This morning, Doug Noon shared a post entitled “The Fiction of Intellectual Property.” The post and the comments are thoughtful, but ultimately frustrating. What follows isn’t a direct response (hence, I didn’t leave a comment), but just some thoughts that have been kicking around my head for a while related to that post and many others like it.
For a while now, it has seemed to me that the two “sides” of the IP/copyright debate have made little progress with the other side mainly because of fear. Each side is unwilling to admit compromise out of the fear that the other side will be unwilling to admit compromise, resulting, stupidly and predictably, in a stalemate.
If IP supporters could admit that the law unfairly benefits the corporations and that those laws need to change, and if the IP opponents could admit that a change in the law does not mean an overthrow of all laws, then both sides might be able to actually have a conversation about the best ways to bring fair and balanced change, rather than just screaming at each other across an imaginary line.
The founders were concerned with having a system in place that would encourage the sharing of ideas and thus established a “limited monopoly” on those ideas to provide the creators of those ideas the chance to profit from them. The system in which ideas are shared is certainly more complex now, but the basic principle is unchanged: a society that wants to encourage the sharing of ideas must provide those who are creating those ideas the chance (not guarantee, and only for a limited time) to profit from their work. Why is this position so hard to agree upon as a starting point for moving forward with the details?
The most reasoned discussion I’ve found on this topic so far is still Lawrence Lessig’s Free Culture, in which he argues that the laws must change, but never argues for lawlessness or the denial of creators to profit from their creations.
If we continue to argue about this issue, can we at least let go of our fear of “the other” and argue about the specifics of proposed solutions that might bring us closer to a fair and balanced compromise?
March 31st, 2008 at 10:34 am
Eric,
Greetings. I got here via your pingback at Chris Lott’s post, and I’m the bloke on the hook for saying, “P as we know it is not only a fiction of the law, but a fiction who’s time has passed.”
A couple of thoughts. First, I’m not sure it’s fair, nor am I certain it’s valid, to equate arguments to do away with temporary monopolies with arguments “for lawlessness or the denial of creators to profit from their creations.” I don’t know a single person actually arguing the latter, do you?
Second, the context of my statement was a comment busting Andrew Keen’s chops for not having the huevos to address specific challenges made by Lessig. In that comment I reference the fact that Lessig is a moderate on these matters.
Mine is an extreme position. I argue, elsewhere, that those temporary monopolies need to be curtailed to the life of the content creator, non-transferrable save to the public domain. I also argue that fair use policy needs to be given real teeth, such that once anyone puts their content into a form that it can be easily replicated and distributed almost without limit, then we recognize that most any use thereof becomes fair.
It’s a pleasure to make your acquaintance. All the best in your work.
March 31st, 2008 at 11:23 am
Actually, Eric, you are arguing for exactly what I think I am arguing for in my post: a change to copyright and fair use laws that is reasonable given new media and abilities and that recognizes the ill-tilted balance towards big media that has twisted the law as it stands. Considering the length that I’ve gone to in arguing against having no laws and to argue in favor of reform that benefits the artist, I find your reading of what I have written to be a bit strange.
Nowhere have I *ever* supported getting rid of copyright protection… my whole point is that the metaphor if intellectual property is not just apt, but needed, and something that an organized society should support, allowing for an artist to have the right to a rich use of their work, but for a fairly limited time. As I’ve said in the past, I’m most in favor of a blend of founder’s copyright (14 year term), a sane extension procedure for one more term (perhaps available to the original artist for $1, but only for one more 7 year term– the numbers are subject to discussion), and seriously beefed up fair use provisions.
I guess I don’t see the “screaming” that you do, but then the comment thread attached to my post is between friends and, particularly between Robert and I, there is a relatively high amount of previous conversation under the bridge.
March 31st, 2008 at 2:56 pm
To both beau and Chris: I should have been more clear, I guess. Chris’s post is just the latest post dealing with this issue that sparked me to write, but my post was not a direct response.
My frustration with the conversation as a whole (not the conversation on Chris’s post or any specific conversation, and not with either of you personally) is the general lack of balance, nuance, and specifics in the discussions.
@ beau: I don’t see people saying they support lawlessness, no. But I hear extreme arguments that, if not better explicated and conditioned, could certainly leave that taste in the mouths of many readers.
As for your extreme position, I can go with you most of the way and agree that fair use needs more teeth, but I don’t think I can support the statement “once anyone puts their content into a form that it can be easily replicated and distributed almost without limit, then we recognize that most any use thereof becomes fair” unless you more clearly define what “most any use” means.
And likewise: good to meet, hope to hear more of your ideas.
@ Chris: I understood your post and agree with what I understand of your position. Again, I wasn’t thinking mainly of your post or the comments, but of the timbre of this conversation/argument on “the web at large.” And again, I should have made that more clear in my original post.
I have a certain amount of long-standing frustration with this topic, and the extreme positions on both sides that seem totally unreasonable. I still see the conditions that caused Lessig’s frustration in 2002, noted in his preface to the vintage edition of The Future of Ideas:
“… the best way to win this debate is to frame it as a choice between zero and one … This battle is about whose vision of creativity–the balance in our framers’ vision or the extremism of modern lobbyists–should control the future of ideas.”
I express this frustration in this post, though I didn’t intend to directed it at you.
So, I apologize for my lack of clarity and for seeming to jump into the middle of an ongoing conversation. I’ve enjoyed what I’ve seen on your blog so far and, as I said to beau, I hope to hear more of your ideas.
March 31st, 2008 at 3:22 pm
PS – To add a little levity … I got a good chuckle out of this post: Stuff White People Like #93: Music Piracy (though I’d steer clear of the comments).
April 15th, 2008 at 9:42 am
Hey there. Followed up with a new post at my site. Also thought, in the spirit of your “Stuff…” link, that you might enjoy the following bit of spin on the OS movement, sourced here.
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