⁶ “What Things Regulate Speech: CDA 2.0 vs Filtering,” by Lawrence Lessig

http://en.wikipedia.org/wiki/Freedom_of_Speech

 

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Reflections on Intellectual Property by Lindsey Pehrson, CUNY SPS 2009

 

Background

 

            In her book, Property Rights in Computer Software: Individual and Policy Issues, ethics writer Deborah Johnson asserts, “The aims and strategies of copyright and patent law seems right on target in seeking to create an environment in which invention can flourish. In this respect they are not bad laws. But, while their aims are right, they seem to lack the conceptual tools to handle the issues posed by computer technology. It appears that copyright law and patent law will have to be modified or abandoned computer-related invention…Whatever changes one support, it seems clear that we must keep in mind that our ends should be the same as those of patent and copyright systems, to create an environment in which creativity and invention are encouraged and facilitated.” ¹ Put simply, patent protection is a key component in ensuring the continued invention of new ideas and products, including software. Without an element in the mix that allows authors to obtain credit, both monetary and societal, for their work, they would not be as driven to try new things for the advancement of civilization. If copyright and patents no longer protected software, it could spell the end of entrepreneurial invention that makes a democracy so important. Furthermore, by removing the ability to own property, intellectual or otherwise, we are etching away at the foundation on which this country was built.

Copyright and patents are written into the constitution. Abandoning them because we have entered a Third Wave of technology would alter the capitalist spirit that Americans have built this country around. Though the laws of copyright and patents need to be altered to better fit this new age of Internet creation, they should not be abolished, they should be revised to establish new protection standards for intellectual property. Kimberly Beuther summarized Richard Volkman’s ideas on property rights very astutely. She stated, “Volkman believes that software ownership does not infringe on anyone else’s right to life, and if a programmer chooses to be paid for his work, then this is well within his rights.” 2 Intellectual property is a creation of its owner and, therefore, its owner should be able to say exactly when, how, where and in what context it can be used. No one should have the right to copy or recreate his property (i.e. software) without his knowledge or explicit permission.

Contrary to Volkman’s idea, Thomas Jefferson once declared, “If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of everyone, and the receiver cannot dispossess himself of it…He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density at any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property.” 3

            Thomas Jefferson was one of the founding fathers of the United States and the author of the Declaration of Independence. To many, those qualifications make him an authority on the subject of rights in a democracy. In the last line of the quote, this man who developed the fibers from which America was built, claims that inventions, no matter what type, should not be considered property. There is a lot of room for interpretation here for what an “invention” is and it appears that that was his intent. “Invention” can refer to anything from be a machine to a song. The only requirement is that whatever this object or thing is or does, it is a creation, and that means it should not be considered property period. Thomas Jefferson was a free thinker who revolutionized ideas. He makes a very good point here. Inventions are ideas brought to life. They are by their very nature free and uncontrolled. Therefore, society should not try to take these liberated creations and contain them with rules and laws about who can look at them or alter them, and who can’t. By saying, “ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition,” Jefferson is saying that new inventions should serve as the inspiration for other newer creations. That is the true intent of a free society known as a democracy.

            Software is an invention. Thereby, according to Jefferson, its creator should not consider software property; rather, its true purpose should be deemed as a tool by which to encourage other forms of software and the like for the general betterment of society. Society has much more potential for creation when it does not bind inventions to copyrights. In giving this steady thought, it makes a great deal of sense, and serves as a means for answering the consistent headache of how to address intellectual property rights in regards to software or any other invention online. Living in a democracy has afforded us the opportunity to not just hold tightly but also to share freely with our neighbors. Jefferson was very much aware of the limitations of a man’s nature, but he also lived at a time where he saw revolutionary changes. He realized that man had the capacity to give more than he received, and to use his creations for the betterment of civilization because advancing those around him also served to raise his own level of being. We live in a period of creation and reformation that is similar to Jefferson’s time, but, if we were able to expand our minds and really think about the true implications behind and possibilities for our creations, perhaps we could liberate ourselves from the tight standards of needing credit and wholly improve our situation through the free sharing and interchanging of ideas. We could unshackle ourselves and use the Internet for its true purposes: a Third Wave revolutionary technology that is intended to broaden our horizons and transmit information through glorious webs of fiber optic and coaxial cables. True, there is no real certainty that man could rid himself of his selfishness and need for credit enough to give with both hands open, but if each member of society was able to transform their nature and open up to the world, imagine the incredible and enlightened community we would live in. Jefferson’s quote is the epitome of idealism in regards to what society could be if we stopped letting our greed get in the way, and it serves as the perfect argument for allowing software to be free of copyright or any other chains that would seek to bind it.

   

Analysis

 

As the technological era transitions from one period to the next, the United States is forced to rethink previously held assumptions and ideals. For example, the Industrial Revolution saw the automation of numerous jobs and forced Americans to see things from a more cutting edge point of view. Since the creation of the Internet it has seen increasing popularity and a branching out of its fiber optic roots across the face of the world. Numerous benefits have been born of the Internet’s efficiency and quick dissemination of information. Unfortunately, a reoccurring theme that has stemmed from this environment has been the repeated violation of copyright and patent law. A wealth of file sharing sites, such as YouTube.com, Napster.com, and Kazaa.com have allowed users to trade copyright protected files without giving any credit to the owners and original creators of these music, movie and television bytes. The result has been outrage and a steadily burning battle over how best to protect the interests of copyright and patent holders. Exacerbating the problem is the fact that cyberspace can make it very difficult to track individual users guilty of copyright infringement.

There are several core values held by both sides in the copyright and patent case. On one hand there are those individuals that believe that, since we live in a democracy, citizens have been granted the right to ownership. This means control over their creations, as well as the ability to hold personal property that is critical to survival, development and sustained well-being. For example, people purchase homes in order to have a place for their families to live, and automobiles to give them the ability to transport themselves to and from those places their lifestyle requires them to visit (such as work and school). These resources are what allow individuals to have a sense of safety and security by furnishing them with a space of their own where they might be protected from and fortified against harmful outside influences. The property that is held by people becomes a part of their existence in the sense that they are represented by their homes, cars, cloths….and creations. Ownership of anything they make with the resources they possess is considered to be their own.

From an ethical standpoint, the right to own property is supported by both the ethical egoism and consequentialist point of views. Ethical egoists believe that the morally good choice is the one that lets them do what they want. Therefore, the egoist could believe that using or taking advantage of intellectual property and objects that do not belong to them is morally acceptable. Of course, there are no other ethical standards that make this same allowance. Consequentialists who are focusing on Utility believe that by ridding ourselves of copyrights, people will lose the inspiration to create new things. This is because they will no longer be able to achieve credit for their inventions and merely find the pursuit no longer worth the effort. The Natural Law theory says that our natural tendencies are morally correct. However, there is no clear-cut way to say that being able to own intellectual property is completely necessary for the species to survive and progress. The Utilitarian point of view believes that whatever satisfies the interests of the largest number of people or makes the largest number of people happy would be the morally correct action. The argument could conceivably be made that owning intellectual property makes a larger portion of society happy, and therefore, intellectual property rights should be protected by means of patents and copyrights. And, since it makes a larger segment of society happy, owning intellectual property is seen as a critical component in the advancement of society.

With Rawl’s Maxi-Min principle of justice, it is possible to make the case that the moral choice would be to honor the rights of others to own intellectual property. Justice in this theory is preserving and protecting the interests of the original owners of intellectual property by ensuring that those people who would seek to steal from them are restrained in their efforts. Furthermore, keeping this group of creators safe acts as a lynchpin in the stability and progression of a civil society. In Kant’s theory of Categorical Imperative, defending the rights of intellectual property owners is also the morally good choice and should be done, be it through societal pressure or official legislation. Taking the creations of others and exploiting them (as an ethical egoist would do), is a violation of Kant’s belief that human beings should not use each other as a means to an end in order to pursue their own selfish desires, especially when their own use acts as a contradiction to the wishes and intent of the original owner.

What is needed is a balance between private ownership of materials and the public’s right to access information. As the article, Debunking Software Patents Myths 4 stated, copyright and patents are not going to vanish simply because we have entered the Third Wave. They do, however, need to be reformatted to better serve the fluid environment of the Internet. Unfortunately, it is abundantly clear that no one is in agreement about how best to balance protected and unprotected material, leaving lingering confusions and battles between the parties involved. For example, there is a very delicate balance between protecting the legal rights of software creators versus preventing friends and loved ones that use our computer from accessing their software. Clearly, more flexibility is needed to deal with special circumstance.

 

“To encourage their invention, copyright and patent law were developed in most western countries. These laws were devoted to the delicate task of getting mental creations into the world where they could be used—and enter the minds of others—while assuring their inventors compensation for the value of their use. The systems of both law and practice which grew up around that task were based on physical expression. ” 5

 

The key here is that the original copyright and patent laws were related to physical objects, not intangible ideas. In fact unless something was tangible, it could not obtain a patent or a copyright. The question becomes, then, how do we handle the electromagnetic waves of material that are floating around in cyberspace? Do we categorize these ethereal things as able to be copyright protected, even though they cannot be brought into physicality? Or, do we say that they must have copyright protection, despite the special circumstances of their being? This question has proven very tough to handle. The Internet has once again left us baffled. The Internet poses new challenges to our old ideas and, as such, we must think hard about what the real implications are and decide how to tackle the issues.

 

               The Internet is an invention that allows for the almost immediate dissemination of information to the international community by merely pressing the “Send” button. This is excellent for those individuals that are seeking immediate information about something that is happening on the other side of the world. They can easily search the web pages of news stations such as CNN.com or Foxnews.com without having to exert much effort. Regrettably, in this age of data sharing, there have been unintended consequences. Software, music, movies and other media that can be transposed into digital data bytes have been readily transferred from one person to another through file sharing programs such as Napster.com and Kazaa.com. While this has been excellent for those individual that are seeking out a much-loved song for free, the consequences for the artists of these songs, software and movies have been extensive. Simply put: people are using their creations without giving any monetary credit back to the originator. This becomes an illegal offense when those files being shared have been granted copyright protection by the U.S. government. The problem is that there are no physical boundaries online; there is no wall to keep one person from sending another the music files they have stored so lovingly on their computers. The intent of many of these file sharers does not seem malicious, the same way that sharing software that you agreed to keep for yourself with other people that use your computer is not malicious. It is a means of helping another human being.   Should copyright and patents be able to prevent us from assisting our loved ones, or even strangers, that quite possibly cannot afford to purchase the software or songs on their own? Is it ethical for copyright and patent law to keep us from helping others?

 

              This last question is very difficult to answer, and it comes back to true ownership of property. When I purchase a CD at the store, I pay $20.00 for the right to do whatever I would like with the songs, at least I believe I do. Of course, my own ethical compass tells me that burning the CD and posting it online is not appropriate. This is because, though I bought the CD, I do not own the music itself. While I own copies of the music, the original rights of the artist, its inventor, are still in play. I might burn a copy for a best friend or loved one, but that is keeping authors from making their profit on the album they created. That is me violating their copyright and it is not morally correct, but, my need or desire to help those I love that are in need overrules my ethical sense of duty. Quite simply, my emotional ties to my loved ones are much stronger than my ethical ties to the artist. In the end, I am going to help the one I know and love over the one that I don’t know at all. Looking at it from my own perspective it gives me pause and makes me wonder, are those people sharing files acting ethically because of their own sense of responsibility towards the people they know? Is that sense of moral obligation to our parents, siblings and friends more appropriate to obey than our sense of duty to the software companies and music artists? I suddenly realize I am stuck in a quagmire of ethical proportions. I am living out dueling ethical duties without any hope of finding a peaceable solution, like being locked inside Kant’s Categorical Imperative. I see why those people share with loved ones, despite the government’s warning not to. We take the risk upon ourselves because our loved ones mean that much to us. But, it does not make our actions any less illegal. Therefore, like Richard Volkman in "Software Ownership and Natural Rights" , I conclude that software, music or other file sharing should not be at the expense of the creators.

                From a personal angle, if I were to create something, I would want to protect it from being used without my knowledge or consent. I would want to make sure that it wasn’t replicated a hundred thousand times and given away for free when I worked so hard to bring it into physical fruition. Of course, I do realize that ideas themselves cannot be owned. Every person who lives on this Earth has drawn inspiration for their words or actions based on something they have seen, heard or read about, and usually they do not give credit back to the originator. Ideas cannot be owned, because, though human beings are drastically different, some of us think scarily alike. How do we give credit when two different individuals came up with the same thing on their own? Ownership rights get messy very quickly. However, when someone takes a string of ideas and brings them into physical being, be it a song or poem, book or movie, they have made something that is their own creation and deserves protection. At this point, they have two options, seek to get the protection they might need (patent, copyright etc), or put their creation out there and see what someone else is able to make with it. In the case of software, systems like Linux have been drastically improved because the owners, instead of holding tightly to the reigns and insisting on pure credit, unselfishly realized that they had their operating system, though good, could be made great through the variations and input of others. So, they shared the precious source code that brought Linux to life, and waited to see the amazing alterations on it.

               My point is that, perhaps the component of intellectual property rights for software that needs to change are not only the laws themselves, but also the point of view of creators. Being a democracy means we are a society that allows people to take responsibility for their own actions and products. It also means that we can take the credit, and honestly, it must fill a human need because taking credit is one of the things that human beings do best. Unselfish and giving is not our natural tendency. We have to work at conditioning our children to share with their friends. We raise them and try to develop their ethical standards so that they give and not just receive. Children are representative of our true nature. When we grow up, we have the power to return to that selfishness in our jobs, our homes, our lives, and we do. When we create something, our nature tells us that we want to take credit, and we want to continue to be praised and respected for it. In the physical world, this is relatively easy to enforce because if someone recreates something that is ours without our permission, we can hold him or her accountable.

               The Internet changed this with its anonymity and easy dissemination of products. We can no longer easily track and control our inventions, and that has made a lot of authors very angry. Music companies in particular have been outraged over the violation of their artists’ rights. Music sales have fallen drastically, not because people stopped listening to music but because they are getting it for free online, and tracking down the endless number of sources for it seems not only daunting but nearly impossible to do. Instead, these corporations have gone after the most visible targets: Napster.com, Kazaa.com and the like. Unfortunately for them, though this has addressed the main source of the problem, it has by no means quelled it. There are numerous individuals across the globe posting music and movies online, sharing software and other copyright protected files, without end. Some days, it is almost as if our need to take credit and receive increasing monetary reward and status for that acknowledgment has sparked this intellectual property war. The price of CDs jumped from twelve or thirteen dollars to almost twenty (if not more) within a matter of ten years. Artists wanted more but seemed to produce less, leaving many outraged. When the Internet came along it suddenly became possible to take whatever we wanted without giving this credit or monetary acknowledgment to anyone. Now artists want their notoriety back and the Internet will either change its policies to help enforce the copyright laws, or force copyright laws to become more fluid. If the amount of file sharing is any indication, copyright liquidity is exactly what the population wants. I do not know what the outcome will be, but the one thing that is clear is that we are going to continue in this holding pattern of ongoing litigations for the right to keep our things protected online unless we change our outlook on how to address intellectual property rights.

              On a final note, there is the perspective that we should not have intellectual property rights. People like John Perry Barlow argue this point of view repeatedly through articles and commentaries. There are also those that feel that by getting rid of these copyright protections, more people will feel inspired to create. Unfortunately, as long as the United States is a democracy, there is no way that patent or copyright law will ever be eviscerated. We cannot simply rid ourselves of these constraints, but we can try to find a common ground between producers and consumers. That is the only way to make this work. As the Debunking of Software Patent Myths points out, patents actually help generate new ideas and keep the creative juices flowing. Apparently, knowing that our creations will be protected from theft is what makes us comfortable enough to take the time and invent new things. Therefore, we need patents and copyrights for the sake of the continual advancement of society and replenishment of new intellectual tools and ideas. In conclusion, though copyrights do present a problem for intellectual property online, we need them as part of our social system. However, in order to use them to the best of their abilities, we need to rethink the original intentions of the copyright and make it more applicable to the realities of Third Wave technology.   Through deliberate thought, and by loosening our grip on the reigns of control, I believe that eventually, we can come to a conclusion that would please both John Perry Barlow and the authors of new inventions everywhere.

 

 

¹ http://www2.sunysuffolk.edu/pecorip/SCCCWEB/ETEXTS/CISESHV_TEXT/Chapter-5-Intellectual-Property/Presentation-of-Issues.html

² Software Ownership and Rights Richard Volkman, retrieved on March 3, 2009 http://www.southernet.edu/organizations/recs/resources/research/intellectual_property/volkman_nat-rights.hmtl

 

³ Selling Wine Without Bottles The Economy of Mind on the Global Net John Perry Barlow retrieved on March 3, 2009

http://www.law.duke.edu/boylesite/ipmat.htm#Selling_Wine_Without_Bottles   or

http://www.virtualschool.edu/mon/ElectronicFrontier/WineWithoutBottles.html

 

⁴ Debunking Software Patents Myths from Communications of the ACM , printed June 1992, retrieved March 3, 2009

http://groups.csail.mit.edu/mac/classes/6.805/articles/int-prop/heckel-debunking.html

 

⁵ Selling Wine Without Bottles The Economy of Mind on the Global Net John Perry Barlow retrieved on March 3, 2009

http://www.law.duke.edu/boylesite/ipmat.htm#Selling_Wine_Without_Bottles