I start, as I always have to, by stating that I am not opposed to copyrights or patents. I am not some radical "information wants to be free!" I feel musicians, writers, and artists of all sorts should profit from their works. I comment that I, too, make my living in exactly the same way as any writer or musician, by selling the fruits of my creativity and intellectual skill. I am a programmer. Drop the false dichotomy- there a number of different ways to implement copyright and patent. Simply because I say that current system is harmful, doesn't mean I'm arguing to abolish it. I'd be quite happy to return the setup we had in 1970 (by the way, things have radically changed in the last forty years).
Let's start with the framing. As usual, the radical anti-democratic anti-free-speech radicals claimed the early framing. They did it early, they did it subtly, they did it effectively, and they did it fundamentally with the very name we give to the entire debate- "Intellectual Property". It's not property. It never was. But by calling it property they bring in a whole host of (false to fact) common assumptions about how property works- assumptions that come from how more natural property- your house, say, or the chair you're sitting in- works. The problem is that it's not property, it's a government granted monopoly.
We have a whole bunch of fundamental assumptions about property that don't apply to "Intellectual Property". Think in terms of land. First off, every square foot of land is owned by someone or some group or organization. Some of it is owned by private individuals (your home, etc.), some by corporations, and some of it is owned by the government (the roads and parks, etc.). But all of it is owned. The ownership may shift from one owner to another- homes can be sold, can be seized for back taxes of imminent domain, farms can be subdivided into house sized lots, etc. But the fact is that the land is owned by someone, always has been (at least since we took it away from the natives), and always will be.
This is not the case with so-called "Intellectual Property". No one "owns" Shakespeare. No one owns the bible. No one owns the Iliad. There is a common culture that is owned, if it is owned at all, by the whole culture, and is free for all to use. Anyone can, for example, grab the public domain stories of Cinderella or Beauty and the Beast and tell them in whatever form they choose. It is one of the hidden jokes of this entire debate that one of the companies forefront in the fight to destroy the public domain is also one of the biggest beneficiaries of the public domain. Sarcasm is dead.
But it's even worse than that. With land, you can wander down to the local court house, and for a nominal fee look up who owns any given square foot of land, and how to get in contact with them. If I want to get permission to use a given square foot of land, I'm expected to get permission before I do- thus the need for the registration of property ownership, so you know who to contact. This isn't the case with copyright and patents- there is no place you can go to look up who owns any given piece of "Intellectual Property" (or if, indeed, it's owned at all) and how to contact them. This is one of the problems of documentaries like "Eyes on the Prize"- if, in one scene, behind the person being interviewed, happens to be a poster that is partially visible in the frame, that poster is copyright by someone. Before you distribute the entire film, you need to get agreement by whomever owns the copyright on that poster before hand.
The fact that there is no place you can go and look up the information you need is irrelevant. The fact that the person who made the poster may have been dead, and forgotten to assign the copyright in their will, is irrelevant. The fact that it may be unclear which of several people own the copyright is irreverent. Nor is the fact that they want to charge a hundred million dollars. Your choices are put up or shut up.
This, by the way, is different from how Copyright worked in 1970. Remember that I said that there were multiple different possible implementations, and that we had changed implementations in the last 40 years? This is one way. Back in the old days, for copyright to be applicable, you had to register your work with the Library of Congress. This has changed. Another difference is that ideas work differently than physical objects, like land or chairs. If I use your chair, you no longer have use of the chair. You have less wealth. If I use one of your ideas, you still have use of the idea. You haven't lost anything, and are no more worse off now than you were before. If there is one thing programming has taught me, it's not the idea that is valuable, it's the use of the idea. Algorithms have no value, until implemented in working code. Is it the algorithm that has value, or the working code?
I want to spend a couple of seconds discussing the concept that "all rights are property rights". This is an interesting and fundamental legal theory- and it's as relevant as the theory that "all computers are Turing machines"- true in theory, but irrelevant in practice. Try to follow it strictly in practice and you'll end up looking for the mag tape in your P4.
So if Copyright and Patent aren't property, what are they? They're monopolies. Government granted monopolies over the micro-markets of the sale and distribution of a particular work. Note that not all monopolies are bad. We allow, even encourage, certain monopolies because without the monopoly, certain services simply wouldn't exist. Back in thirties the Federal Government paid to set up several electrical companies in various rural areas- the government paid to create new monopolies. This was worthwhile because without the monopoly, most rural areas still wouldn't have electrical service.
But, with any monopoly, the danger is that it allows the monopoly owner to abuse the market. So with the monopoly comes the requirement that the monopoly be regulated. Electric companies aren't allowed to charge whatever the heck they want, there are government regulators who put caps on the price. Remove the caps, and you will get abuses of the monopoly. If the California blackouts haven't already come to your mind, let me remind you, because the situation is directly analogous. Welcome to the copyright blackouts.
A note to the libertarians reading this: these are not natural monopolies, like telephone or electrical service are, where the cost of running a copper wire to every home in the country are so high that there is tremendous economic incentive to not do it twice. Copyright and patent ideas, by contrast, are government created and government enforced monopolies. You can't just burn a bunch of copies of Britney Spears' latest offering and go into competition with Sony BMG as a distributor of her music. If you want to complain about government interference with business, start here. As a good liberal, I don't have philosophical problems with government getting involved- I just want it to clean up it's own messes. Our current copyright system is, effectively, a deregulation of a monopoly.
This is as good a place as anywhere to segue into the whole "But think of the poor starving children, er, artists!" argument. Remember that I'm a programmer- I make my living the same way as Britney Spears does, I just don't make quite as much money at it (despite the fact that I earn significantly more than most working musicians). But this also means I'm a technologist. And I know that technology means that a certain level of copyright infringement ("piracy" has to do with boats) is inevitable. Because the software industry has been dealing with this for a lot longer than anyone else has.
Remember all those games back in the eighties that came copy-protected? Those schemes were designed by programmers in an attempt to protect the programmers livelihood. A hell of a lot more creativity and engineering went into them than what's going in to todays "Digital Rights Management" software. And guess what? Every single one of them got broken. The whole lot. Many were broken the day they shipped (or even before). Few lasted more than a week. The copy protection was cracked, and the games were shared. Sound familiar? Welcome to the party, pal. As long as we have general purpose computers and open source operating systems, copyright violations are going to be a fact of life.
After all of that fuss, and after all that bother, what we programmers learned from our decades of experience was that copy-protection didn't matter. In fact, free sharing of our software helped in selling it. Lotus-123 was probably the most "pirated" piece of software ever. It's why it was so popular and sold so well. People would "steal" a copy and start using it. Then they'd realize they needed it, and it was worth the couple of hundred bucks it cost, and go buy a copy. Here little boy- the first taste is free (I note that the only two industries that call their customers 'users' is software and drugs).
Is there any evidence that this applies to domains other than software? I mean- software is functional. Is there any evidence that once people have gotten, say, a book for free, is there any evidence that people would go out and buy a legitimate copy? Actually, yes there is. The truth is, when a writer or musician or artist creates a think a beauty that I enjoy, I- and most other people- want to reward the artist. It's partially altruism, but it's also to a large extent not altruistic at all, but instead a way to encourage the creation of more valuable (enjoyable) works of art. Hey, Eric Flint- you write books I like! Here's some money- go write more books I'll like.
The other truth of the artistic life is that the number of Britney Spears is strictly limited. There are far more musicians who would make more money working at Walmart than they do as musicians, than there are mega-stars. The problem is exposure. How do you know, for example, whether you will like Maggie Drennon's music or not? This is where the free samples comes in.
It's not the starving artists- it's not the Maggie Drennons and Eric Flints of the world, that our current copyright system is designed to protect. Quite the contrary, the current copyright system hurts them significantly. It's the Britney Spears and Tom Clancys of the world. What is being preserved is not the right for a musician or writer to make money off their work- what is being preserved is the right to prevent all but a select handful of musicians and writers from getting any significant exposure of their work, and the right of monopolies to exploit their position.
Unfortunately, the damage being wrought by this purely economic play extends much further than just the damage to the Maggies and Erics of the world. Because the record companies and movie studios, in attempt to do the impossible, are changing the nature of democracy. If you own a press, with it comes the ability to violate someone's copyright. This is just the nature of printing presses of all forms. By insisting on "zero tolerance for copyright violation", they are not so much infringing on freedom of the press, so much as the freedom to own a press. Or to make and sell presses. The current trend in legislation that is being proposed and passed is to make software companies that write software which makes it possible to violate someones copyright illegal. Even if the software has other, legitimate, even primary purposes.
Or, to put the situation more plainly: because dailyKos is a mechanism whereby someone can violate a copyright, Kos himself is guilty of the crime of copyright violation. The fact that this is not the primary, or even intended, purpose of dailyKos, or the fact that it'd be almost impossible for Kos to eliminate copyright violations, is irrelevant and immaterial. Rely on the courts to keep things sane? Talk to the pro-choice advocates about the problems with that strategy. Especially since this issue is generally consider both deadly dull and exceeding arcane. And one not as important, say, as abortion or balanced budgets.
Until, of course, the day comes where it starts affecting you. If we don't have a democracy, it's pointless to debate any other issue. If we can't debate the issues, we don't have a democracy. This is one of those fundamental issues that if we lose on, winning on other issues won't matter. I'm glad to see the non-technical side of the blogsphere waking up to the issue.
