Copyright, DMCA, AP, All That Good Stuff

Big day over here: Associated Press’ Anick Jesdanun has written a story on the DMCA exemption request process, including Blogcritics’ support role in the request put together by brilliant Lawmeme editor Ernest Miller. Deepest thanks again to Ernie for including us in his thinking and allowing us to take part in the process. My only complaint with AP’s balanced and well-written story is that it doesn’t sufficiently credit Miller – so I will: thanks Ernie!

The AP story can be found at least four places (please tell me if you find more), including the Seattle Times, Detroit News, Dayton Daily News, and Boston Globe, with the Seattle Times version most complete:

The battle over the act is in essence a struggle over intellectual freedom – the ability to circulate ideas freely – as more and more of what humans create finds its way into digital form.

Researchers complain the law inhibits their ability to fully study encryption and computer security. Preservationists say they can’t make archival copies. Educators say they can’t incorporate digital clips into presentations.

Even a federal jury in San Jose, Calif., seemed sympathetic to the objectors.

On Tuesday, it acquitted a Russian software company of copyright violations for developing tools to unlock controls on electronic-book software that can restrict personal printing and copying.

Copyright holders say the law is working as designed and has made them more willing to release e-books, movies on DVDs and software over the Internet.

With copyright holders wanting stronger protections and users seeking greater freedom to copy, Congress “looked at those extremes and struck a balance,” said Robert Holleyman, chief executive of the Business Software Alliance.

Blogcritics is mentioned extensively, and there is an, ahem, photo.

The article does a good job of getting at the underlying issues of content control vs. freedom of information and fair use rights. Getting even deeper into the philosophy of copyright is this paper by David Walker:

During the Enlightenment, two conflicting viewpoints on the nature of authorship, creativity, and copyright emerged. One view, proposed by the French thinker Denis Diderot, advanced the notion that literary works are unique creations of the individual mind, and thus should be protected as the most sacred form of property. The other view, advanced by the Marquis de Condorcet, saw literary works as the expression of ideas that already exist in nature, and thus belong to all and should be made available to all for the common good. Both viewpoints had a profound influence on the changing legal status of intellectual property during the French Revolution. Even more, this paper will argue that these two conflicting viewpoints, both of which were firmly grounded in Enlightenment thought, still continue to have an influence into the present, and the tension between the two continues to be played out in the arena of copyright in the United States in the year 2000. The paper will examine both time periods, taking as its analytical framework a model in which the preexisting state of copyright changed to a new form of copyright due to a crisis in publishing. During the French Revolution, political upheaval changed copyright in France from a Diderot-like model to a Condorcet-like model. Recent trends in copyright law in the United States, however, seem to suggest that the crisis of the Information Revolution will produce the exact opposite result.

Epistemological Tension: Diderot and Condorcet

To begin, let us turn briefly to the authors, outlining their respective positions. In 1763, Denis Diderot (1713-1784), the most prominent of the French Encyclopedists, was hired by the the Paris Book Guild to write a treatise defending their claim that literary works were a form of property. In that work, Diderot argued that ideas sprang directly from the individual mind, and thus were a unique creation in and of themselves. Indeed, they were, in his words, “the very substance of a man” and “the most precious part of himself.” There was no comparison between the work of the mind and physical objects, such as a field, a tree, or a vine, which nature had given to all freely, and could be cultivated only through labor and a social claim to the land. Ideas were subjective, individual, and uniquely constituted, and thus were the most inviolable form of property.

For Diderot, copyright should be recognized as a perpetual property right, bestowed upon an author and inherited by his or her offspring. In the event that an author’s lineage could not be determined, this indefinite monopoly should fall to the holder of the copyright (or more specifically its eighteenth century French equivalent, the “literary privilege”), following the theory of the “right of first use.” Building on Diderot’s argument, the Paris Book Guild could argue that its claim to the literary rights of a number of works gave them sole copyright as a form of property.

In sharp contrast to the position of Diderot was another French Enlightenment position on intellectual property, set forth by one of the nation’s most prominent mathematician, philosopher, and political thinkers, the Marquis de Condorcet (1743 – 1794). In a pamphlet entitled Fragments sur la Liberté de la Presse, Condorcet argued that ideas did not spring directly from the mind, but originated in nature, and were thus open to all. Like Locke, who argued that ideas emerged from the combination of sensations, Condorcet saw literary works as the expression of ideas that already existed. The form of a work might be unique, but the ideas were objective and particular, and could not be claimed as the property of anyone. Unlike land, which could only be settled by an individual or a family, and passed down by lineage to offspring, ideas could be discovered, used, and cultivated by an infinite number of people at the same time.

For Condorcet, individuals could not claim any special right or privilege to ideas. In fact, his ideal world would contain no authors at all. Instead, people would manipulate and disseminate ideas freely for the common good and the benefit of all. Books would be replaced by periodicals, which would be supported by subscriptions to a specific field of knowledge rather than purchased for a specific author. Copyright would not exist, since no individual or institution could claim to have a monopoly on an idea.

Though I am all for creators being compensated well for a time, my view of copyright is much closer to Condorcet’s then to Diderot:

A sculpture or painting, while artistic and creative and ostensibly just as “found” out there in the ether as an intellectual creation, nonetheless share with a building or a fern concrete and UNIQUE physical existence. These things cannot be duplicated in any ontologically meaningful way: they will endure as unique things after the creator is gone.

I am not at all against the inheritance of THINGS (and don’t dispute that inheritance tax can be onerous and perversely force forfeiture rather than just a “fair cut” for the government to spend on space toilets and the like) – I want to be able to leave tangible things like buildings and shoes and money and big balls of string to my heirs, but intellectual creations like songs and books and articles and movies are essentially INFORMATION, and after a fair period of compensation to allow the creator(s) to pay some bills and buy chewing gum and Diet Coke, INFORMATION belongs to the world.

INFORMATION needs to be freely shared so that people can build upon it and mix and match it with reckless abandon because that is what people do, and need to be able to do to be free and creative and happy. Once ideas are out in the world, they take on a life of their own, and it can even be argued they have no meaning other than in relationship to people. Sure the creator has his/her own relationship, and for a reasonable time that relationship should be honored to the point of primacy, but the longer that work is out there interacting with the world, the less it belongs to the creator and the more it belongs to that world.

The death of the creator seems like a VERY REASONABLE AND NATURAL point to turn that idea or set of ideas over to the world for modification, renewal and unfettered dissemination.

Information shouldn’t be incarcerated for more than one life sentence – it’s cruel and unusual.

UPDATE
Boulder’s Daily Camera, Houston Chronicle, Salt Lake Tribune, and HoosierTimes.com all carried the AP story.