Donna points to a facinating way to show two sides of the IP discussion — a way that starts to show the parameters of the ideological boxes that constrain the ability of lawyers and computer scientists to communicate and thus resolve the inconsistencies that drive each other to distraction: What Colour are your bits? [also discussed at LawMeme]
In intellectual property and some other fields we’re very interested in information, data, artistic works, a whole lot of things that I’ll summarize with the term “bits”. Bits are all the things you can (at least in principle) represent with binary ones and zeroes. And very much of intellectual property law comes down to rules regarding intangible attributes of bits – Who created the bits? Where did they come from? Where are they going? Are they copies of other bits? Those questions are perhaps answerable by “metadata”, but metadata suggests to me additional bits attached to the bits in question, and I’d like to emphasize that I’m talking here about something that is not properly captured by bits at all and actually cannot be, ever. Let’s call it “Colour”, because it turns out to behave a lot like the colour-coded security clearances of the Paranoia universe.
Bits do not naturally have Colour. Colour, in this sense, is not part of the natural universe. Most importantly, you cannot look at bits and observe what Colour they are. […]
[…] Given two bit-for-bit identical MP3 files, there is no meaningful (to a computer scientist) way to say that one is a recording of the Cage composition and the other one isn’t. There would be no way to test one of the files and see which one it was, because they are actually the same file. Having identical bits means by definition that there can be no difference. Bits don’t have Colour; computer scientists, like computers, are Colour-blind. That is not a mistake or deficiency on our part: rather, we have worked hard to become so. Colour-blindness on the part of computer scientists helps us understand the fact that computers are also Colour-blind, and we need to be intimately familiar with that fact in order to do our jobs.
The trouble is, human beings are not in general Colour-blind. The law is not Colour-blind. It makes a difference not only what bits you have, but where they came from. […]
[…] This idea of Colour is a problem for communication between those of us who work in the world of computers, where Colour does not exist, and those of us who work in the law, where Colour exists and is important.
[…] I just threw a bunch of math terms at you in that sentence and I don’t plan to explain them here, but all cryptographers understand that it’s not the numbers that matter when you’re talking about randomness. What matters is where the numbers came from – that is, exactly, their Colour.
So if we think we understand cryptography, we ought to be able to understand that Colour is something real even though it is also true that bits by themselves do not have Colour. I think it’s time for computer people to take Colour more seriously – if only so that we can better explain to the lawyers why they must give up their dream of enforcing Colour inside Friend Computer, where Colour does not and cannot exist.