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.

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.’

FOSS Licenses: Hackers As Legal Maestros

Over at Concurring Opinions, Biella Coleman writes a very good post on her anthropological work on hackers. In it Biella states what many of us who have looked at the world of free and open source software think:

[M]any developers are nimble legal thinkers, which helps explain how they have built, in a relatively short time period, a robust alternative body of legal theory and laws

I don’t fully agree with the reasons that Biella gives for why this might be so (i.e., similarities between programming and the writing of laws), but I don’t doubt for a second that this is true. Anyone that comes into contact with free and open source software (FOSS) licensing, and with the rich, vibrant discourse that permeates the FOSS community about about copyright and patent law will know that many hackers know the law really well, and they know how to hack the law to make it work for them.

So I found Orin Kerr’s response curiously skeptical:

Can you give a few examples of how the group you have studied are “nimble legal thinkers”? And what are the “robust alternative body of legal theory and laws” that you mention? I think I can say I’ve been somewhat near this space for a few years and I wouldn’t reach that conclusion: I’ve encountered a lot of naive and self-serving legal claims over the years, but not a lot that I would call nimble or robust.

I think the replies in the comments space address Kerr adequately but I’d like to throw in my tuppence in any case. And I’ll do so by talking about what I know best: FOSS licensing.

First, I think FOSS licenses present an alternative body of legal constructs that show how within a political economy that was increasingly becoming proprietary and using copyright, patent and trade secret law to lock down its content (copyright executables; patent algorithms; treat code as trade secrets), an alternative zone of creation can be created, which can flourish, be viable, and be richly productive of more and better code. (Look for instance, at how FOSS licenses solve the problem of protecting their projects from patent infringement lawsuits, and how they solve the problems inherent in multiple-authorship of a body of code).

Second, as for being “nimble” thinkers, I think copyleft licensing is a work of genius–hats off, Richard Stallman and Eben Moglen–and represents, in my mind, one of the cleverest backs to the legal system that I’ve seen. The GPL–in all its incarnations–reveals a deep understanding of the law, and how best to utilize it to bring about desired ends–solving the problem of non-reciprocity that could create a tragedy of the commons–within an existent legal framework (the GPL’s  protection of the commons gives it a practical and ethical advantage over other FOSS licenses). Read GPL V3 and look at how cleverly it addresses the challenges that made it’s release necessary; it’s “nimble” all right. Any lawyer that reads the GPL, understands it, and gets what it is trying to do, should be struck by the sheer cleverness of how copyright law can be made to serve ends that might not look like its original intended ones, but actually turn out to be in great resonance with them.

Third, I don’t think it is any exaggeration to say that a great deal of thinking about how artistic content in the new political economy of the digital world could be distributed and regulated in a way that is respectful of artists and consumers’ interests alike, has been inspired by FOSS licensing. (Creative Commons licensing is a very good example of this; that body of licenses presents an alternative way to deal with artistic content today; it isn’t perfect, but it’s a start, and it got started by FOSS licenses). Sometimes I wonder indeed, if anyone talking about the new digital economy and how to legally configure hasn’t been inspired by FOSS licensing and practices somehow.

When it comes to being “self-serving,” I’d suggest that there is a general tendency in the legal academy to simply not admit that law can be “done” by non-lawyers, that a body of rules built up over a period of time can be “hacked” by others than them.