[ EEPI-Discuss ] Re: Speaking of Celebrity, Social Contracts and Naivity.

[Dan Krimm <djkrimbo@earthlink.net>]

A little too much here to reply to it all, but a few comments:


>Date: Tue, 17 May 2005 18:34:31 +0100
>From: David Tomlinson <d.tomlinson@tiscali.co.uk>
>Subject: [ EEPI-Discuss ] Re: Speaking of Celebrity,	Social Contracts
>	and Naivity.



>"Brazil led a bloc including India, South Africa, and China that
>thwarted an attempt by the US and its allies to harden the UN's line on
>intellectual property rights, insisting that the final conference
>document recognize just as strongly the cultural and economic importance
>of shared knowledge."

Hooray for Brazil and the gang (I might point out that UK and EC in general
tend to ally with the US in these matters, so welcome to the club...).  The
strategy being used by the Western Bloc under encouragement from RIAA and
IFPI is a bi-directional rachet:  if domestic law is stronger than
international, they try to raise international to match -- but if
international law is stronger than domestic, they try to import to domestic
law to raise them to international standards.  This needs to be
systematically opposed, both domestically and in the international domains
of WIPO and WTO/TRIPS.

I mean, the maximalist bent is certainly dangerous to civil liberties, but
opposing maximalism does not necessarily entail embracing strict minimalism
either.



>Unlike Larry Lessig, I don't think that Property is a suitable model for
>Interlectual Property, and I don't like compulsory licencing, but the
>main issue is the thought police.

Lessig certainly does not think that IP is any normal sort of "property" --
he emphasizes its Jeffersonian distinction from physical property (if I
give an idea to you, I haven't lost that idea myself).  Here are a few
relevant passages from his book "Free Culture":

   "... to call a copyright a 'property' right is a bit misleading, for the
property of copyright is an odd kind of property.  Indeed, the very idea of
property in any idea or expression is very odd. ... [quoting Jefferson:]
'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."
   The exceptions to free use are ideas and expressions within the reach of
the law of patent an copyright, and a few other domains that I won't
discuss here.  Here the law says you can't take my idea or expression
without my permission:  The law turns the intangible into property.
   But how, and to what extent, and in what form -- the details, in other
words -- matter. [p. 83-84]
...
   There is something innocent and obvious about the claim of the copyright
warriors that the government should 'protect my property.'  In the
abstract, it is obviously true and, ordinarily, totally harmless.  No sane
sort who is not an anarchist could disagree.
   But when we see how dramatically this 'property' has changed -- when we
recognize how it might now interact with both technology and markets to
mean that the effective constraint on the liberty to cultivate our culture
is dramatically different -- the claim begins to seem less innocent and
obvious.  Given (1) the power of technology to supplement the law's
control, and (2) the power of concentrated markets to weaken the
opportunity for dissent, if strictly enforcing the massively expanded
'property' rights granted by copyright fundamentally changes the freedom
within this culture to cultivate and build upon our past, then we have to
ask whether this property should be redefined.
   Not starkly.  Or absolutely.  My point is not that we should abolish
copyright or go back to the eighteenth century.  That would be a total
mistake, disastrous for the most important creative enterprises within our
culture today.
   But there is a space between zero and one, Internet culture
notwithstanding.  And these massive shifts in the effective power of
copyright regulation, tied to increased concentration of the content
industry and resting in the hands of technology that will increasingly
enable control over the use of culture, should drive us to consider whether
another adjustment is called for.  Not an adjustment that increases
copyright's power.  Nor an adjustment that increases its term.  Rather, an
adjustment to restore the balance that has traditionally defined
copyright's regulation --  a weakening of that regulation, to strengthen
creativity. [ p. 168-169]"


In short, Lessig agrees with you on this point about thought police, and so
do I.  He is profoundly disturbed by the potential of thought police, and
wants to push back against that.  Me too.

But, it can be done without destroying the potential for creators to get
compensated directly for the value of their creations, and not for adjunct
values such as celebrity, investment resources, or patronage.

This is where the balance comes in, and why I think of Lessig (and myself)
as centrists -- "copyright optimalists" as it were.



I'm just beginning a great book by Peter Drahos called "Information
Feudalism" which makes your point about the origins of copyright not being
the ideal of the social contract I've mentioned before.  However, it also
mentions that the "fairy tale" of the social contract has been used
rhetorically to justify copyright (and IP a a whole, especially including
patents) for decades upon decades, as a replacement for legal monopolies
after the advent of anti-trust law.  Without that excuse, they never could
have gotten the increases in reach of copyright put into law.  They still
use that excuse today.

What I suggest is that, now that we have technology that can really do it,
we simply hold them to their rhetoric after all.  They have no
justification for refusing, given how they've relied on this rhetoric
through the decades.  Merely point out that we can come so much closer to
that ideal today, and therefore we are morally bound to do so, by their own
rhetoric.

Dan

PS -- You've said several times you don't like compulsory licensing, but
what about *voluntary* blanket/collective licensing?  Got a problem with
that?  If so, why?

Of course, it's a relatively small step from voluntary blanket/collective
licensing to compulsory blanket licensing, since rate negotiations have to
proceed collectively in either case (or be adjudicated/arbitrated by the
government in either case).

I just think the opposition to collective licensing is sort of doctrinal
and knee-jerk.  The reasons usually presented for opposition often crumble
under detailed scrutiny, just like the justifications for "market
fundamentalism" represent an orthodoxy that fails to endure nuanced
examination.
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