Talking About ‘Intellectual Property’ On ‘Counterpoint with Amanda Vanstone’

A week or so ago, I recorded an interview with the Australian Broadcasting Corporation‘s Amanda Vanstone for her program Counterpoint (on the ABC’s Radio National.) Amanda and I discussed my recent essay in Aeon Magazine on why the general term ‘intellectual property’ should be discarded, and the why the very notion of ‘intellectual property’ being any kind of property is a problematic one. The interview is now online; do give it a listen if you are so inclined.

Copyright Reformers Do Not Advocate Plagiarism

If you are one of those folks who responds to any debate in the domain of copyright reform with one of the following responses (or some variant thereof), please cease and desist. You are revealing yourself to be a functional illiterate.

  1. Oh, so according to you, anyone should be able to take something written by an author and just rip it off, right? [I’m presuming ‘rip it off’ means ‘use without attribution.’]
  2. I should be able to take something you’ve written, change your name to mine and just sell it, right?

No. You may not. You would be a plagiarizer then. Folks advocating reforms of copyright laws–typically shorter copyright terms, more lenient understandings of the doctrine of ‘fair use‘ mainly–have never advocated plagiarism. They still don’t.

Copyright reformers do not advocate that copyright protections should not exist. They do argue, however, that these protections are sometimes extended to material that should not be copyrighted–for example the baseball statistics that are put into a particular format by an author should remain uncopyrighted while their new tabular format certainly should be; they also advocate that those terms of copyright should be limited–as originally envisaged in the US Constitution–so that the copyrighted material can serve as ‘raw material’ for other creators to build on, to modify. They also express concern that over-stringent application of copyright laws are sometimes problematic in the digital world in which we live today – one in which creative products can be more readily copied, modified, and distributed.

But they do not, ever, advocate that someone should be able to take someone else’s’ work and pass it off as their own.

This persistent misunderstanding of copyright reformers’ claims has two unsavory interpretations:

  1. Critics of copyright reformers are lazy and illiterate; they cannot read, and if they can, they cannot be bothered to read the actual claims made by copyright reformers.
  2. Critics of copyright reformers are intellectually dishonest, engaging in willful misreading in order to systematically misrepresent the reformers’ claims.

I pen this short screed today because this past Monday, my essay ‘End Intellectual Property,’ which argues that the term ‘intellectual property’ is a misleading piece of rhetorical excess and should be discarded in favor of the precise use of ‘copyrights’, ‘patents’ ‘trademarks’ and ‘trade secrets’ instead, appeared in Aeon Magazine, and almost immediately, many readers online made some version of the responses above. I’m left shaking my head. Especially as my essay included the following line:

And neither do copyright reformers argue that plagiarists be somehow rewarded; they do not advocate that anyone should be able to take a copyrighted work, put their name on it, and sell it.

‘Nuff said.

P.S: There are several other persistent misunderstandings–or willful misreadings– of copyright reformer’s claims making the rounds. As they have been for a while. Like vampires, they refuse to die. On those (‘so you think artists should not be paid for their work?’ and ‘how come your books are not made available for free?’), more anon.

Tesla’s ‘Irma Update’ Shows The Dangers Of Proprietary Software

By now, you know the story. Tesla magically (remotely) updated the software of its cars during Hurricane Irma:

Tesla remotely sent a free software update to some drivers across Florida over the weekend, extending the battery capacity of cars and giving extra range to those fleeing Hurricane Irma.

According to reports, the update temporarily unlocked the full-battery potential for 75-kilowatt-hour Model S sedans and Model X SUVs, adding around 30 to 40 miles to their range.

“Cars with a 75-kilowatt-hour battery pack were previously software limited to 210 miles of driving range per single charge and will now get 249 miles, the full range capacity of the battery,” the company wrote on a blog.

As is evident from this description, the software regulating battery life is ‘autonomous’ of the user; the user cannot change it, or tweak it in any way to reflect changing user needs or driving conditions (like, say, the need to drive to a distant point in order to escape a potentially life-threatening change in the weather.) In short, the software that runs on Tesla’s cars is not ‘free‘–not in the sense that you have to pay money for it, but in the sense that you cannot do what you, as the user of the software, might or might not want to do with it: like share it, copy it, modify it. If the user needs ‘help’ he or she must wait for the benevolent corporation to come to its aid.

We, as software users, are used to this state of affairs. Most of the software we use is indeed not ‘free’ in this sense: the source code is kept a trade secret and cannot be inspected to figure out how it does what it does, the binary executables are copyrighted and cannot be copied, lastly, the software’s algorithms are patented. You cannot read the code, you cannot change it to better reflect your needs, and you cannot make copies of something you ‘own’ to give it to others who might need it. As software users eventually come to realize, you don’t ‘own’ proprietary software in the traditional sense of the term, you license it for a limited period of time, subject to many constraints, some reasonable, others not.

In an interview with 3AM magazine, while talking about my book Decoding Liberation: The Promise of Free and Open Source Software I had made note of some of the political implications of the way software is regulated by law. The following exchange sums up the issues at play:

3:AM: One aspect of the book that was particularly interesting to me was your vision of a world full of code, a cyborg world where ‘distinctions between human and machine evanesce’ and where ‘personal and social freedoms in this domain are precisely the freedoms granted or restricted by software.’ Can you say something about what you argued for there?

SC: I think what we were trying to get at was that it seemed the world was increasingly driven by software, which underwrote a great deal of the technology that extends us and makes our cyborg selves possible. In the past, our cyborg selves were constructed by things like eyeglasses, pencils, abacuses and the like—today, by smartphones, wearable computers, tablets and other devices like them. These are all driven by software. So our extended mind, our extended self, is very likely to be largely a computational device. Who controls that software? Who writes it? Who can modify it? Look at us today, tethered to our machines, unable to function without them, using software written by someone else. How free can we be if we don’t have some very basic control over this technology? If the people who write the software are the ones who have exclusive control over it, then I think we are giving up some measure of freedom in this cyborg society. Remember that we can enforce all sorts of social control over people by writing it into the machines that they use for all sorts of things. Perhaps our machines of tomorrow will come with porn filters embedded in the code that we cannot remove; perhaps with code in the browsers that mark off portions of the Net as forbidden territory, perhaps our reading devices will not let us read certain books, perhaps our smartphones will not let us call certain numbers, perhaps prosthetic devices will not function in ‘no-go zones’, perhaps the self-driving cars of tomorrow will not let us drive faster than a certain speed; the control possibilities are endless. The more technologized we become and the more control we hand over to those who can change the innards of the machines, the less free we are. What are we to do? Just comply? This all sounds very sci-fi, but then, so would most of contemporary computing to folks fifty years ago. We need to be in charge of the machines that we use, that are our extensions.

We, in short, should be able to hack ourselves.

Tesla’s users were not free during Irma; they were at the mercy of the company, which in this case, came to their aid. Other users, of other technologies, might not be so fortunate; they might not be the masters of their destiny.

Property As Legal Construct

Property appears an abstract, transcendent, metaphysical concept from afar but on closer inspection reveals itself to be legally constructed. Like ‘person,’ property obtains its philosophical traction from a legal, economic, and social imperative to distribute resources, and thus, wealth and power.  As a canonical legal textbook puts it, the “property system” that results from a particular set of legal arrangements can “order relations”; it can “confer benefits and impose burdens.” The law describes how it is acquired by discovery, capture, creation, being found, adverse possession, and gift. These accommodations of property are so fundamental that property is written into our conceptions of ourselves, in claims that “every man has a property in his own person.”

This taxonomy of ways of acquiring property highlight particular modes of interaction with the world in terms of their property creation properties: ‘this way of interacting with the world counts as an acquisition of property if it meets the requisite legal conditions’; the workings of the common law of property are refinements, over an extended period of time, of these interactions. Law thus provides a specification of the conditions under which humans interact with the world to bring property into being, and how other humans should accordingly interact with a world in which property exists, if they are to avoid particular consequences arising from regulations that preserve the categorization of particular objects as property. (Computer software—in its binary and text forms—had to be legally demarcated as ‘ownable’ and ‘copyrightable’ before it could be termed ‘property’ of any kind.) These consequences could, for instance, interfere with ends and purposes served by the provision of private property. The law of property demarcates a range of possible actions and restrictions on our freedom; various pushings, proddings, and pokings of the world become illicit because they may constitute, for instance, ‘trespass on chattels.’ This categorization of the world into property and not-property acquires ontological significance: property becomes part of our socially constructed reality, reconfigurable if social needs change.

Property is not discovered; it is made, not by the act of mixing labor with supposedly ‘fallow land,’ as Locke would have had it, but by the scaffolding provided by the surrounding legal system. Property is a wholly positivistic legal concept; it makes a supposedly natural right ‘real’ and acquires its ontological weight from law. The legal conceptions of property are indifferent to the kinds of property system they create: different sets of rules create different systems, with different balances of power for owners and others; such allocations of property might lock in and preserve existing power relations.

The best justifications—philosophical ones—for system of property are pragmatic, outcome oriented ones. There is no ‘natural’ or ‘objective’ independent basis upon which to rest the ‘protection’ of property:

The property concept had no determinate meaning or positive content. It was a contingent decision whether the owner of the factory machinery should also own the products of the factory, or whether the owner also should control the management of the plant. [Gary Peller, The Metaphysics of American Law, 73 Cal. L. Rev. 1151 (1985)]


Apple’s ‘Code Is Speech’ Argument, The DeCSS Case, And Free Software

In its ongoing battle with federal law enforcement agencies over its refusal to unlock the iPhone, Apple has mounted a ‘Code is Speech’ defense arguing that “the First Amendment prohibits the government from compelling Apple to make code.” This has provoked some critical commentary, including an article by Neil Richards, which argues that Apple’s argument is “dangerous.”

Richards alludes to some previous legal wrangling over the legal status of computer code, but does not name names. Here is an excerpt from my book Decoding Liberation: The Promise of Free and Open Source Software (co-authored with Scott Dexter) that makes note of a relevant court decision and offers arguments for treating code as speech protected under the First Amendment. (To fully flesh out these arguments in their appropriate contexts, do read Chapters 4 and 5 of Decoding Liberation. I’d be happy to mail PDFs to anyone interested.) Continue reading

Descartes, The Planned City, And Misplaced Philosophical Desires

In Part 2 of Discourse on the Method of Rightly Conducting the Reason and Seeking for Truth in the Sciences Rene Descartes, as a prelude to his ‘clearing away’ of prior philosophy, writes:

[T]here is very often less perfection in works composed of several portions, and carried out by the hands of various masters, than in those on which one individual alone has worked. Thus we see that buildings planned and carried out by one architect alone are usually more beautiful and better proportioned than those which many have tried to put in order and improve, making use of old walls which were built with other ends in view. In the same way also, those ancient cities which, originally mere villages, have become in the process of time great towns, are usually badly constructed in comparison with those which are regularly laid out on a plain by a surveyor who is free to follow his own ideas….we understand how difficult it is to bring about much that is satisfactory in operating only upon the works of others.

Interestingly enough, as the examples of Chandigarh, Brasilia, and Canberra show, the planned city, built from scratch to purpose, the product of a singular architectural vision, is very often a counterpart to the bustling, chaotic, cosmopolitan cities whose growth has proceeded, at best, along an entirely haphazard trajectory.The ostensible beauty of the planned city’s design has not compensated for its lack of history, the absence of accretions of culture and lives lived within its precincts; the planned city gets off the ground with little interference from what came before, but it does not encourage riffs and improvisation. The planned city offers a gleaming surface and little else; it lacks the blemishes that speak of a rich interior. It has set itself apart, and there it shall stay. (No offense is intended to the residents of these cities; still, I think they would agree their city’s lack of a past, its ab initio origins, contribute in some measure to the contrast it offers to the great metropolises of the world.)

There is much that goes wrong with Western philosophy thanks to Descartes: the obsession with system building, the epistemic foundationalism, the quest for certainty, the alignment of philosophy with the sciences and mathematics, the appearance-reality distinction, the desire to ground truths in something beyond the human, the divorce of philosophy from history. (These sins cannot all be laid at Descartes door, of course; Plato is the original culprit for many of them.) Here, in the Discourse, we see the glimmerings of another problematic vision, one manifest in domains other than philosophy as well: that works made in splendid solitude are necessarily inferior to those made jointly with others, through acts of creative, even if sometimes clumsy and flawed, appropriation and improvisation. In doing so, Descartes reinforces–among other things–the fallacy of the lone creator, the solitary artist, the self-made man, the sole author.

Ironically, Descartes ended up generating a great deal of undergrowth that hasn’t been cleared yet (or alternatively, a foundation that still tempts too many of those who came after.)

Freud On Group Production (And ‘Intellectual Property’)

In ‘Group Pyschology’, (Standard Edition, XVIII, 79; as cited in Peter Gay, Freud for Historians, Oxford University Press, 1985, pp. 150), Sigmund Freud writes:

[A]s far as intellectual achievement is concerned, it remains indeed true that the great decisions of the work of thought, the consequential discoveries and solutions of problems, are possible only to the individual, laboring in solitude. But even the mass mind is capable of mental creations of genius, as proved above all by language itself, as well as by folk song, folklore and the like. Beyond that, it remains unsettled just how much the individual thinker or creative writer owed to the stimulus of the crowd among which he lives, whether he is more than the completer of mental work in which the others had participated at the same time.

The Grand Old Man of Psychoanalysis is, as usual, quite perspicuous here (As Gay notes in a parenthetical remark, his concluding ‘reasonable aside…joins, once again, individual and social psychology.’) His choice of examples of the works produced by ‘the mass mind’ are, in particular, telling: language, folk song, and folklore.  Without the first, there is no language to be used as the medium of expression by the novelist, the poet, the writer; no home, as it were, for them to set up safe camp and experiment, boldly, perhaps striking out where none dared have gone before. Idiosyncrasy must have an orthodoxy to pit itself against. Without the second a giant repository of sources for classical and popular music alike is inaccessible.  Bach, it must be remembered, drew heavily on German folk music for some of his most famous compositions; rock and roll owes its provenance to the blues etc. As in language, folk songs and music provide a foundation upon which many an impressive superstructure, sometimes radically different from its lower levels, may be built up. Without the third, similarly, the wellsprings of stories–long and short alike, plays, novels, dries up. The child hears these at her mother’s and grandparent’s knees; she learns them in school; and again, further sorties into territories visible, but not yet ventured into by them, are suggested.

The ‘individual, laboring in solitude’ is not denied any of the credit that is her due by her drawing upon these sources of inspiration. It is her particular and peculiar utilization and deployment of these source materials that is the cause of our appreciation and praise. Our acknowledgement of the genius’ work only tips over into fantasy–and counterproductive restraints on borrowing and creative amendment–when we imagine that her productions  issued as singular emanations from her, and only her, alone. Moreover, the true value of the genius’ contributions does not lie in the solitary splendor of her literary, visual, or musical creations; rather, it is that those creations, by being poured back into the collective cultural potlatch, become fecund sources of further artistic production for those who follow in her footsteps.

We are born into a made world; when we leave, we’ve laid a couple of bricks ourselves. With the mortar and materials of those who came before us.