Boundaries Of Ownership

Boundaries Of Ownership BOUNDARIES OF OWNERSHIP Nobody owns this essay. It is important that I make this very clear and that I do so at the earliest possible moment. I must do this because the essay that you are reading is about intellectual property, and that means that this essay must be self-referential. When one writes or speaks or communicates in any way about intellectual property, one is dealing with some of the most basic rules of the very medium in which one is operating. There is no neutral ground here, no possibility of genuine detachment or objectivity.

Either I am going to claim the protection of the current laws that apply in the United States and under the World Intellectual Property Organization, or I am not. So here it is: I am not. There is a name just under the title of this essay, but that name has no connection with any concept of ownership. What you read here is not controlled by any copyrights, trademarks, service marks, patents, trade secrets, or any other kind of intellectual property. The words on this page are not an authoritative version of this essay; no such version exists, and–as far as I am concerned–no such version ever will exist.

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The only limits on what you can do with this essay and the words in it are the limits imposed by the laws of physics and the extent of your imagination. As the available technologies advance, the limits will move outward, and you will be able to do more and more things with these words. No matter what you do with this material, I will not send lawyers chasing after you demanding royalties or anything else. If you do get into some sort of trouble for using something from this paper, that trouble won’t be started by me. Why am I doing this? Why am I abandoning copyright protection for my own creation, for something that I might eventually be able to make some money from? I am not an independently wealthy dilettante doing all of my writing purely as some sort of hobby; my wife and I are both struggling along on the meager money we get paid for teaching.

My bachelor’s degree is in writing (technical writing, to be precise), and I am working on a master’s degree in the same field–so why don’t I act the way that you would expect a writer to act? Why should I toss away control over my own work with such apparent recklessness? The simplest answer is this: I don’t think that I actually have any control in the first place. Any person with a cheap personal computer, a cheap Internet connection, and extremely cheap software has the ability to take anything that can be seen or heard, modify it in any way they choose, make unlimited numbers of copies, and send those copies anywhere in the world. If one reads the previous sentence carefully, one can find details to quibble over; but the proof of its basic truth stands in front of millions of people every time that they turn their computers on, whether these people notice it or not. I see the obviousness of it every day that I use a computer, which is practically every day. It is my inability to ignore this reality which has finally driven me to abandon the idea of intellectual property for my own creations and to write this paper. One of my favorite descriptions of the situation comes from an article by journalist Charles Mann in the September 1998 issue of Atlantic Monthly: The transformation of intellectual property into electronic form creates new problems.

If the cost of manufacturing and distributing a product falls, economic forces will drive down its price, too. The Net embodies this principle to an extreme degree. Manufacturing and distribution costs collapse almost to nothing online: zeroes and ones can be shot around the world with a few clicks of a mouse. Hence producers of digital texts, music, and films will have trouble charging anything at all for copies of their works–competitors can always offer substitutes for less, pushing the price toward the vanishing point. .

. . Even as digital technology drives the potential value of copyright to ever greater heights, that same technology threatens to make it next to worthless. And how are people attempting to deal with this? Mann explains: This paradox has engendered two reactions. One is to advocate eliminating copyright altogether.

Led by a small but surprisingly influential cadre of libertarian futurists, anti-copyrightists believe that the increased ease of copying effectively obviates the symbol and all it entails. . . . The other, opposing reaction is to strengthen the hand of copyright owners.

Realizing the growing economic import of copyright, Congress is rapidly trying to overhaul the nation’s intellectual-property regime. The changes would give copyright owners more control for longer times; some would make it a crime to work around copyright-protection schemes. Mann summarizes the import of all this: Today the marketplace of ideas is being shaken up by the competing demands of technology, finance, and law. Large sums of money are at stake. Change seems inevitable.

One way or another, we will lay a new institutional foundation for literary culture in the United States. How we do it will play a big role . . . in determining our future well-being.

It would be comforting to believe that decisions will be made thoughtfully and well. But little evidence suggests this is true. Indeed, we may be heading into a muddle that it will take us a long time to escape. For another description of this muddle, let us turn to an article by John Perry Barlow (originally published in the magazine Wired) called Selling Wine Without Bottles: The Economy of Mind on the Global Net. Here is a portion of Barlow’s assessment of the intellectual property dilemma: If our property can be infinitely reproduced and instantaneously distributed all over the planet without cost, without our knowledge, without its even leaving our possession, how can we protect it? How are we going to get paid for the work we do with our minds? And, if we can’t get paid, what will assure the continued creation and distribution of such work? Since we don’t have a solution to what is a profoundly new kind of challenge, and are apparently unable to delay the galloping digitization of everything not obstinately physical, we are sailing into the future on a sinking ship.

This vessel, the accumulated canon of copyright and patent law, was developed to convey forms and methods of expression entirely different from the vaporous cargo it is now being asked to carry. It is leaking as much from within as without. Legal efforts to keep the old boat floating are taking three forms: a frenzy of deck chair rearrangement, stern warnings to the passengers that if she goes down, they will face harsh criminal penalties, and serene, glassy-eyed denial. Intellectual property law cannot be patched, retrofitted, or expanded to contain the gasses of digitized expression any more than real estate law might be revised to cover the allocation of broadcasting spectrum. (Which, in fact, rather resembles what is being attempted here.) We will need to develop an entirely new set of methods as befits this entirely new set of circumstances.

Most of the people who actually create soft property–the programmers, hackers, and Net surfers–already know this. Unfortunately, neither the companies they work for nor the lawyers these companies hire have enough direct experience with immaterial goods to understand why they are so problematic. They are proceeding as though the old laws can somehow be made to work, either by grotesque expansion or by force. They are wrong. There are a couple of noteworthy characteristics to be found in both of these articles.

One is their novelty: Mann’s article is the only cover story on this topic that I have been able to find in a major mainstream periodical during the two years or so that I have been researching intellectual property. Wired, the magazine that published Barlow’s work, is much too far into the cyberculture to be called mainstream; yet even among the programmers, hackers, and Net surfers that Barlow describes as being in the know, the amount of discussion of technology’s effect on intellectual property is surprisingly small considering the tremendous potential import of the subject. The second interesting point is how both of these articles confirm an idea I mentioned in the second paragraph of this paper: no person can publicly discuss intellectual property in an objective way. Mann, acknowledging his role as journalist, admits, Because I make much of my living from copyright, I find the to-and-fro fascinating, and have a vested interest in the results. Barlow mentions his experience in the music industry: In regard to my own soft product, rock and roll songs, there is no question that the band I write them for, the Grateful Dead, has increased its popularity enormously by giving them away.

We have been letting people tape our concerts since the early seventies, but instead of reducing the demand for our product, we are now the largest concert draw in America, a fact which is at least in part attributable to the popularity generated by those tapes. True, I don’t get any royalties on the millions of copies of my songs which have been extracted from concerts, but I see no reason to complain. The fact is, no one but the Grateful Dead can perform a Grateful Dead song, so if you want the experience and not its thin projection, you have to buy a ticket from us. In other words, our intellectual property protection derives from our being the only real-time source of it. Barlow also looks at the status of the article Selling Wine Without Bottles itself: Despite its print publication here, I expect it will continue to evolve in liquid form, possibly for years.

The thoughts in it have not been mine alone but have assembled themselves in a field of interaction which has existed between myself and numerous others, to whom I am grateful. . . . However, I should note in honesty that when Wired sends me a check for having temporarily fixed it on their pages, I alone will cash it. There is another interesting angle that comes up when writers write about intellectual property.

In certain contractual situations, the author has already legally abandoned the ability to practice what he may be preaching. In early 1999, Stewart Alsop wrote one of the few articles which has both questioned the current intellectual property regime and appeared in the business press–in this case, Fortune. Alsop’s article concludes: Doesn’t it begin to feel as if we should go back and reexamine our assumptions about whether creative effort should be protected by the government? Of course, as a spur to these discussions, I would love to grant you blanket permission to copy this article freely, but I don’t own the copyright. You’ll have to ask the permissions manager here at Fortune if you want to make more than one copy. So, we can not escape it. If you talk about intellectual property in public, you have to look at what you yourself are doing, and the context in which you are doing it. All three of these articles that I’ve quoted from were copyrighted. All three of the authors received money, under the traditional rules of intellectual property, for articles in which they critically questioned those very rules.

Are there ethical problems here? Are they facing a conflict of interest? Do we even have a good way of phrasing these questions, let alone answering them? I don’t know, and I can’t preach to anyone else about how they should approach these issues. But I definitely feel that the only way I can maintain some sort of objectivity is if I personally do not have money riding on the very subject that I’m trying to examine. So there it is. I don’t own this essay, and neither does anyone else. Do with these words what you will.

Run this essay through a photocopier, put this on a web site, email this to all your friends and relatives. As I said at the beginning, the only limits are the laws of physics and the extent of your imagination. All right, you may say. You, the author but non-owner of this essay, have made a choice. Fine for you, perhaps. But where will everyone wind up in the long run? What is going to happen to copyrights and everything else as the technology changes? A reasonable question, and a difficult one.

We can return here to Mann: Large sums of money are indeed at stake, and change certainly seems inevitable. But there is a great deal of reluctance to recognize that change. The serene, glassy-eyed denial which Barlow described is widespread, and many people find it far too easy to maintain. The denial is built primarily around belief in the perpetual maintenance, and the further development, of three things: Voluntary cooperation by the general public; Punishment of those who don’t voluntarily cooperate–in other words, the belief that the stern warnings to the passengers, as Barlow described them above, can actually be backed up by fines and prison terms; and Technological fixes for all the problems. Why don’t I think that any or all of these things will preserve intellectual property as we have known it? The next two portions of this paper answer that question.

Since I believe that voluntary cooperation and legal enforcement are closely related, I will discuss them together. Technological fixes will get a section of their own. Part 2: Useful Arts? Can current laws governing intellectual property survive the onslaught of technology? Do they deserve to? How do we decide? If current intellectual property law is a coherent structure, with clearly agreed-upon goals and clear ways of reaching those goals, then the system might have some chance of surviving. But just how clear and coherent is it? Let’s go back to the early roots of intellectual property in American constitutional law. (The tangled relationships between technology and intellectual property involve a multitude of international questions, but the laws of the United States give us some good starting points. Also, the situation in our country contains more than enough problems to keep us busy, as we shall soon see.) Here is what the United States Constitution * ml* says in Article I, Section 8, Clause 8: Congress shall have the power . .

. 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. Now compare this with an excerpt from the Online Terms of Us at the web site of Warner Brothers as these terms appeared in 1999: Any notes, message/billboard postings, ideas, suggestions, concepts or other material submitted will become the property of Warner Bros. throughout the universe and Warner Bros. shall be entitled to use the material for any type of use forever including in any media whether now known or hereafter devised. Note the differences between these two documents.

The Constitution applies only to the United States; Warner Bros., with its claim of jurisdiction throughout the universe, apparently controls things out where even the World Intellectual Property Organization does not tread. The Constitution secures rights to the original Authors and Inventors; Warner Brothers is claiming rights to material that others have created and submitted to the company. The Constitution uses the phrase limited Times; Warner Brothers claims that their entitlement lasts forever. Warner Brothers does not even want to be bound by the limits of today’s technology: whatever comes along, in any media whether now known or hereafter devised, belongs to the company. If we go beyond the original words of the Constitution and look at the specifics of modern copyright law, another noteworthy detail appears. The US Copyright Office itself flatly states that ideas cannot be copyrighted; yet Warner Brothers claims ideas as its property, along with such dubious things as suggestions and concepts.

I don’t mean to portray Warner Brothers as being some kind of big corporate villain here. It is just another company trying to maximize its profits, which is what companies do. Its competitors in the media business, all of whom have similar policies in their Terms of Use statements, are in the same situation. It is difficult to believe that a company like Warner Brothers would not have such a policy; still, we must face the fact that there are some real differences between the letter of the laws which are on the books and the policies which large media corporations attempt to enforce–when they can. If Terms of Use like those of Warner Brothers do not actually reflect the law, in either the Constitution or the statutes, how confidently can copyright holders trust the law to solidly maintain the integrity of their inventory? What of actual case law? How well do judges defend the rights of copyright holders when push comes to shove? Here, too, one’s confidence may be shaken by the facts.

Within the limited scope of this paper, one example will suffice. In the case I am about to relate, the intellectual property involved was software; but this case has implications far beyond its original scope. The defendant, David LaMacchia, posted a number of commercial programs on his electronic bulletin board and allowed computer users to download copies of the programs for free. Originally, the charges brought against him were under federal wire fraud statutes; however, Judge D. J.

Stearns found that these specific statutes did not apply when no personal profit was involved. Ultimately, he dismissed the charges. Congress later passed the No Electronic Theft or NET Act to make sure that no future LaMacchias would be able to escape scot-free as he had. If one carefully examines different parts of Stearns’ ruling in the case, one gets a vivid picture of the contradictions and paradoxes in both intellectual property law itself and in people’s attitudes towards it. At one point in his decision, Stearn goes out of his way to emphasize how the limited nature of the property interest conferred by copyright stems from an overriding First Amendment concern for the free dissemination of ideas.

Stearns quotes Harry Blackmun’s words from a Supreme …


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