Lessig On IP Protection, Conflict

cdlu writes "According to NewsForge [part of OSDN, like Slashdot], Stanford University law professor, author, and Creative Commons chairman Lawrence Lessig sharpened the definition of the ongoing legal struggle over intellectual property while talking at the Open Source Business Conference on Tuesday. According to Lessig: 'Contrary to what many people see as a cultural war between conservative business types and liberal independents, this is not a 'commerce versus anything' conflict. It's about powerful (business) interests and if they can stop new innovators'."

Comments

A threat to "developed nations"

[bizcoach]

According to Lessig,

Growth in creative industries such as radio, television, movies, publishing, music -- and, yes, software -- is threatened when "a few powerful interests control how culture develops."

Hence, if we in the so-called "developed nations" don't fix our legal systems, third-world countries, where "intellectual property law" cannot be enforced for lack of a functional legal system, will become the leaders in creative industries, including IT, right?

Re:A threat to "developed nations"

[kfg]

Right.

Some of us have been trying to open people's eyes to that for decades.

China and Brazil have already had their eyes opened on this score. They are both large, resource rich countries.

They might even have an ax or two to grind.

KFG

Re:A threat to "developed nations"

[BrynM]

...if we in the so-called "developed nations" don't fix our legal systems, third-world countries, where "intellectual property law" cannot be enforced for lack of a functional legal system, will become the leaders in creative industries, including IT, right?

Spot on. Further, we are outsourcing lots of jobs to these countries already (India, for example). Makes a helluva one-two punch doesn't it?

Re:A threat to "developed nations"

[Anonymous Coward]

It worked for America. We ripped stuff off from the continent in the old days... even now, typefaces aren't protected in the US (as opposed to Europe and the UK.) Look at India - they built up manufacturing and research expertise churning out generic versions of patented drugs. Taiwan and China started out making cheap knockoff copies of goods... now they're making the bulk of the world's laptops and cheap industrial equipment.

Intellectual property is an artificial concept, especially now that digital media allows us to make unlimited copies. A book reader is a physical device that takes time and money to manufacture on a per-unit basis. An e-book is an intangible bundle of electrons that can easily be pulled from Project Gutenberg, if no modern publisher is willing to release books in that format.

Of course, what actually happens is that there's demand for some modern book as eBooks, and if nobody provides it, then some fan will make one, and blam - free copies all over the place, and the publisher gets nothing more than a big headache.

Re:A threat to "developed nations"

[Anonymous Coward]

Intellectual property is an artificial concept, especially now that digital media allows us to make unlimited copies.

It's always been an artificial concept. That doesn't make it necessarily a bad one.

free copies all over the place, and the publisher gets nothing more than a big headache

And the author also gets nothing but a big headache. What a great way to stimulate people into writing....

Re:A threat to "developed nations"

[Thanatopsis]

HE's right on with this. Developed nations will be disintermediated and would not even notice. Previously you simply went to a new jurisdiction, like when the film industry came to California to avoid scrutiny by Edison's people and patents. Our current laws are really on a crash course with innovation. Innovators will simply route avoid them to countries where their IP laws allow them to innovate.

Re:A threat to "developed nations"

[RickHunter]

Why would I exclude Taiwan and Hong Kong? Hong Kong's had even less "IP" law enforcement than China. Ditto for Taiwan. And Hong Kong's had the benefit of a non-tyrannical government for much of the time and, even now, China's adopting a largely "hands off" policy. That just makes my point stronger, not weaker.

Re:A threat to "developed nations"

[dpilot]

I just get this ugly feeling that we in the US (and perhaps the West in general) are getting ready to diminish ourselves the way the Islamic empire diminished itself around the time of the Rennaissance. I know there's much more to it than IP laws, and that the Islamic empire was busy coping with barbarians, etc.

But there are some parallels: A civilization that grew to prosperity based on free thought, progress, and advancement of knowledge. Conservative elements that grew to dominance and stifled the very free thought that made them great. As for coping with barbarians, perhaps there is a modern parallel for that too, in terrorism.

Re:A threat to "developed nations"

[Cognitive Dissident]

China and Brazil have already had their eyes opened on this score. They are both large, resource rich countries.


Add India to that list. The Indian government was outraged at a US company patenting Basmati rice. That variety was developed in India by Indian farmers over a period of centuries. But some US corporation has filed a patent and apparently won the right to control the name 'Basmati Rice' and prevent even native Indian growers from using the name or selling this variety of rice in the US! Lots of other countries in the world are getting fed up with Stupid Lawyer Tricks in the US.

http://www.biotech-info.net/basmati_patent.html

http://www.poptel.org.uk/panap/latest/lost.htm

Short term vision, short term interest

[RLiegh]

long term implications. What is going on with the corporations will, in the long run, turn america into a third-world nation -- while the economic infrastructure will follow the IT industry to somewhere more freindly to innovation.

Can you say 'brain drain'?

Re:He sometimes doesn't sound so revolutionary

[DeltaSigma]

Precisely, ObviousGuy. He's using license agreements registered with "a qualified third party" (creativecommons.org) so that the "broad concepts of [the artist's] creativity spur others on to additional creativity."

Re:He sometimes doesn't sound so revolutionary

[WryObservor]

Lessig's ideas are revolutionary. Before Stanford's Creative Commons project, nobody was seriously talking about bring the ability to create non-software media licenses to the masses. It was available only to those who could afford attorneys.

Revolutionary doesn't necessarily mean coming up with a different system -- it can be a revolutionary use of the existing system which is what Lessig has done.

In fact, he is even more of a genius for finding creative ways to use existing IP law to meet his ends (of course taking enormous inspiration from Stallman et co. in the software space).

this is a difficult issue

[timmarhy]

the problem is that people need to be able to protect their work and profit from it if they wish. with out this there is no real incentive for most people to do anything much. patents are a good thing when given out under very strict conditions, and should never be used to kill compeditors in an already developed market. eg. patenting gif files. licensing can also provide a steady and secure income for a company allowing further development of products which can benifit us all. the key is not so much that licensing and patents are bad, it's how they are misused. unfortunately this is a symptom of american corperate culture.

Re:this is a difficult issue

[RickHunter]

with out this there is no real incentive for most people to do anything much.

Actually, history has shown this to be untrue. There has, historically, been more innovation in countries where the duration of "IP" protection, be it copyright or patent, is less than the average "apprentice to journeyman" cycle. This was the case in Germany and America in the late 19th and early 20th centuries, and they both lept ahead of Britain (which had much more stringent IP laws) technologically because of it. Likewise, much of our most innovative music has been given to us by people who didn't give a fuck about whether or not they got paid - they just wanted to make music.

Yes, there are practical issues... But any sane society should already handle taking care of those.

Re:this is a difficult issue

[Roger Keith Barrett]

There is more incentive for people to do stuff if the amount of time they get a monopoly on their work is short. If there is only 7 years before something goes into public domain, a fiction writer has to either make a new edition of the book or write a new one. This encourages artists to create a lot more and put a lot more ideas out into the wild. Getting more and more ideas out into the open so they could evolve was the orginal intent of copyright in the U.S. It was not created so someone (usally a middleman) can horde ideas and make money off them almost ad infinitum... which is how it's being used today.

Re:this is a difficult issue

[RickHunter]

Also true. But from a more technical point of view, a patent/copyright length shorter than the typical "apprentice to journeyman" cycle means that you can use cutting-edge stuff however you want when you're ready to do work on your own. In other words, software patents (heck, most patents these days) should last a decade, MAXIMUM. And six years is more than enough in most fields.

Copyrights are a little trickier, but seven years seems to be reasonable.

This is how copyright currently works

[stubear]

Creative people should mark all of their original content and allow it to be licensed according to their own will. To do this, they should register it with a qualified third party and allow it to be available for public review, so that the broad concepts of their creativity spur others on to additional creativity, he said. Every artist should share something in the public domain to some extent, Lessig said, while making sure that the work as a whole is protected as to its ownership.

Ummm, this is how Copyright currently works. I create my work (establish the expression of an idea in a fixed medium; original content), send a copy along with $20 to the Library of Congress (the qualified third party), then I show others the work in a gallery, on the radio, in a theatre, or wherever (shared to the public) and the public can come and view, listen to, or whatever as long as they don't infringe upon my five basic rights to distribution, derivatives, public performance, public display, and copying (work protected as a whole as to its ownership).

Is it our right to restrict the use of our ideas?

[syousef]

I can understand the argument for compensating the creator of an original work be it an invention or an artistic work, since otherwise there would be little incentive to innovate.

I do not understand why individuals and companies consider it a right to be able to control the use of their invention or demand extravagant or prohibitive compensation for its use. An idea or work of art, once formulated should be equally available to everyone to build upon. Determining what is or isn't prohibitive is trickier though I think we'd be able to do better than the current broken system.

This has happened before

[ewn]

According to this wiki Hollywood was built this way:

"Thus, filmmakers working in California could work independent of Edison's control, and if Edison ever sent agents to California, word would usually reach Los Angeles before the agents did, and the filmmakers could escape to nearby Mexico."

Lessig the Grey vs. Creative Commons

[turnstyle]

From something I sent to Dave Farber's IP:

Given the recent Grey Tuesday brouhaha that followed the release of DJ Danger Mouse's Grey Album, it's worth pausing for a moment to take a look at the Creative Commons:

"We work to offer creators a best-of-both-worlds way to protect their works while encouraging certain uses of them -- to declare 'some rights reserved.'"

Among the rights an artist may choose to reserve when configuring their Creative Commons license is "No Derivative Works," explained in cartoon here:

http://creativecommons.org/images/comics/10.gif

Indeed, the Creative Commons' leading example musician is Roger McGuinn who: "chose the Creative Commons license that maximizes a combination of free distribution with artistic control and integrity." -- note that Roger McGuinn chose "No Derivative Works."

However, the Grey Tuesday movement seeks to take that right away. Notably, Larry Lessig (Creative Commons Chairman of the Board) commented in his blog:

http://www.lessig.org/blog/archives/001754.shtml

"Should the law give DJ Danger Mouse the right to remix without permission? I think so, though I understand how others find the matter a bit more grey."

"Should the law give DJ Danger Mouse a compulsory right to remix? That is, the right, conditioned upon his paying a small fee per sale? Again, I think so, and again, you might find this a bit less grey."

So, what exactly does Creative Commons mean by "some rights reserved" -- would it perhaps be more accurate if they said: "some rights reserved until we can cook up a new compulsory license to take those rights away"?

Re:Lessig the Grey vs. Creative Commons

[MunchMunch]

It is indeed possible to create a Creative Commons license that bars someone from creating derivative works. However, this isn't entirely a contradiction. It may be a compromise meant to allow the maximum public benefit to be created under current copyright conditions (which limit derivative works). The idea that Lessig is amenable to compromise despite having stronger believes which he expresses in his blog doesn't prove that he's being hypocritical.

The fact is, if you look at this, you see that the license includes a notice that fair use is still protected, and that the CC license with "no derivative" clause does so in order to facilitate copying and sharing. It is still closer to Lessig's position than current copyright law.

I do believe and agree that in this area, compromise like what Lessig may be endorsing with the CC license (and like copyright law itself has been doing for the last hundred years) might create confusion about what the 'principles' of copyright law are. This surely will make some of us uncomfortable -- especially those of us who believe that copyright is supposed to make some sort of moral/logical sense, and not merely be a pragmatic engine for creativity.

However, as we've already seen, copyright does not operate under any principles except to enable more creativity than it disables. Copyright is not a moral law. It does not have unimpeachable logic that directs its content. Thus, Lessig need not either be totally black or white, and does not contradict himself by agreeing to less than he wishes for in his blog--since copyright allows [sorry, I can't help it] "gray" principles.

Re:He sometimes doesn't sound so revolutionary

[Roger Keith Barrett]

I have never been under the impression that L.L. was against copyright or patents in principle (at least not as they were conceived of in the constitution), he was just against how they have been distorted and twisted into long-term monopolies that are used for no other reason than make money. When I saw him speak, he pointed out that copyright was set up to encourage writers (and at first it was ONLY writers) to continuously work and release stuff out into the creative commons, where in a limited period of time (conservatively, more list 7 years instead of the lifetime of the artist) it would be released out to open for everyone to use freely.

If copyright was instituted correctly and as the founding fathers intended it would encourage a continuous upgrade of ideas from everyone, including the original author. For instance, if a writer of a novel would have to keep on writing in one way or another. When corps cry about the importance of copyright, it's often forgotten that a fiction writer, for example, could just release a new edition of their work that might have a new introduction or new essays about the work or even slight revisions on the story and this would be a BRAND NEW copyright, giving them a new 7 years (or whatever) for the new work. A nonfiction writer could also add evidence or do other rewrites to their work and they would likewise get a BRAND NEW copyright, or a new author could then build on the previous ideas brought forward freely. As you can see, this "classic" copyright encourages continuous work while our version of copyright encourages you to sit back and collect the dough for the rest of your life.

So he's not really anti-copyright or anti-license. He's against using it in a way that goes against what its original intent. So in a you're right.. he's not revolutionary. He wants to go back to the original rules. I for one agree with him.

No it isn't...

[schon]

.. and hasn't been since the Berne Convention.

send a copy along with $20 to the Library of Congress (the qualified third party)

There is no need to send your copy to the Library of Congress to receive copyright protection. You only need to send your copy if you want to sue someone for infringement, and you want to collect monetary damages. Oh, and you don't need to send the whole thing, just part of it will be fine.

Welcome to 2004 - where have you been for the last 20 years?

As Bill G himself put it. . .

[kfg]

during the antitrust trial:

"Microsoft is just one good idea away from oblivion."

I may not have the quote exactly right, but the idea expressed is correct.

Therefore, to protect one's future, if one is a power player, one must protect innovation from outside the company. Excessive innovation from inside the company is, more often than not, antithetical to profits.

As an example from outside IT, a Trinity factory oval racer who used to practice at my track once told me the story of his first race for the team. He not only won, but he broke the track race record by two seconds.

When he got off the driver's stand, glowing with pride and accomplishment, the team manager stormed up to him and said, "Don't ever let me see you do anything like that again, or your fired. We came here with seconds in hand. You only needed to win by one second, not half a lap. Now every other team knows how fast we are, and they're all going to go home and figure out how to go just as fast before they come out to a major meet again. You just threw away a full season's advantage by showing off. And a full season's sales advantage that goes with it."

There is no advantage to an established company in offering too much "advancment" to the public. Especially if they can get the public to buy chrome as advancment.

Anybody from outside who offers advancement when the public is willing to buy chrome simply needs to be stopped.

A large and powerful corporation, again using Microsoft as the obvious example, by necessity becomes conservative. They have little to gain. They can live off of the the return of their outside investments, effectively, for eternity. They can only lose.

They don't like losing.

If they can create a conservative general atmosphere in society and at law that favors them, well, they don't have to because they can't have any real competition.

Other powerful corporations aren't real competition in innovation because they're all playing by the same rule sheet. Only try to win by one second, so you can sell the other seconds you've already got later, when people get tired of this year's chrome.

KFG

Re:Is it our right to restrict the use of our idea

[metlin]

I'm not discounting your point that having incentive helps motivate people to innovate.

But the truth is, most of the good stuff out there was not created by people looking for an incentive - it was created by people who _loved_ doing what they did, and hacked it to their advantage.

All of the world's greatest works, and greatest genuises never worked for money or incentive - that helped, sure, but it was not the goal. The purpose was to innovate for the love of the subject, for the very sake of innovation itself.

Look at Nikolas Tesla, or any of the really great inventors. Or physicsts and mathematicians. Or even musicians. The real good ones do not really care about the money - they do it because they love playing music - its their life, and its in their blood. Sure, a little incentive helps them move on, but with or without it they will do what they do simply because it gives them happiness.

Now, thats whats wrong with today's culture. People are not willing to do anything without compensation. We expect something in return. Look at the trash quality of music today - its only because the morons who are making it are interested only in making money and fame, and not music in itself. Why do so many patents exist? People are not willing to innovate because they love what they do, they are willing to innovate if they can profit and get something in return.

I feel that this is a very bad trend, and a very bad notion. If you notice where true innovation comes from, even today it is only from people who do not care about what they get in return - take Linus Torvalds for example. What he did was simply for the love of what he did best - nothing more.

Unless this attitude changes, and people accept that knowledge belongs to humanity - you may profit from it, but thats not the reason you should be doing it - we are fucked.

Re:He sometimes doesn't sound so revolutionary

[shark72]

"When I saw him speak, he pointed out that copyright was set up to encourage writers (and at first it was ONLY writers) to continuously work and release stuff out into the creative commons, where in a limited period of time (conservatively, more list 7 years instead of the lifetime of the artist) it would be released out to open for everyone to use freely."

To amplify the above, this happened in 1790, and books, maps and charts were the universe of items that could be copyrighted. The term was 14 years with the priveledge of renewing for another 14 years.

It wasn't until 1831 that musical works were added, to protect against unauthorized printing and selling of sheet music. The term was increased to 28 years at the same time.

Plays were added in 1856 and photos were added in 1865.

The complete history is here.

*YOU* Can Change the Copyright Laws

[MichaelCrawford]

In Change the Law, I point out that while the Constitution permits Congress to enact copyright laws, it doesn't actually require Congress to do so. Copyright is not a Constitutional right.

Congress could repeal the copyright laws tomorrow, if you could get enough votes to do so. That's more of a possibility than you might think, if you consider that more Americans use peer-to-peer networks than voted for George Bush.

My article suggests a number of steps you can take to bring about much needed copyright reform, ranging from speaking out to practicing civil disobedience.

I want every American peer-to-peer network user to read my article by the time of the elections. Presently it gets about 2000 readers a day, but needs to get read about a hundred times more frequently to achieve my goal. If you feel as I do that what I have to say is important, then you can help by linking to my article from your own website, weblog or from message boards.

You'll see from my sig that I've been asking readers to Googlebomb it with the phrase "free music downloads". This has been pretty successful so far, with my article now ranking #3 at Google for that query. It's getting about 800 search engine referrals each day for "free music downloads".

My article has a Creative Commons license if you'd like to mirror it.

Principle vs. practice

[tepples]

[Copyrights, trademarks, patents, and publicity rights have] always been an artificial concept. That doesn't make it necessarily a bad one.

I agree with the principle behind copyright, that giving an author an economic incentive to create can promote Progress, but I disagree with its implementation in the U.S. Code as of today, such as the effectively perpetual term of monopoly, the breadth of the monopoly on musical works given that there exist a provably finite number of melodies, and the breadth of the monopoly on derivative works that in the end prevents authors lacking deep pockets for a "fair use" legal defense from creating some satiric works.

I agree with the principle behind patents, that giving an inventor an economic incentive to invent can promote Progress, but I disagree with the poor job that the U.S. Patent and Trademark Office has done with respect to examining patents for obviousness given prior art.

crud

[bgs4]

make that here

Lwssig's has got it backwards

[geekee]

In the 19th century a patent was for a very specific widget, and a detailed design was presented. So, the idea of photography could not be patented, but only a specific method of creating a photograph. Therefore, improvements in photography wpuld not be hampered by patents. Today, however, it appears possible to patent vaugue concepts that are explained by drawing a couple of boxes, such as streaming video, 1-click shopping, launching a helper application, etc. It seems that the new ideas about what a patent should allow, not the old ideas, are the ones that are flawed.

Re:Is it our right to restrict the use of our idea

[Kwil]

Yes.. but you miss one key point.

Man does not live by gratification alone. If we don't ensure that the innovators, inventors, and creators get some monetary benefit out of the work they create, then they're simply going to wind up spending a lot of their time doing other crap so that they can put food on the table.

That's simply a waste of their talents. I'd rather be encouraging some crap inventors simply so that the truly talented ones could be spending the majority of their time doing what they're best at.

We need to work together

[max born]

The essential building blocks of all technology come the pursuit of truth, not dollars.

I think the general public really believes that money is the sole incentive of technical creativity. I agree money can be a good incentive if you're selling televisions or computers, but the real underlying work that went into the ability to produce these things was done, not for profit, but more because people were compelled by the process of discovery.

The integrated circuit is a good example. Most of the fundamental research that went into the chip came from a lot of painstaking research in solid state physics and was carried out by researchers in university labs making less than they would working for a Fortune 500 OEM.

People really are capable of doing things just for fun, because they're interested in them, or just like knowing how things work.

However, people do need to get paid. But the question here should be, how do we bring people together to create technology? Wouldn't it be great to get all the top cancer researchers together and see if they could make some headway on understanding tumors? But how do we meet their needs, keep them happy, make sure they are adequately compensated, etc.? Though this may be difficult to accomplish under our current economic system, I think you'll agree it's something we need to work towards as it seems to me a much better approach than saying, "we have a pattent system, and if you can find the cure for cancer, you can make a lot of money." This seems so inefficient as comapanies tend to scramble over each other, reinventing the wheel, keeping their research secret and trying to make as much money as they can.

Thoughts?

Expanding Creative Commons

[Anonymous Coward]

There are indications that this struggle, which has mostly involved copyright, is about to move more heavily into patents. One well-placed patent, for instance, could do more harm to Linux or open source than a thousand alleged copyright infringements. You can't just rewrite the code to get around a patent dispute.

It might be a good idea for Creative Commons or a group like them to move into the patent arena in a big way. Two ideas would be particularly helpful.

1. A "prior art" registry. It would include ideas their posters think is new with bullet-proof date stamping and public access. This would keep those ideas from being patented. It would also allow people to post descriptions of prior art they are aware of dating back several decades, along with contact information where that prior art can be documented. That could be used to fight dangerous existing patents or patents-to-be. With a bit of pressure, patent office examiners could be forced to use the database before issuing a patent. It would save a lot of grief.

2. A open source patent portfolio with a GPL-type license. Corporations could acquire the right to use patents in the portfolio in exchange for licensing the use of their patents in open source. This would approximate how corporations like IBM avoid patent suits. Patents could be obtained by donation or by developing ideas into patents.

Acting now could save a lot of trouble later.

--Mike Perry, Inkling Books, Seattle

http://www.InklingBooks.com/

Being informed: the dmca-discuss list

[Openstandards.net]

I subscribed to this mailing list several years ago and have found that virtually no news slips through the list's fingers.

http://lists.anti-dmca.org/mailman/listinfo/dmca_d iscuss

To be informed of all patent, copyright and other related news, subscribe to this list. You can also throw your two cents in the ongoing discussion, or just enjoy the articles.

OSBC talks + Re:A threat to "developed nations"

[planesp0tter]

I was at the OSBC and heard Lessig talk. A few things to relate:

1. He actually talked about developing nations, pointing out that although in theory these countries are given lesser constraints negotiated via the World Intellectual Property Organization (WIPO), in reality the U.S. is apparently creating bi-lateral agreements with these countries to strong-arm them into falling in line with U.S. IP practices. To hear Lessig tell the tale, this may result in some backlash on the economic front, as some of the countries are banding together to try to stand up to Uncle Sam

2. Lessig said in the Q&A that he's tired of hearing his words played back to him with the implication that he's against patent and copyrights. His talk actually reinforced them as a good thing, IF properly applied, i.e. in a balanced way.

He pointed out that the retention of IP rights gives the creator the ability to provide clear guidelines about the acceptable use of the work. He countered that, though, by pointing out that in the 70's IP law changed so that everything was by DEFAULT protected, vs. works having to be explicitly registered. One of the /. posters said this is the way the system currently works. That's wrong. You don't have to register your work to have copyright. In current law, the right exists implicitly in the creative act. If you register it, you are just making it easier to demonstrate ownership in the case of a conflict.

3. The argument for limiting the duration of copyright of course builds off the whole notion of 'balance.' There was an interesting point Lessig made about the goal of well-managed businesses... that they basically try hard to be boring, i.e. to avoid major disruptions. It was interesting because the ending keynote speaker of the day wasClayton Christensen (Innovator's Dilemma, Innovator's Solution) from Harvard Business School who had models that showed why this kind of business behavior ultimately leads to innovative startup's 'killing off' the big guys. Seemed to reinforce Lessig's point that the 'boring companies' need the crutch of artificial (& ridiculous, IMHO) constructs in the law to prop them up.

C'mon, you goliaths, what are you afraid of? Can't take a little honest competition without the help of your legal teams? Now that Michael Eisner's powerbase is weakening, maybe we'll see some movement on this front?.... ;)