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.
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