dear lily, adjust your sails

I hadn’t heard of Lily Allen until her thoughtless, ranting, anti-filesharing babble went mainstream. I also hadn’t heard of Dan Bull.

i HAD to OPIne

Nate Anderson at Ars has an article labeling the drafted “HADOPI” law as “anti-P2P”, but it’s much worse. The law not only attacks p2p activities of the wired citizenry, but threatens to cut computer users off from Internet access entirely. If citizens are perceived to be sharing unauthorized works, a 3-strikes-you’re-censored response would take effect. While it’s impossible to imagine any justified trade-off in this approach, what’s proposed is insulting:

In return, French DVDs will appear a couple of months closer to their theatrical release date and music and movie groups will have to drop much of their DRM. Global music trade group IFPI thinks this is a wonderful trade-off.

So in exchange for Global Business Interests at the expense of freedom, digitized French works will be released sooner and stripped of the already ineffective technical restrictions known as DRM. If that isn’t une escroquerie, what is? “Wonderful trade-off” indeed. Beyond the imbalanced nature of this “deal” are other disasterous consequences. The law would require

home Internet users to install certain approved security software and to secure their networks.

Want to create a community of Internet users that share a public commons of bandwidth? Too bad. Doing so would prevent the recording industry from spying on your activity to peg you a “pirate”. Here, the “secure network” doublethink is language of Orwellian stature. It’s no wonder too, why ISPs might wish to support this measure. A legal measure preventing the sharing of bandwidth only serves their interests.

Finally, the insanity of this law is revealed through the handling of users who seek to share information using public wireless access points. To protect corporate media’s 20th-century business modelthe artists, this perceived problem will be taken care of using a “solution” that’s “simple”:

such hotspots would offer only a “white list” of approved websites.

Since the ability to spy on you is lost at the coffee shop or local library, the technology itself shall be declared guilty in advance and on your behalf. Vive la censure!

Obama, McCain, and Lessig

Glyn Moody calls it libel:

Although it is unclear at this point who Senators Obama and McCain might choose, AAP believes it essential that key officials who will deal with intellectual property issues in a new administration have a full understanding of the importance of intellectual property rights for those who hold these rights and for broader U.S. economic and trade interests. AAP is concerned, for example, that based on their past academic relationship, Senator Obama might choose among his appointments a divisive figure such as Larry Lessig – a law professor and leading proponent of diminished copyright rights.

Suggesting that Lawrence Lessig would make a poor advisor due to an insufficient understanding of the effects of US copyright law, is ludicrous. Not only does Lessig understand copyright, he understands copyright in a digital and networked world – the world some publishing companies fight to put the brakes on using DRM and the DMCA. Most importantly, Lessig understands that our new technologies don’t fit the old law. It’s this mismatch that drives the conflict and division, not him. If anyone has done the work it takes to find a common ground – a solution that not only respects the importance of copyright but is pragmatic in the face of new technology, it’s Lessig.

Obama should not only request Lessig’s assistance, he should beg him for it.

Back The TRUCK UP: buying v downloading

In a recent post on Jefferson, etc. I linked to a video that I had thought I’d seen before and then, upon further review, found out that it wasn’t what I thought it was. Confused? Yeah, me too.

The video I linked to is not properly contextualized to my post. When I posted, I thought I was linking to a video claiming “downloading” unauthorized copies is “stealing”. Instead, I unwittingly linked to a different video claiming “buying” unauthorized copies is “stealing”.

WHOA!

This is a HUGE difference. While it’s still absurd to think of buying unauthorized recordings as “stealing” (perhaps “complicity” if I knowingly do it), I understand why some may get angry and wish to call the sellers “pirates” who “steal”.

Check these videos (one & two) out. They are very, very different. And just to add to the confusion, the one that says “downloading” in the youtube title is the one that plays as “buying” while the youtube title claiming “crime” is the one that plays as “downloading”.

the Foos fight McCain

MSNBC reports that the McCain campaign is being asked by the Foo Fighters to stop playing “My Hero” at political rallies. The band released a statement claiming:

To have [the song] appropriated without our knowledge and used in a manner that perverts the original sentiment of the lyric just tarnishes the song.

Only property can be “appropriated”, not copyrighted work. Unfortunately, the Foo Fighters mistakenly refer to copyright as “Intellectual Property” which just confuses the issue. However, if we insist on playing the “property” analogy game, the closest action to “appropriation” would be to claim authorship. The McCain camp did not do this.

The only way to “tarnish” a copyrighted work is to change it and distribute or perform the derivative work without notice of the adjustments. Even then, “tarnish” is really in the eye of the beholder. There is no “tarnishing” when using a context (e.g. a rally) in trying to persuade an audience toward an interpretation of an original work left intact.  And while an exception to persuasion would surely be a rally promoting hatred, the McCain campaign is at worst promoting stupidity, not hate. So long as the song’s attribution stays intact, it’s used non-commercially, and is non-derivative in nature, I lean heavily toward laws allowing such uses of published art, regardless of how much I sympathize with the Foo Fighters in this case.

Putting the law aside however, I see it in the best interest of the McCain camp to cease using the song and honor the request of the artist. Politically, they’ve nothing to gain by fighting the Foos on this one.

Jefferson, ideas, property, and the constitution

Update (Oct.14, 2008): If you make it to the bottom of this post and watch the video, this new post is important.

So I had my IT classes read and paraphrase the following famous quote by Thomas Jefferson that rebukes the claim that ideas be treated as property:

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 possesses 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 me. […] Inventions then cannot, in nature, be a subject of property.

I then had the class find where in the US constitution a provision is made to establish copyright and patent law. Using a search engine, they quickly came up with the appropriate passage from Article 1, 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.

I then asked them to respond to the following question:

Does the clause support or stand in opposition to Jefferson’s argument?

A few struggled with this as the answer appears to be both yes and no. The fact that the constitution establishes “exclusive Right[s]” seems to conflict with Jefferson’s position. Many students immediately saw it this way. My rhetorical follow-up question helped balance their view:

So when you buy a car, how long do you think you should be allowed to keep it?

Our next task is to examine how digital technology and global networks have increased the conflict in an “exclusive Right[s]” environment as compared to our analog past. The plan is to then look at a framework that helps bring 21st-century balance to All Rights Reserved copyright law and find out why many software developers are up in arms over patents.

This unit has been interesting so far. Most students had heard phrases like “intellectual property”, “piracy”, and “stealing” numerous times. In fact, virtually all of them had seen this “educational” video prior to my instruction and held the belief that without All Rights Reserved, artists would not be able to make money. We’ll be examining these phrases and beliefs closely over the coming days.

God is like Intellectual Property

The more you try to get to know Him, the more you realize He is a mirage.

the counterproduction of “intellectual property”

Keith Johnson on “intellectual property” in comments at Doug Johnson’s blog:

Chilling Effects aims to help you understand the protections that the First Amendment and intellectual property laws give to your online activities.

That is true for trademark law (e.g. as a consumer through the web). And, assuming the existence of fair use doctrine, this is also true for copyright law. Patent law however, has nothing to do with protecting my online activities.  This overgeneralization is produced by lumping together insubstantially related laws. As well, the term “property” signals a bias in treating the naturally intangible as somehow tangible.

Hopefully, Keith will consider editing the chillingeffects.org site (the same quote appears there too) to better educate its readers about how copyright law and trademark law can protect you online.

my hubris?

Doug Johnson (in comments):

Peter, I find terms like “stupidity” to be deliberately inflammatory. Let’s try to keep the degree of civility high on the Blue Skunk. I appreciate discussing ideas and sharing different opinions, but in atmosphere of respect.

My response (in comments):

Lumping these laws into an insubstantial aggregate called “intellectual property” is unproductive and misleading. Therefore, as an educator who wants to promote clear thinking and understanding, what would you call doing so?

copyright as “property”? – responding to Doug Johnson

Doug Johnson:

Peter, it seems to me (and I am happy to stand corrected), that you are arguing that if you can bring the cost of material and production of something to near zero, one is also obligated to bring the intangible value of that thing to zero as well. Personally, I don’t believe that.

What I’m arguing is that as the cost of copying/storage hits (virtually) zero, the illegitimate pressure put upon the public by the “property” approach is exacerbated. The “property” view (i.e. All Rights Reserved) is inherently antisocial and unethical. A prohibition on sharing is not needed to generate value for works under copyright. What all authors (and lawmakers) are morally obligated to do is allow the public to copy and share culture freely.

So, it seems to me (and I am happy to stand corrected) that Doug argues that if the public is allowed to copy and share, then the economic potential related to works under copyright is brought to (or brought close to) zero. Personally, I don’t believe that, and the evidence suggests otherwise. Forfeiting the “property” approach does not mean giving up any economic value inherent to the work whatsoever. Of course, the economic value of manufacturing material storage (e.g. CDs) and physical shipping may be diminished, but that’s the industry’s problem to solve, not the artist’s. Shipping and handling is not an artistic endeavor. In fact, any artist relying upon shipping and handling as their primary source of income is clearly not authoring art worthy of a livelihood.

Doug’s misunderstanding of my position is significant. If we really felt that artists should be “obligated” to make the value of their work “zero” then we would have to advocate such works be put anonymously in the public domain. In order for a work to have zero economic value to the artist, that artist would have to forfeit attribution and all other identifiable rights under copyright law (even then, it may be difficult to stop some economic value from reaching the artist). Of course, advocating such a position would be absurd. Such a position is the polar extreme of the 20th-century, copyright-as-“property” view Doug holds dear to.