Get Ready Gals, It’s WIPO!

Thanks go to Greg Pomerantz — my lawyer, my photo-documentarian — for pointing me to WIPO’s page on Women and Intellectual Property.

In most ways, the page is a pretty standard Women and Field X page. Greg suggested that perhaps WIPO hired a Women And consultant who specializes in making pages and pamphlets like this. It seems plausible.

The page is everything one would imagine. It is equipped with an eclectic collection of pictures of women bent over test tubes side-by-side with women engaging in activities that WIPO seems to think are both particularly feminine and rich in currently unexploited IP potential — things like ballet dancing and banging on a traditional drum.

Evidently, WIPO is concerned by the fact that, "traditionally women have not generally held major prominence in the intellectual property field, an area frequently seen as a ‘masculine’ activity in years past." They go on:

It is critical that outreach programs to build awareness about the importance of intellectual property and its protection target [women] … Women, just as men, deserve to be given the means to enable them to use intellectual property as a tool of economic and social empowerment.

That’s right ladies: Men have been owning and exploiting ideas in increasingly egregious and unethical ways for the last several centuries. There’s an unfair gender division between the people who are using IP unfairly and those who are merely suffering the consequences. It’s about time you stepped up to the plate!

Like IP in indigenous knowledge, this is really indicative of WIPO’s major problem: the only tool they have to solve problems with IP is more IP. I’m not confident that WIPO is well equipped to implement — or even understand — solutions that require challenging the language and idea of ownership of knowledge through which they understand and attempt to solve problems.

Freedom and the Limits of Private Ordering

A couple of weeks ago, I went to a extremely interesting talk by Niva Elkin-Koren on the limits of private ordering (i.e., contracts and licenses) in building communities around the production of free (for definition of free) creative works. She’s writing a paper which I hope to get my hands on very soon. I have every reason to believe it will be excellent.

Elkin-Koren is a law professor and one of things she did in her talk was argue that Creative Commons in particular, but also Free Software and Free Software inspired licensing in general, is using licenses and contract law (private ordering in legal jargon) in such a way that helps opens the door to all kinds of less well-intentioned uses that advocates of freedom might not be as comfortable with. If I can say, "you can give away my music but you can’t use it for commercial use," or, "you can use my software unless you violate someone’s human rights as defined by the United Nations Declaration on Human Rights", what’s to keep Adobe from saying that I can’t implement a workaround for their eBooks or keeping the DVD-CCA from saying I can’t watch a DVD without a licensed CSS or reverse engineer the protocal?

I don’t think people should be able to able to use contracts and licenses to say anything because I don’t think it is in the best interests of creating the most free works and I think Elkin-Koren agrees. I think that fiddling around or reverse engineering a piece of software should be a right that no license has any business blocking. It’s outside of the scope of what I think copyright licenses should be able to be used for.

However, as long as we live in a world where people are producing non-free creative works and believe that they have something to gain by restricting consumers’ rights, we need to face the fact that if we are using contracts in the Creative Commons or Free Software contexts to place any and all restrictions we think are in the interest of freedom, we may be opening the door to abuse.

We all know that copyleft is enabled through copyright. As a result, there is a tendency for software freedom advocates to argue for stronger copyleft by, explicitly or implicitly (and often unintentionally), arguing for stronger copyright. This is wrong. I don’t believe in peace through war and I don’t believe in free access to information through stronger copyright — as a stategic technique or as a ethically defensible strategy.

Using copyright, as it stands, as a weapon against itself is strategic position that I believe is justifiable. However we must resist the temptation to adopt an expansionist position on copyright when we think it benefits freedom because the advocates of freedom will lose more than they gain.

Elkin-Koren’s argument poses an important — and open — question to the supporters of free information in asking them to consider the extent to which their free licensing practices opens the door to an environment where private ordering allows anyone to do anything.

At the talk, SPI’s lawyer (and sometimes director of photography) Greg Pomerantz made the argument in support of Free Software licensing saying that Free Software licenses are limited in scope to cover those things that are already copyright rights. I think this is a clever way to critique the policy of license proliferation by Creative Commons and others.

In addition to arguments about the lack of freedom in some creative commons licenses, they may be strategic arguments to make that by pursuing software and content licenses that expand beyond the reach of copyright’s existing realm, advocates of freedom are doing more harm that good — that licenses should focus on things within the realm of copyright (derivative works, distribution, etc) and not things like outside like how they will be used (e.g., barring non-commercial use).

This happens to integrate quite well with more fundamental critique of Creative Commons that I have written but I’ll save that for another day.

The War on Share™

I read a bit of news today including this report on the fact that the Motion Picture Association of America (MPAA) is going to be following in the footsteps of the RIAA and suing ordinary folks who are sharing movies online.

The recording industry’s business has demonstrably taken a hit in the last decade or so. You can argue that it’s not P2P’s fault but it seems clear to me that P2P has had an impact. The film industry, however, is not in the same position to make these arguments which strikes me as very interesting.

I see two possibilities for their actions; I’m sure that the truth is a combination of the two.

First, the film industry suspect that at some point in the near future, their business model will become both (a) increasingly — and perhaps totally — dependent on digital film distribution and (b) increasingly aversely affected by film sharing online.

The second possibility is that the entertainment companies know that there is a lot more at stake that the +/- sign and the number before the percentage symbol on their annual reports. The music and film industries are the ones producing the vast majority of the content on peer-to-peer networks; that will not and can not persist if things continue the way they are going. Something will break and I’m quite sure that it will not be P2P. If nothing else (and I don’t believe this is unlikely) the modern industry will have its own ability to produce in the way it does today (i.e., its business model and financial viability) ripped out from underneath it. While the industry would have you believe otherwise, this will not spell the end of either music or film. History books teach us that both existed before Michael Eisner, Ted Turner, or even Rupert Murdoch.

P2P’s real power lies in its ability to distribute what can be produced (and funded) in new creative ways that are sustainable through P2P’s less coercive model of distribution. The players currently dominant in the culture industries feel (rightfully) that they have little to gain from exploring this road or even finding out what it might look like.

Big music and big film has everything to lose and they must know it. They are not about to let a radically different type of distribution technology and a couple thousand years of human attitudes towards the way communities should and should not control ideas and information undermine their position of power. They will fight to install legal and technological artifice to keep the power and money they gained through the economic realities of physical distribution in the digital realm. They will spend every last billion fighting.

That brings us to back today and the MPAA’s new response to what even they admit is an infantile threat of digital piracy on their business model.

I think P2P is a threat to the MPAA but not in the way that they would have you believe. Making film for theaters would be a sustainable industry; the industry did, after all, try to eliminate Betamax and VCRs altogether. But this isn’t about creating sustainable industries — with or without P2P. It’s about preserving power and creating growth.

This Weblog Post is Official Election Mail

As many USians have done or will do soon, I fulfilled my civic duty today. Since I vote in Washington State and have recently moved to New York City, I voted by absentee ballot.

Here’s a (washed out) snapshot of the envelope that my ballot will be making its way across the country in:


You can tell, from the logo in the top middle of the envelope that it is Official Election Mail.

Here’s a close up of that logo, reserved "for use by election officials" by the postal service to, as noted here, "enhance the identification and ensure proper handling of this important type of official communication." Here is a clearer shot of the logo:


You can tell, from the "TM" in the logo, that Official Election Mail is a trademark.

This is completely ridiculous. Trademark law is created to to keep consumers from being confused by manufacturers trying to unfairly capitalize off the goodwill created by one company; to allow consumers to associate a certain level of quality with a certain brand or company. There is hardly a market in Official Election Mail. As much as I would like to shop around for a better ballot when I find the choices on mine lacking, this is not the case.

I can think of any numbers of different legal ways to stop people from putting Official Election Mail logos on the top of their mail — mail fraud and election tampering are simply the first two that come to mind. Trademarks (and every branch of IP for that matter) were created as limited and narrowly defined legal instruments to fulfill a particular purpose. They were not all-purpose ways to keep people from saying things you rather they not say. This is not a trademark issue and it doesn’t need to be.

By asserting a trademark in a place where one is not necessary and where historically trademarks would not be used, it’s a symptom and a reinforcement of the the "IP for everything" culture. It is an expansion and an abuse.

Trademarks still strike me as mostly pro-consumer and they’re the arm of intellectual property law that I have the least significant problems with. This sort of thing makes me reconsider that position.

Patenting Patenting

One relatively recent development in the field of intellectual property is the ability to file for what are called business methods patents that do not cover a thing, an invention, or a design (the tradition scope of patents) but a way of doing business.

I think it would be a good strategy for companies with lots of over-broad — and in in-all-likelihood bogus — patents to file a business method patent on the act of filing over-broad and bogus patents to use as strategic leverage or tools for litigation. Better yet, they might patent the method of filing to have someone else’s’ patents reexamined and tossed out.

Of course, there’s plenty of prior art but the USPTO doesn’t seem to be too bothered by details like that anymore.

Royalties and Reality

In my entry yesterday, I mentioned that would contact the maker of Pol Pot’s Birthday to inquire about digital distribution. It turns out that Talmage Cooley, the filmmaker, would love uninhibited digital distribution of the film — but can’t afford it. It turns out that Cooley can scrape together the cash for the inexpensive royalties necessary to show the film in festivals but cannot afford the much higher fees that must be paid in order to webcast.

The recording companies continue to claim that if those distributing, performing, or reusing their work in other ways do not pay royalties, musicians will not be able to produce as much, or as good, music. This is fiction designed to sell both consumers and artists on an unjust, exploitative and inefficient system. Cooley’s experience is the reality of a expansive, pay-per-use, highly controlled and highly centralized system of permission and royalty-based access to ideas. It’s a reality where the vast majority of voices are systematically silenced by simple economics.

Independent artists and producers can’t pay expensive royalties for wide distribution of their work because they work is not commercially viable in the way that Hollywood and the RIAA member company’s products are. Their only available alternatives are degrees of silence.

It’s true that if Pol Pot’s birthday was distributed online and paid no royalties, the recording industry would get nothing. But it’s also true that the alternative — the more likely alternative and the one we have now — is for the film it to not be distributed at all; the music industry still get nothing.

In the latter case, the losers here are the independent filmmakers, whose work has its wings clipped systemically, and the consumers, who don’t get to see great independent film. This is a happy enough arrangement for big media of course. At worst, they break even. At best, consumers with lack of alternatives spend their time and their dollars on media that they can get access to. It is a fortunate coincidence that the remaining available films are produced by the large, established movie studios who are jointly owned, or in bed, with the large established recording companies. This is not a conspiracy: it’s a system optimized for the production of some sorts of content (the highly profitable kind) by disadvantaging and silencing available alternatives.

In Defense of Free Knowledge

I talk a lot about free access to information. When most of the people I talk to hear this, the first things they think about is music, the RIAA, Napster, and Peer-to-Peer (P2P) file-sharing. Music and P2P is usually where the conversation drifts.

I tell people that one reason P2P is scary to the music industry is because it completely supplants the industry’s role as distributors. [1] I tell them that P2P, and technologies like it, will become really powerful when P2P distribution technology is brought together with communities for the production of content totally separate from the industries created and sustained by the old distribution paradigm. [2]

At this point at the conversation (if my fellow conversationalist has not fled the room), folks often notice the implication of what I’m suggesting: by replacing highly centralized systems of distribution and production for music, I’m advocating the the destruction of the music industry. At the very least, I’m talking about the creation of a parallel competing industry built on radically different (and incompatible) technological, ethical, and economic ideologies.

Quite reasonably, people want to know what this replacement or parallel system will be before we rush off eliminating the companies currently paying the people making the music most of us have in our CD players. This is where I start sounding a lot less prepared. Ultimately, I don’t have the "this is the system we’re looking for" answer that people want. Unlike most people I talk to, I’m alright with not having that answer.

I think the reasons I’m comfortable without an answer are as follows:

I believe that access to information is ethical issue.

This is where I invoke Eben Moglen because he says it a lot better than I can. There’s a great talk Eben Moglen gave that’s based around his dotCommunist Manifesto. Moglen says:

The great moral question of the twenty-first century is: If all knowledge, all culture, all art, all useful information, can be costlessly given to everyone at the same price that it is given to anyone — if everyone can have everything, everywhere, all the time, why is it ever moral to exclude anyone from anything?

If you could make lamb chops in endless numbers by the mere pressing of a button, there would be no moral argument for hunger ever, anywhere.

I see no system of moral philosophy generated by the economy of the past that could evolve a principle to explain the moral legitimacy of denial in the presence of infinite profusion.

Free access to information is essential because the alternative is unethical and unacceptable. Replacing a system built on the unjust restriction of knowledge may not — and probably will not — be easy or smooth and that doesn’t matter. Migrating away from other unjust systems of the past — slavery, child labor, exploitation of all sorts [3] — is not always, or often, easy and smooth. Sacrifices are made.

Where sustainable solutions for the production of knowledge are not obvious, we — as producers and consumers — have a moral responsibility to be creative and to create them.

These types of changes take time.

With all its warts, copyright was a system that filled an important role at a particular time and in the context of particular technological and social systems around the production and and consumption of a particular intellectual good: eighteenth century printed books.

After the invention of the printing press, the pool of people who were reading expanded from the educated ultra-elite to the middle and working classes; public education became the norm. Patronage was simply not an optimum compensation system for the production of the types of work that were demanded. Copyright stepped in because it worked to support publishers and authors in the production of content that was desired but that was not being produced in adequate quantities under patronage, etc.

But it didn’t happen until more than 200 years after Gutenberg. Unfortunately, technological innovations in the production and distribution of intellectual goods do not spring from inventors loins complete with a a fully refined system for the compensation of authors whose work is produced or distributed using the new innovation. It would be a lot simpler if that were the case but it’s not.

Printing became mass printing and things got worse before they got better. We’re already seeing this with music. Things will get better and artists will continue to be paid. The less successful the RIAA is holding back and warping the technology, the sooner we’ll have tested and viable alternatives. [4]

There was music before copyright.

This may sound silly but part of the reason I don’t worry is that I can’t imagine a world where there are simply no musicians. There was music before copyright. There will be music after copyright.

The recording industry will tell you that without them and without copyright there will be no music. I’ve seen an "educational video" where the Software Business Alliance used a dark screen to emulate "the end of the computer age" brought on by software piracy.

If proprietary software became illegal tomorrow, would there be software? Yes. People need software. If proprietary music became illegal tomorrow, would there be music? Of course.

It might be different music. It might not be ultra-produced, ultra-expensive Britney Spears but if that’s really what you want, I’m sure someone in an RIAA member company will find a take your money in exchange for it.

The first reason is the reason we must forge ahead. Of course, there’s little point in advocating an ethical impossibility so the second and third reasons show us that there is enough historical and societal evidence that a world of ethical information sharing is possible. Together, they describe a realistic possibility of a more ethical system for the production of information and knowledge and this is a compelling reason for me.

[1] At this point, that’s all P2P is really supplanting in a meaningful way: most content on P2P network is produced by an industry made possible through tight centralized control over the mechanisms of production and over the product itself.
[2] For those of us in the Free and Open Source software world, we already have some hint of what this can look like — although I am sure things will be somewhat different when it happens with music.
[3] I don’t intend to imply that child labor or slavery and copyright are moral equivalents. I’m simply stating that their abolition was a moral imperative in the face of strong and highly
ingrained economic considerations.
[4] Of course, the RIAA doesn’t want viable alternatives to the system that they are firmly in control of, but that’s a story for another day.

Sharing and Declaring

On my way to Japan once, the moving marquee above the customs area at the airport warned passengers about the transfer of material in violation of copyright laws. I’ve heard of people that have had pirated CDs and DVDs they’ve bought overseas confiscated at borders and I’m sure this what they were talking about. Clearly, the larger smuggling rings are operating illegally and prosecuted.

But I’m curious to know if any one of the tens of million filesharers has been picked up at a border for an iPod filled with contraband? To me, it seems almost unimaginable. Even the people I know coming into the states with illegally pressed DVDs got little more than a finger wagged at them by the US customs officials (and they got to keep the 100 or so DVDs!).

Fact is, wrong or not, sharing music is not the same as stealing in the minds of most people who don’t work at the RIAA. The RIAA realizes this and that is their biggest problem. This is why we see "Don’t Copy that Floppy" and copyright education campaigns for kids.

The reason people aren’t worried crossing borders with pirated music may be because it’s not enforced. However, the reason folks don’t even consider declaring it in the first place is because they don’t see music, and intellectual goods for that matter, as something that has value in the same way that a Rolex or a leather jacket does. They don’t see unrestricted trade in "restricted" information as unethical.

The RIAA scare tactics in the rash of suits over the last couple years have scared some people off the P2P networks but the real fight, in my mind, is not over P2P but over the way that people conceive of their relationship to information in a much more general sense. The experience of everyone with an iPod at the border is a sign of how far the RIAA and their gang have to go.

Don’t Copy that ©

For years, I’d heard stories about an artist in Rome’s Trastevere district who painted large images of copyright symbols. [1] In addition to what sounded like very interesting art, this seemed to me like a great opportunity.

My thinking went like this:

  • Granted: This artist has a copyright in her paintings of copyright symbols.
  • Granted: If someone were to become inspired by this artist and to, without permission, produce paintings that were not substantially different, these derivative works would be copyright violations.
  • This artist could (successfully!) sue someone for reproducing her reproductions of copyright symbols.
  • That someone, needed to be me.

In addition to sounding like a lot of fun, I would be helping the copyright system get one step closer to a total implosion and raise some awareness in the process. The entire situation would be ridiculous enough that it could trigger news stories. These stories would, explicitly or implicitly, reflect and bring attention to the concept of the copyrightability of ideas and concepts that, commonsensically for most non-copyright-lawyers, should not be copyrightable.

My original plan was simple enough:

  1. Start selling copies of the artist’s copyright symbols.
  2. Get sued.

The problems of course are that that selling paintings seems like a whole lot of work and getting sued kind of sucks.

As I thought about it, I realized that neither of these things was really essential to the plan or the goals; I merely needed to make it appear that the two things were happening:

All I really needed was a website and a press release and permission and participation from the artist.

The final bit was the only tricky party but seeing that this woman was painting copyright symbols and selling them, I figured that chances were good that she had either a good critique of copyright, a good sense of humor, or both.

To make the long story short, I met with the artist in Rome, proposed the idea to her. She liked the idea but wasn’t comfortable following through with it for a number of reasons I had to respect. Many of her other paintings are about media and information — usually about how there is too much. She simply doesn’t see value in using media or IP against itself in this way. We have the same goals but different ideas of tactics.

I still like the idea and would jump at another opportunity although I suspect publishing it here will do something to reduce its effectiveness.

[1] She paints other things as well, many of which I quite like, although it was the copyright symbols that really interested me as far as this story goes.