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CPSR Journal Vol 20, Number 1
Volume 20, Number 1 The CPSR Journal Summer 2002

Society, Technology, and Law:
A Balanced View of "Intellectual Property"
by Andy Oram
andyo@oreilly.com

Law races to catch up with society, society embraces technology, and technology placates law. The eternal dance among these spheres, which involves numerous forward thrusts, is nowhere more visible than in current controversies about copyright and content controls.

The strength of Computer Professionals for Social Responsibility is that we unite the study of technology, society, and law. While you can find erudite and narrow discussions of copyright issues from a single viewpoint elsewhere, CPSR tries to consider all of these perspectives.

Large record labels, movie studios, software houses, and database vendors are also working on all these fronts:

  • Technologically, they are implementing copy controls that restrict all uses of their material to a narrow range of their chosing. These controls are currently very unsuccessful, posing an annoyance for ordinary consumers while being easy to circumvent for dedicated researchers.
  • Legally, they are using every instrument offered by laws, international treaties, and courts (as well as inventing a few that don't really exist) to attack people who make unauthorized use of their material. These have been widely publicized over the past few years and need no recounting here.
  • Socially, they are trying to create, on college campuses and in other fora, a new ethos that regards unauthorized copying as a breach of social trust and an attack on the rights of artists.

CPSR holds a different view of technology, law and social mores, finding no reason to restrict new ways of interacting or fix in place economic models that should be subject to constant change. Instead, these forces interact in powerful and unexpected ways to increase the value and availability of goods.

A long-range legal perspective

Legal traditions certainly respect founding documents. The United States government is routinely constrained by a 215-year-old Constitution. Jewish and Islamic legal traditions look back a good deal further. But even though they consider their founding documents inviolable, they continue to produce legal scholars who make new rulings. Change is built in to all these traditions.

Take a law from the Torah: "Do not move your neighbor's boundary stone." This injunction is so important that it appears six times in the Bible. In an agrarian society, respect for a neighbor's property was a key aspect of social peace.

Some five or six hundred years after these pronouncements, the early Rabbis were still interpreting them. Being scribes and teachers, one important interpretation they offered for "Do not move your neighbor's boundary stone" was that no one should take credit for words uttered by another. Thus, modern proponents of intellectual property can trace their concerns back to one of the oldest legal documents preserved by history. (I use "intellectual property" in this article, even though the term embodies many problems, to represent copyrights and other interests in information that are usually held by large companies.)

But no one took "Do not move your neighbor's boundary stone" literally. If some guy named Ganni owned a couple square kilometers on the shore of the Jordan, the Rabbis did not expect that the Ganni family would own it six hundred years later. In fact, they explicitly rejected the Biblical rules known as the Jubilee year, which tried to enforce such a crude interpretation of the law.

Society has no stake in ensuring that Ganni keeps the same land for six hundred years. Rather, it has a stake in making sure the land is well-farmed and produced food and clothing for all. And while it recognizes that circumstances may remove the land from Ganni's hands, it has a stake in making sure he is treated with justice and dignity.

How do these concerns match those about intellectual property in our time? Society has no compelling reason to ensure that someone is still earning money on Mickey Mouse cartoons made eighty years ago, but good reason to provide incentives for new work, which is why the clause of the U.S. Constitution in support of what is now called intellectual property is explicitly prefaced by the phrase, "To promote the progress of science and useful arts..." The framers did not need to include any such justification, but they wanted to emphasize that intellectual property was not a natural right, and therefore based their support on society's interest.

More about law, technology, and society

Let's look at Ganni's border stone more closely. If there is a change in the environment--such as a rise in population that causes a water shortage--Ganni cannot be helped by the simplest technological solution, which would be a wider aquaduct. As for a legal solution, the all-too-common strategem of reserving an unfair share of water for Ganni and squeezing less well-connected residents will only lead to disaster in the long run. Rather, Ganni needs to re-evaluate his water use and look for a combination of smarter practices and new technology to continue producing at a high rate with less water.

The equivalent in modern content industries would be a combination of streamlined production techniques and innovative experiments in marketing, distribution, and branding. Technology has a lot to offer that has not been widely exploited:

  • As the cost of production decreases (in the film industry, for instance), so can concerns over re-use and distribution.
  • New distribution channels (particularly if bandwidth to the average person rises dramatically) could cut costs and permit wider use.
  • Computerized transactions permit more complex and fine-tuned systems of remuneration. They must be initiated with sensitivity, though, because many users regard micro-payments as an annoyance, making them a barrier to adoption.
  • The potential for frequent updates and instant notification lends new life to subscription models, while systems that let users post annotations and comments provide reasons for visitors to return, as well as promoting the formation of user communities that could increase audience engagement.
  • New media will likely develop their own successful models.

Finally, we should remember that life for Ganni on his couple of square kilometers was never very good. Two or three seasons of drought could ruin him. Marauding bandits could take everything he had. And even in the best of times, he lacked health insurance and his only Social Security was to bear a lot of healthy sons. So progress was good for Ganni, even though it produced wrenching change.

The same goes for the artist, the musician, and the writer of today. Most are not making a good living (nor have they traditionally). They have no more stake than society has in preserving the current intellectual property regime. As we move forward into unknown territory, we must ask, "What system would reward artists fairly?" An appreciation for a combination of law, technology, and society would help us find innovative ways out of current binds.

Healthy intellectual property rules show flexibility and bend with their context. Change is not coming as fast as either the content holders fear or the proponents of change hope. Society, technology, and law will evolve, and what is needed now is an enlightened general vision that will let us take advantage of the best in each change as it comes along, so that powerful entrenched interests do not steer this evolution in directions harmful to society at large.

What's inside...

© Computer Professionals for Social Responsibility
P.O. Box 717
Palo Alto, CA 94302-0717
Tel. (650) 322-3778
Fax (650) 322-4748
cpsr@cpsr.org

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