(entry last updated: 2002-11-08 18:42:22)
Between seeing Jonathan and Siva at last night’s copyright and culture talk, and reading Larry’s weblog entry today, I can see that it’s time to just jump into the discussion that I’ve started with the ESD.10 students last week.
Warning: a lengthy (and tortuously-worded) write-up of ideas still baking lies ahead!
For me, one of the most troubling dimensions of the copyright contretemps that we find ourselves in is the fact that my sentiments lie with those whose actions have been routinely characterized as "thievery." Without getting into the merits of that argument, it has been clear to me for quite some time that my reaction to many of the architectural changes (to use Larry Lessig’s Code metaphor) in the technologies underlying the distribution of intellectual property has been strong and negative — and I have rarely if ever even employed the tools that are regularly characterized as being the most offensive in the eyes of the copyright cabal.
My working hypothesis has been that I do not have some latent desire to take up a life of crime; rather it is that there is a real reason for my revulsion when confronted with some of these new approaches to managing copyright infringement in the digital realm. Given this assumption, I have been trying to find a language that helps not only to articulate the basis for that reaction, but also to form a basis for thinking about what to do about the problem.
I do not want to suggest that I have found that language (yet!), but I have found a set of ideas that have taken me a lot further than I expected. These are the ideas that stem from a consideration of the notion of alienation.
Alienation, as defined in the Merriam-Webster Collegiate Dictionary Online, is "a withdrawing or separation of a person or a person’s affections from an object or position of former attachment" – the separation of a person from an object. While I’ve tried to wrestle this and like definitions from other sources into shape, I find that I have to resort to Marx’s notion to really articulate what I’m thinking about. The Oxford English Dictionary Online gives the following quote that summarizes Marx’s characterization of alienation as
the notion that in modern capitalistic society man is estranged or alienated [emphasis added] from what are properly his functions and creations and that instead of controlling them he is controlled by them.
What I am suggesting is that there is a kind of alienation that is implicitly at the heart of transactions that convey intellectual property, on the side of both the creator and the consumer. This alienation, as in that of Marx, introduces opportunities for control a la Lessig. And, more importantly, in many of the present cases that so concern us, those opportunities for control are not immediately apparent to the current consumers of intellectual property goods or, more importantly, to those who seek to legislate in this area.
To try to illustrate, let’s compare and contrast two ways in which one might “consume” a good whose value derives from intellectual property – a piece of music. In the case of sheet music, the consumer must employ his skills, training and instrument to create the music as given in the sheet music. However, this consumer can elect to play the piece as written or to exercise his own discretion and play it in a different fashion – say, change the key or time signature, play the music allegro instead of andante, or use different tablatures. More radically, the consumer could elect to start in the middle, repeat a passage incessantly, or transcribe the piece for a different instrument. Because the process of converting the expression on paper into the experience of music is under the consumer’s control, all these variants are possible.
Now, consider the buyer of the same piece of music on CD. Under this circumstance, the consumer must rely upon a device to convert the expression into experience (unless the consumer is Isabel from Roswell <G>), and the key, tempo, sound of the music is fixed. Many of the possible variants that the user of sheet music has at his disposal are not possible when it comes to the CD. In fact, without the device, the expression cannot be converted into music at all. The technology of this music format has alienated the consumer from the process of converting the expression into experience.
Of course, the consumer also sees certain gains from this alienation – he doesn’t need to learn to play an instrument, or read sheet music, or hire an orchestra to enjoy the music at all. Moreover, he can listen to the music under a host of circumstances that would otherwise be impossible – jogging, driving, etc. So, the consumer can tradeoff the loss of control that is a consequence of this alienation against the other advantages that he gains.
Interestingly enough, the metaphor of alienation can be extended to the creator as well. Consider the text of Title 17 itself. Chapter 1, section 102 starts “Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” Arguably, copyright is only awarded once the the author alienates himself from his creation by “fixing” it into a form that can be communicated, duplicated, etc. And the incentives for this alienation are the fact that the resulting good can be more widely disseminated, to the potential gain, economic or otherwise, of the creator.
In this light, the role of copyright and several of the doctrines within copyright law take on a different light. For example, in reifying his creation to make it ready for distribution, the author has also lost control – it is no longer in his head. To redress this loss, copyright awards the creator certain legally enforeable (and economically valuable) controls in terms of duplication and performance, among others. Another idea – first sale – can arguably be a formal limit on the control to distribute that copyright returns to the alienated creator. (I’m still working on fair use <G>)
More importantly (and returning to the ideas that got me started), the issues that one takes with the zoning of DVDs or the limitations of eBooks now make sense in a context that has nothing to do with theft. Rather, what these and similar technological controls represent is an exploitation of the fact that the consumer must rely upon a device not of his making (or under his control) to derive the experience implicit in such goods. Now, you HAVE to watch the trailers on a DVD, not to mention the FBI copyright warning.
In fact, these new technologies give the copyright holder a control over the consumer that has not been available before. With an eBook, it is now conceivable that one could be charged for each reading of a text. With the next generation of CDs, a similar control over music listening could be developed. With the forms of technological alienation being developed today, the copyright holder is now able to exert a control over the process of experiencing that before ended at the point of sale.
Now, it may well be possible that the consumer will accept this loss of control in exchange for the added features, conveniences and reduced costs that would accompany these new technologies. But, it may also be that the tradeoff will not be accepted by the marketplace. The DAT recorder demonstrates that there are some controls that will not be traded away.
But the horror of the circumstances in which we find ourselves now is that the value of these controls is not being negotiated in the marketplace. Rather, these controls are being legislated under the guise of protecting the creator from theft.
This is so distressing not because such legislation will be successful in the long term; I am enough of a believer in freedom that I expect it will prevail in the face of these farcial rules and the readily cracked technologies that will be deployed to enforce them. Rather, I am worried because, during the short term that they are in force, the market may violently respond to buying these crucial technical artifacts from offshore, grey market suppliers. Since this legislation short-circuits the market, such a response is not out of the question – consider the large market for aftermarket EPROMs to circumvent the pollution control technology in California automobiles. And, once the market moves on, will there be any chance to save what’s left of our industries before they are just another addition to the globalization death toll?
It’s just another verse in the Lessig “song” whose refrain is becoming more and more pertinent each day:
- Creativity and innovation always build on the past.
- The past always tries to control the creativity that builds on it.
- Free societies enable the future by limiting the past.
- Ours is less and less a free society.
(more refinements to come; here or in later incarnations. In particular, working through the notions of alienation for a wide variety of IP goods leads to interesting parallels with situations under consideration today. For example, the playwright/screenwriter and the programmer have something in common – each relies upon another’s interpretation of the source code – the director/actors & the compiler programmer – to create the good that is actually consumed. Directions can be included by the creator – exit stage left & -O3 – but they need not be considered. It’s weird where this thinking has taken me)