Tuesday, May 23, 2006

Set My People (or whatever) Free!

Okay, copyright isn't like property. What is it like? Anybody?

Stewart Brand famously opined that information wants to be free; but this was only half of his insight. The other half is far-less-often-quoted, because far less appealing to the utopian DIY visions of technologically advanced anarchists, not to mention scofflaw DVD-rippers and impecunious college students with constant access to unlimited bandwidth:

On the one hand information wants to be expensive, because it's so valuable. The right information in the right place just changes your life. On the other hand, information wants to be free, because the cost of getting it out is getting lower and lower all the time. So you have these two fighting against each other.


Which reminds me in turn of this old chestnut:

Man is born free but is everywhere in chains.


The debate over copyright bears more than a passing resemblance to debates over immigration. Think of the Public Domain as a place. Think of the RIAA as the Minutemen - strident, self-righteous, willing to go to absurd lengths to police a porous border. Think of the DMCA as a big fence that the industry-owned Congress decided to erect along that border. And Sony/BMG's catalogue? Is making a run for it, cause that's where the action is.

Is information property? Well, you can try to make it property by definition, but be aware that you are doing violence to your term. Stretch it too far, and it might not snap back when you need it to. The emphasis on the economics of IP is all about the creators and - mostly - the corporate "owners" of ideas. They want, reasonably enough, to get paid. But who speaks for the songs?

We should be thinking of ways to make those songs productive citizens, not plotting to re-forge their manacles. Yes, they have to pay their income taxes. Yes, if you put them to work, you are responsible for checking their identification; you are responsible for withholding and insurance and if you let them drive a company car, you're liable if they do something illegal. But - yes - they have lives of their own. They have families, relatives, hobbies. They're part of the culture, and they deserve respect, too.


Information is born free, but is everywhere in chains. The next frontier in civil rights?

Free culture!

14 Comments:

At 8:23 AM, Blogger Murky Thoughts said...

Creativity wants to be authored. That's my motto. That, and if property is a natural right, then plagiarism is a natural wrong.

 
At 9:36 AM, Blogger rain_rain said...

How then do you explain anonymous creation? (It's not a trivial question.) How do you explain creative works that are not intended for any audience?

And I wonder what exactly you mean by "plagiarism" - if your definition is sufficiently broad, I'll have to respectfully disagree that it is a "natural wrong." Borrowing, imitating, quoting, being influenced by, and wholesale appropriation of, other people's creative efforts, have all been acceptable practice in various cultures, at various times.

Any notion of plagiarism that doesn't allow for the free flow, the constant creation and re-creation, of tradition; or the historical reality and creative legitimacy of the folk process; or the possibility that creative works can "belong" to a tribe or community (or god) no matter who is actually responsible for giving them form... seems to me to reflect very modern ideas of ownership.

This is not to say modern ideas of ownership are wrong, just that there is nothing particularly "natural" about them.

Oh, and who says property is a natural right? What does that even mean? That people tend to be acquisitive? I honestly don't get it.

 
At 5:42 PM, Blogger Murky Thoughts said...

Anonymous creation is the exception, not the rule, and I bet anonymous creation is exceptionally rare when consumption of the product is invisible. Publication implies consumption and rewards the creator with perceived and often even measurable influence, c.f. most reporters in the U.K.. My definition of plagiarism is undefined, but you know what I mean anyway. It's the Lockeans and the libertarians who notoriously invoke "natural" rights. I wouldn't talk that way myself except to rebut people who do. But what I'm talking is about a common feeling rooted in biology, and I believe that to the extent we don't institutionally accommodate such feelings they're liable to bite society in the butt through illegal or blackmarket activities and/or make us neurotic and/or less happy and harmonious than we'd otherwise be. That doesn't mean that the particular legal and economic means by these things come into play now need to be protected or that we have a sweeping principle where we give such feelings free reign in every context. We allow federation boxing but not random brawling. We allow painting but not graffiti. We have liberties because like to do stuff, not because we don't like to prevent people from doing stuff. People need to produce intellectually to create a social identity and a reputation, and a society in which no such creativity is uniquely attributable is unimaginable to me. A society without enough opportunities of this sort for everybody is a sick or inhumane society to me. I believe our economy runs on people striving for reputation, and we modify our rewards systems without this in mind I think we're asking for trouble and could even create a short term decline in the availability of art and opportunities for public expression. Oop. My soapbox is about to collapse. Gotta go. Thanks for asking.

 
At 11:20 AM, Blogger rain_rain said...

I would agree that, in our culture, by and large, creativity wants credit. I'm not nearly convinced that's a universal truth.

Anonymous creation used to be the rule, not the exception. Admittedly the landscape has changed considerably - all right, completely - since the Phoenicians invented money and Gutenberg popularized the printing press. And I suppose you can make an argument that creation in the service of the gods, or the tribe, or oneself, still constitutes "receiving credit," even if the name of the "author" is quickly forgotten. But then, I think, you quickly water down the concept of "credit" or "authorship" so that it ends up meaning about as much as an "ingredient" in a homeopathic remedy.

Having said that - I'm not really out to change the culture wholesale. "Credit where credit is due" is an excellent principle. Especially when the alternative to credit is not anonymity, but someone else taking the credit... and often, yes, the money.

I really do want a working definition of plagiarism, though. Is it just a matter of appropriation without giving credit? Would you, for instance, consider Danger Mouse's "Grey Album" plagiarism? Or merely infringement? Or a legitimate fair use to create a derivative work? What about Martin Luther King's doctoral thesis? What about the scene in Shrek where Princess Fiona "plagiarizes" the famous suspended kung fu pose from The Matrix? Supposedly, a decade or so ago, there was a successful copyright infringement suit against a songwriter merely for using the phrase "you can't always get what you want" in a song - would that qualify? What about "Shining," the mock movie trailer that re-cast "The Shining" as a coming-of-age comedy?

Can you give me some examples that fall near the line that you'd draw?

 
At 12:42 PM, Blogger Nelson said...

For an in-depth discussion of plagiarism and the flaws in our conception of it, check out Something Borrowed: Should a charge of plagiarism ruin your life? from The New Yorker.

 
At 1:00 PM, Blogger Murky Thoughts said...

I think we need a widely understood rule of law so people have a good sense of the risk and reward that go with any choice of conduct. Tons of binding judicial judicial precedent is buttheaded, but what to do? I dunno. New precedent, new statute would be the ideal. Whether DangerMouse should have been that new opinion, I can't offer a worthy opinion I think because I don't know the case law generally or for that jurisdiction. Arguably this isn't even only about what's right but strategy and picking the place and time for battle. You don't want to take something that matters to the Supremes that you know these Supremes will bat down in a unanimous opinion that will last a hundred years. I bow my head to Thurgood Marshall in this regard. Plagiarism means "unjust copying for self aggrandizement" to me. What's just is system dependent. I think plagiarism does injustice to the people you're trying to impress as well as to the person you copy from. But it's about people's expectations, which depend ultimately only on the people involved. To the extent you've got a homogeneous culture and the rule of law you worry about the expectations of the hypothetical reasonable person. But I think it would be wrong to see plagiarism as fixed and eternal like a theorem of Pythagoras or Euclid. I'm not prepared to say the sumptuary laws were wrong, or that it's wrong to administer the sacrament after you've been excommunicated.

 
At 1:03 PM, Blogger Murky Thoughts said...

"not wrong" to administer the sacrament after excommunication I mean.

 
At 1:04 PM, Blogger Murky Thoughts said...

Or maybe I mean something like "call yourself a Catholic priest" after you've personally been excommunicated by the Pope.

 
At 1:08 PM, Blogger Murky Thoughts said...

Or more germanely I bow to Larry Lessig, though he hasn't had his Marshall moment yet.

 
At 1:22 PM, Blogger Murky Thoughts said...

Oh, re: religion, yes I think that's a hugely important factor. I think of "God" as a kind of patent office, and I think part of why it was popular and stuck around is that it got people producing in all kinds of ways for nothing. I think it's know coincidence IP law has grown as religion has waned. I wrote a footnote about religion in an early draft of this, but then I forgot what my point was. You just reminded me (credit where due).

 
At 1:56 PM, Blogger rain_rain said...

You don't want to take something that matters to the Supremes that you know these Supremes will bat down...

No kidding. That's why I couldn't believe Lawrence Lessig tried to argue that the Mickey Mouse Copyright Extension Act was unconstitutional because Congress could theoretically, as a practical matter, extend copyright for an unlimited time. I'm no lawyer, but come on. That argument wouldn't even work for me, let alone the Supreme Court. If that was the best he could do - and apparently it was - he should have shut up and sat back down, not made things worse by creating a precedent, for God's sake.

Great ideas. Lousy lawyering.

 
At 5:51 PM, Blogger Murky Thoughts said...

I guess I know only a smattering of third and fourth things about Lessig and not the first thing. Have to look into the Disney argument. But though the court stood by your line that Congress was within its rights, I have a reasonable mind and I could not disagree more. The public deserves rights to Mickey under eminent domain or compulsory licensing. Rationalizations under health welfare safety and morals restrict property rights all the time by way of zoning.

 
At 5:59 PM, Blogger Murky Thoughts said...

Well, I backtrack a bit, because the precedent I was appealing to was the Supremes allowing Congress to legislate against private property rights for the public good, and with the copyright extension the court ought to assume that in legislating in favor of property rights Congress likewise considered the public good--and even considered it vis-a-vis Mickey in particular. So it's very like them to rule as they did. Still, maybe suing was good public theater and activism and politics on Lessig's part. Maybe the the lawyerly Lessig astute assessed the winning Supreme case to be so far down the line that this suit was no harm, worth a try, and only for the good because it would public raise awareness of a government perpetrated atrocity.

 
At 6:14 PM, Blogger rain_rain said...

I, also, could not disagree more with the policy. I also don't think Congress should have the right to steal the commons from the goose. All I'm saying is that, given the makeup of that particular court - or, really, any Court in my lifetime - Lessig's main argument was obviously a non-starter. Wait till I've got a few years of law school under my belt, I might dare go so far as to call it foolish. Breyer's dissent seems agreeable to me - agreeable, but not more reasonable than the majority opinion. Only wishful thinking would lead one to think that anything close to a majority of those Justices would rule in plaintiff's favor. So now, instead of just an obnoxious statute, we have an obnoxious statute shored up by a seven/two majority decision of the Supreme Court. Gee, thanks.

 

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