Saving the Net

How to get past the intellectual and political logjams that threaten Linux and the Net.

At the same time that media concentration restrictions are being removed, such that three companies will own everything, so too are neutrality restrictions for the network being eliminated, so that those same three companies--who also will control broadband access--are totally free to architect broadband however they wish. "The Internet that is to be the savior is a dying breed. The end-to-end architecture that gave us its power will, in effect, be inverted. And so the games networks play to benefit their own will bleed to this space too."

And then Dr. Pangloss says, "but what about spectrum. Won't unlicensed spectrum guarantee our freedom?" And it is true: Here at least there was some hope from this FCC. But the latest from DC is that a tiny chunk of new unlicensed spectrum will be released. And then after that, no more. Spectrum too will be sold--to the same companies, no doubt.

So then, Dr. Pangloss: "When the content layer, the logical layer, and the physical layer are all effectively owned by a handful of companies, free of any requirements of neutrality or openness, what will you ask then?"

--"But Where's the Internet?" by Lawrence Lessig, MediaCon.

"I think that I could turn and live with the animals... Not one of them is demented with the mania of owning things." --Walt Whitman

Who Owns What?

That's the fundamental question, and it's going to get more fundamental as we roll toward the next presidential election here in the US. Much is at stake, including Linux and its natural habitat: the Net. Both have been extraordinarily good for business. Its perceived "threat" to Microsoft and the dot-com crash are both red herrings. Take away Linux and the Net, and both technology and the economy would be a whole lot worse.

Both the Net and Linux were created, grew and flourished almost entirely outside the regulatory sphere. They are, in a literal sense, what free markets have done with their freedoms.

Yet, there are some who do not care. Unfortunately, they're driving the conversation right now. Hollywood has lawmakers and news organizations convinced that file sharing is "piracy" and "theft". Apple, Intel and Microsoft are quietly doing their deals with the Hollywood devil, crippling (or contemplating the crippling of) PC functionalities, to protect the intellectual property of "content producers".

As I write this, SCO claims to own whatever remains of AT&T's original UNIX. They're suing IBM and spreading FUD by the trainload all over Linux, which they claim is derivative. I'm getting e-mails from technologists at big companies telling me that Linux use is now a Big Issue for their corporate legal departments. I also heard recently from a former Novell employee who says Novell intentionally held onto their UNIX patents (acquired from AT&T) so SCO wouldn't have full claims to "owning" whatever it was that Novell sold them (after buying UNIX, renamed UnixWare, from AT&T).

And I'm hearing from people who insist that Linux is not exactly ownerless, either. "Linux is a registered Trademark of Linus Torvalds" appears on 268,000 Web documents, Google tells me. In at least one sense, these folks say, Linus owns Linux. That means it is, in a limited sense, proprietary.

The Internet has been blessedly free of regulation for most of its short life. But the companies that provide most Internet service--telcos and cable companies--are highly regulated. They are creatures that live in a regulatory environment that bears little resemblance to a real marketplace. As natives of regulatory habitats, they see nothing but Good Sense in regulating the Net. After all, any regulation will help assert their ownership over the sections of the Net they control and legitimize the limitations they place on what their customers can do with, and on, the Net.

These companies have deep alliances with the big "content": industries (in the case of cable, they are one and the same) that want to see control extended beyond the Net, into the devices that connect to the Net, including PCs, which have also been blessedly free from regulation. Intellectual property protections have been built into consumer electronics devices for a long time. These guys see no reason why PCs, as a breed of consumer electronic device, shouldn't be subject to the same restrictions, in the form of digital rights management (DRM), run by content providers and burned into hardware at the factory. In fact, they're counting on the anti-circumvention provisions of the Digital Millennium Copyright Act (DMCA) to prevent any hacks around those DRM systems. Once those cripples (for which there is zero demand on the customers' side) are in place, you can count on Dell, HP and Gateway PCs and laptops that are much less ready to run Linux.

Two oddly allied mentalities provide intellectual air cover for these threats to the marketplace. One is the extreme comfort certain industries feel inside their regulatory environments. The other is the high regard political conservatives hold for successful enterprises. Combine the two, and you get conservatives eagerly rewarding companies whose primary achievements consist of successful long-term adaptation to highly regulated environments.

That's what's happened with broadcasting and telecom.

There are barely more than 100 channels apiece on the AM and FM bands. No region can allow more than a couple dozen local signals at most or the signals step on each other--which they do anyway, as the FCC has generally relaxed interference protections over the years to allow more stations on the air. The carrying capacities of satellites and cable systems also limit the number of available channels. If you want to operate a new station of any kind on licensed broadcast spectrum, your chances of finding an opening are approximately zero. It's a closed club.

There's also a problem with conceiving broadcast service--especially the commercial variety--as a "marketplace." Its customers and consumers are different populations. The customers of commercial broadcasting are advertisers, not viewers and listeners. In fact, commercial broadcasting mostly is an advertising business. The "content" it distributes is merely bait; the goods sold are the ears and eyeballs of "consumers". That means commercial broadcasting's real marketplace is Madison Avenue, not radio and TV dials. As a consumer of commercial broadcast programming, your direct influence is zero because that's exactly what you pay. (Paying for cable or satellite service doesn't count, because that payment is for access, not for the content itself.)

The notable exceptions are "premium" channels like HBO and public broadcasting. The reason why programming on both is relatively higher in quality is a simple one: there's little or no split in their markets between customers and consumers. As a viewer or listener, you get what you pay for.

All of which is why this talk about the "media marketplace" is highly screwed up. Relaxing broadcast property ownership rules, in the absence of making larger chunks of available spectrum for everybody, is hardly deregulation. It is a highly selective change in existing regulation that opens opportunities only to the most successful players in a completely closed marketplace.

This is all fine if you don't care about television and radio. But what if you care about the Net and Linux? What does broadcast deregulation have to do with those?

Plenty. The local ISPs that pioneered Net delivery were born under a transient regulatory protection that largely has been sacrificed to give regulatory advantage to cable and telecom industries. Ironically, both industries are in deep trouble, mostly because they have no idea how to deal with the Internet. The Net wasn't born inside their regulated environments, yet they find themselves obliged to carry it anyway because customers want it.

The Net's problem, from telco and cable industries' perspective, is it was born without a business model. Its standards and protocols imagine no coercive regime to require payment--no metering, no service levels, no charges for levels of bandwidth. Worse, it was designed as an end-to-end system, where all the power to create, distribute and consume are located at the ends of the system and not in the middle. In the words of David Eisenberg the Internet's innards purposefully were kept "stupid". All the intelligence properly belonged at the ends. As a pure end-to-end system, the Net also was made to be symmetrical. It wasn't supposed to be like TV, with fat content flowing in only one direction.

The Net's end-to-end nature is so severely anathema to cable and telco companies that they have done everything they can to make the Net as controlled and asymmetrical as possible. They want the Net to be more like television, and to a significant degree, they've succeeded. Most DSL and cable broadband customers take it for granted that downstream speeds are faster than upstream speeds, that they can't operate servers out of their houses and that the only e-mail addresses they can use are ones that end with the name of their telephone or cable company.

And why not? These companies "own" the Net, don't they? Well, no, they don't. They only "provide" it--critical difference.

The gradual destruction of the Net is getting political protection by two strong conservative value systems. One values success, and the other values property. Let's look at success first.

Liberals often are flummoxed by the way conservatives seem to love big business (including, of course, big media). Yet the reason is simple: they love winners, literally. They like to reward strength and achievement. They hate rewarding weakness for the same reason a parent hates rewarding kids' poor grades. This, more than anything else, is what makes conservatives so radically different from liberals. It's why favorite liberal buzzwords like "fairness" and "opportunity" are fingernails on the chalkboards of conservative minds. To conservatives, those words are code-talk for punishing the strong and rewarding the weak.

As George Lakoff explained in Moral Politics: What Conservatives Know that Liberals Don't (University of Chicago, 1995), conservatives consider strength a "moral value". Strong is good. Weak is bad.

In street basketball there's a rule called "make it, take it". If you score a basket, you get to keep the ball. Three-on-three basketball works the same way. So do volleyball and other sports with rules that favor achievement over fairness.

Relaxing media ownership rules is all about "make it, take it". Clear Channel and Viacom have made it. Why not let them take more? It's simply the marketplace at work, right? Again, only in a highly regulated context.

We can't change conservative value systems. But we can change the emphasis on what we conserve and why. That's why we need to figure a way around the Property Problem too.

We met that problem head-on and lost, with Eldred v. Ashcroft, a case that challenged the Sonny Bono Copyright Term Extension Act. Eldred made it to the Supreme Court last year, shepherded from start to finish by Lawrence Lessig, Stanford law professor, author, constitutional scholar and former clerk for archconservative Supreme Court Justice Antonin Scalia. Oral arguments were heard in October. On January 15, 2003, the justices struck down the challenge by a vote of 7-2. Justice Ginsberg wrote the majority opinion. Justices Stevens and Breyer wrote dissents.

A loud hubbub followed. Somewhere in the midst of all that, I did my own thinking out loud on the American Open Technology Consortium (AOTC) site, suggesting the reasons for Eldred's failure had more to do with language than with politics and law:

I believe Hollywood won because they have successfully repositioned copyright as a property issue. In other words, they successfully urged the world to understand copyright in terms of property. Copyright = property may not be accurate in a strict legal sense, but it still makes common sense, even to the Supreme Court...

Watch the language. While the one side talks about "licenses" with verbs like copy, distribute, play, share and perform, the other side talks about "rights" with verbs like own, protect, safeguard, protect, secure, authorize, buy, sell, infringe, pirate, infringe and steal. This isn't just a battle of words. It's a battle of understandings.

To my surprise, Professor Lessig found my idea convincing. In Doc's Diagnosis, Lessig wrote:

Doc has a brilliant and absolutely correct diagnosis at the American Open Technology Consortium web site about how we lost in Eldred. Copyright is understood to be a form of simple property. The battle in Eldred thus sounded like a battle for and against property. On such a simple scale, it was clear how the majority of the Court would vote. Not because they are conservative, but because they are Americans. We have a (generally sensible) pro-property bias in this culture that makes it extremely hard for people to think critically about the most complicated form of property out there--what most call "intellectual property." To question property of any form makes you a communist. Yet this is precisely our problem: To make it clear that we are pro-copyright without being extremists either way.

So deep is this confusion that even a smart, and traditionally leftist, social commentator like Edward Rothstein makes the same fundamental mistake in a piece published Saturday. He describes the movement, of which I am part, as "countercultural," "radical," and anti-corporate. Now no doubt there are some for whom those terms are true descriptors. But I for one would be ecstatic if we could just have the same copyright law that existed under Richard Nixon...

How to change the debate is the hardest thing. But rather than philosophy, perspective and pragmatics seems the best way. Build a public domain (which Creative Commons will help to do), and show people and companies how the public domain helps them. Indeed, of all the companies out there, this is the one point Disney should certainly understand: Now that they have won the Eldred case, they should be racing to embrace the Eldred Act. No company has depended more upon the public domain. The Eldred Act would give them much more to build upon.

I agree about perspective and pragmatics, and I think Creative Commons is a brilliant institution that will change the game in the long run. But, I still think we lose in the short run as long as copyright (and, for that matter, patents) are perceived as simple property. Our challenge is to change that.

So, how do we out-simple "simple"? It helps to revisit our original concepts of property -- concepts conservatives can espouse and promote.

Duhaime's Law Dictionary defines property this way:

Property is commonly thought of as a thing which belongs to someone and over which a person has total control. But, legally, it is more properly defined as "a collection of legal rights over a thing". These rights are usually total and fully enforceable by the state or the owner against others. It has been said that "property and law were born and die together. Before laws were made there was no property. Take away laws and property ceases." Before laws were written and enforced, property had no relevance. Possession was all that mattered. There are many classifications of property, the most common being between real property or immovable property (real estate, such as land or buildings) and "chattel", or movable property (things which are not attached to the land such as a bicycle, a car or a hammer) and between public (property belonging to everybody or to the state) and private property.

In National Review, John Bloom puts the same idea this way:

Whoever turned "copy right" into one word had to be a lawyer. We don't say "freespeechright" or "gunright" or "assemblyright" or "religionright."

As a result, 99 percent of the public thinks that a copyright is some kind of formal legal document. They think you have to go get it, or protect it, or defend it, or preserve it, or buy it, or hire a lawyer to make sure you have it.

On the contrary, it's simply a right, like all our other rights, and it goes like this: Whoever creates something that has never been created before has the exclusive right to copy it.

It's not the person who registers it with the Library of Congress. It's the person who does it first. Just the act of creation makes the right kick in.

Unlike other rights, though, this one is transferable. You can sell your copyright, license your copyright, or give your copyright away. What's most often done is that you let a big company--say, a book publisher--use the copyright for a specific period of time, in return for money, and at the end of that period the right reverts back to you.

One other difference: This is a right with a specific term.

The Founding Fathers wanted that term to be 14 years, with an additional 14 years if the author [was] still alive. After 28 years, they figured you'd had your chance to exploit your creation, and now it belonged to the nation at large. That way we would never end up with a system of hereditary privilege, similar to the printers guilds of Renaissance England, who tied up rights to dead authors and tightly controlled what could or could not be printed and who could or could not use literary material.

In America, land of free ideas as well as free people, this would never happen, they said.

Well, it's happened. It's happened because for years now Congress has allowed it to happen. We now have an exact replica of the medieval Stationers' Company, which controlled the English copyrights, only its names today are Disney, Bertelsmann, and AOL Time Warner. The big media companies, holding the copyrights of dead authors, have said, in effect, that Jefferson, Madison, and Hamilton were wrong and that we should go back to the aristocratic system of hereditary ownership, granting copyrights in perpetuity. To effect this result, they've liberally greased the palms of Congressmen in the form of campaign contributions--and it's worked...

National Review is a conservative magazine. John Bloom is a conservative columnist. This is significant.

What will it take to revitalize this understanding of property and to cause outrage against the damage done to it by Congress?

I think we need a galvanizing issue. I suggest Saving the Net. To do that, we need to treat the Net as two things:

  1. a public domain, and therefore

  2. a natural habitat for markets

In other words, we need to see the Net as a marketplace that has done enormous good, is under extreme threat and needs to be saved.

The Internet has proven to be a fine marketplace for all kinds of stuff. Look up any product on a search engine, and you'll see free markets at work all over the place, with power growing on both the supply and the demand sides o every category you can name.

Markets flourish on the Net or with the help of the Net because the Net is free. That's free as in beer, speech, liberty and enterprise. That freedom is guaranteed by the end-to-end nature of the Net, and the NEA principles it engenders: "Nobody owns it, Everybody can use it and Anybody can improve it."

This may sound a bit like communism to conservative sensibilities, unless it is made clear that the Net belongs to that class of things (gravity, the core of the Earth, the stars, atmosphere, ideas) that cannot be owned and even thinking about owning it is ludicrous.

Now, to the elections. Look at the two big political parties; both have existed largely as funding mechanisms. For proof, ask yourself, "When was the last time I went to a party meeting?" Whatever other functions they serve, the parties are fundamentally about The Money.

At least until the Net came along.

As I write this, Democratic candidate Howard Dean just gathered his party's largest campaign fund for the most recent quarter. The mainstream press has acknowledged that most of this money came from fund-raising on the Internet. But they avoid visiting a fact that should be deeply troubling to every candidate running (and then governing) for money rather than for voters: Dean's lead is owed to a huge number of small donations, not to a small number of large special interests. If he's being bought, it's by his voters. This is a New Thing. It's also been made possible by the Net.

I am not endorsing Howard Dean here (for the record, I'm a registered independent who mostly has voted Libertarian in recent state and federal elections). But I am endorsing a new kind of politics based on the presence in the world of a free marketplace for ideas as well as for products and services. We get to protect that free marketplace by exercising our freedom to use it.

Saving the Net and the NEA goods that thrive on the Net should be a paramount concern for technologists everywhere. Those goods include Linux and every idea that's good enough to grow when it passes from one brain to another, gaining value along the way.

Our work is cut out for us. Let's do it.

______________________

Doc Searls is Senior Editor of Linux Journal

Comments

Comment viewing options

Select your preferred way to display the comments and click "Save settings" to activate your changes.

Hi

fobidik's picture

The last mile of the net is inherently asymmetric. The reason is quite simple. I have vastly more ability to consume than I do to create.

http://fobidik.net/

Thanks

Burak Demir's picture

Really thanks you for that nice article.

gooooood

photoshop's picture

Because you can't fight business with a guerrilla war. Business isn't like an invading army that can be killed effectively in small doses until it dies on its own. It's a force of society and of human nature. Like an iceberg, you don't 'beat it' by chipping away at it or pushing until it gets tired, you only 'win' by changing its state. I say, melt it and survive the flood. We really need that more profitable alternative use that will keep big-media from being able to buy the say on how users use the net....

Sooooo, anybody got an engineering degree and a wad to blow?

media

Misafir's picture

At the same time that media concentration restrictions are being
removed, such that three companies will own everything

Re: Saving the Net

Anonymous's picture

Conservativism and Liberalism are two words that have many means to different people. A "Conservative" who wants to change the status quo of high taxes and big gov't can be seen as radicals. Liberals who want to maintain abortion rights, can be seen as conservatives. The two words have basically lost all meaning.

Two words that describe the same issues, but are much more clear in understanding are "Collectivism" and "Individualism". These are the two words that describe the issues that divide people. Collectivist consider it the responsibility of the state to care for the collective well being of the population. Individualist consider it their personal responsibility to care for themselves.

In terms of the Internet, a collectivist will want Net regulations to shepard the weak, poor, uneducated away from 'harmful' content, such as pornography, spam, and scams. They see the gov't as the protector of the Internet population. The Individualist wants to decide for themselves what is harmful, and take apporpriate actions against the harmful content.

The idea that everyone should be cared for, and no one should be lacking is a collectivist idea. An individualist will take care of themselves first, then share their wealth and power with the less fortunate as they see fit.

The original author of this posting conveys both individualistic ideals and collectivist ideals. In reality, most of life is lived in the middle. We do want everyone to be cared for, but we don't want the gov't to force us into providing the means to care for everyone.

The United States Gov't was originally set up as a structure to promote individualism. Over the past 200, the collectivist have inserted communal tendencies into every area of that gov't.

As far as the posters claim that morals are the dividing line between conservative and liberals, he is incorrect. Morals are an issue between the individual and their own God. When gov't uses morals to justify laws there is a slipperly slope towards collectivism and totalitarianism. A collectivist believes that the needs of the many outweight the needs of the few or the one. and Individualist beleives that the needs of the one or the few are equal to the needs of the many.

If one stops thinking in terms of conservative vs. liberal, which are meaningless in general and full of contradictions in the specific, and instead thinks in terms of the Individual vs. the Collective, he or she will quickly discover who they are and what they believe.

Re: Saving the Net

damonlynch's picture

"Both the Net and Linux were created, grew and flourished almost entirely outside the regulatory sphere. They are, in a literal sense, what free markets have done with their freedoms."
I don't know what the main idea of this statement is. If it means the Internet and Linux was developed without subsidies (through employment) from the public via universities and government agencies, and only by private businesses, it is so obviously false that something else must be intended. If it means however, that they were developed largely free of any government setting the rules all the way along, then it makes more sense -- but what does that have to do with with free markets? My understanding of free markets is that they involve businesses operating without subsidies and with limited control by the government. That is not the case with either the Internet or Linux.
Damon

At the same time that media

Incontri Coppia's picture

At the same time that media concentration restrictions are being
removed, such that three companies will own everything, so too are
neutrality restrictions for the network being eliminated, so that
those same three companies--who also will control broadband
access--are totally free to architect broadband however they wish.
"The Internet that is to be the savior is a dying breed. The
end-to-end architecture that gave us its power will, in effect, be
inverted. And so the games networks play to benefit their own will
bleed to this space too."

re:At the same time that media

Incontri Donna's picture

Who Owns What?
That's the fundamental question, and it's going to get more
fundamental as we roll toward the next presidential election here in
the US. Much is at stake, including Linux and its natural habitat: the
Net. Both have been extraordinarily good for business. Its perceived
"threat" to Microsoft and the dot-com crash are both red herrings.
Take away Linux and the Net, and both technology and the economy would
be a whole lot worse.

Re: Saving the Net

Anonymous's picture

Law to the effect:

All commercial activity of any type or size will be resticted to gated networks (e.g. AOL, Prodigy, CompuServe) which may set fees, restictions, security measures etc. as they see fit but which must be declared in open policy aggreements.

The internet must be considered a world wide network of communication and community in which restictions are that of each individual's design.

Dean's been bought by the Israel lobby

Anonymous's picture

As I write this, Democratic candidate Howard Dean just gathered his party's largest campaign fund for the most recent quarter. The mainstream press has acknowledged that most of this money came from fund-raising on the Internet. But they avoid visiting a fact that should be deeply troubling to every candidate running (and then governing) for money rather than for voters: Dean's lead is owed to a huge number of small donations, not to a small number of large special interests. If he's being bought, it's by his voters. This is a New Thing. It's also been made possible by the Net.

The media also ignores the fact that Dean's campaign chair is Stephen Grossman, former president of the American Israel Political Action Committee. AIPAC is one of the most powerful lobbies on Capitol Hill, if not the most persuasive one.

Re: Saving the Net

Anonymous's picture

"But they avoid visiting a fact that should be deeply troubling to every candidate running (and then governing) for money rather than for voters: Dean's lead is owed to a huge number of small donations, not to a small number of large special interests."

The majority of donations that republicans receive are also small donations - the democrats traditionally are the ones getting large donations. I'm no republican, but I just thought I should point this out.

Re: Saving the Net

Anonymous's picture

There are so many great ideas here, if we could just organize this into one place, and then decide how to go about reforming this situation... I would like to help, but Doc hasn't sent me any emails back so I guess I'll just fumble about until I find a place with like-minded people.

Re: Saving the Net

Anonymous's picture

Better hurry before they pull the plug. Best just to set up a non profit with a group of patrons and then raise hell. This Government only looks a legit (Corporat) entity

Re: Saving the Net

Anonymous's picture

Quote: "I think that I could turn and live with the animals... Not one of them is demented with the mania of owning things."
--Walt Whitman

Actually animals do have the idea of owning things, like territory (i.e. an animal marks its territory), or claims to food.

Re: Saving the Net

Anonymous's picture

Tg new and unregistered

Not the same case. Animals compete for there spot in nature as should everyone else. As nature changes the animals die off or change areas. In an unbalanced ( regulated) system the prey over populates causing more problems to the enviroment or themselves. They own nothing. They use what nature gave them to survive and adapt in the world. They evolve and not remain perpetually in the same place for all that long. Dinasaurs anyone?

Re: Saving the Net

Anonymous's picture

"The path of the righteous man is beset on all sides by THE INEQUITIES of the selfish and the tyranny of evil men. Blessed is he who in the name of charity and goodwill shepherds THE WEAK through the valley of darkness, for he is truly his brother's keeper and a finder of lost children. And I will strike down upon thee with great vengeance and furious anger those who attempt TO POISON AND DESTROY my brothers. And you will know my name is the Lord when I lay my vengeance upon thee."

Ezechiel 25.17

Re: Saving the Net

Incontri Sesso's picture

Hey Ezechiel - this is not working in real-life 8-))))

That passage doesn't exist but one that is as good does.

Anonymous's picture

Ezekiel 17:19, 20, &a21

As I live, my oath which he spurned, my covenant which he broke, I swear to bring down upon his head. I will spead MY NET over him, and he shall be taken in my snare. I will bring him to BABYLON and enter into judgment with him there over his breaking faith with me. All the crack troops among his forces shall fall by the sword, and the survivors shall be scattered in every direction. Thus you know that I, the Lord, have spoken.

Oh and then.............

Anonymous's picture

He gets up off the dirty tile floor looking down for a brief second. Turning to his subordinate............

AGENT SMITH say after hearing this speech. "TAKE HIM."

His chat operator screams at the web cam. "NOOOOOOO!"

A bit wrong, on property

dengel's picture

One of the things that many fail to recognize (a situation not helped by those who, according to Duhaime's Law Dictionary, say "property and law were born and die together," is that there is a fundamental difference between physical property (both personal and real property) and what we have come to refer to as "intellectual property."

The difference is that physical property is fundamental while intellectual property isn't.

Okay, if you define property as "the set of legal rights" that one has in an object, then to say that property is born with law is a mere tautology. That's not really useful to the discussion.

The point to recognize is that, when it comes to physical property, the laws that assign and enforce those rights over physical things do not do so arbitrarily, nor do they do so out of some social planning that sees a greater social good from it. The laws that relate to property are there because the notion of property (in the physical sense)--that is, the notions of "mine" and "yours," the ideas of giving and receiving and exchanging and their moral "realness," and the concept of stealing and its moral "wrongness"--is built into human nature. The law defines theft because humans have a built-in aversion to the morally wrong act that they call "stealing."

Thus, in a very real sense that is fundamental to humans, the legal rights associated with our physical property are just reflections--canonizations--of moral rights that we all recognize at some level.

(As an aside, I realize that real property is actually a bit different than personal property, and I'm not going to try to address that, here.)

With intellectual property, on the other hand, it is the case that the rights associated with it were themselves created by law. They don't derive from any more fundamental source; they're not built into human nature. The law, in the case of intellectual property, isn't an enforcement of any moral human notion, but an arbitrary expedient designed to achieve a strictly social end.

The problem with the current trend in law is that it confuses these notions of "property," to the detriment of both.

Such laws as the DMCA (and others) that seek to limit what nature of observation, analysis, etc. one can perform on a physical object one owns is a complete violation of what should be a sacred notion of property that the law enforces and respects but never undermines. This violation of the fundamental principle of physical property ("it's mine; I can do with it what I please") is being fueled by an over-application of the very non-fundamental principle of intellectual property. The failure to recognize the arbitrary and statutory nature of intellectual property is causing judges and lawmakers to see a conflict of rights where none exists.

If we are to really address the problem, we must do so by strengthening the framework of property, and by re-honing the division between the principles of physical property and those of intellectual property. We must strengthen the reality and inviolability of the former, while constantly educating the public, as well as lawyers and judges (yes, we have to educate them on principles of law!) on the statutory and contingent nature of the latter.

You Need Democracy

Anonymous's picture

The future of the NET is a worlwide issue rather than an issue for the American Legal/Politcal system which is only of accademic interest ouitside the US. US citizens will only be able to fight against large media companies trying to take control of the NET when the interests of the citizens becomes more important to gevernment than the interest of corporations. While the system of allowing corporations to make the government/laws by large monetary donations exists, the US citizens vote will remain worthless. The media in the US constanlty re-assures the US citizen of how fortunate they are to have their wonderful system of democracy and freedom, to the point where the citizens themselves have fallen to sleep to the sound and not realized that the power of democracy has been diluted to the point of uselessness. Power is not with the citizen anymore, but with the corporations with the biggest bank balance. US government has slowly and insidiously over time become everything that the original constitution was supposed to prevent. You will only be able to fight these battles when you have restored true democracy - WAKE UP!!!

I'M AWAKE!!! While I don't disagree COMPLETELY, ...

Anonymous's picture

... I think we need to narrow the focus to get away from beating up on the USA (which invented the Internet for its national defence, need I remind you). You're getting to the point at the end when you mention what the Constitution was supposed to prevent, an that was the concentration of power into too few hands. The "founding fathers" made sure church and state were separate (to prevent the kind of crap we've got in Africa and the Middle East); they made sure that only democratically (if not freely) elected representatives got to make laws, and then that the executive branch got to approve them, and ultimately the apolitical (HA!) appointed-for-life justices got to interpret the Constitution (to ensure nothing totally insane happened due to popular demand). Checks and balances, baby, and the marketplace *OF IDEAS* are still pretty damned brilliant. So the new FCC ruling is fairly unequivocally the EXACT OPPOSITE of that ideal, and it can be very strongly argued that the copyright stuff is too.

Re: Saving the Net

Anonymous's picture

OK - here's a crazy idea.

Fundamentally, physically, what is the internet? It's digital data being transferred over wires. You have a cable from LA to Tokyo, and tokya and LA can talk. You put a router on each end, and there is the start of the internet.

How much does 12,000 km of fibre cost? How much does 2 routers cost? The net is a huge community now, and a huge proportion of those that use it today want to see it go back to it's glory days.

Let the disneys, RIAA, etc have the internet - but lets learn we went wrong, and how we lost it. And lets not do it again.

Lets start internet2 (Sorry - I'm not feeling very witty right now intwonet, maybe?).

It can start by piggybacking on original internet, but over time slowly split away.

Lets not start with 12,000 km of fibre across the pacific, lets start with 100m of 100baseT to your neighbour. Lets find what went wrong (both technical and political) in the internet, and do them correectly. Safeguards to protect the freedom it provides.

Revamped tech to support what it needs to do, rather than hacked old specs that are forced to maintain backwards compatability.

Maybe I'm not making any sense, but it strikes me as an idea thats worth discussing.

I think i also need some sleep. :-)

Re: Saving the Net - Too late

Anonymous's picture

Too late. It's already being done.

I won't say where (and the may be more instances than the one I know of - if there are, they may link up some day), as the people doing it are well outside of local regulations for doing so (mainly because the cabling is having to cross stretches of land not privately owned by participants). The operation is underground in more ways than one ;-)

Re: Saving the Net

Anonymous's picture

Maybe the courts can not set what numbers we use, but I thought their job was to interpret the constitution...words like "for a limited time" and "to promote." I would think they would have the power to determine if the laws comply with the constitution...and if not, declare them unconstitutional and send them back to the legislature to find the happy medium where they do.

The Tragedy of the Commons

Anonymous's picture

Rather than post my rather lengthy response here, it can be found at http://www.jayreding.com/archives/003473.php#003473

The short version is this: FEC records show that its liberals like Fritz Hollings who are the darlings of the media industry, not conservatives. Secondly, the regulations on the market that exist under current FCC rules serve to reduce choice and competition, and finally the 'NEA' system of organization for the Internet does not work because of the Tragedy of the Commons.

While I agree with some points, I think Doc Serl's view of conservatives is lacking in real depth, and he's essentially shooting at the wrong target. The biggest threat to freedom on the net are not corporations, but regulations that strangle innovation and diversity both on the net and in the media.

Re: Saving the Net

Anonymous's picture

Citation:
"conservatives consider strength a "moral value". Strong is good. Weak is bad."

That is exactly the core of the ideology of Nazism.

True, but the strong were limited to Aryan clubmembers

Anonymous's picture

George Bush (who has to represent all conservatives only for the duration of this sentence) is visibly not a club member.

Re: True, but the strong were limited to Aryan clubmembers

Anonymous's picture

True...but the statement in itself is ludicrous--the equivalent of "Good is good" and "bad is bad." Nobody wants weakness--the question therein is not good vs bad, strong vs weak, but what we associate with strength (good) and weakness (bad). For example, crying: is it a sign of strength (overcoming social discomfort to express emotions openly) or weakness (a character unable to withstand adversity; breaks down easily)? I've seen both be true at different times under different circumstances.

So it cannot be consolidated into a general statement without being false, innapropriate, harmful, derogatory, or just plain useless.

Re: Saving the Net

Anonymous's picture

I was enlightened by the section that talks about the difference between liberals and conservatives, how conservatives consider strength a 'moral value' and try to reward it. I concur, we should not reward failure by proping up failing enterprises. The Japanese having been doing this for years by lending more and more money to business that should be allowed to die. Consequenty, their economy is in shambles.

Just as we don't want to reward failure, we need not reward success. Isn't success is its own reward, after all? Giving extra advantages to the strong cripples the weak and denies them any possibility of growing. They are then doomed to failure.

Corporations are trying to secure their intellectual property forever. This denies anyone else the ability to create new ideas based on the original (without paying handsomely). These corporations, however, drew lots of material from the public domain to build theier IP libraries. Just look at all the Disney movies that are based on stories from the public domain, Beauty and the Beast, Snow White, Cinderella, there must be dozens of them. If these creations aren't returned to the public once a profit has been made, the well of creativity will dry up.

Todays winners were the strugglers of yesterday. We can't let them pull up the ladder after they reach the top. Other must be able to follow.

Stephen Knoeck
knoeck@yahoo.com

Bingo.

Anonymous's picture

Of the several hundred replies I read to this article, this one captured the central point the best.

Re: Bingo.

Anonymous's picture

Well, that seems reasonable. The problem is that greed is unreasonable.

Re: www.linuxcad.com

Anonymous's picture

Don't forget it could be someone trying to defame the mentioned product and its purveyor by spamming for it in a forum where most people are likely to react negatively toward the perceived origin of spam.

Re: www.linuxcad.com

Anonymous's picture

Very good point.

I'm not sure which is worse:

A) if it is someone that is really trying to promote the product, perhaps the ploy will backfire because, as previously mentioned, people here hate spammers.

B) if it is someone posing as a promoter of the product but who is really trying to defame it, this could also backfire because, as they say, "there is no such thing as bad publicity."

Which is worse?

All I know is that either way, it's bad. Fight spam!

Re: www.linuxcad.com

Anonymous's picture

Oh, yeah, spamming the Linux Journal site will definitely make me want to buy your product....

Re: Saving the Net

Anonymous's picture

A very simple solution, in only 3 lines:

[1] Internet(c)
[2] This work is free of rights on Internet.
[3] All rights reserved in all countries
[and for all languages(*)].

(*) Apply for translatable works.

That's all. Kind regards

I.R.Maturana -- http://www.in3activa.org
(LPT-ESv1r3 - http://www.in3activa.org/doc/es/LPT-ES.html)

What is the

Anonymous's picture

I'm looking for the right argument to support copyright reduction. In my thinking process it comes down to defining the term "Public Good". What is it and what's good about it?

The definition must provide an answer to the following example.

I grow a tree on my property. I cut it down and use it to create a chair of my own design. Should you be able to come and take it from me, even after some waiting period?

I think most people would say no. It is in the interest of all the people that no one can come and take what I possess without some "good reason", otherwise known as "due process".

Now what if my chair design is so comfortable people who come to visit ask if they can make one just like it. I draw up and sell them the plans. After some waiting period should you be able to copy my plans and sell them too?

Why should you be able to do that? Why is this for the "public good"?

Rob:-]

Re: What is the

Anonymous's picture

Rob wrote:

> I grow a tree on my property. I cut it down and use it
> to create a chair of my own design. Should you be able
> to come and take it from me, even after some waiting
> period?
> I think most people would say no. It is in the interest
> of all the people that no one can come and take what
> I possess without some "good reason", otherwise known
> as "due process".

Agreed. When I take a chair from you without compensation, you no longer have a chair.

> Now what if my chair design is so comfortable people
> who come to visit ask if they can make one just like it.
> I draw up and sell them the plans. After some waiting
> period should you be able to copy my plans and sell
> them too?
>
> Why should you be able to do that? Why is this for
> the "public good"?

Why should we have to wait, or for that matter why should we have to ask your permission to duplicate your design? Designs aren't things -- if we "take" your design, you still have it. There is nothing we can do which takes anything away from you.

Copyrights are a government enforced monopoly on the right to copy a design. If there is any fundamental right, it is the right to see something you like and make something just like it. If you like a painting of a sunset, you can paint one just like it, or hire someone to paint it for you. Why should you have to ask permission from the person who first had the idea of painting sunsets?

Ideas are not things. If I take your chair, you have one less chair. But if I take your idea of a chair, you still have it.

Copyright takes away the fundamental right to take ideas and build actual things from them, and makes it a government-mandated and enforced monopoly. This monopoly prohibits me from taking your design for a comfy chair and making it even more comfy without your permission -- and why would you give me that permission since it will lead to you losing sales?

Patents are anti-competitive. It gives the creator an exemption from having to compete with others who can make the same thing better or cheaper.

Social suffers from this loss. Who knows what wonderful inventions or designs or art we might have if people were free to take ideas and create new ideas from them?

The rational behind copyright is to lessen the good to society in favour of the good to an individual creator. Having ideas fall into the public domain after some time is a sop to limit society's loss: it doesn't take anything from the creator, all it does is remove that "exception from competition".

The reasoning behind this is to give the inventor a chance to make a profit from his invention, thus encouraging more people to be creative. Historically, artists and writers have not let the lack of copyright stop them from creating art and inventions. Shakespeare wasn't protected by copyright. Traditional music from all the world over wasn't protected by copyright. The Bible wasn't protected by copyright.

The government doesn't give a monopoly on selling chairs to the first person that opens a chair factory in a certain area. If the manufacturer wants to compete with the people who are sure to follow, he has to do so on his own merits, not based on a government monopoly. Why should the chair designer get special treatment?

Maybe we, as a society, have decided that the designer should get special treatment. But never forget that this isn't a RIGHT, it is a GIFT from society: we are grateful enough to forgo our rights to imitate and extend your chair design for a limited time. But don't imagine that this is your fundamental right.

Perhaps we should change the name to copygift.

--
Steven.

False scarcity

Anonymous's picture

If I take your chair from you, you are denied its use.

If I reproduce your content, then I don't take away your right to reproduce it or make derivative works from it. You are not denied that which you have created. You are only denied the exclusive right to reproduce or derive from it.

This is why Doc was saying that it is a fallacy to equate copyright with property.

Big long response up side your head

Anonymous's picture

Yes. Because you can't possibly do as much "good" with them as my competitors and I could, no matter how hard you tried, and by waiting period X have had ample opportunity to try. It is for the "public good" because it is for the "good" of all people rather than just the people related to Rob. While I'm at it, I'll drastically improve on your design and use the profits I make off your insiration to make it even better and sell even more.

In fact, when you die I'm gonna take your original chair. You had an opportunity to try to live forever, but you failed, so I'm gonna have it. Your family may want to keep it, but I'll buy it from them for more money than you could ever have made selling them yourself, and give them one of my better chairs to sweeten the deal. You may be miffed that they're not already getting money for evey chair I sell, but you don't matter. You're dead, and your family is rich enough for not having invented the chair themselves. They can invent a new chair if they want more, and put me out of business before they all die or lose the rights to it. Then I'd be in quite a pickle.

In fact, that thought bothers me so much, I'm going to pay very smart people obscene amounts of money to invent one first to keep you, your family, and my neighbor down the street from taking my empire away from me. Furthermore, if they still beat me to the punch, I'll buy the rights from them and still hold my empire together. Oh, wait, my competitors already did that. Damn! Their chairs are even better! How'd they do that! Now they own the chair market. I'd better adopt a defensive strategy to hold on until their rights wear off, or else just out-improve them.

Stress!!! I'd better sit down before my head explodes. Mmmm, that's comfy. These fifth generation chairs are really therapeutic. I probably would have had to pay for back surgery by now without this thing. I wonder how many other people could say that? Billions by these sales figures. A third of the world ownes one of these wonderful chairs in one form or another. That's a soothing thought. Stress... melting away. Lumbars being supported.

Inherently Asymmetric

Anonymous's picture

The last mile of the net is inherently asymmetric. The reason is quite simple. I have vastly more ability to consume than I do to create.

I applauded the sentiment but deplore the stereotypes.

Anonymous's picture

I'm four square in favor of what this article supports but it fails to persuade even me! I don't have time to go into the many places this article lost me.

The overbearing use of liberal and conservative stereotypes is just one example. It doesn't help the case. It just alienates some of the readers and oversimplifies the complexities of the issues.

Perhaps I'm expecting too much, after all what have I done about it myself. Perhaps, just perhaps, I should actually stand up and be counted!

Rob:-]

"Things should be made as simple as possible - but no simpler" - Albert Einstein

Re: Saving the Net

Anonymous's picture

I think that Doc is totally correct in his analysis of "copyright" and "intellectual property" as semantic trickery. What I sorely miss in this discussion and elsewhere is *why* this is so treacherous, false, and insiduous. The reason is, and that reason is also why it is so absolutely protected by law against theft, that material property can be used only once. If I steal your car I deprive you of the benefit of using it. So-called "intellectual property" is *fundamentally different*, and it is a criminal act of law makers and their sponsors that they refuse to reflect this in law:

you can never *steal* an idea. You can only *share* it.

Some ideas and information are more valuable the less people know it - sharing that diminishes its value. However, most ideas and information (including arts) have network value: the more people share it, the more useful and valuable it becomes.
This is why talking about intellectual "property", and the american knee-jerk reaction "I'll shoot if you tresspass" is so immensely inappropriate.

This is not an american problem, but the USA is making the most trouble - the rest of the world are their puppets. I live on the other side of the pond, but suffer every day from the corrupt politics of the USA - on which I have 0 influence and no democratic control. So much for the land of the free and the champion of democracy. Not that the EU is much better, but they are both less powerful and less complacent, and sometimes even are considerate about civil rights.

TP

What *Can't* We Do?

Anonymous's picture

Doc's article approaches this issue in an interesting fashion and suggests a "Save The Net" campaign to make it more understood by the general population. I think this could go much further by publicly answering the question "what won't we be able to do in a full DRM environment?" Exactly how will our freedoms be limited if those pushing copyrights (and patents) get the full extent of what they want. What won't we be able to do and why is that a bad thing?

Re: Saving the Net

Anonymous's picture

Hey, Doc,

Great article, thanks! However, I would like to ask for clarification on one point. From your article:

"I think we need a galvanizing issue. I suggest Saving the Net. To do that, we need to treat the Net as two things:

a public domain, and therefore
a natural habitat for markets

In other words, we need to see the Net as a marketplace that has done enormous good, is under extreme threat and needs to be saved..."

While there is certainly some truth to the fact that parts of the 'net have become a terrific marketplace, there is also the problem of 'net abusers -- spammers -- to consider.

If I interpret your words above literally, it seems to me that you are saying that any 'net-connected device is in the public domain, free for anyone to use as they please.

This is certainly not the case. As a fully self-hosted small business owner, my servers are my own. I pay out of my pocket to operate and maintain them, and keep them connected, and I'm not about to leave them open to things like spammer abuse and mail relaying. In fact, as of this moment, I have several entire countries blocked from sending mail to me because of their widspread spammer infestations.

So, here's my question: When you say "public domain," are you referring to the transmission medium itself (a concept that I have no problem with at all), or the "intelligence" at each end of a connection?

If it's the latter, I've got a BIG problem with that.

Looking forward to your reply. Thanks much.

--

Bruce Lane, Owner & Head Hardware Heavy,
Blue Feather Technologies
http://www.bluefeathertech.com
kyrrin (a=t) bluefeathertech com

Re: Saving the Net

Anonymous's picture

Just a couple of thoughts:

1) Conservatives dislike words like "fairness" (as typically used by liberals) because they're inherently ambiguous. Fair to whom? Who decides? The whole controversy at the U of Michigan law school was about fairness; is it fair to treat some people differently than others in the admissions process?

2) With respect to cable/dsl usage patterns, most consumers DO download more than upload, they don't run their own servers, and don't really care about the ending of their email address so long as email arrives quickly, reliably, and for free. I other words, things that are big issues for you with cable/dsl services probably aren't on the radar of Mr. and Mrs. Joe Sixpack.

3) While the media deregulation may seem like a step backwards because the current result is concentrated ownership of content and distribution I would argue that it's actually a big step forward from the regulatory cage it was kept in before. At least now, in a deregulated market, the playing field is leveled: any idiot with a big enough pile of cash can play if they want to, something that wasn't true in the backroom deal regulatory environment. Just because YOU can't afford to play doesn't mean it's wrong or unfair.

4) The reason we lost Eldridge isn't because of some disconnect on the realities of property and its ownership. The fundamental question the Supremes were attempting to answer was: "It it within Congress' constitutionally granted powers to extend the copyright law?" The answer, as they saw it, was "Yes." Irrespective of what they thought of the law itself, a review of how the Constitution is worded suggested to them that Congress could legally extend the law indefinitely. If we as constituents don't like it we can either change the law (easier but less permanant) or amend the constitution so the meaning is clear (harder but more permanent).

Re: Saving the Net

Anonymous's picture

You may be right. I offer my experience trying to get a permanent IP from my DSL provider as evidence. I couldn't get one. My local phone company gave only a limited number of IP addresses to my provider and they were all used. I thought I could simply switch to my local phone company for DSL service in order to get one. Well, I could have, but it would cost me double! This is exactly the kind of thing that needs to be fixed, and I think deregulation will help level the playing field - it's a good thing.

point by point

Anonymous's picture

1. Is it fair to treat women differently in the military? Is it fair to treat children and the blind differently at the DMV? Is it fair for us to post here anonymously for free? ;-)

2. Yep, I think all of life should be geared to Mr/Mrs Sixpack.

3. Clearly, "biggest pile of cash wins" couldn't be any more fair.

4. I agree. [gasp. insert drumroll/rimshot here]

Re: Saving the Net

Anonymous's picture

Everyone is obviously very keen on this debate, however who here is discussing plans for what happens if this fight is lost.
There will be a period of time before the technology is installed and mandated into our systems, and infrastructures.

We need to start planning away arround it. Stocking up on multi-processor machines, networking gear, etc ... Start talking about how to start up our own internet of freedom.
Unless everyone wants to sit idly by?

Re: Saving the Net

Anonymous's picture

You are right. The magnitudinous increase in communcations enabled by the internet will not go away - no matter what governments or corporations wish.

White Paper
Linux Management with Red Hat Satellite: Measuring Business Impact and ROI

Linux has become a key foundation for supporting today's rapidly growing IT environments. Linux is being used to deploy business applications and databases, trading on its reputation as a low-cost operating environment. For many IT organizations, Linux is a mainstay for deploying Web servers and has evolved from handling basic file, print, and utility workloads to running mission-critical applications and databases, physically, virtually, and in the cloud. As Linux grows in importance in terms of value to the business, managing Linux environments to high standards of service quality — availability, security, and performance — becomes an essential requirement for business success.

Learn More

Sponsored by Red Hat

White Paper
Private PaaS for the Agile Enterprise

If you already use virtualized infrastructure, you are well on your way to leveraging the power of the cloud. Virtualization offers the promise of limitless resources, but how do you manage that scalability when your DevOps team doesn’t scale? In today’s hypercompetitive markets, fast results can make a difference between leading the pack vs. obsolescence. Organizations need more benefits from cloud computing than just raw resources. They need agility, flexibility, convenience, ROI, and control.

Stackato private Platform-as-a-Service technology from ActiveState extends your private cloud infrastructure by creating a private PaaS to provide on-demand availability, flexibility, control, and ultimately, faster time-to-market for your enterprise.

Learn More

Sponsored by ActiveState