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July 22, 2003

Thoughts after Reading Derek and Doc [8:13 pm]

(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.

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