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Sunday, November 14, 2004

Intellectual property rights

My boyfriend bought the latest copy of Wired Magazine, in part because it has a mix disc on it with artists we like and in part because it has some articles about file-sharing and the movement to rewrite copywrite law. It's all very interesting, but they manage to skirt around the real issues at stake here when they just call file-sharing "stealing" and leave it at that. The real issue that's been exposed in the file-sharing battles is whether or not the concept of "intellectual property" can survive in its current form.

The idea that creating something gives you ownership over it is a convienent lie that was crafted in order to give artists a way to make money at what they do and also to keep people from taking work and passing it off as their own. In the latter case, though, we don't really need to give someone "ownership" over something to protect them. All we need is a general rule that creating something gives you the right to call yourself the creator, a right no one else has. But the notion that a creator has some kind of "ownership" over things like music or writing just isn't likely to survive the current battles. In the fight over file-sharing, everyone is beginning to deconstruct the concept of "authority" and "intellectual property".

The recording industry is trying to force smart people to accept that music is something that can be owned and restricted in the same way that something with physical heft, like a car or a plot of land, can be. But music is temporal--when you go see a band perform, everyone in the audience "owns" the experience as much as the performers do. It's Criticism 101--interpretation is part of creation and the audience for something lays as much claim to it as the artist.

In the pre-digital era, it was easy to straddle the line between the legal lie that an artist "owns" their work and the reality that everyone who listens to a song takes some part in the "ownership" of it, all because there was actual physical property that was required to experience the music that symbolized these concepts. You didn't purchase the music, you bought a piece of vinyl. You couldn't steal music itself, but you could shoplift a album from the store. But digital recordings have no discernible physicality, which means that music is once again being perceived as an experience, a temporal thing. Even downloading is temporal. You can pay to have an experience, sure. But you can't "own" it.

I don't know what the answer is to make it so that artists can get paid for what they do. But I think it's clear that you can't undo what's done--the concept of "intellectual property" is damaged beyond repair. Instead of trying to turn back the clock, it's time to start looking for new methods to pay people for what they do.

550 Comments:

Blogger mythago said...

No, it isn't "damaged beyond repair," anymore than it was destroyed by the invention of photocopying or cameras. The problem is that the music industry has tried to put the technological genie back in the bottle.

The moral right to call yourself a work's creator is important, but it isn't and shouldn't be the be-all and end-all of intellectual property. Why be a full-time writer if Random House can snatch up your work and sell prettily-bound copies, keeping all the profits as long as they are sure to give you credit as the author?

11/14/2004

 
Blogger Amanda said...

That's a good point that I considered hitting on--to my mind, the current system is actually a serious violation of artists' rights, since the record industries have set up a nice racket where they get to dictate how the work is used beyond anything an artist could do.

11/14/2004

 
Blogger mythago said...

Yup. Instead of having to pay the artists a pittance, they could simply steal their music, lyrics or performances outright. Bootlegs would stop being a sideline and would start being big business; get that hip band recorded, with or without their permission, and sell a nicely-packaged album without giving them a penny.

11/14/2004

 
Blogger lawrence krubner said...

I think, at a slight stretch, you could argue that the Constitution outlaws intellectual property. After all, the Constitution says Congress has the power to hand out patents and copyrights "for a limited time." It's one of the few places in the Constitution where the Founders insisted that Congress can do something but only in a limited way. Too bad they didn't specify the limits they had in mind. Keeping Disney happy by extending copyright to 90 years would probably have horrified the Founding Fathers.

Why should the owner of a piece of property need permission from Congress to own the property? They don't. If intellectual property actually existed, there would be no need for copyright or patent limits of any kind. After all, if I own some land, I can leave it to my kids, and they can leave it to their kids, and the kid's kid's can leave it to their kids. 500 years later it might still be in the family. That is property - you own it forever. If you said "You can own land for 50 years, and then renew ownership for another 40, but after that the land must pass into the common possession of the public" people would rightly call you a communist. But if intellectual property were really property, a family might keep it forever. Leonardo Da Vinci is known to have invented the flintlock in the 1500s. It's last surviving use in the modern world is atop cigarette lighters, where you turn a wheel which creates a spark which lights some lighter fluid which allows a person to light their cigarette. If intellectual property were property in the traditional sense, then the Da Vinci family should still be able to collect royalties on that invention even now.

As soon as we admit that there must be time limits on copyright and patents, as the Founding Fathers insist in the Constitution, then we must also admit that we are no longer talking about "property." In fact, if you go back and look at the rise of this phrase over the last 30 years, it becomes clear that corporate PR departments have been driving the usage of this phrase.

But the word "patent" has an old use, and the laws around it also are old. A patent, simply, is a government granted monopoly. As such, in 1787 it was understood to be a great danger to an economic system founded on competition. Monopoly is bad, and government enforced monopolies are worse, therefore the social good to be derived must be very great for patents to be allowed. The Founding Fathers felt there was something valuable that justified patents - renumeration for inventors. Because inventors brought uplift to the well-being of the people, they deserved a special consideration - but only till they were renumerated.

One thing the Founding Fathers remembered well, and which we have since forgotten, was that patents played a major role in bringing about the English Revolution. The King had not been able to get the money he needed from Parliment, so he resorted to financing his wars through the sale of patents - a patent on salt, a patent on ink, a patent on printing, a patent on Bibles. The merchants who made up Parliment were horrified to see one industry after another sold into monopoly status where competition was no longer allowed. This threatened the businesses of many who were in Parliment. Sometimes a government abuse has to be taken to an extreme before people realize why it needs to be banned. The Founding Fathers struggled to find the right balance between the dangers they knew that patent law held and the possible benefits that society might derive by allowing patents for inventors. Their solution was that patents could exist but only for a limited time. Again, it is a shame they did not explicitly say how much time they were thinking about.

In our own time, we have seen the destructive effects of patents. Scientfic American had an article on how 6 companies doing research on breast cancer genetics gave up their research efforts and after one company was given a patent on a gene that was shown to play a major role in breast cancer.

Personally, I believe we are entering a period much like the 1620s and 1630s where patent and copyright law is being stretched to an abusive degree, and the social benefits to be derived from patents is being forgotten while the need to renumerate inventors is being emphasized. The rise of the phrase "intellectual property" is emblematic of this new era.

11/15/2004

 
Blogger Diane said...

The whole music industry controversy has indeed become complex, and I'm not sure what the answer is, given the rapid changes in technology, and the evolution of mass listening in varied forms.

However, as a writer who has to periodically comb the Internet to see who has stolen and/or plagarized my work, I can tell you that when I create something, I own it. I am often happy to have people re-print it, but it is enraging to have them do so without my permission, and I always put a stop to it.

The Fair Use laws need to be tightened up, too. The biggest problem I know of (I'm speaking as a writer) is in the music industry, which routinely sues people--and loses--on the basis of fair use of lyrics. Writers are always warned that following the rules strictly can still incur the wrath of the music industry.

"Stealin my shit from me/dont make it yrs/makes it stolen..."
ntozake shange

11/15/2004

 
Blogger Earnest said...

Is it the concept of intellectual property that is damaged beyond repair or is it our respect for it that is degraded beyond recognition?

11/15/2004

 
Blogger Amanda said...

The common understanding of intellectual property is damaged, because it was poorly understood to begin with, since the physical representations of the actual property--the music itself--have disappeared.

11/15/2004

 
Anonymous Anonymous said...

I think we instituted patents to make sure inventors told people their secrets. "To promote the Progress of Science and useful Arts," not to help inventors as such -- that looks like a side benefit.

Mythago -- hmm. I suppose corporations could use technological tricks to stop people from copying their bootlegs. But I don't think they'll meet with much sympathy when people find ways around this. Hell, what's to stop the artist from offering free downloads, in that case? No, I don't think the industry could make a profit without some pretense of helping the artists (or at least some pious words about the Law). I worry more that no one will make any money, and we can probably stop that from happening. -Omar

11/15/2004

 
Blogger Amanda said...

A lot of artists already do release their stuff over the internet, but they have to do so with a zero dollar ad budget. Major labels have power because they have the means of recording, marketing, and distribution. Modern technology has taken away their monopoly on distribution and recording, but I would say that they still have a death grip on marketing.

11/15/2004

 
Anonymous Anonymous said...

Yes, but marketing doesn't help if people read the list of songs and then download them for free. I'm not saying artists can use the internet to get around the labels, I'm saying the labels can't survive if they don't give people an alleged moral reason to pay them. They can't move to (open) bootlegging and expect more than one person to buy a given CD.

11/15/2004

 
Blogger lawrence krubner said...

Europe brings a dose of sanity to the issue of intellectual property by fighting against most of the excesses that the American Congress has pushed in recent decades. Europe still disallows software patents, though America has had them since 1982. However, there is gathering pressure from lobbyists which may eventually force Europe to legalize software patents. Some Open Source companies have banded together to fight against the legalization of software patents:

http://nosoftwarepatents.com/en/m/intro/index.html

Anyone with an interest in seeing software remain free of excessive litigation, or anyone who hates Microsoft, might want to take a look. The arguments hold true for America, as well, though of course we have no chance right now of seeing software patents disallowed in America.

In the 1780s when Congress passed the first copyright laws, the length of the copyright was 14 years. Then the work because public domain. In a sane world, copyrights would still be good for 14 years. But recently Disney complained to Congress that Mickey Mouse was about to become part of the public domain, so Congress extended the copyright limits to 90 years.

We have moved from rewarding inventors to allowing monopoly. Our economy and our cultural life will pay a heavy price for this.

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The BIGGEST advertising coup has been taking the United States of America by storm and now it's
available in the United Kingdom! Companies will pay you a monthly fee to display ads on your car!

We offer an introduction to the UK companies that are operating in a fantastic new media, Car Wrapping. You will have seen the promo cars driving around in your area and possibly thought the driver worked for the company.

Get Paid To Drive in UK Now

You were most likely wrong. The driver was driving around in a free car or was being paid. Now you can have access to all the companies in one place.

Get Paid To Drive in UK Now

People all over the World are being paid to drive their cars and now if you live in the UK you can also be paid. By simply driving their car the way they ordinarily would, they are also making up to £1200 per month!

If you are willing to drive your car with a company advertisement on it to your job, the shops, school runs etc., there are companies in the UK looking to pay you to do this - GUARANTEED. This is an ideal way for anyone to earn some additional income!
Companies want to give you money for you to DRIVE your own car. They just add advertisements on your car. That's it!

Get Paid To Drive in UK Now

WHAT'S THE CATCH? There isn't! You can drive as you normally do and get paid for it
Who Qualifies...

You must be 18 years of age or older, possess a valid drivers license and fill out the required application for each programme you wish to join.
You must be a citizen or permanent resident of one of the The United Kingdom.
Get Paid To Drive in UK Now

Your driving record, driving habit, location etc will be taken into consideration by the advertiser during the selection process. Most companies require a minimum monthly driving mileage and a clean driving record (at least no driving offences within the past 12 months). PaidtoDrive.co.uk does not pay you to advertise and cannot guarantee your acceptance into any programmed you sign up for. We can, however, guarantee the legitimacy of these programs and the application process.
Get Paid To Drive in UK Now

In the event you have been convicted of a driving offence, driving under the influence of drugs/alcohol, or had more than two serious motor accidents in the last two years, we cannot guarantee that your application will be accepted and strongly urge you not to continue any further.

Please visit our frequently asked questions section if you have further questions. Alternatively you can email me at sales@paidtodrive.co.uk
Yours Faithfully,
www.PaidtoDrive.co.uk
Team

Get Paid To Drive in UK Now

10/30/2005

 
Blogger Editor said...

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Come and check it out if you get time :-)

10/30/2005

 
Anonymous Anonymous said...

Awesome site. I bookmarked it for future use. I also suggest you check out adware protection

10/30/2005

 
Blogger Gift Ideas Guide said...

I like your blog and hope you will like mine.

It is related to family holidays and this site will be useful for years to come.

10/30/2005

 
Blogger WDM Info Services said...

Have you listed your blog in a blog directory?

"web blog" is what I used to find your blog on google

web blog

10/30/2005

 

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