Many people think of software pirates as fundamentally unethical. Stealing is stealing, they say. Yet, the history of software being something someone “owns” is not so very long. There was a time, not so long ago, when the very idea that you could “sell” software would be crazy. You could sell the material used to hold the software, whether that was a an early floppy disk or a listing in a magazine, but the software itself? That was the equivalent of saying that if I bought a book with a great recipe for ham, I couldn’t share that recipe with my brother. That’s crazy-talk.
And yet, now it is necessary to explain to people that free software exists, and necessary that we use law to make sure it remains free.
This concept — that certain ideas can be owned as property — is a strange and unnatural one. What is it to “own” an idea? An idea or a concept or a story only exists, in some sense, when it is communicated or commuted into substance. Do you own your telephone number? Your name? Both are forms of knowledge that are generally considered to be un-ownable, and yet other kinds of knowledge that seem equally strange can be owned.
Let us take, as an example, Amazon’s patent on “one-click purchases.” Here’s the concept: make it so that customers can purchase and send an item by clicking a single link. Neat idea. Original? I doubt it; it seems to me to be the natural extreme of trying to make the customer interaction as simple as possible. Yet, Amazon has patented the idea of clicking and ordering something in one step. As soon as they were awarded ownership of this concept, in the form of a patent, they asked the court to stop Barnes & Noble from allowing people to click once and order an item.
Amazon also has patented the idea of affiliate marketing. If you allow your customers to sell items over the web, and pay them a referral fee, you are stealing a concept that Amazon owns. If you create a hyperlink, without paying British Telecom for the rights to use a hyperlink (BT owns the idea of a hyperlink), you are stealing from them.
Naturally, these are extreme cases, but it makes one wonder? How and why can you own ideas?
A Temporary Monopoly
Intellectual property is a complex and often confusing topic. Here, I hope to provide no more than a thumbnail sketch. There is a reason we can own ideas. The US Constitution provides for the protection of original ideas in order to promote innovation. The US economy and culture is heavily anchored in the idea of invention and innovation. The framers were worried (as well they might be, given that some of them patented devices) that inventors who are exposed to the market have no way to profit effectively from their invention. So, the constitution provides a mechanism for enforcing a temporary monopoly on an invention that you have made. Then, as now, there was a question of balancing the public need to be able to produce goods efficiently with the incentives needed to encourage invention.
The trick is that inventions and creations are increasingly made up out of existing materials. Hip hop is an obvious example of this, using samples from already-popular musical work to remix and reform into something new. But inventions work this way, too. If you want to build a new airplane or operating system, you are going to need to base that on a lot of ideas that have already been around for a while. Take Mickey Mouse, for example. Disney has owned Mickey Mouse for a very long time. If Mickey were a character that anyone could use, it would likely increase the amount of creative potential of the society. That’s why the framers of the Constitution made the monopoly temporary. But each year, that temporary claim gets longer and longer.
The argument resurfaced when Napster became widely used. Even if you didn’t agree that downloading music was “stealing,” surely you saw the need to pay musicians for their creative efforts! Of course, the claim was complicated by the fact that most artists were not directly benefiting from album sales, as Courney Love has explained. But in the abstract, it’s not hard to see why Napster might have been an effort to kill the goose the laid the golden eggs. Music might be free, but without an economic incentive, would new music continue to be created.
I suspect that it would. I have a feeling that people will be creative with or without economic incentive, but that isn’t the real question. The real question is whether protecting intellectual property is a good way to make sure that innovation, creativity, and invention remain vital. The answer that many people have reached is that a temporary protection of some goods makes sense. But if that temporary protection is extended to too much or for too long, it ends up hurting instead.
Some people have argued that the effort to free Mickey is a vital one. The laws meant to promote invention, creativity, and innovation are instead stifling it. Rolling back the length of time protection is extended, and the types of ideas, concepts, and communications that can be protected, is one approach.
The other is devising new ways for individuals to more flexibly choose a protection system. If I have invented something and don’t feel the need to have a monopoly on it (for example, if I record a song but don’t plan on making a CD, marketing it, etc.), I want to be able to say “OK, you can use this for your own projects, as long as you don’t profit from it, and I get credit.” Sometimes, I might just say “anyone can use this for anything they want.” The problem is that if I don’t say anything at all, by default I am suggesting that I have a monopoly over its use.
Consider, for example, the ugly doodle on this entry. I drew this during a faculty meeting. It is not great art. If (I can’t imagine this, but let’s just say) someone wanted to use this image on their own site, they would have to email me to ask permission, normally. Why? Because even without putting the little (c) on it, or doing anything else besides drawing it on paper, I have been given a copyright on the material and granted a monopoly on its use. However, in my case, I’ve attached a Creative Commons license on my site, which allows people to make use of things they find on my blog as long as they cite me, do not change it, and do not sell it. If they want to do any of these things, they can contact me, but otherwise they don’t need my explicit permission.
Muddy Waters and Fair Use
This doesn’t solve everything, of course. In practice, what constitutes “commercial use” isn’t exactly clear, for example. And when I say it can’t be altered, does that mean that people that run aggregators and are republishing only some articles in my feed are violating my license? I don’t think so, but it may be ambiguous. Where do things “chunk”?
And then there is the problem that not everything on my site is original. I regularly quote other people. Consider, for example, this posting. Here I am repeating a joke (that conceivably could be copyrighted) that was told to my brother and then passed on to me. Clearly, I don’t have the right to slap any old license on it that I choose. Moreover, the photograph is taken from an MSNBC article. And they, in turn, captured it from Taiwanese television. What a mess! In these cases I am asserting “Fair Use,” a limited get-out-of-copyright-free clauses that allows you to use stuff without permission in certain circumstances. But that doesn’t help someone reading my blog to decide whether they can then repurpose this image. And what about the comments? When people post comments, do they own these, or are they covered by my license. Lots of places for ambiguity here.
Very recently we have encountered a situation in which ownership of creative material was brought to the fore. The JibJab parody of Woody Guthrie’s song caused the copyright owners threaten to sue JibJab. There was the further question of whether television stations that aired parts of the parody (fair use) were actually promoting the theft of the song. In the end, JibJab won out. Both political speech and parodies have long histories of relatively strong protection, but it wasn’t obvious that this would be the outcome.
Lawrence Lessig, in a new book called Free Culture, which, naturally, he has released under a CC license. There seems to be an ongoing push to provide public cultural goods: music samples, software, and other goods. At the same time, companies continue to be interested in laying claim to new kinds of ideas: from people’s DNA, to the thoughts in their heads. How this plays out over the next few decades — and which countries and regions get the policies right — with have an enormous impact on what our future looks like, what we do and what we buy.