Thursday, July 1, 2010

If You Want to Change Intellectual Property Laws

I haven't entered into the debates on copyright and other forms of intellectual property. I understand the copyright laws as they apply to me and the other creative people I know, but I don't feel strongly enough about the issue to argue for or against it. I'm saving my energy for other matters.

However, in reading comments from various anti-IP folks (some people more credible than others: snarky anonymous posts don't elevate the discourse), I've found some of their points less compelling than others. Why, I think to myself, should lawmakers change current laws if a strong case hasn't been made to do so? After all, there are all sorts of other issues requiring national and international action.

With that in mind, I decided to make a list of comments I've read on why IP protection is bad, ranking them in ascending order of persuasiveness. For the most part they go from arguments that focus on individual benefit to arguments that focus on societal benefit (without sacrificing the individual in the process).

1. I want it (e.g., content, music, ideas, images) for free, and they won't give it to me.
This comes off as self-centered.

2. I want to use it, and they won't let me.
This is a little stronger than the above statement because it implies you're going to do something proactive with the idea rather than just consume it, but it also implies that you can't come up with something on your own.

3. Culture was built by taking other people's ideas.
Again, not really a strong reason to dump IP protection, especially copyrights. Society has functioned pretty well so far within copyright restrictions. Creative people usually can find legal ways translate inspiration from multiple sources into something they can call their own.

4. I have already used it and now they want to sue me.
This has to do less with the rightness or wrongness of the laws and more with to do with how they are administered and whether or not any person/company has the money/time/wherewithal to sue. In other words, we can have laws that are fairly enforced. We can have laws that are unfairly enforced (e.g., suing people for minor infractions). And we can have laws that are no longer enforced. Perhaps we should decide which needs to be addressed first: the laws or the enforcement of them. Sometimes it is a matter of reasonable laws badly executed rather than the laws being inherently unreasonable. And sometimes the problem takes care of itself when we simply ignore old laws.

5. I want to use it because I have a business, but my plan will only work if I can get some or all IP for free or minimal cost.
Average people and most legislators don't care about your business per se. If you can't show voters and lawmakers how your business will help them, then they aren't likely to listen to you. And since you may come into conflict with other businesses that don't want you to have their IP for free or minimal cost, you need to show how these IP holders will benefit from your plan. If you've got a great idea that depends on cooperation from them, you've got to sell it to them. Telling IP holders and legislators that they are stupid for charging you is not the way to win friends and influence people.

6. I want to use all or parts of it, but I don't want to go to the trouble of getting permission.
The way to deal with this is to create easier ways to obtain licensing, so that both IP holders and potential users benefit.

7. I want to use parts of it to include in a critique or to pay homage.
Fair use allows for this already. So if certain uses are currently being prevented but should fall under fair use, then perhaps the fair use concept should be expanded or better defined. However some people argue that they are afraid to test fair use and therefore they self-censor rather than include other people's works within their own. I think this is often more of an education problem than a legal problem. If this can't be settled outside of court, then academic and creative groups may want to set up a fair use fund to cover legal challenges to their members.

8. I want to use it because I know how to make more money from it than they do.
This anti-IP argument is a crowdsourcing construct. People are saying, in essence, "Let the concepts be out in the marketplace and the rewards will flow to those who best execute." But the results may favor those companies and individuals with the most investment resources. On the upside, throwing concepts out into the marketplace may make the concepts most widely available. On the downside, the financial rewards may not be evenly distributed. So citing this as a reason to drop IP protection may be a tough sell to creative individuals and small companies unless there is a way for them to directly benefit from creating the concepts without holding any rights to them. Altruism is nice, but doesn't necessarily pay the bills.

9. I want to use parts or all of it to improve it.
Some people have suggested that IP locks up certain concepts with people/companies who do nothing with those concepts or utilize them badly. Most patents expire in 20 years, so there is already that. However, there is an on-going debate as to whether having to wait 20 years makes sense in these fast moving times. And copyrighted items are tied up even longer.

If it is true we're all being disadvantaged because people can't tweak other people's concepts when they wish, there are at least three possible solutions:
  • change the IP laws;
  • have people/companies/organizations decide it isn't worth their resources to enforce IP laws;
  • or develop new ways to share concepts.
  • I'm guessing that of the three scenarios, changing the laws will be the last to happen. And if one or both of the other two scenarios happen first, it won't really matter much if the laws aren't changed.

    10. I want to use it because society as a whole will benefit.
    Some concepts are already freely available to everyone. They are in the public domain. Chances are that if they are currently in the public domain, they will remain so. So let's assume that's not an issue.

    That leaves concepts that aren't currently in the public domain or concepts yet to be created that might not be placed in the public domain in the foreseeable future.

    I can't see legislators altering protection for concepts currently protected. Telling someone who has complied with the laws that his concepts are now going to become freely available years before he had planned won't go over well. Therefore, let's assume currently protected concepts won't enter into the public domain before their patents or copyrights expire.

    But perhaps legislators can be persuaded that IP protection is currently too long and is hurting society. A logical response from them would be to let currently protected concepts live out their days under IP protection, but to shorten or eliminate protection for concepts yet to be released. But I don't think there's enough evidence yet to persuade legislators to go this route. Right now we don't have any side-by-side comparisons to show that countries without IP protection laws have a better quality of life than countries that do have IP protection.

    What we are likely to see in the interim are experiments by certain groups of people choosing to make their concepts freely available as they publish them. If there are then demonstrable economic and societal benefits, we may see widespread support for downsizing IP protections. In other words, show the positive results first; then lobby for change of the laws.

    Here's a good outline of the potential benefits of having concepts placed in the public domain:
    In attempting to map the public domain Pamela Samuelson has identified eight “values” that can arise from information and works in the public domain, though not every idea or work that is in the public domain necessarily has a value. Possible values include:

  • Building blocks for the creation of new knowledge, examples include data, facts, ideas, theories and scientific principle.
  • Access to cultural heritage through information resources such as ancient Greek texts and Mozart’s symphonies.
  • Promoting education, through the spread of information, ideas and scientific principles.
  • Enabling follow-on innovation, through for example expired patents and copyright.
  • Enabling low cost access to information without the need to locate the owner or negotiate rights clearance and pay royalties, through for example expired copyrighted works or patents, and non-original data compilation.
  • Promoting public health and safety, through information and scientific principles.
  • Promoting the democratic process and values, through news, laws, regulation and judicial opinion.
  • Enabling competitive imitation, through for example expired patents and copyright, or publicly disclosed technologies that do not qualify for patient protection. "Public domain," Wikipedia.
  • 11. Some concepts are so important to society that they shouldn't be patented.
    Rather than trying to eliminate or reduce IP protection for all categories of concepts, perhaps we should focus on those that are too fundamental to be owned by one person/company, or are so important to the future of mankind that they should immediately be made available to everyone (e.g., basic scientific discoveries, new sources of energy, biomedical research). To accomplish this, it may be up to world organizations to set the parameters. However, there are issues which will still need to be addressed:
  • If certain companies or organizations have invested considerable resources in creating these concepts, will there be ways to compensate them?
  • Will secret societies be formed to give certain groups knowledge not available to everyone?
  • Will wars be fought to keep these life-changing concepts within certain groups?
  • If there is a cost to execute these concepts, who will pay for that? A concept that is publicly available, but can only be utilized at great cost may be less beneficial than a protected concept that can widely reproduced and distributed inexpensively. How do we guarantee equitable use of these freely shared concepts?
  • So, that's my reaction to some of the IP debate. I'm not for or against, but I do note when justifications one way or the other are poorly presented.

    Overall I think IP protection has functioned well in some cases and has been abused in others. On the one hand, I believe a lot of the paperwork and legal maneuvering related to IP could be better spent elsewhere.* But on the other hand, I'm not sure doing away with copyrights and patents will necessarily transform the world anytime soon. For example, poor nutrition and inadequate health care in Africa are not IP issues. The solutions are already in the public domain; they just aren't being distributed.

    * For the same reasons -- less paperwork and more efficiencies -- I like the idea of universal health care.

    Suzanne Lainson
    @slainson on Twitter

    UPDATE 10/24/10
    Rarely has the case for lessening IP protection been made so that it is relevant to the average person. When we go to vote, IP issues tend not to be a priority.If anything, the emphasis on copyright and music lessens the perceived relevance because most voters don't see that as a major issue in their lives. Here's is an good discussion about how environmentalists were able to transform their concerns into a national issue and what might be learned by those in the IP debates.
    "Chapter 10: An Environmentalism for Information." The Public Domain: Enclosing the Commons of the Mind. James Boyle.


    1. "Rather than trying to eliminate or reduce IP protection for all categories of ideas"

      Sorry, but in your comments (8-10) you misrepesent a basic principle of copyright law:
      Ideas are NOT protected by copyright.

    2. I'm using the word "Idea" as a stand-in for whatever is copyrighted or patented.

    3. I went ahead and replaced "ideas" with "concepts." I noticed that both of the sources I cited also used the word "ideas" so I think it is commonly used to talk about IP, but if you want to make a distinction, I will comply.

    4. > I haven't entered into the debates on copyright and other forms of intellectual property. ... I'm saving my energy for other matters.

      > I'm guessing that of the three scenarios, changing the laws will be the last to happen. And if one or both of the other two scenarios happen first, it won't really matter much if the laws aren't changed.

      First, I think this is the most important point. It was your comments elsewhere that shifted me to this view. Why waste time on futile politicking? We should be *doing* new things and leaving the laws behind.

      The weakness in all these arguments is not really in the arguments themselves. It is being up against something that everyone simply accepts and takes for granted. Almost everyone takes it as natural to have restrictions on, and payments for, copying -- we have all grown up with this, and scarcely or never examined it.

      But the logic of it is really the complete opposite. Copyright is not the natural state; it makes no sense (in itself) to restrict the flow of (good) abstracts/ideas/designs etc. It is copyright that requires justification, not removal of copyright. All your argument examples are asking for increased access/distribution, but really they should all be granted by default. It is each *restriction* on access that should be justified. Right down to number 1: if people can access lots of things for free, that is good! It should -- as for each example -- only be restricted if the overall effect, as found by evidence, is bad.

      Such an inversion of perspective is difficult. And indeed there is a reasonable argument from inertia: we have a basically working system, and we shouldn't just throw it away for uncertain alternatives. (Although that is not so much an argument as an interim appeal to caution.)

      A sensible policy proposition might be: an incremental reduction of intellectual monopoly, supported by ongoing evidence, and experimentation with alternative possibilities, such as 'flat-rate'. One could even pretend there is some hope for such an angle: governments are not entirely owned by corporations, they will listen to reason, and reason is on the side of reform. On the other hand, corporations love monopolies and they will never give them up voluntarily, so the chances are small.

      > For example, poor nutrition and inadequate health care in Africa are not IP issues.

      I would think health care probably is already affected by pharmaceutical patents, and if genetically-engineered agriculture proceeds then I would expect nutrition will be affected too. (Patents = monopoly = higher prices/restricted access.) They wouldn't be the only problem, or the biggest, but they are on the problem side, and perhaps substantially.

    5. Thanks Harrison.

      I have a lot of musician friends and many of them have been hit financially by the fact that people are not buying as many CDs as they were before. It's not really a piracy issue. It's more that the whole concept of owning music has changed.

      I don't really get into the rightness or wrongness of any of this because no matter what the laws say, the world has changed.

      There are far more experiments now with open sourced and crowdsourced creativity, so I think we are seeing the experiments happen way before the laws get changed. As people make ideas freely available, we are going to see what happens. If it turns out that these experiments provide definable benefits, it will be much easier down the road to change the laws if that's what everyone decides needs to be done.

      I really think that's what people are going to have to do. If you believe copyrights and patents are bad, start sharing your own ideas first and lead the way. Create those communities and see what happens.

      Battling the laws can be as inefficient as suing people for breaking them. Find ways to work around them and move forward.

    6. Hey, Suzanne. Your comments were down yesterday, so I replied to you on Techdirt. But they're back up, so I'm going to post this reply here instead.

      If you think those ten things adequately sum up the objections to copyright, then you haven't been listening closely enough. The two main issues, to me, are these:

      1. Copyright and patent enforcement is hurting the economy, and doing so to support industries that won't be helped by that enforcement in any case.

      2. Copyright and patent enforcement is doing away with due process, civil liberties, and privacy rights.

      You didn't address either of these points, at least not directly.

      But I think you also have the wrong viewpoint on the whole thing. The question is not "I want to use it, because..." The question is: "I want to prevent others from using it, because..." Once you turn it around, you start to see how unjustifiable copyright can be.

      Why, I think to myself, should lawmakers change current laws if a strong case hasn't been made to do so?

      Lawmakers are changing current laws - for the worse. Non-commercial infringement was not criminalized until 1997. 1998's DMCA outlawed the overriding of copy protection, even in cases of fair use. Until 2008, uploading a camcorded movie could not get you arrested by the FBI. This year, Washington appointed the "IP Czar," whose job is solely to prosecute copyright infringement. And so on.

      The pro-IP crowd are the real "reformers." And they haven't made a strong case to do so.

      For example, poor nutrition and inadequate health care in Africa are not IP issues.

      They certainly are. For example, look at how generic drugs save lives in Africa, and remember that (under TRIPS) they will be against the law in 2015 - because they'll be infringing on patents. Passing ACTA may make them illegal immediately (that's still under debate).

      Or, take the issue of biopiracy, where first-world countries patent lifeforms and processes that have already existed for ages in third-world countries. The first-world countries can then force third-world countries to use their products instead.

      No question about it: IP by "Big Pharma" is an attempt at colonization through legislation.

    7. A lot to respond to.

      1. Copyright and patent enforcement is hurting the economy, and doing so to support industries that won't be helped by that enforcement in any case.

      I think there are abuses which are hurting the economy. I'm not sure I would go so far as to eliminate the whole concept of IP protection for these reasons:

      (1) I don't think the concept has been inherently bad,
      (2) I don't think we have enough data to show that a world without IP protection would be better than one with, and
      (3) I think it would be such a radical change that it's unlikely we would get the necessary legal support.

      A graduated reduction, or cleaning up the abuses, would seem more doable.

      2. Copyright and patent enforcement is doing away with due process, civil liberties, and privacy rights.

      Yes, I agree that it is happening in some cases. I would probably start with changing the enforcement process before I would drop IP protection altogether for the three reasons I gave above.

      But I think you also have the wrong viewpoint on the whole thing. The question is not "I want to use it, because..." The question is: "I want to prevent others from using it, because..." Once you turn it around, you start to see how unjustifiable copyright can be.

      Keep in mind what I was listing comments I had heard in defense of dropping IP protection, so I wouldn't have listed the "I want to prevent other people ,,,"

      Here's someone who thinks there should be compulsory licensing of patents. So even among people who want modifications, there isn't agreement on the solution.

      Ending the Monopoly of Ideas: Compulsory Licensing in Intellectual Property

      As for the creeping strengthening of IP protection that you have cited, yes, you have valid points. I'm not advocating that new protections be added. If anything, it just goes to show that the anti-IP forces have not been doing a good job of stating their case because they are losing ground.

    8. Reasons from the user:

      *) I have a 160 gig iPod, maaaan...

      This is a variant of your #1 but it's important to realize the cost of storing recordings has crashed through the floor. In The Good Old Days we spent $2-$3 on a cassette tape which would copy two albums, copied in real time. Now, a CD-R to hold 6-10 albums is 15 cents, and a $100 hard disk holds thousands of albums. (forgive me for not running the math) And, copy times are trending towards zero: look for USB 3.0 arriving soon, and terabyte disk swapping.

      Reasons for society:

      *) "Digital Prohibition." Most music fans are now felons, to crib from Clay Shirky. It remains unclear what happens when serious music fandom becomes a criminal activity pursued as seriously as drug users.

      The corollary to that is the difficulty the music industry has with its new marketing message: "You're better off if you listen to less music."

      Most of what needs to happen is a return to a recognition that copyright is a business regulation.

      - wallow-T

    9. Ah, I forgot the other one from the user:

      *) I want to share.

      A huge amount of the music offered for illicit download has been offered for love and enthusiasm. Good luck stamping that out!!

      - wallow-T

    10. Wallow-T, I think the iPod, not Napster, was the turning point. When you had a storage device that could hold 1000 songs, it pretty much invited you to fill it. And who was going to go out and spend $1000 for 1000 songs to fully load an iPod?

      Then of course iPods got bigger and people were looking for even more content to fill them even if they actually only cared about 100 songs.

      So psychologically everyone began to see recorded music as something that could be collected, but not anything you'd pay for.

      I see the future as one of three things:

      1. You'll just stream what you want. You won't own it, either legally or illegally. Internet radio, too, will supply the songs.

      2. Huge storage devices that hold every song ever recorded. Sure, this is a bigger challenge than streaming because of licensing, but if massive amounts of songs come bundled for an inexpensive price, it should have some appeal.

      3. A music creation device that will just reproduce what you want to hear from its own artificial intelligence or will give you the tools to create for yourself exactly the music you want to hear. No more sharing music illegally between people. It will all be self-generated.

      I don't debate whether piracy is good or bad, because it already is. I don't necessarily think it will continue to exist in its current form, but I think the price of recorded music will go down to little or nothing, even in legal forms.

    11. Hi Suzanne-

      First of all--thank you for brands+music--I enjoy the posts very much.

      I just read this thread and maybe I missed it? Not one mention of Creative Commons licensing in an IP related discussion? I'm surprised. Especially since ASCAP has just recently accused the "free culture movement" of undermining copyright protection. Wondering why CC is absent here in the dialog?

      I come to this topic as a musician/entrepreneur having the most direct experience with IP through cc licensing at

      CcMixter was created 5 years ago to show how cc licensing would work in the world of "remixing"--which is a term the site quickly outgrew. There is way too much history to detail in this post, suffice to say in the words of Eric Steure:

      "Creative Commons licenses are copyright licenses – plain and simple, without copyright, these tools don’t even work. CC licenses are legal tools that creators can use to offer certain usage rights to the public, while reserving other rights."

      It seems to me that Creative Commons is changing copyright laws already in a way that benefits the creator of IP, by allowing them more direct legal options to share their creations with the world.

      I also agree with Karl's comment: "The question is not "I want to use it, because..." The question is: "I want to prevent others from using it, because..."

      Why? Because our culture is moving faster than ever before, and the icons that represent it are mostly locked down by "I want to prevent" legislation. The context of the sharing of ideas is partly based on common symbols, experiences, and language. If these symbols and experiences of our cultural heritage are highly restricted in their use--then we are bound to criminalize our artists and free thinkers.


      I also highly recommend fourstone's memoir to readers of B+M who wish to go deeper into this experiment in creative commons culture.

      I hope adding CC to the mix sheds some more light on this IP conversation.


    12. Thanks for the information on Creative Commons. Yes, I think experiments such as this are a good way to go. They let creators indicate how they want their content to be shared, so people don't have to contact them in advance for permission. We can see how it works out, and then if we want modifications in the law, we have some good results to draw upon.

    13. I received an e-mail this morning from Creative Commons. Larry Lessig has challenged ASCAP president Paul Williams to a debate over copyright issues.

      Good timing for an IP discussion Suzanne!

    14. "If anything, it just goes to show that the anti-IP forces have not been doing a good job of stating their case because they are losing ground."
      I think it has a LOT more to do with how much lobby money the RIAA/MPAA and other copyright groups pour into Congress every year than who is making a better philosophical argument. I used to be on the compromise side of the fence, however after reading story after story of huge corporations using it as a club to beat down individuals(Jammie Thomas), push through HORRIBLE trade agreements under a veil of secrecy(ACTA), yanking people internet connection after three accusations of copyright violation(England's Digital Economy Bill) I came to the conclusion that people(NOT corporations) would be better off if it was gone.

    15. What I'd like to do is to get the anti-IP folks more involved in the political process. To get the laws changed, you can either lobby legislators or you can make it an issue with voters. (You can also go through the court system to change the interpretation of the laws or even go so far as to have them tossed out as unconstitutional.)

      Writing as a voter, I'm saying that eliminating IP protection hasn't come across as a big enough concern to me to become one of my voting priorities. There are issues I care about, and a case can be made that eliminating IP laws or the legislators that support them might also address my own concerns as a voter, but rarely has that connection been strongly made by the anti-IP folks. In fact, focusing so much on the music industry rather than explaining how eliminating IP protection will generate more jobs and reduce income disparity seems to lessen the relevance for the average voter.


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