ethics of intellectual monopolies
glyn moody
the wars
1971 the war on drugs
1971 the war on cancer
2001 the war on terror
2010 the war on digital sharing
ACT(A) of war
Anti-Counterfeiting Trade AgreementUS, EU, Japan + 7 others
negotiated in secret
analogue counterfeits; digital piracy added later
HADOPI (.fr), Digital Economy Act (.uk), similar 3-strike laws
in S.Korea, Taiwan, Finland
the engines of war
collison between: uncontrolled, decentralised technologies
designed to share: the Internet
government-backed, centralised laws designed to monopolise:
copyright and patents
fundamentally antagonisticsoftware code vs legal code
(TCP/)IP vs IP
Internet
relatively familiarnew: its history as a mass medium is only 16
years old (Netscape Navigator released October 1994)
perfect, near-instant, near-frictionless, global replicator of
digital contentfeature, not a bug
once a digital file is online anywhere, it is effectively
ubiquitous and abundant
IP
relatively obscureIP is a bundling of totally disparate things:
copyright, patents, trademarks etc.
nothing in common except the fact that they are time-limited,
government-granted monopolies
IP is a clever rebranding of something generally deprecated
(monopoly) as something generally approved (property)
intellectual monopolies
IP a relatively recent invention (1888)
World International Property Organisation (WIPO) - 1967
Trade-Related Aspects of Intellectual Property Rights (TRIPS) -
1994
but patents and copyright are medieval monopolies
anglophone bias: an apology
personal reasons
historical reasons
practical reasons
*good* reasonswar on digital sharing is being driven by the US,
whose law is based on the English tradition
letters patent
issued by monarch to grant monopoly for particular
industrycalled patent because not sealed early open source law
first English patent granted a 20-year monopoly to Flemish
stained- glassmaker (1449)pirating skills from continent
afterwards, knowledge released
later abused: patents on salt, etc.
Statute of Monopolies
1624making of any manner of new manufactures within this realm
to the true and first inventor
which others at the time of making such letters patents and
grants shall not use
so as also they be not contrary to the law nor mischievous to
the state by raising prices of commodities at home, or hurt of
trade, or generally inconvenient
inventive scarcity
patent law was framed in a world with few inventors, and few
inventions
monopoly was offeredto attract foreign master craftsman
to make technical knowledge freely available after monopoly
expired
to stimulate local industries
to encourage more inventions
inventive abundance
today, we live in an abundance of inventors and invention, as
the creaking patent system showsin 2009, 482,871 patent
applications filed with USPTO; 135,000 in Europe
abundance creates patent thickets that impede progress, rather
than promoting it
most evident with software patents
software patents
abstract patent of maths/idea
obvious Wang's overlapping frames/windows
trivial Amazon's 1-click
ridiculously widesystem for reproducing information in material
objects at a point of sale location (1985)
used to sue generic e-commerce sites
software patent problems
most litigated causing much of the backlog of cases in US3% in
1984, 26% in 2002
for 1996-1999, the total cost of litigating software patents in
US was $3,888 million per year
total US profit attributable to sw patents annually was $100
million
software patents = overall net loss
why have software patents?
patent infringement lawsuitsentrench incumbents' position
raise barriers to entry for newcomers
make innovation harder
ACTA is all about *strengthening* enforcement of intellectual
monopolies, including patentsraise barriers to entry higher, reduce
innovation further, disadvantage developing countries
copy right
in 16th and 17th century England, the Stationers' Company had
exclusive and perpetual state monopoly over producing copies every
registered book (their copy right)
aim was to *control* what was printed by establishing
responsibility instrument of censorship
Statute of Anne (1710)
An Act for the Encouragement of Learning, by Vesting the Copies
of Printed Books in the Authors or Purchasers of such Copies,
during the Times therein mentioned.
gave limited monopoly (14 years + 14 year extension) to authors
or publishers (purchasers)
quid pro quo was book entered public domain after that
period
US copyright law
US Constitution (1787) Section 8To 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;
US Copyright Act (1790)An Act for the encouragement of learning,
by securing the copies...during the times therein mentioned.
(14+14)
copyright then and now (1)
originally: books
now: books, maps, charts, engravings, prints, musical
compositions, dramatic works, photographs, paintings, drawings,
sculptures, films, sound recordings, choreography and architectural
works
copyright then and now (2)
originally: 14 years + optional 14 years extensionpublic domain
relatively soon after first appearance
public domain included recent books
now: UK, US, Sweden etc.: life + 70 yearspublic domain hugely
impoverished
no longer have free access to creation of our contemporaries
copyright then and now (3)
then: analogue
now: analogue *and* digitaladds computers and the Internet into
the mix
copyright infringement then
analogue publishing of an unauthorised copy required:somebody to
typeset the text
somebody to print the sheets
somebody to bind the book
somebody to distribute the book
copyright infringement now
digital publishing of an unauthorised copy requiresdigital
content (CD, DVD, ebook, etc.)
a computer + (free) software
an Internet connection
they've been available for years: why the war on digital sharing
*now*?
it's all about abundance...
of CDs...
first CD appeared in 1982without any kind of copy protection
because it was impossible to copy the CD's 700 Mbytes of data:
the 1983 IBM PC XT had a 10 Mbytes hard disc less than one song
similarly impossible to share it across the Internet: the Hayes
Smartmodem, released in 1981, had a speed of 300 bits/s about 400
hours to upload one song
...and MP3s
developed in early 1990s, just as Internet was taking offused
clever tricks to reduce music file size to 10% of original reduced
time to upload file by factor of 10
modem speed then 14.4 Kbit/s (Netscape Navigator was optimised
for this speed) less than one hour to upload/download one MP3 song:
slow, but possible
today
Mbit/s broadband connection means that entire films can now be
shared
P2P networks like BitTorrent make it even easier to distribute
those files and share them in the background
1 Terabyte hard disc (1000 Gbytes) costs 50 euros; stores
150,000 MP3s
tomorrow
gigabit/s connections will transmit 1000s of mp3 files anywhere
in seconds
a 1 Petabyte (1000 Terabytes) USB stick will cost 50 euros and
store every song ever recorded
a 1 Exabyte hard disc (1000 Petabytes) will cost 50 euros and
store every film ever recorded
unless
the content industries win the war on digital sharing through
increasingly Draconian legislation - ACTA 2.0, ACTA 3.0
if they do, they will err towards too much enforcement already
seen with DMCA abuse
as a result, much less will be shared freely, and much more
content will be paid for
would that be so bad?
maybe not for you and me
maybe not - for those who can afford to pay
but...
what about the others?
what about the billions that can't afford it?
what about the 4 billion that don't even have access to the
Internet?
double obstacle to overcome:they must get connected
they must then pay for access to the world's knowledge
what if the war on digital sharing is lost?
every person on this planet with Net access could obtain a copy
of every digital artefact text, image, sound, video - ever
created
could give access to practically all human knowledge, to anyone
with a Net connection not just the developed world, or the rich
shouldn't we hope for this Pyrrhic defeat?
back to basics
copyright not about preserving the West's grip on content
copyright not about protecting old business models
copyright not about defending authors' or publishers' rights
copyright is about the Encouragement of Learning
creative scarcity
copyright was framed in a world of creative *scarcity*: few
authors producing few books
designed to encourage more authors to write more books, and for
publishers to print them
because the process was complicated and costly, and incentives
were needed
creative abundance
today, we live in a world of creative abundance
the Internet liberates creativity by removing barriers to
publication
anyone with an Internet connection can create and publish for
near-zero cost
incentives are no longer needed
the virtuous circle
today, the optimum way of encouraging learning is to free it up
for the billions who currently have little access to it
educating them through access to knowledge will feed back even
more creativity into the system
self-fuelling, positive feedback
but
nobody has the right to diminish my copyright in this way
but society *does* have that right - just as it had the right to
strengthen copyright, repeatedly, by extending its range and its
term
society might well decide changed circumstances require
*reduced* copyright terms
the precedent (1)
for those who insist that simply can't be done, there is a
historical precedent: the first-sale doctrine
rights to control the change of ownership of a particular copy
end once that copy is sold
society decided this was a fair and reasonable limitation for
the sake of balance
the precedent (2)
those who talk of IP compare copyright infringement with
trespass
in 20th century, law on trespass radically limited by taking
away airspace rights"every transcontinental flight would subject
the operator to countless trespass suits"
digital airspace
we need to allow copies to pass freely through the associated
digital space above analogue objects, just as planes can pass
freely through airspace above private property
if not, the war on digital sharing becomes a war on the ability
of the mind to connect, to share, to collaborate freely online
ethical copyright?
copyright was originally 14 years + 14 years; the copyright
ratchet has been moving it up to 70 years + life
the ratchet went the wrong way should have decreased the term of
copyright as more creators arrived, less incentive needed
for analogue content, perhaps bring it back to 14 years
Internet time
what about digital content?
famously, one calendar year is seven Internet years
digital content lives on Internet time, so for that, should
measure copyright on Internet time
14 Internet years = 2 calendar years
ethical patents?
what about patents?
as for copyright, there are two kinds of patents: analogue and
digital
analogue patents operate on calendar time, so leave the term of
20 years (as it was in 1449)
digital patents software patents block innovation
abolish them
ethical intellectual monopolies?
are ethical copyright and ethical patents a contradiction in
terms?
perhaps need to abolish both completely to allow all knowledge
to be shared freely, to let humanity soar
growing evidence that's not only ethically right, but
economically possible
share nicely
[email protected]
@glynmoody on identi.ca/Twitter
opendotdotdot.blogspot.com
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