Once More: ‘Intellectual Property’ Breeds Confusion; Drop it

Rarely, if ever, does the term ‘intellectual property’ add clarity to any debate of substance–very often, this is because it includes the term ‘property’ and thus offers an invitation to some dubious theorizing. This post by Alex Rosenberg at Daily Nous is a good example of this claim:

Locke famously offered an account of the justification of private property, one that Nozick brought to our attention in Anarchy, State and Utopia. The account worked like this: morally permissible private property begins with original acquisition, and that happens when you mix your labor with nature, and leave as good and as much for others. Alas, this “Lockean” proviso is impossible to satisfy. Or at least it is in every original acquisition other than the case of intellectual property. Here one mixes one mental labor with nature—empirical facts about reality, including social reality. Since there are an infinite number of good ideas, the creator of intellectual property leaves as much and as good for others, and therefore has an unqualified right to what he has created.

Brian Leiter’s ownership of the PGR satisfies the most stringent test of private property I know. It’s his creation and he excluded no one else from mixing his or her labor with nature to produce a substitute for or for that matter a complement to his creation.

In light of this fact, the effort to separate him from his intellectual property owing to disapproval of his emails and posts seems rather preposterous.

It has often been proposed–most notably by Richard Stallman, free software‘s most fiery proponent-that the term ‘intellectual property’ be junked in favor of more precise usage. That is, when you are tempted to use the term ‘intellectual property’ use ‘copyright,’ ‘patents,’ ‘trademarks,’ or ‘trade secrets’ instead. Doing this would enable immediate grappling with the precise nature of the issue at hand–in each named domain there are separable legal and policy issues at play.

For instance, the granting of copyright is not the recognition of an abstract property right. It is a utilitarian policy decision–to allow the collection of monopoly rent for a limited period of time–with a very specific objective in mind: the creation of more artistic works. If someone’s copyright rights have allegedly been violated, we may begin by trying to identify the concrete expression that was supposedly copyrightable, the identification of the nature of the infringement–unauthorized reproduction or the production of derivative works–and so on. Incidentally, matters become a tad confusing because Rosenberg talks about ‘mixing mental labor with nature.’ Locke did not have ‘nature’ in mind, rather he had in mind fallow land. Which is precisely not the nature of artistic creation, where the creator does not interact with ‘fallow land’ but mixes his ideas with the ideas of others to create a new work.

In the case of the Philosophical Gourmet Report, it relies for its content on the availability of a great deal of openly available material; collation, processing, and analysis turns this into a new work–the PGR, the new concrete expression. There is indeed a copyright in the particular concrete expression of the PGR–the individual blog pages and the material in them–its author’s commentaries, analysis, and summaries. The unauthorized copying of the content of these is indeed prohibited, as is the production of derivative works–for instance, an unauthorized abridgment of his explanation of the rankings. But the current proposals aimed at changing the ‘management’ of the PGR aim to do nothing of this sort. Prof. Leiter’s concrete expressions–the current content of the PGR–remain his; he could continue to produce them, retain his copyright, and proceed as before. And indeed, an entirely new set of rankings may be produced, using the same ‘raw material’ available to the current authors of the PGR, subjected to new analysis and commentary, and thus resulting in a new concrete expression, a new set of rankings. Also copyrightable.

Analytic philosophers–who are so proud of their claims to provide conceptual clarity–shouldn’t continue to traffic in a term as obfuscatory as ‘intellectual property.’

Michael Ondaatje, Divisadero and the ‘Hidden Presence of Others’

Michael Ondaatje‘s Divisadero is a wise book, elliptical and allusive in his distinctive style, one replaying close, attentive reading to its many lovely, lyrical lines, too many to excerpt and note. Here is one that hones in on a truth already known to those who create:

Everything is biographical…What we make, why it is made, how we draw a dog, who it is we are drawn to, why we cannot forget. Everything is collage, even genetics. There is the hidden presence of others in us, even those we have known briefly. We contain them for the rest of our lives, at every border that we cross.

Not only are our creations the result of borrowings, imitations, outright thefts, our writings voice-overs of once-read texts, but we ourselves are composites and mosaics. We bear the impress of our encounters, the mark of those we meet; every lover, every friend, every enemy, every parent, every sibling, every teacher, leaves their stamp. Read a writer, you read everything he’s read; talk to a human, you talk to humanity.  We present a distinctive take on our encounters and our histories; we digest and assimilate and repackage–to get all industrial, just for a bit–all our inputs.  But peek around the corner of the persona presented to you and you see a long trail, stretching off into the distance, populated by people and events and markers of many kinds, literary, cultural, artistic, and sometimes even traumatic.

Sometimes these histories of ours are clearly visible; sometimes we carry them around on our sleeves, available for all to see; sometimes the scars are visible and worn with pride. But sometimes we are puzzled by the presence, within us, of something whose provenance seems mysterious. So we attempt to excavate: sometimes by writing, sometimes by looking for the nearest couch and an interpreter with a notepad.

We imagine ourselves self-made, creators of these living, walking works of art we embody. We are that to be sure. But we are aided and abetted by collaborators; those who, with their chisels, put in a touch or two here or there, or with their brushes, added a dab here, a flourish there. So there is accretion aplenty on us; layers and layers of deposited sediment, pushing down on those that came before, compressing and morphing them with their own distinctive pressures.

The texts we embody are not just read by many, they are written by many. And that couch and the interpreter can help us read it when we are confused by its contours, its plot developments; we might need a translation manual, a decrypting key. We imagine we are familiar to ourselves but precisely because of our complex histories, we might become unrecognizable in just that zone of presumed knowledge.

And thus this strangeness can be pleasurable too; we can surprise ourselves, find novelty in that which we imagined contemptuously familiar. Perhaps that is why we push ourselves into encounters with the novel, trusting that in our responses to it, we might find something else about our perfectly strange selves. 

Tim Kreider and the Problem of Too Many Writers

Tim Kreider has a very familiar sounding complaint in the New York Times. It is familiar because his article follows a well-worn template of talking about the Brave New Bad World of Free Content, and because the Times routinely publishes such Op-Eds. Like most screeds put out by what I have termed ‘the whining artist‘ it is incoherent.

This sentence is the heart of the complaint:

[In] our information economy..“paying for things” is a quaint, discredited old 20th-century custom.

You’ve heard it before: writers are being asked to write for free; no one values writing any more; writers won’t write any more if they don’t get ‘paid’. And so on. (Musicians often make similar complaints.)

This sentence though, does not inspire confidence that Krieder has the slightest clue of what he is talking about:

I spent 20 years and wrote thousands of pages learning the trivial craft of putting sentences together. My parents blew tens of thousands of 1980s dollars on tuition at a prestigious institution to train me for this job. They also put my sister the pulmonologist through medical school, and as far as I know nobody ever asks her to perform a quick lobectomy — doesn’t have to be anything fancy, maybe just in her spare time, whatever she can do would be great — because it’ll help get her name out there.

I’m guessing a pulmonologist is not in the business of producing intangible material that can be effortlessly copied and distributed at minimal cost. Furthermore, barriers to the market for pulmonologist are high: years of expensive education, apprenticeships etc. It’s a pity Kreider’s parents blew so much money on training him to be a writer; perhaps they didn’t realize that these days just about everyone and anyone thinks they can be a writer. And too many of them act on this belief.

That brings us to the heart of the matter. I too, would like everything, all the time, for free. I realize quickly enough that some things in this modern world are not free and yet others–depending on their relative scarcity–are almost free.

For instance, once I’ve paid my internet subscriber’s monthly fee, I can read unlimited amounts of political opinion; everyone has one, and everyone wants to share it with me. I can also read unlimited amounts of poetry, short stories, essays, and so on. There are, it seems, many, many writers around these days. What is it that makes the writing profession so attractive, that so many writers, according to Kreider, are giving their work away for free?

The answer, I thought, was obvious: for a while, thanks to a very particularly structured industry that grew up around it, writing made money and fame for some writers. These writers are cultural icons, giants who stalk the land. Their lives beguile us; we want to be like them. Their fame and riches made many people forget that they were exceptions, and that most writers still failed to make a living. Even the writing lifestyle began to seem glamorous: all that drinking and hanging out in cafes. And didn’t Arthur Miller hook up with Marilyn Monroe?

Writing seems easy. Why not just pull up a piece of paper and a pen and write? Or a typewriter? Or now, a word-processor? Perhaps if you get lucky, you could be admitted to a ‘writing program’ and tap into all the contacts your professors have with agents, editors and publishers?

Soon you find that many, many others have the same dream. And everyone is scribbling away furiously. So many tools to write with; so many publishing platforms; so many lives and things to write about. There’s too much to read; how will I get readers to notice me in this sea of well-crafted words?

Perhaps by ‘exposure’? Perhaps by using my writing as a ‘loss-leader‘ so that I can secure that paying gig, that big contract, that advance, that book tour, that glossy jacket photo, that writer’s cabin on a remote island? Or if not, perhaps I can get a job teaching writing at a writer’s program that turns out more writers? Or less glamorously, perhaps I could teach writing at a college to incoming freshmen? That way, my writing will have made some money for me. Not directly, but indirectly. And then I can get to hang out in cafes and call myself a writer.

Written content is not scarce; quality written content still is; writers need to get noticed. The situation that Kreider then complains about–content being asked for, and being given away for free, just to get ‘noticed’–is almost inevitable.

It would help if writers would stop thinking of themselves as God’s Gift to Mankind and instead began regarding themselves as just another species of creative ‘producers’ whose ‘content’ is not very scarce, and lends itself to easy distribution and reproduction. Interestingly enough, I don’t read too many Op-Eds by artists saying that people are asking them to make paintings for free; they never had a content industry grow up around them and hence have no reason to not think that things are just as they have always been: most artists don’t make money from their art.

Perhaps the fame and riches of the writers of days gone by was a blip in normal service, and not the norm?

Alina Simone Doesn’t Like The Internet, Her Best Friend

The New York Times periodically publishes blog posts and Op-Eds by defenders of the intellectual property regimes that are a blot on our cultural landscape today; these defenders include what I describe as–for lack of a better term–‘the whining artist.’ This category includes all those who, seemingly stunned by the fact that the political economy of the production and distribution of cultural products have irreversibly changed, insist on incessantly bemoaning it and ascribing all sorts of malefactions to its agents, whether human, economic, or material.

In this category we can now include Alina Simone, who in her piece titled ‘The End of Quiet Music‘ displays an acute lack of an ironic and historical sensibility. Roughly, Simone is disappointed: that in the new music economy she had to be ‘entrepreneurial’ and this left her little time for creative production; that seeking patronage is time-consuming and counterproductive to the nurturing of artists (‘ this mechanism naturally winnows out the artists who lack the ability, confidence or desire to publicly solicit donations’); that, wait for it, ‘piracy’ is to blame.

So far, so ‘we’ve heard it before.’ But it gets interesting now:

Late one night, after playing a show, I came home to an e-mail from an editor at a publishing house. He’d heard my music on Pandora and bought my albums at the (now defunct) Virgin Megastore in Union Square. He had a question for me: Would I consider writing a book?

Two years later, my collection of essays was published.

Imagine that: the ‘new economy’–one in which music not belonging to private collections is now streamed–had resulted in another avenue of creative production opening up for her. And her first book is being distributed on Kindle; perhaps it can be downloaded and read anywhere?

Then Ms. Simone publishes a novel, and pretty soon, ‘a university press commissioned another book.’ (She also has a regular gig blogging for The New York Times; a ‘blog’ those online spaces where writers can write and be read; Ms. Simone’s articles do not appear in the print edition.)  Ms. Simone is not satisfied though and is still anxious: writers will soon be threatened by this piracy-infused world but they do seem to have it better because there are more avenues for patronage:

[P]ublishing is facing its own pressures, and the day may come when writers have no option but to become entrepreneurs, too. For now the center continues to hold; you can still write for a newspaper instead of founding your own.

But even if it doesn’t hold, there are other sectors writers can lean on for support. They can seek funding through fellowships or residencies, or teach writing at a university. These kinds of opportunities have helped a significant group of American artists carve out a middle-class living for themselves.

Ms. Simone does not seem to realize that artists and intellectual of all stripes have always relied on patronage of corresponding diversity. The creation of industries that relied on tangible products which could be made artificially scarce produced a new economy whose heyday saw the creation of much wealth for those who controlled the means of production and distribution. That economy is now in its death-throes. Artists will now seek patronage in other ways, yet to be determined. (Incidentally, there are ‘fellowships and residencies’ for musicians, and many of them teach music too at a variety of institutions.)

It will be replaced by one in which many reconfigurations will need to take place; artists who might have flourished in the old one will not do well in this new one; some who would not have done well in the older one will do better in this one. Its contours are hard to determine; there is too much flux to permit any more facile predictions like the ones I have just made.  (There might be some genre-switching too.)

But so long as the creative impulse lives on–and there is little to suggest humans will stop writing novels, poems, and plays, making music and painting, given that they did so before the industries whose deaths are now being forecast ever came about–we can expect art to be made. Entry to its world might be harder or easier; its products might be available in ways different from the ones we are used to; we might consume them differently.

We need artists to turn their imaginations to conceiving what this world might look and feel like,  and not spend their time griping about new modes of creation and distribution.

When they do so, they don’t sound like artists. They sound like reactionaries.

Carmen Ortiz Did Not Act Alone in Hounding Aaron Swartz To His Death

No prosecution of war criminals, torturers and mass murderers; no prosecution of those that declare a war on false pretense; no prosecution of those that indulge in  grand larceny and financial fraud, immiserating the lives of many; no prosecuting of the rich and the powerful; but over-zealous hounding of a young, idealistic, brilliant man whose only crime seemed to be the desire to make available accumulated knowledge to all; and as always, the continuing incarceration and punishment of the nation’s dispossessed and underprivileged. This is not the justice system we would like to have, it is the one we actually have.

What could have motivated the prosecutor run amuck, Carmen Ortiz, to seek the horrendously disproportionate jail sentences and fines she sought for Aaron Swartz? Political ambition, perhaps. But focusing on her actions alone would be a mistake. Ortiz took the line she did because she was well aware that she was acting in a very particular context, a time and place in which the penalties she sought stood some chance of being viewed as the appropriate punishment for a baleful malefactor.

Ortiz, you see, was well aware that she lives in a world densely populated by confused, ignorant people, incapable of understanding the legal, economic and utilitarian roots of private property, or the differences between physical property and intangible property, who are too lazy to bother disentangling the idiotic term ‘intellectual property’, who faithfully parrot the lying press releases of media corporations, who cannot be bothered to understand how the creation and propagation of ideas works. These people can be relied upon to childishly shriek and scream at every instance of an action that threatens to upend the neat little black and white world they have constructed of absolute property rights and romantic notions of creativity. They can be relied upon to deploy, with little prompting, an emotionally charged, morally inflected language of ‘theft’, ‘piracy’, ‘robbery’, and ‘stealing’ to describe actions whose descriptions call for considerably more nuance. They are firm and upstanding and self-righteous, full of rectitude and judgment; they imagine themselves defenders of the starving artist and the inventor in the basement, not realizing they are, as usual, corporate shills and defenders of the antitheses of their proclaimed stances. They clog our bulletin boards and blog comments spaces, whining about how ‘artists deserve to be paid’, about how books and poems  will never get written, how movies will never be made, music will never be composed, songs will never be performed  in a world that does not offer as much copyright protection as possible, from the cradle to the grave and beyond.

These howling fools–who include those who work at supposedly elite institutions of learning–had set up a chorus, an applause track that Ortiz craved. Her cruel, over-the-top, inquisitorial sentence of thirty-five years and a million dollars, one would that terminate the career of a man who packed more creativity into his little pinkie than all the hordes who claim to be the faithful defenders of creativity, would ensure her hosannahs from this gallery. She would be enshrined as the Grand Protector of Property. Could there be a higher honor in our society?

So she acted. And pushed Aaron Swartz into his grave.

The ‘Long Live the Paper Book’ Argument Needs To Mention DRM

Justin Hollander’s defense of the traditional paper book  (‘Long Live Paper’, New York Times, 10 October 2012) is well-meant but given the severity of the challenge it faces from e-books, it is a relatively milquetoast argument. It gets to the nitty-gritty late, and as such is unlikely to convince those enamored of their convenient, pocket-stuffing e-readers. What could possibly be the downside to the idea a student could go to school with an electronic backpack that weighs–and might cost–a fraction of the traditional one? Five hundred books in that e-reader of yours, imagine that! And the price would surely fall as well. Right? (Not quite: current pricing models show the publishing industry prices e-books quite closely to physical books.)

Hollander addresses some of these claims but still only goes part of the way in critically addressing the supposed promise of e-books.  One good way to  compare a technological innovation with an older technology is in the relevant technological dimensions: in their affordances and features. For instance, a book is easily sharable; it can be thrown about a bit; you can stuff it into your pocket, you can even spill a little water on it; and so on. Or consider accessing the information contained therein. Readers know accessing a particular piece of information in a book is never too hard: page numbers, bookmarks, indices did most of the work required quickly. How easy is it to get to page 155 in an e-book? Are e-indices as easy to use? (Along these lines, one of Hollander’s best points is to note the dependency of e-books on power supplies.)

In the case of comparing the two technological objects at hand–the paper book versus the electronic book–the primary issues remain their facilitation of information sharing. Thus, access, sharing, distribution and interaction should be our primary axes of interrogation, ones that make this debate more substantive. For instance, can the publisher restrict the number of people who can read a e-book? The physical copy of the paper book can only be read by one person at a time but sharing is quite easy even if limited by copying difficulty. The advantage of a digital book is that it can be easily copied and read by more than one person. But this can be restricted. The cost of transmission to a remote reading partner in an e-book is negligible. If this aspect of the e-book is restricted, then what happens to one of its primary advantages over the dead-tree version? How about annotation? To annotate a book, you must scribble in the margins, or underline or highlight destructively. In the case of a digital book, edits and annotations can be made in the margins but their length does not have to be restricted. These annotations can be hidden so that other readers of the book are not inconvenienced. Will e-books meant for scholarship and study facilitate tools for annotation?

It seems that the gorilla in the room, as far as Hollander’s Op-Ed is concerned, is digital rights management (DRM). Consider the restrictions raised as possibilities above. They are part of the e-book future, for they are certainly part of its present: restrictions on the number of readers, on the number of times it can be opened, whether it can be written to, whether it can be printed or not. DRM offers publishers to lock up books in ways that go beyond copyright law (and it affords them the protections of the Digital Millenium Act ((DMCA)). To introduce e-books as a replacement for paper books is to also potentially introduce a form of control in a zone that does not showcase it yet.

A move to digital books is only a good one if e-books fully utilize the virtues of their digital format. If the only advantage to be drawn on is that of cost while access is ignored or only selectively drawn on, then the bargain is going to be a bad one for the most important figure in this whole picture: the ‘consumer’. Er, the reader.

Copyright Protection for Academic Works: A Bad Idea, But Who’ll Bell The Cat?

Richard Posner has written yet another interesting critique of patent and copyright law; it includes a remark of particular interest to me:

At the other extreme is academic books and articles (apart from textbooks), which are produced as a byproduct of academic research that the author must conduct in order to preserve his professional reputation and that would continue to be produced even if not copyrightable at all. It is doubtful that there is any social benefit to the copyrighting of academic work other than textbooks, which require a lot of work and generally do not enhance the author’s academic reputation and may undermine it.

Posner is exactly right. When it comes to academic works like research monographs and journal articles copyright law is a severe handicap for the creator(s). Restrictions on copying, distribution, and the making of derivative works all work against the author(s) because every one of these restrictions ensures that the most valuable outcome to be derived from an academic work is inhibited: readership is limited as is the central ‘income’ forthcoming from a reputation economy. In most academic works, copyright passes to the publisher; as every aspiring academic comes to realize quickly, one of the essential steps in getting an article or a book published is the signing of the copyright release (or transfer) form; the ‘work’ is no longer yours; step back and observe another entity control access to material that only benefits you if access to is unrestricted and indeed, positively facilitated.

Unfortunately, reform in this domain appears unlikely because the academic world is run by the terrible trio of Promotion & Tenure Committees, ‘Prestigious’ Academic Presses & Journals, and Pompous Seniors Who Refuse To Take the Lead. And animated by the Matthew Principle.  Till P&T committees start to recognize work published in non-traditional venues, and concomitantly, the ‘prestige’ associated with traditional academic presses and journal publishing groups comes to be associated with them, not much will change in the current situation. Much good would be done if senior academics, those with tenured full professorships at  Famous Universities[tm] start publishing their work in non-traditional venues like open access journals and new presses committed to open access books. They have plenty of wealth to spare in this reputation economy; junior academics would benefit a great deal from their largesse in this domain. Their hoarding and accumulation does little to change matters, and ensures the perpetuation of an archaic and ultimately counterproductive model of academic publishing. .

Note: While Posner is not critical about copyright protection for textbooks, some textbooks in my field, philosophy, are anthologies of material available in the public domain, with little value added by the editors (perhaps some discussion questions). These are then marketed at exorbitant prices. I remain hopeful that as more public domain philosophy is digitized and placed online, these textbooks will be phased out in the near future.  And of course, more importantly, many anthologies bear the price they do because they include copyrighted material for which fees have to be paid: excerpts from journal articles or books, which should never have been copyrighted in the first place.