Thoughts after Reading Derek and Doc

(entry last updated: 2003-07-22 20:43:13)

(Sorry about moving this around – it got to be a little too much to leave in the list format. In fact, it probably rambles too much, but I’m beat. I’ll try to sharpen it tomorrow.)

Derek echoes the concerns that we’re all feeling as we watch this battle heat up: This Brink Feels Different.

For me, it’s been the Conyers-Berman bill and the amount of (credulous) press it’s gotten, further legitimating perceptions that I believe are plainly wrong. Compounding this has been the way that the SCO case has blown up way out of proportion to the issues at hand (see Eben Moglen’s thoughts in this companion Furdlog entry). In Derek’s case, it’s the sudden flood of DMCA subpoenas in the wake of the removal of the stay on the Verizon decision, whose appeal is still pending.

The MIT and BU position (see this, again) that their privacy obligations are more stringently circumscribed by legislation than those of conventional ISPs is certainly a clever legal tactic, but it doesn’t give me a whole lot of confidence in the face of this onslaught.

While it’s easy to discount Conyers-Berman and the RIAA’s actions as know-nothingism in the first case and simple greed in the second, the degree to which these cases have resonated throughout society, leading to the kind of discussions that we see being played out, suggests that these conflicts are speaking to a far more fundamental set of issues than merely those actually being contested.

Deborah Stone’s Policy Paradox: The Art of Political Decision Making introduces the idea that many key policy conflicts arise out of the fact that the participants in the conflict have certain fundamentally different views of some of the key concepts that underly these issues, and that the apparent rigidity on both sides of the issues arise from their unwillingness to reconsider these fundamental views. She has four key questions that she uses to frame her discussion of many fundamental political issues:

  1. What is distributive justice (i.e., equity in property holdings, etc.)? The confidence that allocations derive from a fair process, or the confidence that everyone receives a fair share of the available resources?

  2. What is liberty? The freedom to dispose of one’s property as one likes, or the freedom from dire necessity?

  3. What is property? An individual creation or a social creation?

  4. What motivates people? Their needs or their aspirations?

Stone does not argue that these questions have right or wrong answers. Clearly, these are not the sort of questions that are susceptible to that sort of treatment. However, it is the case that many political positions derive from claims that are based on beliefs that yield “correct” answers to these questions, and that many complex policy arguments derive from positions built upon these beliefs. In effect, the answers to these and like questions can be used to outline the ideological basis for the positions that individuals take.

Stone argues that, generally speaking, those who take the first position cited in each of these questions would likely be a social conservative, while those taking the second position would likely be social liberals. The positions taken on each of her four questions are the fundmental axes of difference when certain classes of questions are up for discussion, and it’s only by attacking these fundamental issues, and by finding approaches that can be accommodated within them, that parties can hope to find workable compromises.

The question then becomes, what are the fundamental axes of ideological conflict in the problems we’re talking about here? Obviously, "property as a social construct"/"property as an individual creation" is a major axis, but there’s more to it than that. (I see that Donna’s citing Doc on this very idea.) Notions of the role of creativity & culture, ownership & responsibility and justice & equity are all somewhere at the heart of these conflicts. More critically, we seem to be reopening a question that was hot when I was a grad student: are technologies "good" and "bad," or are technologies merely a reflection of the social values underlying the motivations for their development?

Until we can sharply delineate the "conflict space" within which we are operating, we’re going to have a very hard time making any progress. All we’re going to be doing is conducting "a dialog of the deaf" while we keep bumping into the unspoken beliefs that underlie our differences.

We’ve got a long row to hoe, and, as Derek suggests, not a lot of time to get it right.

Addendum: I’ve now read Doc’s article. Interestingly, he touches on some of the topics I listed above. For example, the "Strong is good" doctrine is closely related to the "justice derives from fair rules" position.

But the kicker comes with his assertion that the answer will come, in part, from getting people to stop thinking that copyright is property. As Doc puts it:

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.

That is the challenge, but the problem is that it may very well be a lost cause. Why? Because of a logical error that is easy to make (and certainly to exploit) in this context. Remember one of Stone’s axes of conflict – is property a social construction, or is it the result of individual effort? Every piece of legal doctrine and history that we have (setting aside the natural rights movement for the moment) asserts that copyright is purely as social construction. But we also declare that, at least in an idealized sense, the things that we copyright are the result of an individual creator’s effort, putting us right into the heart of the ideology of the rugged American.

Creative expressions are the products of an individual effort. And the makers have the right to profit from them. Copyright is the instrument that we use to make sure they can do that – therefore copyright is property.

To beat this argument, therefore, the first task is to disprove the assertion/assumption that the products of creativity are the result of purely individual effort. And, while creators may offer lip service to the idea that they "stand on the shoulders of giants," they’re not going to give up this romanticized perception of what they do. Yes, creators are responsible for what they create, but the nasty reality is the fraction that they create is small compared with the foundation upon which their creations are built.

In fact, with the faulty construction of copyright, it’s easy to see how SCO’s argument works. (1) We added this creative bit to the Linux kernel, (2) we assert that it belongs to us, so (3) Linux belongs to us – (4) pay up!

That’s the fight – showing that all creative expressions are built upon a foundation of culture that belongs to EVERYONE. Yes, new creations have merit and, yes, there should be more creations – BUT you cannot claim the cultural underpinnings of your creation are now your property just because you added something to it.

Larry Lessig says it best – Disney has worked very hard to make sure that no one can do to Disney what Disney did to the Brothers Grimm. And stopping that process is going to depend upon being able to show that copyright as currently constructed is allowing the last person who touched the creation to claim that all the work that went before his little contribution now belongs to him. It doesn’t work that way with buildings or bridges or automobiles, and it shouldn’t work that way with creative works either. Just because you can’t see the contributions of culture doesn’t mean that they aren’t there, and it certainly doesn’t mean that they can be exclusively appropriated.

2003 July 22

(entry last updated: 2003-07-22 20:42:53)

  • Donna’s got two more excellent posts that I need to reference and then I’m going home:

    • Brace Yourself, wherein Donna points to Jim Grimmelmann’s Duke Law review note on Eldred v. Ashcroft

    • Questions, Anyone? shows us where we can find the followup Q&As to the recent DMCA exception/exemption rulemaking hearings.

  • AP Wire on the launch of an online music sales site for PCs, Lots of Music, and One Big Flaw

    Although will offer a catalog of more than 300,000 songs from the five major record labels, users of the service will not necessarily have the freedom afforded customers of Apple’s iTunes service to transfer the music purchased to multiple computers and portable devices, or to burn it to compact discs.

    More noxious are the platform-specific features. Here’s what I get when I go to the site:

    Thank you for visiting

    In order to take full advantage of’s offerings you must be on a Windows Operating System using Internet Explorer version 5.0 or higher.

  • Something for this semester: MPAA Tries Goodfellas Approach

    The Motion Picture Association of America has also developed a curriculum on copyrights for use in classrooms by Junior Achievement. The “Digital Citizenship” program covers the history of copyright and culminates with a nationwide contest in which students suggest ways to persuade peers that swapping illegal copies of music and movies is not only illegal, but wrong.

    The Junior Achievement press release, including pointers to

  • I guess I shouldn’t be surprised: White House Threatens Veto on Media-Ownership Cap

    The Bush administration said Tuesday it would consider vetoing a large spending bill if it reimposed media-ownership caps that were recently relaxed by the Federal Communications Commission.

  • More on SCO from eWeek:

    • SCO Copyright Claim Questioned includes a very clear point from Eben Moglen:

      Eben Moglen, a professor at Columbia Law School and general counsel for the Free Software Foundation, told eWEEK in an interview on Monday that those business Linux users who are not modifying, copying or distributing the Linux kernel can not be targeted for copyright infringement.

      “Possession of infringing material is not a copyright violation because the copyright owner doesn’t have an exclusive right to possess the work. The copyright statute gives the copyright holder exclusive power to copy, modify and distribute the work, so those people copying, modifying or distributing in violation of the owner’s exclusive rights are infringing. Those who aren’t copying, modifying or distributing are not in violation,” he said.

    • Scot McNealy gets in his licks, joining MS on the indemnification route: McNealy Weighs In on Linux, Unix, Sun

    • The eWeek coverage is summarized here: The Battle Over Unix

  • It’s neither online nor intellectual property, but it’s an odd little legal tale nonetheless: Objection Quashes Sale of Welles’s ‘Kane’ Oscar

  • I guess that press coverage and some online examples got the White House to change its mind: Writing to the President, Now at [pdf]

  • In re: SCO & Linux, Slashdot discusses this entry from GrokLaw, where there are a lot of interesting SCO-related entries: Caldera Employee Was Key Linux Kernel Contributor

    This all relates to the affirmative defenses laches, undue delay, waiver, and estoppel, which we just covered. They will be hard-pressed to explain how they had an employee contributing to the kernel a couple of years ago, which they apparently assigned him to do, and yet claim they didn’t know or didn’t approve. If they didn’t approve, why didn’t they do a thing to stop it back then? Stop it? It was his job, judging from his title and his job description. And for that matter, the announcement about JFS was public on IBM’s part, as we’ve seen, and Caldera didn’t bring a lawsuit to block it back when it happened. That’s the laches part.

    As to waiver, allowing/condoning/permitting an action makes it hard to sue about the same action later. They are complaining that IBM contributed JFS to Linux, but their own employee, from this evidence, was involved in helping out. On the day IBM announced JFS was being given to Linux, Hellwig is listed as making five contributions to the kernel. All of this information is publicly available, so it was available to Caldera back when it happened.

    Related articles:

  • Alright – who didn’t send Jacko his script? Michael Jackson ‘speechless’ on P2P jail bill

    Michael Jackson has slammed a proposed US bill which could see music file traders jailed for downloading just one illegal copy.

    In a statement, the superstar said: “I am speechless about the idea of putting music fans in jail for downloading music. It is wrong to illegally download, but the answer cannot be jail.”

    OK – I know The Register has a reputation for overblown writing, but superstar?

  • How about a little school pride: BC, MIT decline to name students in music-use case [pdf]

    Boston College and the Massachusetts Institute of Technology, citing concerns about student privacy, moved yesterday to quash subpoenas issued by the recording industry to discover the identities of students the industry says are illegally distributing copyrighted music.

    […] MIT and Boston College yesterday said that they support the rights of copyright holders and would comply with any subpoena that addressed their concerns about the proper notification of students and was filed "properly" in US District Court in Massachusetts, not in Washington D.C.

    The RIAA has filed at least 871 subpoenas in US District Court in Washington this month, demanding information from universities and Internet service providers about users of the Internet file-sharing network KaZaA. MIT and Boston College said they are required under the Family Education Rights and Privacy Act to notify students before they release personal information such as names and addresses.