Structures of Intellectual Property 169
PeterP writes: "ARSTechnica has an interesting editorial today. It advocates altering the discussion of intellectual property laws to be one of structures, as opposed to rights. Kind of a breath of fresh air from the dogmatic, kneejerk debates this topic usually brings up. An interesting read, too." I second that. Definitely one to read and think about.
Great stuff (Score:2, Interesting)
Content owners openly admit that this is a direct attempt to artificially reproduce the constraints on copying naturally inherent in analog media, thus doing away with the advantages of digital media for everyone but the content owners themselves.
That's the key - the basis of the "digital revolution" is that it's just too damned easy to copy and share IP. What is needed is a system that (a) takes advantage of the easily replicable nature of IP, and (b) allows the creators (not necessarily the distributors!) to reliably get decent revenue from their work.
Without that second part, the big companies will win, because if they can preserve a system which makes it possible to rake in big bucks by making distribution hard for Joe Blow, then most writers, musicians, etc. will go through them. Sure a limited number of people will produce stuff for the free (as in speech) market, but those will be the idealists, dissidents, the fringe. Probably the more interesting art will be there, but the majority of "culture" will follow the money.
Unfortunately, as long as the big guys have the most reliable way to cash in on IP, they will have the money they need to reinforce their position with marketing, lawyers, legislation, enforcement, and technology.
If a way can be found that Joe Blow can make money from music, writing, video, or whatever by taking it directly to the Net, the big corporations will lose. Napster was a nice dry run, it proved the power of the grass roots Net, but it didn't make anybody any money, so it wasn't sustainable.
On a side note, it really seems that these issues have the potential to bring together a strange group of bedfellows - Libertarians, anti-globalists, open source believers, and artists of all kinds. Of course it won't appeal to pseudo-Libertarians who worship the accumulation of money as proof of virtue, but true Libertarians who dislike the use of wealth to pervert the free market may have more in common with protesting commies than they'd like to think!
Re:Double standards (Score:2, Interesting)
I beg to differ -- IP law is hardly a boolean prospect.
No law is boolean, and that's the strength of the system. Speeding? Nope...you can go to court and contest the ticket, and in a good number of cases, you can get out of it. You think Free Speech is a boolean absolute? Let me point you to censorship, and the FCC's regulation of various media. You are free to say whatever you like, but you need to avoid saying certain things which could be construed as assault, a hate crime, and so forth.
If you remember your basic philosophy courses, there was the issue of "the chains of society" -- you live in a free country, but are you truly free to do anything you desire and remain part of the social community? The answer, of course, is no. Social regulation is something that is determined by the entire group.
IP law should go the same way, and it isn't. IP law is being dictated to society as a whole by a small minority that has a vested interest in maintaining the status quo and are using their financial leverage to get their way.
Should there be IP law? Yes. Should it be exploitable by companies with an army of lawyers with the intent of stuffing their wallets to the point of exploding? No.
Unfortunately, the trend seems to be that "you can pay us buttloads of money for our product, but you can only use it in the manner we proscribe, and if you make any money off the use of our product, we're entitled to royalties." I can see it happening. Some paint company suing Picasso's estate for unpaid royalties on the use of their paint...
*knock on wood*
Would it work if owenership were only a few years (Score:3, Interesting)
Would this be enough of an incentive to still create ideas and content?
starting over (Score:3, Interesting)
So...For instance, The difference between alchemy and chemistry can be considered the open sharing of information. Repeatable results. It could be that some alchemist, five hundred years ago, figured out to turn lead into gold, but then he took that information, made some gold and then retired to his country estate. Ultimately such inventions and knowledge die with the originator and don't benefit humanity.
So, open sharing of information needs to be encouraged by our IP laws. It seems to me that our modern technological society would not be possible unless people feel that they can share information without losing the value of that information. In fact under our IP laws the very act of sharing information protects it. Or at least it should be the case.
But now we seem to have laws that go against the very nature of Intelectual property laws. It seems to me that in order to hold a copyright, that information must be able to be copied in the first place. So why throw people in jail when they merely tell people how to copy information? There needs to be a threshold of profit that should be the basis for our laws and money needs to be the way disputes are settled, not jail.
But these are the things we must debate as a free people.
Crime and cetera (Score:2, Interesting)
Re:Double standards (Score:3, Interesting)
Indeed, if you think about it there IS no such thing as "intellectual property." That "property" of any kind is also an illusion is left as an excersise to the reader.
That being said, why have these illusions at all? you think you "own" your car because you paid for it, but anybody can just take it from you if they have the means to do so, and now "your property" is now theirs. Allowing such actions to go unpunished means that society decays into a sort of anarchy, where the only property you can "own" is what you can physically defend from everyone else.
So society and governments come up with this fiction called property, and then attempt to enforce it for the sake of order. Intellectual property is also a fiction, but it exists and is enforced for a different reason.
The concept of intellectual property (and it's attendant enforcement by the government) exists to promote the creation of more "works of the intellect" by people who might otherwise have to spend their time working at McDonalds rather than writing a new piece of music. This is based on the posit that more arts and innovation and knowledge are "good" for society, and less is "bad."
If the "intellectual property" fiction were to vanish tomorrow, and anyone could obtain information according to whatever means they can employ without any repercussions, what would be the outcome? It might become quite difficult to be compensated for long hours (or any hours) spent creating something intellectually new, if the products of your labor can be obtained by anyone essentially free of charge.
If it became too difficult to profit from works of the intellect, then fewer people would invest the effort. Society would have fewer people working on arts, innovation and knowledge. Only those who were independantly wealthy could afford to spend lots of time creating new things, and most other people would have to squeeze in creative work between shifts at the local wal-mart. If you accept the premise that more works of the mind are "good" (whatever you think "good" is) then you can see how this leads to compensation systems. And THAT leads to the intellectual property fantasy and enforcement.
However, while more knowledge may be a "good" thing, it should not be sought after at all costs. There needs to be a balance between promoting independent research and creativity and other values we have as a society.
Therefore, the point of the Ars article is not to simply change the words around (s/rights/structures/g), but rather to remind people that all forms of property really ARE a fiction, one that we subscribe to for the sake of bettering our society. What you percieve as a double standard is in fact the crux of the idea that IP is fantasy; we want it to exist but not at any cost. Finding the balance without resorting to "God Given Intellectual Property Rights," or "Artists should only be paid in T-shirt sales when we feel like it" is the essential endeavor.
Re:Would it work if ownership were only a few year (Score:2, Interesting)
Although this often seems like a good approach - 3 to 4 years seems to be the right length of time for an Internet technology patent, for example - most technologies take about two years to go through the patent office. Typically, a patent owner will file a provisional patent application, develop their idea a bit further, and then submit the complete concept after fleshing it out to be more thorough.
In many cases, a single patent isn't enough to cover a product for its lifetime. For example, while building industrial machinery, my associates have frequently applied for patents throughout their job: they can file a patent beforehand demonstrating what they intend to do, during development they file amendments and patents on newly discovered processes, and so on.
By the time the hardware is ready, it may easily be five or six years since the first provisional patent applications were submitted - sometimes the key parts of the machine are only covered for a short time. Then, the marketing department starts selling these machines (it takes a few years to convince people that they need anything revolutionary).
Next, considering the massive investment that was required to build the new machines, the first few years of profits go straight to pay off debts and to build a successful corporation around the patent. Fortunately, the original inventor (whom we hope owns stock) can get some payoff on investor enthusiasm and an early IPO, although that's less likely in today's market.
A similar case might be the inventor of the cellular phone: his patent lasted the full 17 years, but he was simply never able to get the business off the ground during this time. His patent expired before cell phones caught the public imagination, and other companies ended up making the profits.
Now, contrast these two examples with the Amazon.com one-click patent. One guy sits around the table and says, "It's too difficult to place an order. I wish we could do it with one click." Another guy replies, "We have their credit card number cached - why not make it just one click?" It may have taken a month to go through QA and legal, but their patent will become active and profitable immediately.
It seems to me that the worth of a patent can be judged (among other factors) by how long it takes to put the idea into practice, and shortening the life of a patent would penalize inventions involving the most effort. Perhaps the patent office should be reviewing the time and effort it takes to build the product when they consider it for a patent? A product that can be built in one month should frequently be more similar to prior art than one that takes a year to construct.
I do not agree with much Hannibal Stokes says... (Score:2, Interesting)
In contrast to what Stokes supposes, for example, the "rights" that content owners now demand for themselves were never available to them in the status quo. For example, in the evolving concept of the consumer as a mere renter of content it might be construed as illegal to share books with friends and colleagues, or sell used books at garage sales.
Moreover, the discussion about "rights" of content holders in the digital age, follows exactly the evolution that has occurred throughout society in the past 50 years; which is to say a focus on rights but nary a word about responsibilities. Forget about worrying that the school system might be used as a propaganda tool in this evolution, schools are already little more than propaganda tools in the "rights" babble. The education system presents everything in cartoon form. This is why hackers and physicists alike, always learn more on their own or working with friends than they do in school.
Stokes somehow has it that the greatest threat to getting GM crop technology out to feed a hungry world are corporations and hordes of lawyers. I can make a cogent argument that the greatest threat is actually from sparkle-headed protestors who destroy other people property to vent their synthetic rage at injustice. These folks scare politicians, who haven't much courage anyway.
Stokes made not one useful suggestion. Want to fix the problem? Shorten the term for copyright and patents, in our time-compressed world patents have to pay for themselves quickly anyway. Use the education system to focus on both rights and responsibilities. And legislate an automatic life in prison sentence for anyone found using the DMCA to censore and silence their critics.
Re:The U.S. Founders Take on IP Structure (Score:2, Interesting)
The main problem we are experiencing in the IP debate is the ability of corporations to buy legislation that continues to lengthen the duration of and keep a stranglehold on control of copyrighted material. In their attempt to treat everything as if it were actually earning millions of dollars for "poor starving artists" they are obscuring the cold, hard reality...
A simple observable fact is that after the initial publication of the vast majority of books, movies, music, etc., for which the content creator would have been compensated, most of this "stuff" could be placed into the public domain within a year of publication without harming future earnings for the original creator. Why? Because of the hundreds of thousands of books, movies, songs, etc. published each year only a figurative handful ever gain enough of a buying public following to continue to earn any income. Most simply disappear, go out of print, sit on the shelf, etc., never to be seen again.
What if copyright law duration was based upon the ability of the creative work and the marketplace to keep a piece of work in print? Meaning that if the marketplace shows enough demand for an item that it is worth a publisher keeping something in print they should be able to continue to earn a dollar (figuratively) for that item. However, if after the marketplace has shown that an item is no longer wanted (valued) and therefore the incentive for a publisher to keep that item in print also vanishes that the copyright for a book also expires when it goes out of print. In a system like this the vast majority of "stuff" could enter the public domain fairly quickly with little financial harm to the original creator and for those few blockbuster items that continue to sell for decades...let them maintain that copyright for an extended period of time.
So, if I were King, I would revamp the copyright laws so that the original term is, say, 10 years with the possibility of further extensions of 10 years if one can show that the item has been in continuous publication and available for public purchase during the previous 10 year period.
Let's hear some flaws with this kind of approach...