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Some thoughts on SOPA and Copyright

fulloftupid
Anybody who's tried to use the Internet today is no doubt aware of the "SOPA strike." A lot of major Internet sites, including places like Wikipedia, Wordpress, and Reddit, are blacked out in protest of proposed US legislation called the Stop Online Piracy Act. this legislation, which has been intensely lobbied for by powerful interests such as the Motion Picture Ass. of America and the Recording Industry Ass. of America, propose to stop copyright infringement by non-US sites and protect rights holders. It and its companion the Protect Intellectual Property Act were drafted by people with little technical understanding of the Internet in ways that circumvent normal due process of law. Each contains provisions by which purported rights holders can order the wholesale removal of sites from the Internet, without judicial oversight or review, and each requires ISPs, content hosts, and Web site owners to police user-generated content and remove it if they believe it might infringe on someone's intellectual property rights.

Needless to say, both pieces of legislation are deeply flawed. They amount to prior restraint on expression, which is not permitted by the US Constitution, and they threaten to undermine the domain name system that's central to how the Internet works. All that is a given.

The Recording Industry Ass. of America and the Motion Picture Ass. of America have both demonstrated themselves to be clumsy, arrogant, and hamfisted in their approach to copyright. The movie and recording industries are both firmly wedded to business models that are rooted in last century; neither has shown any inclination to change as technology changes. (The Motion Picture Ass. of America has, rather comedically, published a statement in which they say that anti-SOPA protests are a "gimmick" that will "turn us all into corporate pawns.")

Robert Heinlein perhaps put it best when he said, "There has grown up in the minds of certain groups in this country the notion that because a man or corporation has made a profit out of the public for a number of years, the government and the courts are charged with the duty of guaranteeing such profit in the future, even in the face of changing circumstances and contrary to public interest. This strange doctrine is not supported by statute or common law. Neither individuals nor corporations have any right to come into court and ask that the clock of history be stopped, or turned back."

But... but... but...

In all the debate about SOPA, there is an elephant in the room that nobody is talking about.




The elephant in the room is that people who create things deserve to be rewarded.

The current crop of Internet users is in many ways incredibly entitled. There is a very deep vein of hatred for the idea of intellectual property throughout the Internet generation. A surprisingly large number of people seem to feel that if someone created it, they deserve to be able to have it.

I have often made the mistake of wading into Internet conversations about copyright, and been astonished by the viciousness and entitlement that I see there. A lot of the arguments are based on a profound ignorance of what copyright is, but even more arguments are based on a hatred of the entire concept of intellectual property that seems to be rooted in the notion that anything I want, I should be allowed to have, as long as it isn't made of physical atoms. It's amazing, terrifying, and sad in equal proportion. And I can see why content creators get exasperated.

For example, in a recent debate about copyright on Facebook, one person made the assertion that a person whose work is copied without pay should be flattered by it, and "enjoy the fact that what you have written/drawn/painted/shot has moved so many people that they wish to pay you the compliment of forwarding your work to others to enjoy." Another person made the even more astonishing claim that "copyright is a tool of privilege" that "keeps art away from the poor," an opinion he followed up with "Art shouldn't be sold, it should be shared and traded." He then followed up with the notion that "talent is a birth-given privilege," artistic ability and creativity can not be learned, and selling an artwork or a song is inherently a tool of oppression because it's a way for privileged creative people to exploit those who lack the ability to create by denying them art that can improve their lives unless they pay for it.

The amount of entitlement these arguments reveal can scarcely fit in a double-decker bus. It turns the idea of privilege on its head (what of the poor, disadvantaged person who has invested a great deal of time and effort in learning a skill; should she not be allowed to be rewarded for that effort?); it demonstrates a breathtaking level of entitlement (if I like some bit of artwork and I think it makes my life better, I am entitled to have it no matter what it cost to produce and no matter how much work went into its creation); it relegates the production of art to only those wealthy enough to do it as a hobby, and that any creative person who isn't wealthy should, I don't know, work at McDonald's or something rather than creating; it spits in the face of the notion that people whose work benefits society deserve some measure of benefit themselves; and it cheapens and degrades the considerable effort that artists put into acquiring and building their skills.

And this is, amazingly, not an isolated opinion. It's a worldview I see reflected again and again and again, everywhere the subject of copyright comes up.




People who hold these ideas can not, I think, be persuaded otherwise. A person who feels entitled to something will construct rationalizations about why his entitlement is justified, whether it's by imagining creativity as some inborn thing like race or sex, or inventing a moral system whereby anyone who does something that could make another person's life better like create a painting or, I don't know, haul away garbage is ethically obligated to do so for free. Such people will often spout platitudes like "True artists do it for the love of art, not for money," setting up a false dichotomy that ignores the fact that creative people also have to eat. This argument also creates a system whereby an artist's merits are judged not on her technical proficiency or her ability to illuminate the human condition, but rather on how much stuff she gives the speaker for free.

Other arguments against copyright are based on simple ignorance of what copyright is.

Some of these are as inevitable as arguments like "Oh, so I should tell my partner every time I take a crap?" which I have heard, without fail, every single time I've ever seen a discussion about whether or not willfully withholding information from a lover is lying, or "So if someone asks me if her butt looks fat in these jeans, I should say yes?" that crop up as sure as night follows day in any conversation about the value of honesty. I have, to date, never once seen any conversation about copyright in which some person doesn't say "Well, you better not use the word 'copyright' because I have a copyright on it!" or "There's no such thing as an original idea." These people don't understand even the most basic principles about copyright; they simply don't know that a word or a sentence can not be copyrighted, or that copyright covers only a particular expression of an idea rather than the idea itself.

Other ideas about copyright that are just as common and just as wrongheaded include such notions as "If it's been posted in a public place, that means it's legal to copy it," which is approximately as inane as believing that if a car is parked in a public lot, that means it's legal to drive off with it; and the idea that as long as you credit the person who made a particular piece of art, it's permissible to copy and redistribute it at will.

These ideas are the Creation Science of copyright. They're firmly woven into the fabric of beliefs held by a very large number of people, and they're absolutely bogus. An emergent view that comes from these mistaken ideas is the smug, self-congratulatory notion that by copying someone else's work, the person copying it is doing the creator a favor; after all, it's giving the creator more exposure, right? (One has to wonder what good it is to have this "exposure" if we accept the notion that it's wrong for someone to want to be rewarded for creating things of value, but that's a subtle argument that's generally lost on the caliber of debate one normally sees surrounding the idea of copyright.)




People who create things of value deserve to be rewarded for that creation, no less than people who build cars or make computers or cook McDonald's burgers. This is a fundamental axiom without which there is no benefit in creation for any purpose save as a hobby. If we do not accept that idea, then what we are doing is we are saying that as a society we do not want the contribution of talented, creative poor people who can not support themselves in some other way; only the independently wealthy with plenty of time on their hands and the means to support their creation need apply. If I intend to invest in a camera, or canvas and paint, or studio recording equipment, I better do it without any expectation that my investment will be rewarded in any tangible way, and so I'd better have enough money to do so without the expectation of return. This idea is, I think, self-evidently horseshit.

Copyright matters. Intellectual property is important. This is not something that will go away, and because of it, the issues that drive dismal piles of misbegotten dreck like SOPA and PIPA aren't going to vanish tomorrow.

SOPA and PIPA are at this point almost certainly dead in the water, and that is as it should be. But that doesn't change the fact that the Internet is swarming with poorly-informed and entitled people who sincerely believe they have the right to have other people's work for free, and so we can reasonably expect to see proposals for more legislation like SOPA and PIPA to appear tomorrow, and the next day, and the next. This. Is. Not. Going. Away.

It is absolutely, undeniably true that there is more than a little hypocrisy at work in the attempts of organizations like the MPAA and RIAA to take the moral high ground about copyright while lobbying for legislation that does an end-run around protected speech. It is unquestionably true that, to a large extent, the copyright problems they face are a monster of their own making, the result of hanging on to antiquated business models that simply no longer apply. It is also true beyond a shadow of a doubt that both of them, the RIAA in particular, have long histories of treating the actual creators they employ very poorly indeed, giving their artists only tiny dribs and drabs of money while executives profit obscenely on their work. All of these things are true.

But not one of these observations is an argument against the idea that people who create novel things deserve to be rewarded for them. We would not say that an inventor, a creative person who applies her talents to solving practical problems, should do so merely for the love of inventing, nor that "true" inventors would never charge for their inventions; and most of us would probably find it quite laughable if someone were to say that an inventor who sold her invention was an oppressor, using her innate privilege to deny other people of things that can benefit their lives unless they pay her.

So why is it that we are willing to accept these ideas when they are applied to someone who uses her talent to create photographs or paintings instead of widgets?

SOPA sucks. But the notion that people are entitled to benefit from others' work for free also sucks. We are, or we should be, on the same side here; our lives are made richer by the artistic expressions of others, and so we should want to encourage creative people to create. Even if they're not independently wealthy.

Comments

maineshark
Jan. 20th, 2012 01:07 am (UTC)
The "mind set" that non-scarce things are not private property has been the default "mind set" of humanity, for time immemorial. Take Native Americans and land; since there was far more land than they could use, so it was non-scarce. Hence, they used it and moved around freely.

The idea of "intellectual property" derives from privileges granted by medieval kings to the nobles that supported them. "Give me your allegiance, and I'll declare that you are the only one allowed to make widgets."

IP was invented for the purpose of exploitation, and it has never served any other purpose.
tacit
Jan. 20th, 2012 01:22 am (UTC)
Oh, please.

Intellectual property exists to encourage people to invest the time and money it takes to create new things. A great example of why patents exist is the pulse detonation engine, a new class of jet engine currently being researched by several universities and companies. The pulse detonation engine promises to make jet engines with very few moving parts which are simpler, cheaper, far safer, and far more efficient than current turbine engines. Clearly, such a development would benefit society. It's turning out to be a thorny engineering challenge in practice, though; Boeing has invested more than $200,000,000 so far into trying to develop a commercially viable pulse detonation engine.

Without patents, it would be possible for a competitor to wait 'til they bring it to market, then copy the design--effectively benefitting from a $200,000,000 that wasn't theirs. And since they wouldn't have made that initial investment to recoup, they could afford to undercut Boeing on price. In such an environment, it's clear that nobody would have any financial incentive to develop anything...and society would lose.

Without the idea of intellectual property, you're basically saying it's OK for me to profit from your labor while returning you...nothing. That, more than intellectual property, strikes me as a holdover from the feudal age.
maineshark
Jan. 20th, 2012 02:36 am (UTC)
Interesting. So, is Boeing benefiting from the development work that the Germans did, in designing the V-1? Do they own payments to those dead German engineers? Do those dead German engineers owe payments to the French and Russian engineers who developed the technology, before them?

Let's imagine that Boeing succeeds in developing some viable PDE, but it really only works well for small planes. However, it works so well, that a fleet of small planes could transport passengers cheaper than their fleet of large planes can. Since their business model is based upon large planes, they patent the new engine, and sit on the patent. Looks like society loses, eh?
tacit
Jan. 20th, 2012 10:23 pm (UTC)
Interesting. So, is Boeing benefiting from the development work that the Germans did, in designing the V-1? Do they own payments to those dead German engineers? Do those dead German engineers owe payments to the French and Russian engineers who developed the technology, before them?

You seem to have a profound lack of understanding of the concept of patents.

Patents persist for only a short time. The French and Russian engineers who started working with jet engines were able to patent those developments--and then, when the patents ran out, others were able to make use of their ideas. Patents persist for 3, 5, 7, 15, or 20 years, depending on the type of invention and other factors, and then after that the idea is open game. That's the social contract: if you spend $200,000,000 to develop something, then you have the right to capitalize on your labor and investment for a short time, after which your idea is opened to whoever wants it.

As near as I can tell from your arguments thus far, your position seems to be "I have the right to benefit from other people's creative labor and enterprise. If someone else spends hundreds of millions of dollars creating something, I have the right to do whatever I like with it for free, and any system that says otherwise deprives me of my rights. If someone makes a picture or records a song, I have the right to have it. If Adobe spends a boatload of money developing software, I am entitled to the use of that software for whatever price I, not Adobe, says--including free, if that is what I want. Other people's labor and creativity belongs to me by right, to use in any way I see fit." Which seems to me to be the very definition of entitlement--a position you dismissed as a straw man.
maineshark
Jan. 21st, 2012 08:56 pm (UTC)
Given that I took law after engineering, and I've studied the subject in-depth, I'd say it's rather certain that I understand patent law orders of magnitude better than you do.

The arbitrary government rules regarding patents are not the issue, though. That's a whole other discussion.

The issue is the claim that ideas can be property. If ideas are property, then they would be property, ad infinitum, just like any other property. Boeing could not use others ideas, because that would be stealing, no matter how old those ideas are. It's an absurd position to take.

You also ignore the practical issue I raised, where a big business can buy up patents that would threaten their business model, thereby denying society the use of those ideas for whatever term.

"As near as I can tell from your arguments thus far, your position seems to be..."

No. My position is that there is no such thing as "intellectual property." I've not taken any stand upon the moral, ethical, or practical implications thereof.
emanix
Jan. 20th, 2012 01:46 am (UTC)
Uh, no. Just 100% absolutely wrong.

The idea of intellectual property stems from the concept that time and effort exerted by a human being has value, and that a person who exerts themselves in such a way deserved to benefit from their own work. The idea that "the labors of the mind, productions and interests are as much a man's own...as the wheat he cultivates, or the flocks he rears." (Justice Charles L. Woodbury, 1845) is an idea roughly as old as the printed word (but not, as far as I can tell, much older).
Production licenses (that is, the system you described): Totally different kettle of fish.

The whole point of intellectual property law was to *prevent* exploitation, to respect the fact that work a person does with their brain is just as much work as the work someone produces using their body.

Say you'd produced an essay in school, and before you got to hand it in, another student grabbed it from you, photocopied it, and handed the photocopy in as their own work. You'd be pissed right? Why would you be pissed? Because that person would be reaping the benefits of your labour without having done any of their own. (And no doubt would have prevented you from benefiting from the fruits of your labour as well, as a teacher surely isn't going to accept that two people wrote the identical essay.)
*That* is what copyright is for.
maineshark
Jan. 20th, 2012 02:39 am (UTC)
Really? Could you provide some citation for your claim that IP predates feudal times? Last I checked, 1845 is significantly after feudal times, so that quote doesn't help your claim.

"Say you'd produced an essay in school, and before you got to hand it in, another student grabbed it from you, photocopied it, and handed the photocopy in as their own work. You'd be pissed right? Why would you be pissed? Because that person would be reaping the benefits of your labour without having done any of their own. (And no doubt would have prevented you from benefiting from the fruits of your labour as well, as a teacher surely isn't going to accept that two people wrote the identical essay.)"

Yes, I would. Because putting someone else's name on my work is fraud, not because the essay was "stolen." If the other student hands it in with my name on it, I can't imagine that I would object...
emanix
Jan. 21st, 2012 02:04 am (UTC)
Some reading comprehension might help you. Try again.

You were the one claiming that IP was 'from feudal times'. My point was that the concept of copyright, and later the idea of intellectual property had no reason to exist before the invention of the printing press. The *printed* word: really not that old.

As for the rest... I throw up my hands in despair.
maineshark
Jan. 21st, 2012 08:57 pm (UTC)
What, in particular, about what you said, do you believe I did not comprehend? Or are you just engaging in arbitrary ad hominems because you have nothing to support your specious claims?
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