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.
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.