The Millennium Bug in the WIPO model
The paradigm shift
Portuguese programmer José Luís Malaquias has written an essay titled “A New Economic System for the Information Era” (available at his personal domain at http://www.malaquias.net/en/joseluis/articles/copyright.pdf), where he has drawn a humorical but thought-provoking parallel between a comedy movie "Gods Must Be Crazy" and today's situation in intellectual property. In the movie, Bushmen in Africa find a Coca-Cola bottle that has fallen from an airplane. While the novel object is pleasing in many ways (looks beautiful, can be used to crush grain or hold water), it cannot be reproduced - for the first time, the Bushmen are forced to abandon their practice where the scarce resources are used equally by everyone. The initially wonderful “gift of the Gods” turns out to be the Pandora's Box.
The problem, as also pointed out by Malaquias, seems to be rooted in a simple notion - throughout the human history, resources have very rarely been plentiful, satisfying everyone in need. During the early days, people had to fight over hunting game or arable land, later they fought over natural resources. The very value of resources was often measured by their scarcity - essential-to-have, but widespread resources like water and wood measured only a fraction against scarce, even if practically nearly useless things like precious stones and gold, even the value of simple drinking water was totally different for, say, Vikings and Arabs at around 1000 AD. Finally, being brutally fought over for centuries, use of resources was attempted to be regulated by legal means during the later, "more civilised" times. The paradigm of scarcity got entrenched so deeply into the human mind that when things started to change, there was a huge moment of inertia.
During the last decades, technology has changed the world in many ways, but perhaps the greatest of changes was that of the paradigm. A new resource - information - has emerged to acquire a central position in social life. Bill Gates, the founder of Microsoft, describes in his best-selling book "The Road Ahead" a hypothetical dialogue sometime in the future, citing Switzerland to be a great country for its abundance of information (not the money in the famous Swiss banks!). However, while recognising the central position and great value of information, Gates proceeds to quote another hypothetical person about the information price indexes starting to rise. This is the exact point where the two paradigms clash.
Information, in contrast with nearly all the previously important resources, has a fundamental difference - it does not disappear from its original location when handed over. When one has a piece of bread and she gives it to another person, she does not have it any more. However, when one tells her friend a joke, there will be two people who know it instead of one. Information in its pure form can only be copied, not moved. This makes it behave very differently from other resources, also meaning that legal regulations which were appropriate for others do not necessarily work here.
Sure, information has been like this throughout the human history. But only recently, with the emergence of the Internet and the "information superhighway", has this exceptional resource become the most critical one. One of the main factors here is the multiplication of information, or simply copying. For example, early books were rare and expensive due to the great effort needed to produce them. Thus books were regarded not so much as information per se but as definite material objects which were subject to legal treatment similar to other material resources (e.g. someone bought a book for 15 gold coins). XX century with its multitude of new data carriers (vinyl records, magnetic tapes etc) started to gradually change the situation and when the days of universal networks arrived, information had gone through a major shift from something attached to a material object (record, tape, book) towards a much purer form available on networks. This is where the old legal measures started to fall behind - and currently the situation is most probably irreversible.
The Millennium Bug
Although the problems with the traditional IP have increasingly been visible during the 2nd half of the XX century, they have especially surfaced around the turn of the century.
First, time factor has totally different roles in legislation and digital world. A good law is the one which will not change monthly (having a different rate of VAT every month or different penalties for crimes every year would hardly be desirable). In some cases, legislation has power over people's life and death – thus it cannot afford hastily released 'beta versions'. Perhaps an example can be given by the controversial Patriot Act of the US which was passed at the Congress only about five weeks after the September 11, 2001 – one of the main arguments of its critics is that the process was far too hasty for such an important issue, resulting in an immature and imbalanced law (both supporters and critics are extensively quoted in the related article of Wikipedia: http://en.wikipedia.org/wiki/USA_PATRIOT_Act).
The digital world of today, on the other hand, develops with great speed. Moreover, practically everyone can be a creator or contributor (the abovequoted Wikipedia being one of the prime examples). The five weeks which was an incredibly short period for the Patriot Act is plenty of time in the digital, networked world. Another example – according to the World International Property Organization, computer programs are still protected as works of literature, as one of the central international treaties in the field, the Berne Convention for the Protection of Literary and Artistic Works, has the most recent amendments from 1979 (see WIPO), before even the birth of IBM PC. So here is the hoary, grey-headed Old Man Paragraph trying to keep pace with the sometimes hyperactive Internet Kid – and having growing troubles with that. The two are just too different. Martin (1998) has produced some thought-provoking examples:
The second and quite serious field of problems are ethical questions. Leonardo da Vinci used fine mirror writing to secure his secrets – but we can wonder if some of today's IP extremes make a creation as useless to the rest of society as did Leonardo's secrecy. And more questions arise.
- How much is enough? How long-lasting and extensive privileges should be enough to motivate authors? Human greed can be endless if left untreated – a good example is an infamous in Internet 'professional epigrammatist', who coins short sentences and sues their 'unauthorised' users.
- Should IP allow for criminal passiveness – e.g. when a large pharmaceutical corporation discovers a vaccine to AIDS, but keeps it under hard 'protection', maximising its profits but leaving thousands of people to die without cure? Or to apply 'trade secrets' to cover up potentially harmful effects of some drugs – one of the best known examples is the case of Thalidomide, which was a sedative brought to market in 1950s by faked tests and resulted in serious birth defects in children (see Wikipedia on Thalidomide: http://en.wikipedia.org/wiki/Thalidomide)
- Is it acceptable to effectively block the development in a whole field of technology? Martin (1998) has given two examples: the telephone patents of Bell blocked the use of radio communication for 20 years, the same happened to the General Electric patents on incandescent lamps which delayed the emergence of fluorescent lamps for 20 years.
Other sources like Wikipedia mention that Germer's patent was bought by GE around 1926, yet GE did not start to market the fluorescent lamp until 1938, validating the main point made by Martin. He then goes on to mention a number of outright ridiculous cases of IP (e.g. the suggestion to patent sports techniques like flopstyle in high jump).
Another quite notable example is provided by Lessig, telling the story of Edward Howard Armstrong, the inventor of FM radio. His creation was extremely received by the public, however his that time employer RCA, who was the main provider of AM radio in the US saw him as a threat. Lessig proceeds to provide a very telltale quote by the director of RCA:
"I thought Armstrong would invent some kind of a filter to remove static from our AM radio. I didn’t think he’d start a revolution - start up a whole damn new industry to compete with RCA"
As it usually happens, the sole inventor was no match for the patent empire. Being defeated and bankrupt, he committed suicide in 1954.
A powerful, if unexpected comparison is made by Stallman, regarding the copy protection measures which increasingly turn into a human rights issue: "The U.S. though is not the first country to make a priority of this. The Soviet Union treated it as very important. There this unauthorized copying and re-distribution was known as Samizdat and to stamp it out, they developed a series of methods: First, guards watching every piece of copying equipment to check what people were copying to prevent forbidden copying. Second, harsh punishments for anyone caught doing forbidden copying. You could sent to Siberia. Third, soliciting informers, asking everyone to rat on their neighbors and co-workers to the information police. Fourth, collective responsibility - You! You're going to watch that group! If I catch any of them doing forbidden copying, you are going to prison. So watch them hard. And, fifth, propaganda, starting in childhood to convince everyone that only a horrible enemy of the people would ever do this forbidden copying.".
For outsiders, this may sound a bit exaggerated. However, Stallman goes on to point out similarities between the USSR and current U.S. policies in all the five points:
- guarding of copying equipment - this is done by including DMCA-warranted copy protection mechanisms to software (including many very widely used applications).
- harsh punishments - Stallman cites the current U.S. prosecution mechanisms for copyright violators which can include real imprisonment
- eavesdropping - the "nail the pirate"-type campaigns which encourage informing BSA or other similar organisation of fellow people infringing copyright (while these campaigns have been toned down recently, a good example is still visible at e.g. http://www.netscum.dk/australia/genuine/piracy/report/default.aspx).
- propaganda – using the same word for IP offenders and notorious pillagers, murderers and robbers. Stallman also notes that "pirate" used to be a term for publishers who did not pay to authors - nowadays they have effectively reversed the term.
This is indeed something to think about.
The Mindquake of IP
Robert Theobald has used the term "mindquake" for situations where one realises that his/her previous knowledge which applied to certain situations does not work any more. A good example of this in Estonia were people who were trained to operate under the Soviet-style planned economy: economists, bookkeepers, business lawyers. A large portion of their working knowledge turned to dust just in a few years, after the free market economy came to Estonia along with the regained independence in 1991. Many of them were able to re-learn their craft, but others had to leave. In many ways, IP in general has increasingly been facing mindquakes since the 90s.
It actually started much earlier. Lessig in his book describes a tragicomical case of Causby brothers – a pair of farmers, whose chickens were terrorised by low-flying military planes from a nearby base. During that time, the legal system assumed that someone owning the land also owned everything below down to the centre of the Earth, and everything above it up to an undefined height. Building their case on the abovementioned assumption, the Causby brothers sued the U.S. Air Force for violating their property rights. However, the judge harshly dismissed their case, boldly stating: "Common sense revolts at the idea." Thus, the decision of a single judge effectively changed the whole legal interpretation of the issue - an almost classic example of Theobald's mindquake. But this time, it was the U.S. versus a couple of poor farmers. Today, similar cases are more likely the U.S (or EU) vs some huge multinational corporation - this makes fighting excesses like this much more difficult.
A major problem concerning IP can be summed up with an old Oriental saying: "Those who know, do not talk. Those who talk do not know." One of the biggest negative impacts of IP comes from issuing too broad patents and other forms of protection. This is mostly due to patent officials being unable to fully grasp technical details of proposed invention. A good example is the telephone case mentioned above - the problem here was not the patent existing per se, but it being issued for a far too extensive field of communication.
This is especially true concerning patents on software - even if the evaluator is qualified (which have been not the case in many times - finding a person being simultaneously and equally expert in legal details of patent law and finesses of computer programming is quite improbable), software as a phenomenon is far too complicated to identify if the novelty clause has been satisfied. This has led to incompetent decisions, some of which can be seen at http://webshop.ffii.org. The situation will likely escalate further if no measures will be taken. As expressed by Lessig, "What the law demands today is increasingly as silly as a sheriff arresting an airplane for trespass. But the consequences of this silliness will be much more profound."
Another problem with the current system of IP when applied on software and other objects of new media, is the duration of protective measures. If the 20 years of patent protection might have been appropriate for Watt's steam engine, it is a hopelessly too long time for many today's new creations. Perhaps the best example of this would be imagine if sir Timothy Berners-Lee had patented his newly-created Hypertext Transfer Protocol and other crucial components of the World Wide Web in 1991. We would perhaps have some well-controlled applications, but definitely not the ubiquity of today (a good example is provided by Ted Nelson's Xanadu project which started already in the 60s, featured many similar ideas to the Web, but failed to materialise - being proprietary by nature was possibly not the smallest reason for this). No Internet banking, no web media, no blogs or web forums - not until 2011.
The same man has said in 2002: "The reason people invest their lives and careers (working on new technology) is that they don't expect some company to come into take it away from them. Just the rumor of patents and royalties will put a two years stop in development -- we can't afford that. /.../ If we don't get this intellectual property issue right, there is a danger that the next Internet revolution won't happen. It could mean that the Semantic Web doesn't really happen.". The Semantic Web, or the next-generation Web is by definition dependent on interoperability and unrestrained interchange of information – things which seem to be increasingly burdened by IP regulations.
Finally, in June 2006, years after the invention of the Web, he writes: "When I invented the Web, I didn't have to ask anyone's permission. Now, hundreds of millions of people are using it freely. I am worried that that is going end in the USA.".
As we have seen, the current approach to the IP has been running wild for some time. The problem may well be not limited to insufficient or overtly harsh legal regulations - a new kind of ethical approach could be necessary.
The business of science
For a final example, the Open Access movement was started by an American billionaire, activist and philantrophist George Soros in 2001 as the Budapest Open Access Initiative. Its main aim is to provide alternative publishing models to the increasingly commercialised academic publishing which provided huge profits to publishers but effectively blocked access to scientific materials for those who could not afford the expensve journals, thus extending the global digital divide. Despite initial hesitation and some criticism from academic community (who apparently faced another mindquake) the process gradually emerged to become a viable way of publishing. In March 2006, the Directory of Open Access Journals (http://www.doaj.org) lists more than 2000 scholarly journals with more than 80 000 articles.
A good quote to illustrate the shift of thinking among academics comes from a professor of economic analysis (sic!) R. Preston McAfee, stating the reason why he published his “Introduction to Economic Analysis” in web using a CC license (available from http://www.introecon.com) and making some interesting points:
"Why open source? Academics do an enormous amount of work editing journals and writing articles and now publishers have broken an implicit contract with academics, in which we gave our time and they weren't too greedy. Sometimes articles cost $20 to download, and principles books regularly sell for over $100. They issue new editions frequently to kill off the used book market, and the rapidity of new editions contributes to errors and bloat. Moreover, textbooks have gotten dumb and dumber as publishers seek to satisfy the student who prefers to learn nothing. Many have gotten so dumb ("simplified") so as to be simply incorrect. And they want $100 for this schlock? Where is the attempt to show the students what economics is actually about, and how it actually works? Why aren't we trying to teach the students more, rather than less?"
- Himanen, P. (2004) [Challenges of the Global Information Society. report for the Committee for the Future in Parliament of Finland http://www.eduskunta.fi/efakta/vk/tuv/challenges_of_the_globalinformationsociety.pdf].
- Lessig, L. (2004). [Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity http://www.free-culture.cc/freecontent/]. The Penguin Press.
- Martin, B. (1998) [Information Liberation: Challenging the Corruptions of Information Power http://www.uow.edu.au/arts/sts/bmartin/pubs/98il/]. Freedom Press, London.
- McAfee, R. P. (2005). [Introduction to Economic Analysis http://www.introecon.com]. California Institute of Technology.
- Wynants, M., Cornelis, J. , Eds (2005). [How Open is the Future? Economic, Social and Cultural Scenarios inspired by Free & Open-Source Software http://crosstalks.vub.ac.be/publications/Howopenisthefuture/howopenfuture_CROSSTALKSBOOK1.pdf] Edited by M. Wynants and J. Cornelis, CrossTalks, VUB Brussels University Press 2005.
- Mishel, L., Teixeira, R.A. (1991). [The Myth of the Coming Labor Shortage: Jobs, Skills and Incomes of Americas Workforce 2000 http://www.epinet.org/studies/myth_of_coming_labor_shortage-1991.pdf]. Economic Policy Institute Report.
- Moglen, E. (1999). [Anarchism Triumphant: Free Software and the Death of Copyright http://firstmonday.org/issues/issue4_8/moglen/index.html]. First Monday, Vol. 4, Issue 8.