ethics of intellectual
monopolies
glyn moody
  
the wars
 1971 – the war on drugs
 1971 – the war on cancer
 2001 – the war on terror
 2010 – the war on digital sh...
  
ACT(A) of war
 Anti-Counterfeiting Trade
Agreement
 US, EU, Japan + 7 others
 negotiated in secret
 analogue counte...
  
the engines of war
 collison between:
 uncontrolled, decentralised
technologies designed to share:
the Internet
 gov...
  
Internet
 relatively familiar
 new: its history as a mass medium
is only 16 years old (Netscape
Navigator released Oc...
  
”IP”
 relatively obscure
 ”IP” is a bundling of totally
disparate things: copyright,
patents, trademarks etc.
 nothi...
  
intellectual monopolies
 ”IP” a relatively recent invention
(1888)
 World International Property
Organisation (WIPO) ...
  
anglophone bias: an apology
 personal reasons
 historical reasons
 practical reasons
 *good* reasons
 war on digit...
  
letters patent
 issued by monarch to grant
monopoly for particular industry
 called ”patent” because not sealed
– ear...
  
Statute of Monopolies
 1624
 ”making of any manner of new
manufactures within this realm to
the true and first invent...
  
inventive scarcity
 patent law was framed in a world
with few inventors, and few
inventions
 monopoly was offered
 t...
  
inventive abundance
 today, we live in an abundance of
inventors and invention, as the
creaking patent system shows
 ...
  
software patents
 abstract – patent of maths/idea
 obvious – Wang's overlapping
frames/windows
 trivial – Amazon's 1...
  
software patent problems
 most litigated – causing much of
the backlog of cases in US
 3% in 1984, 26% in 2002
 for ...
  
why have software patents?
 patent infringement lawsuits
 entrench incumbents' position
 raise barriers to entry for...
  
”copy right”
 in 16th
and 17th
century England,
the Stationers' Company had
exclusive and perpetual state
monopoly ove...
  
Statute of Anne (1710)
 ”An Act for the Encouragement of
Learning, by Vesting the Copies
of Printed Books in the Autho...
  
US copyright law
 US Constitution (1787) Section 8
 To promote the Progress of Science
and useful Arts, by securing f...
  
copyright then and now (1)
 originally: books
 now: books, maps, charts,
engravings, prints, musical
compositions, dr...
  
copyright then and now (2)
 originally: 14 years + optional 14
years extension
 public domain relatively soon after
f...
  
copyright then and now (3)
 then: analogue
 now: analogue *and* digital
 adds computers and the Internet
into the mix
  
copyright infringement then
 analogue publishing of an
unauthorised copy required:
 somebody to typeset the text
 so...
  
copyright infringement now
 digital publishing of an
unauthorised copy requires
 digital content (CD, DVD, ebook,
etc...
  
of CDs...
 first CD appeared in 1982
 without any kind of copy protection
 because it was impossible to copy
the CD'...
  
...and MP3s
 developed in early 1990s, just as
Internet was taking off
 used clever tricks to reduce music
file size ...
  
today
 Mbit/s broadband connection means
that entire films can now be
shared
 P2P networks like BitTorrent make
it ev...
  
tomorrow
 gigabit/s connections will
transmit 1000s of mp3 files
anywhere in seconds
 a 1 Petabyte (1000 Terabytes) U...
  
unless
 the content industries win the war
on digital sharing through
increasingly Draconian
legislation - ACTA 2.0, A...
  
●would that be so bad?
 maybe not – for you and me
 maybe not - for those who can
afford to pay
 but...
  
what about the others?
 what about the billions that can't
afford it?
 what about the 4 billion that
don't even have ...
  
●what if the war on digital
sharing is ”lost”?
 every person on this planet with
Net access could obtain a copy of
eve...
  
back to basics
 copyright not about preserving the
West's grip on content
 copyright not about protecting old
busines...
  
creative scarcity
 copyright was framed in a world of
creative *scarcity*: few authors
producing few books
 designed ...
  
creative abundance
 today, we live in a world of
creative abundance
 the Internet liberates creativity
by removing ba...
  
the virtuous circle
 today, the optimum way of
”encouraging learning” is to free
it up for the billions who
currently ...
  
but
 ”nobody has the right to diminish
my copyright in this way”
 but society *does* have that right
- just as it had...
  
the precedent (1)
 for those who insist that simply
can't be done, there is a
historical precedent: the first-
sale do...
  
the precedent (2)
 those who talk of ”IP” compare
copyright infringement with
trespass
 in 20th
century, law on tresp...
  
digital airspace
 we need to allow copies to pass
freely through the associated
digital space ”above” analogue
objects...
  
ethical copyright?
 copyright was originally 14 years
+ 14 years; the copyright
”ratchet” has been moving it up
to 70 ...
  
Internet time
 what about digital content?
 famously, one calendar year is
seven Internet years
 digital content liv...
  
ethical patents?
 what about patents?
 as for copyright, there are two
kinds of patents: analogue and
digital
 analo...
  
ethical intellectual
monopolies?
 are ”ethical copyright” and
”ethical patents” a contradiction
in terms?
 perhaps ne...
  
share nicely
glyn.moody@gmail.com
@glynmoody on identi.ca/Twitter
opendotdotdot.blogspot.com
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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. 1.    ethics of intellectual monopolies glyn moody
  2. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 21.    copyright then and now (3)  then: analogue  now: analogue *and* digital  adds computers and the Internet into the mix
  22. 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. 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. 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. 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. 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. 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. 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. 29.    ●would that be so bad?  maybe not – for you and me  maybe not - for those who can afford to pay  but...
  30. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 44.    share nicely glyn.moody@gmail.com @glynmoody on identi.ca/Twitter opendotdotdot.blogspot.com

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