the world owes this to me" attitude taking root on the net. There's always been a "us" against "them" attitude but nowadays it seems like everyone thinks of themselves as "us" just for having been born.
Jon, the problem is not with congress or with business, or with people who don't understand the internet. The problem is with people who were raised without any morals whatsoever. Until today I had thought that you were not one of them. I had given you the benefit of the doubt. I see now that I was wrong.
-----
No Zen is good zen
I refuse to believe that in the absence of commercial entertainment there wouldn't be millions of people with the creativity and initiative to provide content to the world as a hobby, simply for the joy of creation and having their work appreciated.
(Yeah, I know. That idea's almost as crazy as thinking that we could have quality software if people freely shared their source code! Oh, wait a minute...)
With the march of technological progress making the creation of "professional quality" entertainment within the reach of the masses, and the collaborative and distributionary medium of the Internet, we could have a richness of culture unparallelled at any point in history.
The existence of controlling, giant media conglomerates is holding back what could be the Digital Renaissance.
--
Stay up hacking each weekend. Sleep is for the week.
The heart of the problem was addressed by several people in their responses to the first part of Katz's post (yesterday). It is this:
In other words, how can companies, artists, authors and other creators get a return on their investment of time and money, so they do not lose the incentive to go on creating? If Stephen King's new Internet novel is circulated via e-mail and mirrored on Web sites, he loses money and may never publish online again. If a database company finds its databases copied and republished for profit (which is legal today, strangely) that company will lose the incentive to keep making databases. And when the creators stop creating, everyone loses out.
No, it isn't a very accurate term. Many people don't like to think of themselves as pirates and thieves when they download music illicitly over the Web. (I don't like to think of myself that way, although the RIAA would probably be upset at my hard drive's contents.) But nobody says the term "pirate" need only apply to patch-wearing, parrot-loving, peg-legged sailors. Periods of great technological change often leave language lagging behind, and I suggest rather than criticizing the word, Katz criticize the idea.
Is the Internet so insecure (by its very nature, as Katz's citation of Lessig yesterday implied) that ideas are forced to flow freely? I highly doubt it. Technology has a way of solving problems technology creates. Creators will find new ways of creating artificial obstacles online that serve the same purpose as the physical obstacles that prevent theft: to make sure money is collected.
Yes, that's true. And the music industry's behavior (like the movie industry's behavior in the DVD/DeCSS debacle, or the TV industry's behavior in the iCRAVE case) has been thuggish. Certainly these old-fashioned, slow-learning industries should be thankful for the Web pioneers who have shown them that there exists a market for new means of transmitting the products of creative work. But they needn't genuflect before the new medium and allow it to endanger their livelihood. And that is what it does, all the misleading talk about $15 billion made by the music industry last year aside. (After all, how do we know the recording industry mightn't have made $16 were it not for MP3s?) When you download music illegally over the Internet, you are depriving someone of the potential for profit. No, you haven't broken in to their house, but you have in essence robbed their checkbook of what it might hold tomorrow.
Look, clearly we're in a period of technological change, and it is profoundly affected every (every!) segment of society. But notice that Katz proposes NO SOLUTIONS to this intellectual property problem, except that creators entirely give up any claim over what we consider intellectual property. In other words, Katz would throw out something we should cherish because we recognized it all too recently in human history: that people who create things deserve to earn from their creativity, in the same way that a farmer or bricklayer should earn from his labor.
What is the one thing Katz proposes? This:
In other words, Congress (which he just accused of screwing up copyright law) should stick its hands in copyright law AGAIN, presumably after they become "rational." Fortunately, Congress is designed to be a slow-moving, deliberative body, unresponsive to minor gusts of political wind. Let us hope that they do not take the advice of Katz and others who demand more governmental meddling. Instead, let's allow the process to develop slowly, over time. Strong case law and protracted public committment to technology are better protections than legislative interference.
A. Keiper
The Center for the Study of Technology and Society
Many people in their day saw slavery as a property right. It wasn't, it was simply an excercize of controll over individual liberties in the name of profit as is intellectual property today. And likewise most of the arguments used to justify them are the same. We put effort into getting slaves..... Without slaves we have no incentive to grow cottin.... America's financial propserity can be attributed to slavery.... If you take a slave and free him, you are a thief.... too many prestigious people do for it to be wrong... blah blah blah ...
Wozniak gave an interesting presentation on this at AppleFest Boston 1983.
He started of by talking about how bad piracy is and calculating how much money was being lost on his watch. During this, he was interupted by some calls that he responded to by saying, "type brun choplifter, 100", and "I just cracked that, it's in the top left draw of my desk."
Then he ducked behind the podium, and put on an eye patch and pirates hat. He pointed out how all this money lost was not real, since nobody would buy the crap. That it provided free advertising.
There is some money lost, but not even close to as much as the companies claim that it is. The people that support the DMCA are full of it!
Fight Spammers!
The copyright, patent, trademark, etc. laws of the U.S. that protect intellectual property ("IP") all flow from U.S. Constitution:
Congress and the administrative agencies have implemented the Constitution's directive so that ideas may not be patented/copyright -- the creations that express those ideas are. So, an idea for a book/movie about a lovely woman living beneath her station, rescued by a prince/tycoon after conflict with jealous/greedy competitors for the princes'/tycoons' attention/money cannot be protected under the copyright laws. The movie "Pretty Woman" is an expression of that idea and is copyright, consistent with the constitution. Patents are granted by governments for the expressions, not the ideas.
Copyright violation is not theft; it is not murder; it is not bigany -- it is copyright violation. There is nothing inherently evil about copying a book/movie/song just as there is nothing inherently evil about bigamy of jaywalking. We as a society have decided that our notions of efficiency, and perhaps decency are promoted by creating copyrights and making their violation illegal, just as we build crosswalks and make jaywalking illegal -- however actively enforced. The international community has seen the wisdom of more or less buying into Western notions of IP and have endorsed treaties that protect the same sorts of IP. (The DMCA primarily implements U.S. obligations under two such treaties.)
Congress has not granted authors and inventors "exclusive" use by any means, and as a result, not all copying of a "creative expression" is illegal. For works clearly covered by copyright, the principle of "fair use" is alive and well as witnessed by the Connectix and RIAA vs. Diamond cases. The Legislative History of the DMCA makes it clear that Congress intends to maintain "fair use" while updating the laws regarding copyright and performance to the new technologies. It is premature to assert that the DMCA makes the end of civilization as we know it. There must be cases brought, won or lost and subject to judicial review before we know the impact of the DMCA will be. In addition, historically, the author/owner of the work must assert copyright in order for the copyright laws to apply. I don't see SlashDoters putting the copyright symbol on their posts and I challenge anyone to go to court and prove that damages are warranted as a result of someone copying SlashDot comments.
Congress is going to keep writing laws that give authors and inventors "exclusive use" until the Constitution is changed and they don't have to. They will incorporate Edison cylinders, radio, the web, and holographic implants into the laws as necessary to do their job. In that event, while I applaud Jon Katz' efforts to stimulate debate on the intersection of the law and the web, I believe he could have a greater impact on the shape of things to come by promoting public comment while laws/regulations/rules are in flux and by promoting support for the defense in the DeCSS and Napster prosecutions by telling us where to send contributions.
Madmen in authority, who hear voices in the air, are distilling their frenzy from some academic scribbler of a few years
I actually don't beleive that total freedom (i.e. non-protection) of expression is a good idea, but Jon Katz does have a point that the current system is unfeasible. I agree very strongly that the law has gone downhill in favour of the industry, and I feel that this is because it is the only way the industry can find to defend their current distrobution system (one which bears daily-increasing semblance to a cartel -- look at what real record prices have done with respect to the intro. of CDs)
Quite simply put, the idea of physically replicating hundreds of thousands of plastic-aluminium sandwich discs at high levels of fidelity begins to lose its attraction when there is not only a highly viable (high volume, fidelity, efficiency) electronic distrubution medium available (the Internet), but the ability in thousands of households to reconstitute this data into the original format as needed (burners). (The same issues were perhaps encountered on a smaller scale when radio came to be -- history buffs, anyone?) All right, so maybe that wasn't a simply put senteance, but you get the idea.
A new system of transferring value to performers in return for their work will have to evolve. Culture will not survive without it. If it's any comfort to the hordes of broke 16 year-olds (among whom I count myself) it very much appears that this new system will be the death of (the current) cartels, and will be vastly more efficient -- and the cds (or whatever) will hence be cheaper.
Quite how this new system will work I cannot tell. The simplest system, and the one most like past history, would be a similar tax applied to the relevant materials as was once introduced on top of cassettes, whose proceeds are distributed to artists. This system has a number of drawbacks, however, not least that it relies on the wisdom of beureaucrats to distribute the funds. My only other idea would be some kind of (RSA, learning the lessons of CSS!) encryption scheme to protect songs -- but some clown could still just press the ol' record/upload button. I suspect what will be a more lasting solution is either some control of the necessary high-bandwidth infrastructuer by gov't/authority (something already being studied in reaction to DoS attacks) coupled with a practice of making the legal channels attractive to teh point of making the illegal ones a) paltry and b) easily controlled with a minimum of enforecement. An ecomic solution always works best.
Interesting Times ahead. (I don't suppose I have to attribute that... ;-)
________________
He who fights and runs away,
So, a person who writes a story or a song has no rights to it? Just because the song isn't "tangible", it should be free to everyone? So who's going to pay the songwriter's bills? Or perhaps you think that people shouldn't be able to write songs for a living -- they should have to do some "honest" work as well? It's a pretty theory, but it just doesn't work in real life. I'm all for sharing, and open source and all that, but the money's gotta come from somewhere -- it's just an ugly fact of life.
--
--
What? WHAT?!! Oh.
. . . Now I don't like the way the music industry treats musicians and overcharges for CDs anymore than anyone else on Slashdot. But they are the ones who have invested the money into promoting and recording music and without them we would never even know of the existance of the music groups we love. If musicians really wanted their music to be "free" for all to listen to and distribute they would release them as mp3's on a public webiste (as some have). Now whether they have contracts which the industry that prevent them from doing so, well thats their fault.
Yes, its true that many unenforcable laws exist due to the changing nature of the world ie. the internet. But we can't blame the government for trying to enforce these laws.
The point is that copying and publically distributing music, like copying and distributing books or any other copywrited material, the way it is today, is _wrong_ and _illegal_. Whether the music industry can enforce these laws is beside the point. I admit that I have downloaded mp3's and I have pirated software, but I at least acknowledge the fact that I am stealing when I do so.
Culure has nothing to do with this. The fact that it is so much easier to copy CDs, mp3's, movies, books, etc. does not make it anymore legitimate. We can lobby for laws to be change, for musicians to release music freely without going through the music industry, but right now we are breaking laws
Likewise free speech has _nothing_ to do with this. The government is not preventing us or anyone from saying what we want. They are simply trying to protect the rights of the musicians and the music industry to "own" their own "speech" - their own music.
What can we do? Well, we can work through the systems to get laws changed. We can support musicians who choose not to sell their music through traditional channels. But as long as we want to hear music, see movies, and read books that are promoted through "large corporations" today we must play by their rules.
As for Thomas Jefferson, there are _a lot_ of things he said that we don't follow today. Remember that he believed that the USA would be a nation of mostly independent farmers. The USA today is very different.
The answer to who owns ideas is:
The person who thought up the idea does.
The inventor who patented it does.
The author who wrote the book does.
The mucisian who wrote the music does.
And if any of the above has chosen to sell it
through a large corporation, the corparation does. "We" don't.
Has anyone tried going after the big five (studios) on a price fixing basis.
After all, the difference between production costs and retail costs are huge. Why is it that CDs all cost virtually the same amount ? It's certainly got nothing to do with having to provide revenue to the bands, although that's what they try to make you think.
If there was anything like a free market going on here (even if one blindly accepted current IP laws), then there would be a far higher discrepency in CD prices. Maybe the latest rolling stones CD would cost $12, but a CD from some fringe band hardly anybody has heard of would have a completely different price.
http://rareformnewmedia.com/
Jon Katz is wrong, they are not applying 'outdated' old ideas of copyright to a new medium. Instead, the copyright industry is taking advantage of electronic media by pushing for new and stronger powers.
I for one would be happy to return to the 'good old days', where copyright controlled only copying and not usage, and lasted a reasonable time rather than up to 150 years. Instead, laws like the DMCA and the proposed UCITA give copyright holders unprecedented new powers.
(I live in Europe so I'm not directly affected by these laws, but there's no cause to feel smug; there is already strong lobbying to introduce software patents in Europe, UCITA-type laws will probably come next.)
-- Ed Avis ed@membled.com
This is a problem -- because in this instance, it appears that the middleman benefits from copyright instead of the artist ( since the artist essentially signs away their monopoly on the recording to a middleman ). This is a problem more with the music industry than it is with the software industry.
The solution ? Technology. It is becoming easier to distribute music without the middleman. Traditionaly, the main service that the record labels performed was getting the artist's music into record shops ( where another middleman would skim more cream ... ) Nowadays, artists can distribute over the internet ( not necessarily MP3 -- they can also do mail order ), or form independent record labels that resell over the internet. Cheapbytes and Linuxmall are living proof that it costs very little to do this.
Article 1, Section 8
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;
The primary goal of the copyright and patent laws was the promotion of progress in science and the arts, not the enrichment of authors, inventors and publishers. Government granted monopolies on "intellectual property" were just a means to an end, not the end itself.
How should we promote this goal in the information age, where the cost of production is fixed and the cost of distribution is rapidly approaching zero? With the current system, the behaviour that maximizes profit for authors and publishers is not the one that maximizes the social utility of the author's work. From society's point of view, free access to books, music and software by all citizens, rich or poor, would be optimal. The problem is how to fairly compensate authors and publishers for the time, costs and risks of producing "intellectual property" when distribution is no longer strongly tied to compensation. Could compensation be publicly funded based on social utility? How should the social utility of a work be determined?
Mea navis aericumbens anguillis abundat
You have several good points there. You can divide and classify ideas and expressions differntly. But in doing so you fall into a paradox. You cannot have one without the other. This is inherent in what you yourself express. You have an idea that Katz is wrong, and you seek to express that idea. The expression of the idea is tied directly to the idea itself.
Take for instance the idea of taking of small, discrete sections of a irregular curve and adding them up to find out the mathematical properties of that curve. That's a great idea! It solves many problems. However, without a mode of expression that is so many words. Part of the idea and genius of calculus is the way in which it is expressed. The limit, the summation, the integral, and their associated symbols. Without the expressive part of the idea, it would be worthless. Just as expressions are without value if they have no idea behind them to express.
Think about it. If somebody owns the method of expression then they own the idea. You can only say something in so many ways, and if those ways are own by somebody else, then you have nothing left to say. That is the point here. Copyrights in the days of yore were designed to give the holder the means of control of the expressive portion and thereby control over the idea itself. Nowadays that method of control over ideas is eroding far quicker than many are comfortable with. And that is where the 'Net comes in.
With the 'Net we find more and different methods of expressing old ideas. Like going to a town square and listing to a performance of a play or musician. That was free then, and all you had to do was get there. Now we just download the performance we want to hear and enjoy it at home. The fact that several hundered years seperates the two is where the problem comes in.
You should always be wary of arguments that tell you that what you want to do is not only OK, but moral. Such arguments can be created for nearly everything, and have been used by any number of groups to justify everything from true moral good to atrocities that those committing them thought were not only OK to do, but morally obligated for them to do.
What also troubles me about Katz's essay is that he starts with the presumption that because kids are doing it, it must be right, and concludes that kids ought to be able to do it because they are.
The kids in the poorer neighborhoods of Los Angeles form gangs and sell drugs; to them it's also as natural as downloading MP3s is to college students. If we apply Katzian reasoning to this situation, the problem is not gangs, but the police who try to stop gang warfare and the sales of drugs. After all, being a gang banger and blowing away a crip is "natural"... was that the sound of a bullshit detector going off?
Look, I have no problems with limiting the duration of copyright on the theory that ideas embedded in expression ought to be shared freely after the copyright owner is able to get it's fair reward for creating that expression; this was the original idea behind copyright limits and patent limits. However, to simply suggest that it's harder to codify reasonable limits on the distribution of digitial materials now that the internet has made the cost of distribution essentially free, so we should scrap any pretence at copyright or patent--that's like suggesting we should scrap anti-gang efforts by the police because of LAPD corruption.
* I'm in no way suggesting pirating MP3s is as violent or deadly as gang warfare, nor do I mean to belittle gang warfare by suggesting it's as painless as sharing MP3s. However, they are both illegal activities, hurt third parties, and hurt third parties in ways which both the students sharing MP3s and the gangs shooting at each other refuse to acknowledge. And both are subjects of essayists like Katz who suggest that as we are unable to control their activities, we should legalize them instead.
Let's look at Hasrbro's current lawsuit, in which they're cracking down on games that they see as rip offs of games they own the rights to (old Atari titles like Asteroids and Centipede and such). Ignoring the fact that those games are twenty years old, here's the general opposition to this argument seems to go:
Hasbro lawyer: Your game is a clone of Asteroids. We own the rights to that game. Please stop producing it.
Guy who wrote an Asteroids clone: You can't copyright a game concept! I wrote this game, and it's mine.
Lawyer: It's obvious that your game is indeed Asteroids and not an original work. You could have come up with any idea in the world, yet you chose Asteroids.
Guy: It's not exactly Asteroids! Look, my asteroids are textured, and I added power-ups!
Lawyer: You have a rotating ship on the screen that shoots at rocks that break up into smaller rocks when shot. When you shoot the smallest rocks they disappear. A little enemy ship comes out every so often and shoots at you; nothing else shoots in the game except you and that ship. There's a hyperspace key. You move by pressing Thrust and then you drift around. This is your design?
Guy: Information should be free!
Lawyer: Look, if you formed a band and recorded your own version of Dark Side of the Moon, track for track, do you think that's legitimate unles you get permission?
Guy: Uh, but that's different. CDs are harder to make than games.
Lawyer: Legal issues aside, the bottom line here is that you need to think for yourself. You could write lots of games about asteroids and space ships and such without being Asteroids. There are unlimited ideas out there, why did you have to pick the one that's obviously been done by someone else? The web is full of people who think they have the right to publish their own Star Trek novelizations and create CG South Park episodes. Why? Wouldn't it just be better to do your own thing?
Guy: But I'm just a coder who doesn't have any good ideas!
Lawyer: Exactly.
I think you are missing my point.
Yes I am willing to pay for the convienence of
CDs or central indexing or whatever.
I have no problem paying for tickets for a concert
or other such things. I am willing to pay the
cover charge at a bar to get in and hear a good
band.
Yea, it is a "Good thing" to support artists and
encourage them to produce art. Art, in all of
its forms, is very powerful, definitly a very
good thing.
My point was to reject "information as property".
Just because a person can string together words
that invoke powerful emotion, or another can
do the same with streams of vibration from a
musical instrument does not, in my mind, make
those streams themselves (or copies thereof) sole
dominion of the one who has strung them
together.
I reject, flat out, the entire concept of
"Intellectual Propery". Yet as I said...I am
willing to pay (a reasonable price) for CDs. I
go to concerts when the band is good and the
ticket price isn't going to bankrupt me.
I buy books that I read. None of these things
are bad.
"I opened my eyes, and everything went dark again"
To understand the other point of view--the one that says intellectual property and private property are closely related (if not identical) concepts--one has to understand what private property is in the first place.
Economic systems derive from the fact that resources are limited. An economic system is a system that provides for the division of limited resources in the face of unlimited demand. Communism believes that resources should be centrally distributed based on need. Capitalism believes that treating resources as private property provides for the most efficient division of resources.
Because capitalism is not concerned with who actually needs a resource, it can appear cold-hearted. Because it is efficient,however, all members of a capitalist society eventually end up richer. Furthermore, communist societies have a real problems with several issues:
So, given that capitalism has proven to be so much more better for society than communism and private property is capitalisms primary tool, a look at the issue without reflection might lead one to think that IP should be treated as private property. This is the problem with the lawmakers.
The problem with IP is that it is not a limited resource. The fundamental issues that form the basis for private property do not apply to ideas, music, code, stories, or movies. If everyone in the world wanted a copy of this post, there is nothing that limits the replication of this post to meet their needs. I am not diminished. Hopefully, everyone is enriched :).
Private property is thus a horrible analogy for intellectual property. To determine a new paradigm for intellectual property, we need to think about exactly what we want from intellectual property. I believe it is this: We want the free flow of ideas only encumbered in such a way as to maximumally encourage the creation of new ideas.
So what would such a concept of intellectual property look like?
The music industry is loaded with intermediaries.
Let's face it, we all have an idea of how much it costs us to cut a CD, don't we ? On an industrial scale, it will cost a fraction of that per unit.
We accept that we should be paying the artist to listen to his music, otherwise that is theft. Since it has to go on some medium or other - we can see why we need to stand the cost of the CD. The rest of the money we pay for a CD, a high percentage of it, is tax and payments to various intermediaries, for shipping, talent management, production, distribution and so on.
Is there room for a business model which distributes music straight from the artist to paying customers, cutting all the intervening crap ? The artist gets paid, which is groovy, and the customer gets a keener price. The only real losers are all the intermediaries in the music business, which is why they will fight internet access to music tooth and nail.
Note that the artists are not complaining as loudly as the intermediaries.
Stephen Hawking has written another book. It's about time as well.
I marked this up properly, and previewed it, but the HTML didn't take in the final post.
So here it is again:
A contributor wrote: Jon Katz in this entire piece has fatally confounded two distinct concepts, Ideas and Expressions.
Jefferson, in his 1813 letter to Isaac McPherson, was not making the "idea/expression" distinction of copyright law. He was not writing in a copyright-law context at all, but was referring to patent law. By "ideas" he was referring to what lawyers call "the subject matter of patent." Mapping Jefferson's principle into the domain of copyright law produces precisely the result that Katz asserts: that "the subject matter of copyright" (i.e. "expression") equally with the subject-matter of patent, belongs to all as a matter of right, and that any legal system which tries to make copyrightable expression subject to exclusive rights is at best an artificial, temporary expedient.
Mr. Justice Brandeis stated the same principle in words that are also subject to the same sort of misinterpretation. He wrote of "ideas", but he was not referring to the I/E distinction. Here is Mr. Brandeis' statement:
The fact that a product of the mind has cost its producer money and labor, and has a value for which others are willing to pay, is not sufficient to ensure to it this legal attribute of property. The general rule of law is, that the noblest of human productions -- knowledge, truths ascertained, conceptions, and ideas -- become, after voluntary communication to others, free as the air to common use. Upon these incorporeal productions the attribute of property is continued after such communication only in certain classes of cases where public policy has seemed to demand it. These exceptions are confined to productions which, in some degree, involve creation, invention, or discovery. But by no means all such are endowed with this attribute of property. The creations which are recognized as property by the common law are literary, dramatic, musical, and other artistic creations; and these have also protection under the copyright statutes. The inventions and discoveries upon which this attribute of property is conferred only by statute, are the few comprised within the patent law.
--INS v. Associated Press, 248 U.S. 214, at 250 (Brandeis, J., dissenting.)
Though Brandeis uses the word "ideas", he is NOT referring to the technical Idea/Expression dichotomy of copyright law. Rather "knowledge, truths ascertained, conceptions, ideas" is the most general category of "incorporeal productions" of the human mind. Brandeis is saying that by "the general rule of law", all works of the mind--both ideas and expression, in copyright language--are as "free as the air to common use", and the copyright and patent laws are the exception to this general rule of freedom.
Hence, as Katz implicitly senses (though he might have expressed himself a little more clearly) it is up to the proponents of a copyright and patent system--those who want to create the exception that will limit the freedom of others-- to come up with a rational, workable system, and to justify its existence.
The kids who download free music from a young age as a matter of course have little awareness that they are appropriating someone else's property. Most wouldn't dream of shoplifting in a store: they consider it stealing and they might face arrest, humiliation and punishment as a consequence. But acquiring movies, music, games or other intellectual property online is so simple, so ubiquitous, that it's become almost instinctive.
Bullshit. They have plenty of awareness of what they're doing. A student in our school newspaper was quoted as saying something to the effect of, "Sure, everyone knows it's illegal, but they do it anyway because it's easy." This countered a comment by the school network administrator that most students didn't know it was illegal. Everyone knows it's illegal, and your shoplifting analogy is off-base because of that. If people could walk into a store and walk out with something that normally they would pay for and have absolutely no fear of being caught, they would. The reason they don't is because it's easier to be noticed when your not some invisible entity that's hard to track on the other end of a fiber optic cable. Just because people are harder to track doesn't make it legal.
Jon, what happens if I were to take one of your books that you sell for money, that you make your living off of, and I copy it and redistribute it to tens of thousands of people so that they don't have to pay for it? What if I try to argue this by saying that your book is 'information' and you've released it and therefore it's freely available to everyone? What if I further try and argue my point by saying that people who get a copy of your book will be more likely to go out and buy one of your other books under your standard distribution model? Do you know what you'd do? You'd sue my ass. You'd prosecute me for criminal theft. Why? Because I have taken your intellectual property and distributed it without your permissions, effectively taking property that's yours and removing it from your control. That's stealing, Jon. Plain and simple, and it happens every day with MP3s.
Yes, I agree people aren't addressing issues created by the web, or rather, they're addressing them in ways that aren't beneficial to our ideals of an open society. Yes, I'd love to see the music industry embrace MP3 has a freely distributable form and work with it rather than against it. But the fact is that people people who do it against laws are criminals, and you can't justify that as okay. Perhaps one day, lawmakers will get together and start listening to Us(tm) instead of Them(tm), but justifying criminal actions because you think it's the Right Thing(tm) to do just adds more fuel to the fire.
What makes me even more angry is that no one ever looks at it from the music industry's viewpoint. Everyone just assumes that the way we do it is the right way. Like so many other things in life, the answer probably lies somewhere in the middle ground and as soon as everyone quits fighting each other and starts working together, the sooner we'll have a situation that benefits everyone. The geek community is not the only community in the world, and the music industry is not the only group with ideas about music distribution. My personal opinion is that both sides are being complete brats about the whole issue, and Jon Katz, you've just decided to play along with one group of brats.
...in order for the industry to have a chance to control it. MP3's are just so convenient. Perhaps if the industry hadn't fought change for so long, they could have large collections of music in a portable format in the stores rather than CD's, necessarily at far better prices.
Yes, I know that sounds crazy for them to destroy their own market, but, as many in the computer industry have learned, it is better to destroy your own market than to wait for others to do it for you.
Geeky modern art T-shirts
I do very much like the idea of open content. I think that our culture would very much benefit from the unrestricted passing of ideas and creativity. I'm very glad that the Internet enables this in many ways and I think a lot of people are benefitting.
That said, we can't just set everything free.
The respective industries that are battling against "piracy" are fighting a pointless and selfish fight, but that doesn't automatically mean that the other side of the battle is entirely correct. As a society, we don't want widespread piracy because that DOES create a major disincentive to further creative works. Our society is capitalist, and we can't forget that when dealing with our culture. You see, capitalism encourages:
1. We make as much money as possible
2. Anything that makes you lose money is useless
3. Anything that saves you money is preferred
Now, piracy affects creative works by reducing the amount of money that can be made on them. That violates the first concept. Creative works themselves generally violate the second concept if they make no money. Piracy is encouraged by the third concept, which means that ideally you'd want complete piracy. Therefore, creative works themselves would violate the first and second concepts, and avoiding creativity is encouraged by the third. (and eventually the first)
What does this mean? Well, it means that in a perfect capitalist society, creativity is a generally flawed concept. The entire concepts of art, R&D, and individual thinking give way to the idea that you must do what you KNOW will make you more money. We simply don't want that.
Instead, here's the approach we have to take:
- We must provide capitalist advantages to creativity
- We must protect creativity from being abused squashed financially
- We must encourage and assist the dispersal of creative ideas
Copyright law takes care of the first idea. The respective industries are running amok violating the second idea. The Internet is doing a good job of assisting the third idea. Now, changing copyright law doesn't help the second idea... it'll weaken the first. Restricting the Internet is REALLY BAD for the third idea, however encouraging the Internet happens to be really bad for the first and second ideas. The industries want to be in control and they help the first idea, but it's their control that hurts the third idea. Meanwhile, all these people on the Internet that want open content... well, the first idea might not survive that unless we come up with some way to insure it. But then the second and third ideas would be okay. However, that first idea is what allows the whole process to go on, so we better be wary about how open we want our content to be.
In the end, we aren't a utopian society. People need to eat, and people need to be well-rewarded for hard work. Everything can't be GPL'ed, because as much as we think it's a good idea, it's only relevant to hobbyists and philosophers. (in the sense that no one makes money, and not everyone wants the source code) Obviously the DMCA is bad in a lot of ways, but we can't be in denial about the way our society works. We have to prevent the total spread of piracy - obviously some would be ok, but even that argument is very tricky in terms of balancing ethics, freedom, and practicality. The only reason why the Net is doing okay NOW is because not everyone trades warez or mp3s. But in 20 years, we can't let everyone do that. If we are going to use the Internet to spread ideas and creativity, we must work hard to stop abuses. I think we still have some time to work it out under the current system temporarily, but we all know the current system will probably fall apart eventually. We're trying to fight the good fight, but remember that we have to think clearly about what we're fighting for... otherwise what we're trying to encourage we may destroy instead.
"If you own every expression ever produced by another person, then every person owns every expression ever produced by you. Not "just" any music you've created, or movies you may have made, but everything you've ever typed, every Slashdot post you've ever made, no longer belongs to you, and none of the copyright protections apply to it, including some nice ones like "the right to be credited with authorship". "
I imagine that you thought this paragraph would perhaps prompt a few people to question their undying devotion to a socialism of expressions. I'm sorry, but it will fall on deaf ears. You see, the people who advocate free exchange (its not even truly exchange, that implies mutual agreement, they want to take no matter what the creator thinks) of expressions have no capacity for expression or else they doubt that their expressions are any good.
They look around and see that either they have not the ability to create a movie or possibly they think their movies aren't as good as the next guy... but if only there was no such thing as censorship, you could basically do whatever you want and never have to worry about getting scorned for making a terrible movie (it was a product of the community! they'll cry). The only sacrifice they have to make is the other end of the spectrum, they have to sacrifice takign credit for great achievements they make. Look around Slashdot, you will find that a great many people have already made this sacrifice and are offended by anyone who has not. You get paid for your work? Heretic! You want people to use your product and not use your competitors product? Monopolist! There are a hundred situations in which people can defend their right over property for having created it and Slashdot has an epithet for every one.
Esperandi
This is going to narrowly focus on one area of the article... MP3s.
I personally use MP3s to see if a CD is worth buying. I have been burned so many times I cannot count... I have dozens of CDs that have only one or two decent songs, but the rest of the CD is crap or totally unlike the "hit single" they released. So, I now snag most of the songs I am curious about from the newsgroups. If I find at least one-third of the CD is decent, I will buy it at a traditional local music shop (and always from small non-chains, gotta keep the locals in business). If the album just plain sucks, I may keep the one or two songs that were decent as a fee for attempting to dupe me into buying crapola. In all honesty, MP3s have increased my CD purchasing, it's just that I can now choose what I want to purchase. The folks who made the music need to get paid, and I support those I believe put out consistant personally enjoyable music. As examples (please, no flameing or "they suck shyt", it's what I personally listen to, not what I think you should listen to), I liked some of what White Zombie did, but I was unsure about Rob Zombie's solo effort. I downloaded it, liked it, then bought it. When I was teaching in Thailand, I heard a group called Curve and a song called Chinese Burn, which I particularly enjoyed. I snagged the CD from the newsgroups and hated every other song. I didn't buy it, and only kept the one song. I always listen before I leap when it comes to industrial and techno music, and by sampling what was available using MP3s, I found new groups I had never heard of before (before they were famous): Front Line Assy, Delirium, 808State, KMFDM, etc. I now own legit copies of a lot of CDs that I never would have even known about, let alone purchased.
"First things first, but not necessarily in that order."
- Doctor Who
Jon Katz in this entire piece has fatally confounded two distinct concepts, Ideas and Expressions.
Ideas are more along the lines of patents, concepts, understandings, scientific theorums, inventions, ways of doing things. This is what Jefferson (which Jon quoted yesterday) was referring to.
A free flow of ideas is importent to a free and prosperous society.
Expressions are, generally, things protected by copyrights. Movies, music, works of art, essays, opinions, speech. A free flow of expressions willingly shared with the society is importent (no censorship), but it is not necessary, vital, or even good to mandate the communal ownership of expressions.
Jon Katz's essay's essential structure was to take the arguments for the free flow of ideas, slide in "expressions" for "ideas", and pass it off as a coherent argument for the free, unfettered flow of expressions... in other words justifying exactly what we all want to do.
You should always be wary of arguments that tell you that what you want to do is not only OK, but moral. Such arguments can be created for nearly everything, and have been used by any number of groups to justify everything from true moral good to atrocities that those committing them thought were not only OK to do, but morally obligated for them to do.
While free flow of ideas has a long and distinguished pedigree, you should actually not be so quick to declare that movies should belong to everybody. Movies aren't ideas, they are expressions. Claiming that you own all movies ever produced, and can presumably do anything you want to them as a result of that ownership (not just "view", but extract sound clips, video clips, use pieces of the composition in other compositions) has a very dangerous downside, which is simply it works both ways.
If you own every expression ever produced by another person, then every person owns every expression ever produced by you. Not "just" any music you've created, or movies you may have made, but everything you've ever typed, every Slashdot post you've ever made, no longer belongs to you, and none of the copyright protections apply to it, including some nice ones like "the right to be credited with authorship".
Jon, and anyone who agrees with him, no longer have the right to complain when Wired runs a story by stealing comments, unaccredited, off of Slashdot; it's perfectly within their rights to do so, as they own your expression as much as you own the right to the expression of today's Top 10 hits. There is no difference between a Slashdot post and a movie, morally or legally.
And that's the problem. Ideas are not expressions, they are quite distinct things that should not be confused. Jon Katz has done a great disservice to the community by so further confusing the issue, and also contributes to the ignorance the average Slashdot poster has about copyright issues. Who can blame them what the content producers of Slashdot itself are clueless about these distinctions, despite writing from positions of moral authority?
And Katz, that's the worst thing about this entire essay. Your entire premise was based on a bait-and-switch tactic that had no basis in reality, that in fact doesn't even begin to make sense, and based on this glaring error, you get all morally superior over those who may disagree with you. That is inexcusable arrogance.