Glyn moody ethics of intellectual monopolies - fscons 2010

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FSCONS 2010 talk about how copyright and patents were created to deal with scarcity; in today's world of creative and inventive abundance, we need neither. Freeing up knowledge for all to use would cause a positive feedback loop of creativity and invention.

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Glyn moody ethics of intellectual monopolies - fscons 2010

  1.    ethics of intellectual monopolies glyn moody
  2.    the wars  1971 – the war on drugs  1971 – the war on cancer  2001 – the war on terror  2010 – the war on digital sharing
  3.    ACT(A) of war  Anti-Counterfeiting Trade Agreement  US, 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
  4.    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 antagonistic  software code vs legal code  (TCP/)IP vs ”IP”
  5.    Internet  relatively familiar  new: 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 content  feature, not a bug  once a digital file is online anywhere, it is effectively ubiquitous and abundant
  6.    ”IP”  relatively obscure  ”IP” 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)
  7.    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
  8.    anglophone bias: an apology  personal reasons  historical reasons  practical reasons  *good* reasons  war on digital sharing is being driven by the US, whose law is based on the English tradition
  9.    letters patent  issued by monarch to grant monopoly for particular industry  called ”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.
  10.    Statute of Monopolies  1624  ”making 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”
  11.    inventive scarcity  patent law was framed in a world with few inventors, and few inventions  monopoly was offered  to attract foreign master craftsman  to make technical knowledge freely available after monopoly expired  to stimulate local industries  to encourage more inventions
  12.    inventive abundance  today, we live in an abundance of inventors and invention, as the creaking patent system shows  in 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
  13.    software patents  abstract – patent of maths/idea  obvious – Wang's overlapping frames/windows  trivial – Amazon's 1-click  ridiculously wide  ”system for reproducing information in material objects at a point of sale location” (1985)  used to sue generic e-commerce sites
  14.    software patent problems  most litigated – causing much of the backlog of cases in US  3% 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
  15.    why have software patents?  patent infringement lawsuits  entrench incumbents' position  raise barriers to entry for newcomers  make innovation harder  ACTA is all about *strengthening* enforcement of intellectual monopolies, including patents  raise barriers to entry higher, reduce innovation further, disadvantage developing countries
  16.    ”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
  17.    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
  18.    US copyright law  US Constitution (1787) Section 8  To 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)
  19.    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
  20.    copyright then and now (2)  originally: 14 years + optional 14 years extension  public domain relatively soon after first appearance  public domain included recent books  now: UK, US, Sweden etc.: life + 70 years  public domain hugely impoverished  no longer have free access to creation of our contemporaries
  21.    copyright then and now (3)  then: analogue  now: analogue *and* digital  adds computers and the Internet into the mix
  22.    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
  23.    copyright infringement now  digital publishing of an unauthorised copy requires  digital 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...
  24.    of CDs...  first CD appeared in 1982  without 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
  25.    ...and MP3s  developed in early 1990s, just as Internet was taking off  used 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
  26.    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
  27.    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
  28.    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
  29.    ●would that be so bad?  maybe not – for you and me  maybe not - for those who can afford to pay  but...
  30.    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
  31.    ●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”?
  32.    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”
  33.    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
  34.    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
  35.    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
  36.    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
  37.    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
  38.    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"
  39.    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
  40.    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
  41.    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
  42.    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
  43.    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
  44.    share nicely glyn.moody@gmail.com @glynmoody on identi.ca/Twitter opendotdotdot.blogspot.com

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