There is a pattern to our thoughts that we do not see, a set of rules that we follow without knowing. It governs what we can or cannot understand, which means that it affects everything we do. The pattern is useful to us in the measure that it approximates reality; a pattern of thought is like a map, and a map is good if it helps us navigate the territory. But if the pattern does not approximate reality, then it does not serve us. It might, however, serve other people; if someone can edit your map without you knowing, then they can hide things from you and lead you astray at their will and pleasure. As a consequence, some people are actively trying to confuse us for their own benefit. This is one of the reasons why it’s hard to understand so many things, and why it’s important to see things as they really are.
You’ve probably already noticed that my favorite topic on this blog is “intellectual property” and its subdivisions, such as patent, copyright, database rights, and so on. I choose to focus on this topic because I believe that it is very important, since the legal rules of IP govern the development and use of technology (which we all use, and we’re using more and more of it) and communication (which we all do, and we’re doing more and more of it). I also focus on IP because I believe that the ways of thinking that define and uphold IP are very, very wrong.
Too see why our thoughts are wrong and how they went wrong, let’s have a look back in time, to the 1st century AD, where we find a poet named Martial complaining about another poet copying his stuff. This was hardly the first time someone complained about someone else copying or imitating their words, but this time is special because of Martial’s choice of words. He called the copier a “plagiarist” (see poem LXVI here, among others). This is the first recorded usage of this term (according to Jack Lynch and Mathias Klang). We’re all familiar with it now, thanks in no small part to the essays we had to write in high school and college, and most of us consider it a bad thing. But have you considered where the term “plagiarist” came from? Martial did not just make the term up; he used the vocabulary of his time, specifically the Latin term plagiārus, which my source says means “plunderer” or “kidnapper”.
Kidnapping, plundering… strong words! If someone copied your essays, would you accuse them of a crime comparable to forcibly taking away your children? I hope not, yet that is what the term we use implies. Are you comfortable with that?
But this attitude was hardly unique to Martial. In fact, Martial’s response (publicly shaming the copiers via poetry) was rather laissez-faire. But not everyone was so relaxed about being copied. In fact, some people got rather violent about it. People like Finnian of Movilla. Moving forward in time to 561 AD, we find a pair of Irish monks named Finnian and Columba (sometimes called Colum Cille), arguing with each other over a copy of a book. It seems that Columba borrowed a psalter from Finnian and then copied all of it, intending to keep his personal transcript. Finnian was none too pleased, and demanded the transcript as well as the original. Columba refused, and appealed to the High King, Diarmait Mac Cerbaill. The king heard their complaints, and this happened:
Then it was that Diarmaid gave the famous judgment: “To every cow her young cow, that is, her calf, and to every book its transcript. And therefore to Finnen belongeth the book thou hast written, Columcille.”
“It is an unjust judgment,” saith Columcille, “and punishment shall fall on thee therefor.”
– From Life of Columcille, p. 179
Columba was none too happy about this judgement, and he refused to obey. Diarmait eventually forced the issue by sending in an army, and Columba rallied his kinsmen and fought back. 3,000 men died, and Columba won. He kept his copy. (Thanks to Lawrence Ludlow for bringing this to my attention, and Ruth Suehle for providing additional details).
But how strange this all is! To compare copying a book to birthing a calf! But if we want to stick with that metaphor, then shouldn’t the rightful owner of the “calf” be Columba, who had to do all the “birthing” by copying the text by hand? But no, since Finnian owned the original book, he also owned the words, and Columba wasn’t allowed to take the words away. To me, this feels like magical thinking, specifically sympathetic magic, thinking that ownership of one thing means ownership of things that resemble it or relate to it. This kind of thinking was very prevalent in Columba’s time (the story I quoted from describes events such as Columba sending a bird to pluck out someone’s eyes and Finnian then healing the eye back in place). As a whole, western societies are no longer in the habit of readily accepting reports of miracles, yet they still seem to accept this link between a book and its copies. Are they correct in thinking this way? It’s worth looking at how Columba defended his actions:
“I hold that Finnian’s book has not decreased in value because of the transcript I have made from it, and that it is not right to extinguish the divine things it contained, or to prevent me or anybody else from copying it, or reading it, or from circulating it throughout the provinces. I further maintain that if I benefited by its transcription, which I desired to be for the general good, provided no injury accrues to Finnian or his book thereby, it was quite permissible for me to copy it.”
Was he wrong? If so, where is he in error?
Moving further forward in time, I’m not aware of many other disputes over copying in the centuries after Columba’s copyfight. This may be because copying was just so difficult back then. Writing long texts by hand isn’t easy, especially if you want them to last, so books (and readers) were few in number, and if you had a book in the first place, you probably wanted to copy and share it as much as possible, but if you didn’t, it was easy to keep the book under control. But humans are both clever and lazy, and we love finding ways around difficult technical problems, and soon enough, we found our way around the copying problem: the printing press.
Block printing came first, followed by movable type printing, invented in China by Bi Sheng in 1041, and in Europe by Johannes Gutenberg in 1450. With this development, the difficulty of making copies was dramatically reduced. And at the same time, the difficulty of controlling copies was dramatically increased. Not surprisingly, governments responded with censorship, both in China (described here by Stephan Kinsella) and in Europe (described here by Michael Hart). Now in China, the censorship stayed as censorship and people remained free to copy works considered unimportant, an attitude that remains to this day (evidenced by China’s persistent censorship and persistent infringement). But in Europe (and in Europe’s offspring, the USA), a curious thing happened. Queen Mary I of England, otherwise known as “Bloody Mary”, felt that her government alone couldn’t adequately suppress the books she hated, so she struck a bargain with the Stationers’ Company. She gave them monopoly powers in return for their cooperation. They wouldn’t print anything the government didn’t like, and in return, they got to be the sole authorized printers of books, and they had the right to seize presses and burn books to enforce their own monopoly. Thus, “copyright” was born (see Rick Falkvinge and the folks at Question Copyright). The state no longer had to use its own resources to control the press, and the stationers could more easily profit from the demand for books. That’s public-private partnership for you.
For over a hundred years, the Stationers enjoyed their monopoly, but it couldn’t last forever. People got sick of it, and insisted that things change. Seeing their power and income stream slip away from them, the Stationers changed tactics. They returned to the desire to own words, and they argued that authors have a natural right to own their own words – a natural monopoly! They found willing allies among the authors, who were buying into the romantic notion of possessing their original expressions (explained and debunked here by Anna Nimus) and decrying copiers as “pirates”.
But what an odd term! “Pirate”, a violent robber who specializes in crime at sea, being used to describe people who copy books without permission? Really? Crosbie Fitch credits Daniel Defoe for being the first to use the term like that, in 1703, but neither I nor Crosbie can discover any justification from Defoe for using the term. He just throws it out there as if it were perfectly logical. Like Martial and Finnian of old, Defoe succumbed to magical thinking and sought to own words. The British government thought alike, and in 1710, the world got the first modern copyright law: the Statute of Anne. Now, everyone could own their own words. Control was to be totally distributed… and on its way to becoming absolute.
Of course, the law wasn’t universally adopted right away. It took over two hundred years for copyright to spread and formalize. Germany was notably slow in introducing the law (which Frank Thadeusz credits as a cause for their rapid industrial expansion and modernization). But the will was there to spread copyright law. Authors were mad that their works were only protected within their own countries, and complained that foreign publishers (which they called “pirate publishers”) were printing their works without giving the authors a cut. The publishers also wanted greater control, and they set out to get it.
Soon enough, they got their way. The Berne Convention was drafted in 1886, and as of today, it is the law in 164 countries. But copyright didn’t just spread geographically. It spread metaphysically as well.
Copyright originally applied only to words, but it spread to sounds, pictures, and videos, through related rights. It originally only applied to exact whole copies, but it spread to similar styles and mere excerpts. It was originally 14 years with an optional 14 year renewal, but it has spread out to life plus 70 years after death. It originally only applied if the work was registered, properly labeled, and made available to libraries, but it has spread to every word and utterance, with or without registration, with or without any copies made available.
To some people, such as the folks at Creative Commons, this spreading makes no sense. But that’s because they haven’t grasped the logic that drives these changes. It is the same logic that created copyright in the first place. It is the logic of control. If you want to control information, you can’t make any exceptions. You must control it everywhere, in every form, for all time, otherwise it will leak out and negate your control.
This desire for total control is especially apparent in the famous white paper, Intellectual Property and the National Information Infrastructure. Pamela Samuelson, writing for Wired, gave an excellent analysis:
The eight interrelated parts of the white paper’s agenda intend to:
1. Give copyright owners control over every use of copyrighted works in digital form by interpreting existing law as being violated whenever users make even temporary reproductions of works in the random access memory of their computers;
2. Give copyright owners control over every transmission of works in digital form by amending the copyright statute so that digital transmissions will be regarded as distributions of copies to the public;
3. Eliminate fair-use rights whenever a use might be licensed. (The copyright maximalists assert that there is no piece of a copyrighted work small enough that they are uninterested in charging for its use, and no use private enough that they aren’t willing to track it down and charge for it. In this vision of the future, a user who has copied even a paragraph from an electronic journal to share with a friend will be as much a criminal as the person who tampers with an electrical meter at a friend’s house in order to siphon off free electricity. If a few users have to go to jail for copyright offenses, well, that’s a small price to pay to ensure that the population learns new patterns of behavior in the digital age.);
4. Deprive the public of the “first sale” rights it has long enjoyed in the print world (the rights that permit you to redistribute your own copy of a work after the publisher’s first sale of it to you), because the white paper treats electronic forwarding as a violation of both the reproduction and distribution rights of copyright law;
5. Attach copyright management information to digital copies of a work, ensuring that publishers can track every use made of digital copies and trace where each copy resides on the network and what is being done with it at any time;
6. Protect every digital copy of every work technologically (by encryption, for example) and make illegal any attempt to circumvent that protection;
7. Force online service providers to become copyright police, charged with implementing pay-per-use rules. (These providers will be responsible not only for cutting off service to scofflaws but also for reporting copyright crime to the criminal justice authorities);
8. Teach the new copyright rules of the road to children throughout their years at school.
The public has been slow to accept this latest expansion of control, as evidence by the successful protest against SOPA/PIPA. But the public has also been slow to reject the basic logic of information control. Perhaps the best evidence for this is the very existence of Creative Commons. I again reference Anna Nimus’s analysis:
Lessig claims that today, as a result of commons-based peer-production and the Creative Commons project more specifically, the possibility of a Read-Write culture is reborn. But is the Creative Commons really a commons? According to its website, Creative Commons defines the spectrum of possibilities between full copyright – all rights reserved – and the public domain – no rights reserved. Our licenses help you keep your copyright while inviting certain uses of your work – a “some rights reserved” copyright. The point is clear: Creative Commons exists to help “you,” the producer, keep control of “your” work. You are invited to choose among a range of restrictions you wish to apply to “your” work, such as forbidding duplication, forbidding derivative works, or forbidding commercial use. It is assumed that as an author-producer everything you make and everything you say is your property. The right of the consumer is not mentioned, nor is the distinction between producers and consumers of culture disputed. Creative Commons legitimates, rather than denies, producer-control and enforces, rather than abolishes, the distinction between producer and consumer. It expands the legal framework for producers to deny consumers the possibility to create use-value or exchange-value out of the common stock.
Creative Commons shies away from total control, yet lusts after some amount of control. They know that you cannot fully own information, yet they imagine that you can still partly own it. Hence their mantra: “Some rights reserved”.
But the truth is that this half-control is a pipe dream. It survives only because we all have a tendency to believe that such control is possible, but our belief has no foundation. Copyright is, as gwern describes it here, “an unanalyzable ghost in the machine, which has held up thus far based on fiat and limited human (machine) capabilities”.
Now, it so happens that there are some people who have already realized this. I am not mainly referring to the writers and thinkers who made me aware of the problems of information control (though I wish to thank all of them, especially Stephan Kinsella, whose book Against Intellectual Property shook me out of my ignorant complacency). No, I am referring to the doers, the ones who argue against control by actively escaping it. I am referring to the “pirates”. From scruffy folks like Gottfrid Svartholm to flashy jerks like Kim Dotcom, these are the people who dare to declare that the emperor is indeed wearing no clothes, and who, by breaking the law, help us realize how broken it already is.
The system has struggled against “piracy” for centuries, and it will continue to struggle as long as we fail to realize that the “pirates” have it right. Like Columba of old, we must realize that copying is not kidnapping, printing is not piracy, and information is not property. But to do so, we must confront our law, our culture, our treasured assumptions, and our years of history, and realize that we’d had it all wrong all this time. This is not going to be easy. But it is necessary, and it is right. And if we have to do it one person at a time, one article at a time, then so be it, but we must do it. We must realize that our rules are wrong, that obeying them is wrong, and that enforcing them is wrong. It’s time to look for a better set of rules, and a pattern of thinking that more closely matches reality.
Now, you’ve probably already noticed that I have a category of posts titled “Iron Prison”, and you’ve certainly noticed the title of this post. The “Iron Prison” is a dual reference, a sort of in-joke for me personally that I’ll now explain to you. Its initials are I.P., which can also stand for “intellectual property”, but which can also stand for a lot of other things. It’s become sort of a game among Free Culture advocates to see what we can fit into the IP acronym. Industrial Protectionism, Intellectual Prohibition, Inequality Promotion, Imaginary Property, etc. But besides referencing this game, “Iron Prison” also references the Black Iron Prison, a Discordian text that argues that most of our life is spent in confining patterns that have no reason behind them and that fail to help us. As you can see from my opening paragraph, I agree with the sentiment, and I think it’s entirely applicable to “intellectual property”. It is an Iron Prison, constricting how we think, and inviting us to constrict how others think out of some perverted sense of ownership. That’s why it’s bad. It’s time to escape the Iron Prison.