| Boundaries Of Ownership Essay, Research Paper
BOUNDARIES OF OWNERSHIP
Nobody owns this essay.
It is important that I make this very clear and that I do so at the earliest possible moment. I must do this because the essay that you are reading is about intellectual property, and that means that this essay must be self-referential. When one writes or speaks or communicates in any way about intellectual property, one is dealing with some of the most basic rules of the very medium in which one is operating. There is no neutral ground here, no possibility of genuine detachment or objectivity. Either I am going to claim the protection of the current laws that apply in the United States and under the World Intellectual Property Organization, or I am not.
So here it is: I am not.
There is a name just under the title of this essay, but that name has no connection with any concept of ownership. What you read here is not controlled by any copyrights, trademarks, service marks, patents, trade secrets, or any other kind of intellectual property. The words on this page are not an “authoritative” version of this essay; no such version exists, and–as far as I am concerned–no such version ever will exist. The only limits on what you can do with this essay and the words in it are the limits imposed by the laws of physics and the extent of your imagination. As the available technologies advance, the limits will move outward, and you will be able to do more and more things with these words. No matter what you do with this material, I will not send lawyers chasing after you demanding royalties or anything else. If you do get into some sort of trouble for using something from this paper, that trouble won’t be started by me.
Why am I doing this? Why am I abandoning copyright protection for my own creation, for something that I might eventually be able to make some money from? I am not an independently wealthy dilettante doing all of my writing purely as some sort of hobby; my wife and I are both struggling along on the meager money we get paid for teaching. My bachelor’s degree is in writing (technical writing, to be precise), and I am working on a master’s degree in the same field–so why don’t I act the way that you would expect a writer to act? Why should I toss away control over my own work with such apparent recklessness?
The simplest answer is this: I don’t think that I actually have any control in the first place. Any person with a cheap personal computer, a cheap Internet connection, and extremely cheap software has the ability to take anything that can be seen or heard, modify it in any way they choose, make unlimited numbers of copies, and send those copies anywhere in the world. If one reads the previous sentence carefully, one can find details to quibble over; but the proof of its basic truth stands in front of millions of people every time that they turn their computers on, whether these people notice it or not. I see the obviousness of it every day that I use a computer, which is practically every day. It is my inability to ignore this reality which has finally driven me to abandon the idea of intellectual property for my own “creations” and to write this paper.
One of my favorite descriptions of the situation comes from an article by journalist Charles Mann in the September 1998 issue of Atlantic Monthly:
The transformation of intellectual property into electronic form creates new
problems. If the cost of manufacturing and distributing a product falls, economic
forces will drive down its price, too. The Net embodies this principle to an
extreme degree. Manufacturing and distribution costs collapse almost to nothing
online: zeroes and ones can be shot around the world with a few clicks of a mouse.
Hence producers of digital texts, music, and films will have trouble charging
anything at all for copies of their works–competitors can always offer substitutes
for less, pushing the price toward the vanishing point. . . . Even as digital
technology drives the potential value of copyright to ever greater heights, that same
technology threatens to make it next to worthless.
And how are people attempting to deal with this? Mann explains:
This paradox has engendered two reactions. One is to advocate eliminating
copyright altogether. Led by a small but surprisingly influential cadre of libertarian
futurists, anti-copyrightists believe that the increased ease of copying effectively
obviates the ? symbol and all it entails. . . . The other, opposing reaction is to
strengthen the hand of copyright owners. Realizing the growing economic import of
copyright, Congress is rapidly trying to overhaul the nation’s intellectual-property
regime. The changes would give copyright owners more control for longer times;
some would make it a crime to work around copyright-protection schemes.
Mann summarizes the import of all this:
Today the marketplace of ideas is being shaken up by the competing demands of
technology, finance, and law. Large sums of money are at stake. Change seems
inevitable. One way or another, we will lay a new institutional foundation for
literary culture in the United States. How we do it will play a big role . . . in
determining our future well-being. It would be comforting to believe that decisions
will be made thoughtfully and well. But little evidence suggests this is true. Indeed,
we may be heading into a muddle that it will take us a long time to escape.
For another description of this muddle, let us turn to an article by John Perry Barlow (originally published in the magazine Wired) called “Selling Wine Without Bottles: The Economy of Mind on the Global Net.” Here is a portion of Barlow’s assessment of the intellectual property dilemma:
If our property can be infinitely reproduced and instantaneously distributed all over
the planet without cost, without our knowledge, without its even leaving our
possession, how can we protect it? How are we going to get paid for the work we
do with our minds? And, if we can’t get paid, what will assure the continued
creation and distribution of such work?
Since we don’t have a solution to what is a profoundly new kind of challenge,
and are apparently unable to delay the galloping digitization of everything not
obstinately physical, we are sailing into the future on a sinking ship.
This vessel, the accumulated canon of copyright and patent law, was developed
to convey forms and methods of expression entirely different from the vaporous
cargo it is now being asked to carry. It is leaking as much from within as without.
Legal efforts to keep the old boat floating are taking three forms: a frenzy of
deck chair rearrangement, stern warnings to the passengers that if she goes down,
they will face harsh criminal penalties, and serene, glassy-eyed denial.
Intellectual property law cannot be patched, retrofitted, or expanded to contain
the gasses of digitized expression any more than real estate law might be revised to
cover the allocation of broadcasting spectrum. (Which, in fact, rather resembles
what is being attempted here.) We will need to develop an entirely new set of
methods as befits this entirely new set of circumstances.
Most of the people who actually create soft property–the programmers,
hackers, and Net surfers–already know this. Unfortunately, neither the companies
they work for nor the lawyers these companies hire have enough direct experience
with immaterial goods to understand why they are so problematic. They are
proceeding as though the old laws can somehow be made to work, either by
grotesque expansion or by force. They are wrong.
There are a couple of noteworthy characteristics to be found in both of these articles. One is their novelty: Mann’s article is the only cover story on this topic that I have been able to find in a major mainstream periodical during the two years or so that I have been researching intellectual property. Wired, the magazine that published Barlow’s work, is much too far into the cyberculture to be called “mainstream;” yet even among “the programmers, hackers, and Net surfers” that Barlow describes as being in the know, the amount of discussion of technology’s effect on intellectual property is surprisingly small considering the tremendous potential import of the subject.
The second interesting point is how both of these articles confirm an idea I mentioned in the second paragraph of this paper: no person can publicly discuss intellectual property in an objective way. Mann, acknowledging his role as journalist, admits, “Because I make much of my living from copyright, I find the to-and-fro fascinating, and have a vested interest in the results”. Barlow mentions his experience in the music industry:
In regard to my own soft product, rock and roll songs, there is no question that
the band I write them for, the Grateful Dead, has increased its popularity
enormously by giving them away. We have been letting people tape our concerts
since the early seventies, but instead of reducing the demand for our product, we
are now the largest concert draw in America, a fact which is at least in part
attributable to the popularity generated by those tapes.
True, I don’t get any royalties on the millions of copies of my songs which have
been extracted from concerts, but I see no reason to complain. The fact is, no one
but the Grateful Dead can perform a Grateful Dead song, so if you want the
experience and not its thin projection, you have to buy a ticket from us. In other
words, our intellectual property protection derives from our being the only
real-time source of it.
Barlow also looks at the status of the article “Selling Wine Without Bottles” itself:
Despite its print publication here, I expect it will continue to evolve in liquid form, possibly
for years. The thoughts in it have not been “mine” alone but have assembled themselves
in a field of interaction which has existed between myself and numerous others, to whom
I am grateful. . . . However, I should note in honesty that when Wired sends me a check
for having temporarily “fixed” it on their pages, I alone will cash it.
There is another interesting angle that comes up when writers write about intellectual property. In certain contractual situations, the author has already legally abandoned the ability to practice what he may be preaching. In early 1999, Stewart Alsop wrote one of the few articles which has both questioned the current intellectual property regime and appeared in the business
press–in this case, Fortune. Alsop’s article concludes:
Doesn’t it begin to feel as if we should go back and reexamine our assumptions
about whether creative effort should be protected by the government? Of course, as
a spur to these discussions, I would love to grant you blanket permission to copy
this article freely, but I don’t own the copyright. You’ll have to ask the permissions
manager here at Fortune if you want to make more than one copy.
So, we can not escape it. If you talk about intellectual property in public, you have to look at what you yourself are doing, and the context in which you are doing it. All three of these articles that I’ve quoted from were copyrighted. All three of the authors received money, under the traditional rules of intellectual property, for articles in which they critically questioned those very rules. Are there ethical problems here? Are they facing a conflict of interest? Do we even have a good way of phrasing these questions, let alone answering them?
I don’t know, and I can’t preach to anyone else about how they should approach these issues. But I definitely feel that the only way I can maintain some sort of objectivity is if I personally do not have money riding on the very subject that I’m trying to examine. So there it is. I don’t own this essay, and neither does anyone else. Do with these words what you will. Run this essay through a photocopier, put this on a web site, email this to all your friends and relatives. As I said at the beginning, the only limits are the laws of physics and the extent of your imagination.
“All right,” you may say. “You, the author but non-owner of this essay, have made a choice. Fine for you, perhaps. But where will everyone wind up in the long run? What is going to happen to copyrights and everything else as the technology changes?”
A reasonable question, and a difficult one. We can return here to Mann: Large sums of money are indeed at stake, and change certainly seems inevitable. But there is a great deal of reluctance to recognize that change. The “serene, glassy-eyed denial” which Barlow described is widespread, and many people find it far too easy to maintain. The denial is built primarily around belief in the perpetual maintenance, and the further development, of three things:
Voluntary cooperation by the general public;
Punishment of those who don’t voluntarily cooperate–in other words, the belief that the “stern warnings to the passengers,” as Barlow described them above, can actually be backed up by fines and prison terms; and
Technological fixes for all the problems.
Why don’t I think that any or all of these things will preserve intellectual property as we have known it? The next two portions of this paper answer that question. Since I believe that voluntary cooperation and legal enforcement are closely related, I will discuss them together. Technological fixes will get a section of their own.
Part 2: Useful Arts?
Can current laws governing intellectual property survive the onslaught of technology? Do they deserve to? How do we decide?
If current intellectual property law is a coherent structure, with clearly agreed-upon goals and clear ways of reaching those goals, then the system might have some chance of surviving. But just how clear and coherent is it?
Let’s go back to the early roots of intellectual property in American constitutional law. (The tangled relationships between technology and intellectual property involve a multitude of international questions, but the laws of the United States give us some good starting points. Also, the situation in our country contains more than enough problems to keep us busy, as we shall soon see.) Here is what the United States Constitution *http://www.house.gov/Constitution/Constitution.html* says in Article I, Section 8, Clause 8: “Congress shall have the 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.”
Now compare this with an excerpt from the “Online Terms of Us” at the web site of Warner Brothers as these terms appeared in 1999: “Any notes, message/billboard postings, ideas, suggestions, concepts or other material submitted will become the property of Warner Bros. throughout the universe and Warner Bros. shall be entitled to use the material for any type of use forever including in any media whether now known or hereafter devised.”
Note the differences between these two documents. The Constitution applies only to the United States; Warner Bros., with its claim of jurisdiction “throughout the universe,” apparently controls things out where even the World Intellectual Property Organization does not tread. The Constitution secures rights to the original “Authors and Inventors;” Warner Brothers is claiming rights to material that others have created and submitted to the company. The Constitution uses the phrase “limited Times;” Warner Brothers claims that their entitlement lasts “forever.” Warner Brothers does not even want to be bound by the limits of today’s technology: whatever comes along, “in any media whether now known or hereafter devised,” belongs to the company. If we go beyond the original words of the Constitution and look at the specifics of modern copyright law, another noteworthy detail appears. The US Copyright Office itself flatly states that “ideas” cannot be copyrighted; yet Warner Brothers claims “ideas” as its “property,” along with such dubious things as “suggestions” and “concepts.”
I don’t mean to portray Warner Brothers as being some kind of big corporate villain here. It is just another company trying to maximize its profits, which is what companies do. Its competitors in the media business, all of whom have similar policies in their “Terms of Use” statements, are in the same situation. It is difficult to believe that a company like Warner Brothers would not have such a policy; still, we must face the fact that there are some real differences between the letter of the laws which are on the books and the policies which large media corporations attempt to enforce–when they can. If “Terms of Use” like those of Warner Brothers do not actually reflect the law, in either the Constitution or the statutes, how confidently can copyright holders trust the law to solidly maintain the integrity of their “inventory”?
What of actual case law? How well do judges defend the rights of copyright holders when push comes to shove? Here, too, one’s confidence may be shaken by the facts. Within the limited scope of this paper, one example will suffice.
In the case I am about to relate, the intellectual property involved was software; but this case has implications far beyond its original scope. The defendant, David LaMacchia, posted a number of commercial programs on his electronic bulletin board and allowed computer users to download copies of the programs for free. Originally, the charges brought against him were under federal “wire fraud” statutes; however, Judge D. J. Stearns found that these specific statutes did not apply when no personal profit was involved. Ultimately, he dismissed the charges. Congress later passed the “No Electronic Theft” or “NET” Act to make sure that no future LaMacchias would be able to escape scot-free as he had.
If one carefully examines different parts of Stearns’ ruling in the case, one gets a vivid picture of the contradictions and paradoxes in both intellectual property law itself and in people’s attitudes towards it. At one point in his decision, Stearn goes out of his way to emphasize how the “limited nature of the property interest conferred by copyright stems from an overriding First Amendment concern for the free dissemination of ideas.” Stearns quotes Harry Blackmun’s words from a Supreme Court decision in an earlier case. Blackmun, treading carefully along a fine line between the different kinds of “rights” accorded to different kinds of “owners,” stresses that
infringement of copyright does not easily equate with theft, conversion or fraud. . . .
The infringer invades a statutorily defined province guaranteed to the copyright holder
alone. But he does not assume physical control over the copyright; nor does he wholly
deprive its owner of its use. While one may colloquially liken infringement with some
general notion of wrongful appropriation, infringement plainly implicates a more complex
set of property interests than does run-of-the-mill theft, conversion or fraud.
However, near the end of his decision Stearns seems to speak in a different tone. Here is his description of the defendant and what the defendant did: “One might at best describe his actions as heedlessly irresponsible, and at worst as nihilistic, self-indulgent, and lacking in any fundamental sense of values. Criminal as well as civil penalties should probably attach to willful, multiple infringements of copyrighted software even absent a commercial motive on the part of the infringer.”
Is Stearns being downright inconsistent here, or just sort of vague? If copyright infringement so “plainly implicates a more complex set of property interests than does run-of-the-mill theft, conversion or fraud,” what exactly is the “fundamental sense of values” which LaMacchia allegedly lacks?
If a federal judge, experienced in copyright cases, can be moved by such contradictory ideas in the space of a single decision, what of the rest of the population? Although our government may never be perfectly democratic, the state of the laws and their effective enforcement still depends ultimately on genuine support by the broad mass of the people. How much is the general public going out of their way to actively cooperate in maintaining the old rules of the game? Does the person in the street even know what is going on with intellectual property?
I have mentioned the lack of mainstream journalistic coverage of these issues; how many times have you seen a story about this on the evening news? One reason why few journalists cover intellectual property stories is because journalists, and their employers, don’t want to give the public any more ideas than they already have about copying and distributing copyrighted material. Another reason, I think, is that they know the public really isn’t interested.
I can supply an anecdote from my own recent teaching experience. A month or so ago, I had my freshman composition students read a section from a book entitled New Media Technology: Cultural and Commercial Perspectives. The section that I assigned discusses several cyberspace issues; one portion, written for parents, runs: “Make sure that your child is not obtaining pirated material, such as digital recordings of copyrighted music or video. This is not only potentially dangerous but is illegal. If you do find pirated material, talk to your child about how he or she received it, and delete the files (Pavlik 383).”
After we read that excerpt in class, I asked the students how many of them had ever talked to their parents about intellectual property in any way. No hands were raised. I knew from earlier discussions that most of my students have computers at home, and that even those who aren’t home users still have downloaded a variety of materials by using machines in our university’s computer labs. I have little reason to believe that they ever check on the copyright status of the material they download. In general, questions of intellectual property simply don’t appear on their radar screens. This attitude does not bode well for copyright holders. In particular, it does not encourage confidence in the enforceability of anti-piracy laws.
Laws which don’t have public opinion behind them are difficult to enforce. Laws on the books which don’t fit with the laws of physics are even more dubious. It is these laws of physics, as they are embodied in countless pieces of modern technology, that I will discuss in the next section.
Part 3: Technical Realities
The owners of intellectual property, quite understandably, are pursuing every course of action that they can find to maintain control over their “stock.” They have turned to computer programmers and the like for answers. Have the technicians succeeded? Are they likely to?
While trying to answer these questions, one could look at many different pieces of hardware and software, and read through a flood of details about what they are supposed to do. For the purposes of this relatively short paper, I will rely upon one source which I think summarizes much of the most relevant and interesting information in this area. In addition, this source reveals–sometimes unwittingly and indirectly–a few of the more intractable problems in the technological approaches to preserving intellectual property.
In 1997, the Information Technology Association of America (ITAA) released a document entitled “Intellectual Property Protection in Cyberspace: Towards a New Consensus *ipprotec.html*.” The web-published piece begins with a message which is, in my opinion, generally correct: “When it comes to the Internet and government policy, the indecency issue has [recently] garnered the greatest attention. . . . However, over the long term, intellectual property protection will in all likelihood prove to be the more important concern.”
Later in the document, as we move slowly towards the details of the proposed technological solutions, the authors (whose individual names are not supplied) seem to be maintaining a healthy and realistic amount of caution about the relationships between technology and law:
Too often, discussion surrounding digital copyright protection fails to take into
account the physical and practical limitations imposed by the Internet itself. . . . The
IT industry is concerned that attempts to legislate sanctions to digital copyright
protection and infringement may ignore technical realities. The physical operation
and working dynamics of this “network of networks” defy traditional legal notions
of enforcement [and] boundaries. . . . It is important to recognize that the actual
functionalities of the Internet, just like the laws of gravity, cannot be legislated.
But, not far away from these words, we find a burst of enthusiasm for the tools which are supposed to solve the problems of intellectual property in cyberspace:
When copyright holders and content providers begin to utilize the many and varied
technological tools that can serve to protect video, audio, and text-based
intellectual property distributed in a digitized form over the Internet . . . most of the
problems expressed during [recent] debates will be silenced.
There are already some technology tools today, and many more in
development, that can securely label intellectual property and provide the means
for those who have control and have been given notification of the infringement to
monitor, take down, and/or block infringing material. . . . Technology can provide
solutions for these needs. Technological solutions exist today and improved means
are being developed to better protect digital works through varying combinations of
hardware and software.
Copyright owners and content providers have the tools available to label,
tag, or add a digital watermark to the work at the beginning of a transmission’s
“food chain,” before it is sent out onto the Internet. Depending on the perceived
value or importance of the work, the copyright holder can “wrap” the package with
various levels of protection. These protections can restrict reproduction, use,
re-transmission, and provide the means necessary to identify, locate, impede or
take down unauthorized reproductions. This technology approach maintains the
value of copyrighted material.
For those not familiar with the concept of the “digital watermark” and other such innovations, there is at the end of the article I have been quoting a list of copyright-protection products and the companies which make them. One of the more well-known firms in the digital watermark business is Digimarc *http://www.digimarc.com/*. Here is the description of Digimarc’s product, PictureMarc:
PictureMarc embeds an imperceptible digital watermark within an image. The
watermark carries copyright information and links to the image creator, enabling
copyright communication, authorship attribution and electronic commerce.
Coupled with Digimarc’s aggressive distribution strategy, PictureMarc promises to
yield a viable solution to the long-standing problem of how to communicate
copyright in a digital setting. A Digimarc watermark is durable, able to survive
across file formats and most transformations of the image such as copying and
editing, and can be read even when the image is cropped. The watermark is
embedded digitally within the image, remaining a part of the image even when
printed, and can be read by scanning the printed image into a computer. This
durability ensures that the watermark stays with the image wherever it may travel.
First, of course, one might ask the same questions that consumers should ask about anything when it is just coming onto the market: will this product work completely as advertised, or does it have some of those nasty little bugs and limitations that we have observed in so many modern “miracles”? Since we are talking high-tech, another natural question should emerge: can PictureMarc be “hacked” by hostile programmers? Experience should make us very cautious at least; few pieces of electronic technology are either bug-free or bulletproof, and the ITAA itself, as they remark in their introduction to their list of copyright protection products, unequivocally refuses to “make any claims as to the validity of the claims made by the providers of these technologies. All information provided is summarized and condensed from company press releases and responses to requests for information. . . . As with most emerging technologies, there is a varying degree of protection and efficiency among technologies available for copyright protection.”
But let us assume, with supreme optimism, that all of Digimarc’s claims about its product are correct, and that the claims will remain true indefinitely. What, in fact, do we have? Even if PictureMarc lets us keep track of the origin and legal ownership of an image, firmly and forever, we still find nothing in Digimarc’s description of it that implies some physical restriction on the ability of people to make copies and send them racing around the world. And this is precisely where some of the most important copyright questions lie. Intellectual property, like other forms of property, is subject to the laws of supply and demand; it is the electronic creation of a theoretically unlimited supply that is the economic problem for authors and publishers. PictureMarc may help resolve cases of theft, in which someone is trying to falsely claim authorship of an image in order to try to make money from it illegitimately; but a profit-motivated thief, just as much as a legitimate owner, wants to maintain the value of the merchandise he has stolen, or else he can make no money either. None of the features of PictureMarc seem to be relevant to the problem that Charles Mann described: how the flexibility of cyberspace is “pushing the price toward the vanishing point.”
If space permitted, I could describe some of the other gadgets and programs that are listed in the ITAA article: electronic “containers” of one sort or another, with their own varied “locks” and “keys;” “WebArmor,” program which “archives your web site and affixes an authoritative, encrypted time-date stamp and content signature” so that “you can then show, in court if necessary, what your web site looked like at a particular instant in time;” the “Flickering Screen” from Bellcore Corporation, which displays data on a screen in such a way that the human eye can see it but the computer supposedly can not dump it to a printer; and so on and so forth, almost without limit.
After all is said and done, one does not need to be an expert to decide whether or not technology is really likely to protect intellectual property. All one has to be is an ordinary computer user. The next time that you sit down at the keyboard and go into your word processor or email program, ask yourself: is there really anything that prevents you from taking any piece of text and sending copies of it anywhere in the world? If you are using a web browser, ask yourself the same question about graphic images and other media.
I restate what I said near the beginning of this essay: I use a computer daily, and I look at the evidence staring me right in the face. It is two years after the ITAA produced their document, with all of its contradictory statements of confidence and caution; it is more than twice that long since Barlow described the holes in the hull of the sinking ship; and no group of technical geniuses, no matter how intelligent and well-paid they may be, has yet found really effective patches for those holes. I am not betting that they will in the foreseeable future.
Part 4: Software, Hardware, Hard Facts, Hard Choices
As I look back over the earlier portions of this essay, I realize how much I have omitted from my description of this huge universe called “intellectual property.” There are so many more things that I could include, if time and space permitted.
For example, I could include the words of Nicholas Negroponte Professor of Media Technology at the Massachusetts Institute of Technology and Founding Director of the Media Lab at MIT: “Copyright law is totally out of date. It is a Gutenberg artifact. Since it is a reactive process, it will probably have to break down completely before it is corrected” (58).
I could include some more words from the book by John Pavlik that I mentioned above, New Media Technology:
Earlier generations of technology, including the photocopying machine and audiotape
recorders, have presented challenges to existing copyright law, but none have posed
the same threat as the digital age. Earlier technologies, although they may sometimes
have made copying copyrighted material possible, did not have the copying advantages
of digital technologies, which make instantaneous mass copying of exact duplicates on
an international scale a matter as simple as pressing the Enter key. (286)
I could include excerpts from the debates that have taken place on the floor of both houses of Congress as they have wrestled with these issues; excerpts from a slew of court decisions; excerpts from analyses by a variety of legal scholars; excerpts from the long-running, and still ongoing, arguments over “fair use;” and on and on and on.
But this essay, originally written for a college class, had to stay under twenty pages, not surpass twenty million; and this essay had to be completed within a few weeks, not be spread out several decades. So I must limit myself to just a few brief concluding remarks and recommendations.
In order to work our way out of the “muddle” that Charles Mann described, we need to move far away from our wishful thinking, our old conditioned reflexes, and our deep-seated, short-sighted, narrow greed. We cannot keep on saying, both to ourselves and each other, that the old rules of the game will somehow continue forever just because we want them to and just because we become very uncomfortable when we think about those old rules failing. We cannot keep looking only at which pattern of laws will (we hope) provide us with the largest possible amount of money in the shortest possible amount of time, and then keep demanding that Congress maintain or strengthen that set of laws. We cannot trust blindly in nice-sounding but unproven, even uninvented, technologies to help us, when so many of the old, proven, well-established technologies have so clearly turned into integral–indeed, into rapidly expanding–parts of the very problems we are trying to solve.
I suggest that we need to change our entire frame of reference. Rather than starting out with the status quo and arguing over how to tweak it slightly–a little tighter here, a little looser there–I believe we need to mentally jump to the opposite extreme from our current laws and our long-accustomed practices.
Imagine, hypothetically, that the part of the US Constitution that I quoted earlier did not exist. Imagine that our government had neither a Copyright Office *http://www.lcweb.loc.gov/copyright/* nor a Patent and Trademark Office *http://www.uspto.gov/*. Suppose that, when someone did something with a piece of writing or art or music or film or software or whatever–some intellectual “property” that someone else had created–the government did absolutely nothing to intervene, and that no judge in any court granted any rights towards any “owner” of any intellectual “property” under any circumstances whatever.
What would happen in this environment? I caution the reader to avoid jumping to any hasty and simplistic conclusions; neither “total disaster” nor “nobody would ever create anything good again” are well-thought-out answers. “I personally would go broke” is also not a useful answer; as I said, we must get beyond narrow and personal financial interests, difficult though that may be. We must look at this alternate world with all the objectivity, clarity, and thoroughness we can possibly muster, for it is only by doing so that we can assemble in our own minds the solid core of intellectual property that is genuinely worth protecting, if such a solid core even exists.
Ultimately, I return to the points I raised on the first few pages of this essay. Anyone can move around any information that they want to, and nobody really seems to be changing that fact in spite of many efforts to do so. I personally have chosen not to fight the fact until the fact changes. Take what you want from these words. Do what you want with them. Change them, send them, mail them, post them, write them, draw them, paint them, speak them, sing them, chant them, record them, film them. This essay is yours, and everybody’s, and nobody’s.
Nobody owns this essay.
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