Friday, May 18, 2007

IP, IP, IP: Find Out What It Means to Me

The Congress shall have 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
—U.S. Constitution, Article I, Section 8

How on earth did we get from that brief phrase in the Constitution to today's state of affairs where:

  • At least one music distributor, Sony BMG, believes it has the moral and legal right to vandalize its paying customers’ computers in the name of fighting a potential crime that not only is potential but isn’t even actually a crime?

  • A guy threatens to sue people for posting videos of other people doing a variation of his copyrighted dance moves at a wedding?

  • "Happy Birthday to You," the melody of which dates back to the late 1800s, won't be fully out of copyright until 2016 -- assuming Congress doesn't do something to extend copyright terms yet again?

  • The former head of a powerful state grovels before Bill Gates to keep a schoolteacher on the other side of the world from going to a Siberian penal colony for supposedly infringing Microsoft copyrights?

  • A multinational fast-food chain claims commercial ownership of the phrase "Family Feast" to the point where it threatens a middle-aged innkeeper in the remote British countryside with legal action?

  • Everything from "ergonomically engineered underwear" to "time based hardware button for application launch" (i.e., the mouse double-click) is patented?

  • A private organization, the Recording Industry Association of America, can go on a massive campaign of legally abetted trespass, intimidation, harassment, and extortion against children, the elderly and infirm, college students, the deceased, and others in a futile effort to turn back the clock to pre-digital days?
IP Unfreely

Welcome to the insane world of intellectual property, or IP, that oppressive, rapidly expanding ideology that seeks to create, perpetuate, and enforce ever more draconian laws over things that are often not especially intellectual and are not really property.

Now, I've been an enthusiastic supporter of traditional property rights -- an individual's right to possess, use, and dispose of physical objects including land -- for many years, believing firmly in the strong evidence that places them as the cornerstone of most of the freedoms and advances in human civilization that we enjoy (or have enjoyed, as our liberty continues to deteriorate under various pretexts). I have been and remain a critic of abuses that threaten these property rights, including but not limited to civil asset forfeiture, eminent domain, and environmental "takings."

Brains!But I am extremely skeptical of so-called intellectual property. Copyrights, patents, and trademarks all fall under the burgeoning IP umbrella; however, these things are not only very different from each other in theory and law, they are very different from actual, tangible property and the laws that govern it.

It's worth noting that, as someone who would love to earn a living writing stories and such, my mind isn't 100% made up on, for example, the ultimate desirability (or undesirability) of copyright. But one thing is clear: The current IP regime is completely out of control, and it matters a great deal in terms of our wallets, our privacy, our real property rights, and -- ultimately -- our freedom.

Again, just to be clear: The notion of intellectual property, as presently applied, is fundamentally at odds with a free society.

Bogus "Rights" vs. Real Rights

The turning point for me came when it became "acceptable" (thanks to the onerous Digital Millennium Copyright Act) for private companies to commit actual crimes in their ham-handed attempts to self-enforce their alleged intellectual property "rights" on unsuspecting computer users. And not trivial crimes: We're talking about things like trespassing, theft, and destruction of property. (Google "sony rootkit" if you aren't familiar with the most outrageous example of this. The fact that Sony BMG hasn't been sued out of existence is itself ridiculous, but telling.)

What sort of "rights" require the commission of crimes to enforce them?

Therein lies a key problem with the way people now talk and think about copyright and the broader notion of IP. What the PR departments of the RIAA, MPAA, and other such groups have accomplished in this area is simply amazing. In the case of copyright, they have managed to rhetorically redefine a government-granted monopoly over the distribution of works from a temporarily and artificially conferred privilege into a near-perpetual, inviolable, God-given right. And in the case of anyone competing with this legal monopoly, the monopolists have transformed the infringement of their privilege from a purely civil, commercial dispute into a major crime, seemingly equivalent in severity to rape or murder.

All of the terms surrounding the issue are ideologically loaded. If you download a song to listen to, you're "stealing music." If you make a mix CD (even from CDs you've purchased) to woo a potential mate, you're a "pirate." If you post the lyrics to your favorite song on your blog, you're... well, I don't know what, but you can bet there is or will be a nasty-sounding term for that, too.

Here, Renty, Renty...

This propaganda obscures the true intent and nature of copyright as well as the incoherence of the concept of intellectual property as a whole. And of course it's deliberately done.

The RIAA, MPAA, and other beneficiaries of government-granted distribution monopolies have grown fat and happy from what economists call rent-seeking. They have every reason to confuse their statutorily granted powers with basic human rights. Indeed, not only are they desperate to preserve the asinine status quo -- which already makes douches like Leo Stoller possible -- but they apparently feel they don't already have enough power.

And Bush administration tools are happy to oblige the rent seekers' desires with more horrible legislation like the "Intellectual Property Protection Act" that, among other atrocities, criminalizes even attempted copyright infringement and applies asset forfeiture to computers used in such a fashion. Abso-fucking-lutely ridiculous and completely unacceptable in a society that likes to tout how free it is.

What IP Really Stands For

Ultimately, it's all about control vs. freedom. The rent-seeking entertainment industry has no divine right to a certain amount of profit every year. If new realities have changed the economic landscape, they need to adjust their business models, not buy shitty new self-serving and unjust laws from Congress.

The end result of this IP nonsense is to reduce us all to passive consumers who constantly shell out money to lazy, greedy, rent-seeking corporations for whatever pap we're fed, over and over again, stripping us of our ability to be active creators of, and participants in, our wider culture.

So I'm thinking of a more appropriate definition of IP -- maybe something like Irrational Protectionism, Irresponsible Patronage, or Insidious Privilege?

I can't sum it up any better than this quotation from Robert Heinlein that I found while poking around the Internets:
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 public interest. This strange doctrine is not supported by statute [this is obviously pre-DMCA -ed.] nor 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, for their private benefit. That is all.
Oops, I hope I didn't need to get permission from some publishing conglomerate for that. Oh well, fuck it.

Against Monopoly
Richard Stallman
Lawrence Lessig