Intellectual Property

It has become fashionable to toss copyright, patents, and trademarks – three separate and different entities involving three separate and different sets of laws – into one pot and call it intellectual property.

Richard M. Stallman, arguing for rejection of the term.

The expression is, indeed, hugely misleading: sadly, the delusion that it means something has an immense impact on my craft, so I try to express what sense I can make of the existing mess, of changes which might plausibly improve the situation and of the opinions of the forces ranged in conflict over the future of IP – which might better be expanded as information privileges. Albeit IP strictly includes trade-marks and other things, most of my references to it are concerned with patents and copyrights. Two major areas of contention are software patents and shrink-wrapped agreements (EULAs).

Here's some stuff I've written on the topic:

I contend that intellectual property laws are the last bastion of mediaeval protectionism: it is time we replaced them with something better suited to a world of free trade. If some on the side of repeal are, at times, rashly glib about the consequences, it is perhaps worth bearing in mind the grandest piece of hyperbole in the entire history of the copyright industry's opposition to technological innovation: The VCR, said Jack Valenti, then (in 1984) as now (in 2004) the chairman of the Motion Picture Association of America, is to the American film producer and the American public as the Boston strangler is to a woman home alone. Home video on VHS and DVD now accounts for about a third of Hollywood's revenues.

See also

and, to slightly modify Jeremy Herrick's turn of phrase from his wipout article, one might (more) fairly describe Intellectual Property Rights as Creative Incentive Privileges.

Presumption

If you own a painting and place it in plain view of a front window which faces onto a public thoroughfare, remember that folk are at liberty to photograph what we see in and from public places (though there may be constraints on our liberty to distribute such photographs). Putting a notice up in your front window asserting conditions by which we must abide, if we photograph your painting, has no effect on our liberty to take a photograph of what you chose to place on public display. If you don't want us to enjoy that liberty, move the picture or put up curtains; if you do want, none the less, to allow folk to take pictures subject to your constraints, make your arrangements with them any way you like – but a notice posted in public view has no power to deprive me of my general liberty, unless it be posted by the proper authorities. Else, I shall respond by placing a notice on public display asserting that if you chose to keep your picture somewhere the public can see it, by doing so you agree to allow the general public to take photographs of your picture to their hearts' content: either nobody is bound by either piece of paper posted in a public place, or you shall be bound by mine, thereby freeing the rest of us from yours.

I guess that is the answer really. Netizens ! the time has come to send e-mails to content providers (or, perhaps, PUT messages to their HTTP ports) on the net along the following lines:

I notice that you are publishing content on the web. Tomorrow, I shall request that content of your HTTP server. By honouring that request, you will cede all intellectual property rights (in such data as you send in reply) to the common weal. If you do not agree to the terms of this letter, you must arrange for your HTTP server to refuse this data.

I'm sure the net's wealth of satirists (e.g. Need To Know) can improve on that. It should have the same tone and feel as a click on Agree if you agree to these conditions notice, but my inspiration is flagging.

Fragments

I began an e-mail to Brad Templeton and poured forth fragments of this difficult subject until I realised I was writing far too much for an e-mail, if only because of the linear structure of e-mail as contrasted with that great blessing of HTML – when I realise I'm digressing, I can move the digression off to the far end of an HREF and leave the original topic un-interrupted. So first off, I'm going to move all those fragments here: then I'll try to organise them, in the course of which I'm probably going to add to them. Eventually, they might be tidy enough that I replace this pre-amble.

My disquiet with existing IP law centres on two horns:

The former is a primary concern, which I would sooner change; the latter I would not wish to change, but only to have it ever in mind when framing the law. In particular, the first plays badly on the second.

In the music industry, until the blessed advent of home-publishing on CD, musicians were perenially up against a simple obstacle: to make more than pub gig fees out of their work, they needed to be selling records; the capital outlay in record-making is large, so (except in the rare cases where the musician could afford it) this meant doing a deal with an existing record producer – who is, unsurprisingly, negotiating from a position of such strength as to be able to demand strong conditions in the contract. It is no surprise that the industry is full of tales of recording companies making large sums of money off works whose authors recieved little out of the bargain. This defeats the purpose for which we first sanctioned IP rights.

An author owns IP rights in a work: but their worth to the author without the means to publish is almost speculative – it puts no bread on the table, though keeping anyone else from owning that right may at least leave the author at liberty to earn money by the use of the work. Those same IP rights may be very valuable to a publisher. The miracle of trade enables the author and the publisher, in such a case, to engage in trade beneficial to each. To appeal to the publisher, the trade should give the author less than the rights' worth to the publisher; to appeal to the author, it should give more than the effective nothing which the author has without a publisher's aid. To appear just in the eyes of we who granted the IP rights in question, the author should gain some intermediate amount, ideally roughly splitting the difference between these two extremes.

In practice, however, the publisher holds all the power when the author comes seeking a deal, so can take whatever they ask for in exchange for a pittance. Because IP rights are transferable, authors can thus be put under economic pressure to surrender them. Because IP law is so generous to the holder of the rights (at the expense of other folk wishing to exercise the IP's value), the author may be forced (thereafter) to pay for the privilege of performing their own work in public; may even be forced to give up their stage name.

In the software industry, standard employment practices mean that by default any software IP I create belongs to my employer (even, under British law, stuff I do at home out of hours). Consequently, the author had better be happy with a salary, and no look-in on the software IP. This can fit in with our original goals but, again, is wide open to abuse.

… nothing prohibits the author making it free. I have done so with some of my own software.

Nothing prohibits the IP owner from making it free. The author may not be in such a handy position. Even the author's ability to produce a fresh version and make it free may be compromised.

If a business publishes an excellent and instantly popular piece of software, but is bought out by a competitor who promptly abandons the product, users of that software are left in the lurch. They had every reason to hope for bug-fixed and enhanced versions of the software. The new owner wants to sell them their competing product, so will not make the retired product's source available, nor allow anyone to go decompiling the code and producing a derivative product – even for free distribution, or for distribution exclusively to folk with valid licences for the original.

This does happen. It deprives the world of valuable IP.

the only question is which type of law does better in the end.

Indeed.

What I'd like to understand better is what kind of law would do better than what we have. I firmly believe we need to lessen the strength or scope of the IP holder's control – but I am not saying to nothing. I think we might free-wheel quite well for a decade or two if we did cut down to nothing, especially if this was part of a planned transition to some more balanced replacement: but I would hope some more sensible transition plan could be formed.

For the sake of a reference point, with which I have much sympathy, let me quote an extreme position, which I encountered attributed to Thomas Jefferson: [see patents page – Ed.]

None the less, we wish to encourage folk to publish their work: among the means by which we might hope to achieve this are various schemes for granting authors authority over the publication of their work, at least sufficient to ensure that some reasonable economic incentives are achievable by the use of that authority. Such authority has much in common with the authority we acknowledge folk as having over the material goods folk own: but it has marked differences, to some of which Thomas Jefferson has pointed. In chosing a form of authority to bestow on authors, the similarity suggests our laws on (material) property as a model to start from in building laws for IP; but the differences caution us against following the model too slavishly.

My material property, say my bicycle, is of direct value to me, in so far as I retain it in my possession and the roads remain public, as a means of transport. It would be so regardless of the laws which bless my possession of it with the security of property. Even the ability to sell (or barter) it is present without those laws. Yet those laws do improve my enjoyment of the value of my bike: the trouble I need to take to retain it in my possession is greatly reduced, if nothing else. Where it comes to immaterial property, there is also direct value to knowing how to make a thing: but I retain much of that value even when I suppply my neighbour with the knowledge from which it derives, where I lose my bike, and hence all of its the direct value, as soon as anyone else acquires it.

Where the laws of material property really come into their own, though, is in the overlapping worlds of trade and industry. Where I have some goods which are of at least as much value to you as to me, and vice versa, we may, by an exchange of goods, improve our lot: the miracle of trade. Where I have future expectation of being in a position to trade, I have an incentive to produce more of the things you want, even though they may be of no direct value to me: goods acquire, thereby, indirect value. At the same time, hoarding becomes a strategy with several advantages: and is far from always evil, as Joseph and his Egyptian grain silos proved. As with direct value, property laws provide a firm foundation for trade and industry: the underlying framework of our economy.

Within that framework, we have a process of free trade: we constrain it as lightly as we know how, leaving it to arrive at sensible evaluations of goods. Let me examine that question of sensible evaluations: to do so I appeal to the nominal model of the miracle of trade. This presumed that each of us has something which the other values at least as highly. We have money as goods which we, at least nominally, value equally: so let us suppose you come to the bargaining table with goods which we do value equally, while I come with goods worth more to you than the loss I endure by parting with those goods. If I can put a money price on my loss and you can put a money price on your gain, pretty much any price in between is a sane price at which to trade – but too close to either end will make the overhead of coming to market too great for one of us.

In the real world, I may need to sell (to keep body and soul together) and so be unable to afford to refuse you trade even though you offer too little to cover my loss; in effect, the loss to me of not selling has the effect of reducing my lower bound. Likewise, you may need the goods I am offering badly enough that I can dictate a higher price – absent any other supply, my goods go up in value to you (or will, we both anticipate, before long, so you know I can afford to sit tight and wait for you to accept my price). The former case may arise if I have over-valued what I brought to market; the latter when you have under-valued it; and either case may arise from one of us being greedy. Our responses in these cases are part and parcel of how the free market works.

Ideally, there is enough of a gulf between my loss and your gain that, by inhabiting the middle territory, we avoid having to apply such dire take it or leave it pressure to one another: but that strategy is open to us. Our laws on trade support the party refusing to trade; while such refusal may be used to demand unreasonably much for something, the processes of free trade enable the stymied party to find someone else to deal with. Monopolies make a mess of this, though.

Now, when we come to intellectual goods, we may also have direct value: indeed, the Open Source movement grew out of the fact that many folk had done work to produce tools of direct value to themselves. Collectively, those tools are of immense direct value to those who use them (myself included).

… [to be continued – Ed.]

Some more ramblings

The deal is this: intellectual property rights are granted by governments; in truth, at least substantially because governments have agreed to treaties drafted by lawyers who might not have been entirely disinterested; but at least officially in order to create an (economic) incentive for authors and inventors to make their works public. So let's not get bogged down in controversial stuff like vested interests and just concentrate on the official line. Does intellectual property law serve the purpose the official line uses to justify granting the rights in question ?

On the face of the justification is an intent to create an incentive for authors to publish. Behind this lies a desire to see useful material available to all; the deal places some constraints on that availability for a specified time, after which the constraints are lifted. The need for such a deal arose from the fact that an author's or inventor's work could not reach a broad public without a substantial investment – the author needed a publisher, the inventor a manufacturer. The publisher or manufacturer sorts out the editing, typesetting, proofreading or testing, refining, productizing business of delivering the author's or inventor's work to the public.

What they eventually put in the hands of the public tells a potential producer (publisher or manufacturer) of the same work all they need to know to short-cut nearly all of the investment needed by the original producer. Part of the first producers' investment goes to help their first competitors: which can enable these competitors to out-compete (on both price and quality of production) the first producer in the free market; in any case, the smart money would be backing businesses which did the low-investment, high-yield side of the industry. So the free market would, without some restraint, discourage anyone capable of production from being the first to work with the author or inventor: wait for some other fool to productize it, then copy the result.

You can fight this conclusion by presuming that first-publishers charge high prices for their books, and re-publishers wait until a book's been seen to be popular (i.e. lots of it have sold) before jumping in and under-cutting its market; the first-publisher can make plenty of profit in the interval, especially when making some profit on the books that never make it popular enough to take off. The first-publishers could even be ready for their competitors and offer, at a modest fee, to work with each re-publisher to get them up to speed. Likewise, the first-manufacturer has come to market earlier (which can be a major competitive advantage in its own right) and can sell consultancy on getting plant up to speed at manufacturing the product. One would at least hope that the author or inventor would be able to find honest (and enjoyable) employment in helping each producer to bring their work to the world.

None the less, the economic reality of a few centuries ago wasn't so sophisticated about consultancy contracts and folk came up with something that worked at the time (without making first-publication book prices prohibitively high in the early stages, which even the best-meaning supporter of the alternative must recognise would have been a problem): rights were granted to authors and publishers, enabling them to constrain (for moderate periods of time) the economic exploitation of their work (oh: and, at the same time, some moral rights, to which I'm kind of attached). This, at least in theory, gave the author or inventor the means to do a deal with the first-producer, exploiting their exclusive right as a bargaining tool in getting a fair deal.

So, regardless of the long and contorted history of producers somehow always being in such commanding positions as to leave the author or inventor at the thin end of the bargain, the case for what we have rests on the need for first-producers to be able to make an honest profit (which might not be as much as they presently make) out of being first-producers.

We do have a much more sophisticated economy now; and one can publish an idea for almost nothing. I write what I write in web pages as a means of setting down, at one time, my thoughts on some topic: I do so mainly so as to enable me to make better sense of them; yet it so happens that the (cheapest, most reliable and) easiest means available to me for making what I've written accessible (to me) wherever I go happens to be to put my thoughts onto web pages and publish them. So just consider how easy it must be for someone who wants the rest of the world to hear them (as opposed to just not minding if they do, and being interested in what they think).

If some of what I've published looks interesting to someone, they might even make constructive use of it. If that's going to involve a business venture it seems to me like they, or some of their competitors (once they've shown there's a market, so got some), are likely to see some advantage in recruiting me or engaging me as a consultant. If I think the market will take a while to mature, I can see a case for engaging in a modest-period exclusivity deal with them (i.e. I'd be their employee, with a notice-period, rather than a consultant openly seeking, and engaging in, business with their competitors); we'll haggle about the duration, which is entirely reasonable. If the market looks apt to explode as more folk catch on, I'll go for encouraging all comers and seeing how many consultancy deals I can get ;^>

Well, anyhow, that's roughly what folk would generally do, that inhabit the model world presumed by free market models; and I respect it, though I might deviate from it for singular reasons in a non-ideal reality; and such ideal folk would deviate from either extreme in the inverval between, where the take-up time will be slow enough to make how long an exclusivity deal worth engaging in, for how much ?

So, in a world where publishing is cheap, in what sense does the public benefit from being forbidden to copy what we like, when we like ?

More quotes, etc.

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Some years back, a bunch of web designers – who were trying to make some sort of a point about how valuable they are – ran an event called grey day, which was duly satirized by gray day (originally www.grayday.org but that's now defunct), of which NTK's part survives.

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