My take on the intellectual property debate

Despite the fact that I fear I’m not totally qualified to have an opinion regarding the ongoing debate over intellectual property, sometimes, I think about the problem too and I certainly do have an opinion.

To say it with the tongue of the usenet, IANAL, but bear with me when I finally take the time to write down my own ideas on the IP debate:

When you take a look at todays landscape, you’ll clearly see clashing interests. On one side, you have the authors (I am one of these in a sense – I write software) that more or less wish to make a living with their work. Then you have the people selling the work created by the authors and then you have the consumers which should pay to actually consume the work produced.

Of course, we don’t want either the authors nor the resellers to starve to death, so there must be some incentive for the consumers to actually consume the goods and to compensate for the authors and even more so for the distributors work.

That’s what we have created the term intellectual property for.

Even though you as the consumer get to consume the work of the author, that’s all you can do. In theory, you can’t resell, redistribute, copy or whatever else you’d want to do with the work of the initial author. You pay for your right to consume the initial work. If you want to do more (like creating a derivative work), you naturally have to pay more (per copy of that derived work you distribute) – at least that’s what society works like.

Let me make an example. DRS, the swiss national radio station created wonderful audio plays about a certain private investigator called «Franz Musil». The first two parts of the series of plays (currently, there are five of them if I counted correctly) will never ever be available on CD for us consumers to buy:

In the production they used tiny pieces of music for which they don’t have the license to sell on CD.

Even though the original part of that audio play is immense compared to those small pieces of music, the original publisher of the pieces in question still has a say on the distribution on something completely different and orignial that has come out of the initial work.

Later audio plays contain music they created themselves and these plays are actually available to buy on CD. This whole situation is bad for us the consumers (the plays are really good), DRS (they’d like to sell their original work) and the initial author of the music in question (because fewer people now hear his work).

Especially in the matters of software, it gets even worse tough: While copyright law protects the work as a whole, there’s the discussion about patents that actually manages to protect bits and pieces of your idea as an author.

Let’s say I write a poem and I distribute that using the old and known methods (via some publisher), then that poem is protected by the publishers copyright (I had to sign off all rights I had on the poem to that company for them to do the work).

If someone takes my publishers poem (remember, it’s not any longer my poem. It’s the publishers), sets his own name below it and sells it, then he violates my publishers copyright. So far so good.

But imagine that my publisher went further ahead and besides taking all rights to my work also patented the «method or apparatus to put letters in context to form a meaning»… (don’t laugh – todays understaffed and underqualified patent offices can clearly be fooled into granting such a patent)

Now my publisher not only made sure that my poem can’t be copied, they also made sure that no one else will ever be able to write a poem by lining up characters.

Now let’s go ahead to distribution to consumers, but let’s stay with my poem (which is the only poem in existence due to act of spelling now also being my distributors property).

Naturally, my distributor wants to maximize the cash they can make with their newly acquired poem. On one hand, they have expensive lawyer-bills to pay and on the other, they try to use their new poem to get back the money wasted on less successful poems that came before the one I have initially written (just to say it once and for all: I don’t write poems. And if I would, I would never assign the copyright to a publisher).

Now, for a poem, you have a fixed-sized group of recipients: People capable of reading (and thus violating that patent granted earlier) and interested in poems.

So to maximize income, the publisher must make sure that everyone of the targeted group goes ahead and pays the distributor that new poem. Besides advertising for it to reach an initial amount of people, the publisher makes sure that everyone reading that poem pays for doing so one way or another.

One way is to sell books. The other is to publicly perform the poem, while getting payed both from entrance fees and third party sponsors. Or they create an audiobook and sell that.

Of course, if the publisher sells a book to one person, they obviously would want to sell another book to a friend of that person. This is why copying is disallowed.

To further maximize profits, the publisher now sees a way to make the initial person actually buy more than one copy of the same book: A book you buy destroys itself after a set number of days. And you can only read the book while in one predefined room. When you move to another location, the book renders itself unreadable.

All that magic protecting that book can of course go wrong due to various reasons and in that case, the publisher can make the person go ahead and just buy another copy of the same book…

And this is what’s fundamentally wrong.

People are not used to not own something they pay for.

When I buy myself an apple, I can eat it when I want and where I want. When I buy myself furniture, I can place it where I want and I can sell it to whomever I want. But when I buy a piece of music in the iTunes music store (using this as an example because it’s well-known), then I can only hear it on so many devices. If I buy the n-th new computer, I need to buy the song again. Also, I cannot resell the song. And one day, when Apple is gone or running the Music Store is no longer interesting for them, my Songs will stop working too.

When I buy a book, it’s my responsibility to handle it with care and if I succeed in doing that, then the book I buy today is still readable in hundreds of years. No external influence not ultimately under my control can take away that book from me. No company going out of business, no company losing interest in providing me with a “license” to read my book.

The more time passes, the more patents are granted and the more strict DRM is put in place.

And – now we finally come to the core of the whole thing – the more strict distribution of new content is handled, the more expensive creating derivative work gets, the more our society gets stuck.

I postulate that no person is able to create truly original works. Everything one creates is influenced by outside factors. News postings. Books. Music. Other software: Either you accept that outside influence and improve upon that or you get slowed down more and more, always hitting walls because “someone was already there”.

With enforcing distribution limitation and patenting and thus restricting the building blocks of future work, society slows down scientific and cultural evolution. Or it passes control over that evolution fully to big distribution companies that actually have the money to pay all the royalties needed.

Individual authors (no matter what profession) lose their capability of creating and releasing novel work because each and every possible building block is protected and owned by a big company.

The final goal of the current society will be a conglomerate of two to three big companies owning all rights to all new scientific and cultural advancement. These companies will be constantly paying themselves royalty fees for the patents and copyrights they violate between each other.

If you want to be an author, you are not allowed to create any work until you have a contract with one of these big companies. Working will only be possible in close proximity to a lawyer because the big companies still want to maximize their earnings and thus watch closely to minimize the cost of the new work created.

When we reach that point, all advancement of civilization (which is by a big part defined by advancement of culture) comes to a halt and we end up back in the middle ages where only a few enlightened people (monks) where able to create cultural works (because only they could write). Everyone else had to work for their survival and pay taxes.

In an ideal world, copyright and patent law gets radically changed by allowing to freely create derivative works as long as there is a certain percentage of new content in the created work and the original content is attributed to.

Let’s say 60%, though this obviously must be tweaked by people far more intelligent than I am.

If I write a poem, in the ideal world, I can keep the copyright and I can distribute it however I feel. Or I can ask a publisher to do that work for me while I keep the initial copyright on it. The more work the distributor has to do to advertise my work, the more I will be paying him. No changes here, beside the fact that I retain the copyright.

The distributor still tries to sell the product. But as creating derivative works is now permitted in some boundaries, expenses for both legal and technical protection go down. The publisher can once again focus on what they were payed to do in the first place.

If someone really likes my poem, she can go ahead and take it to create a new, better poem. Maybe longer. Maybe with a completely different message. Maybe the new author just takes out a verse or two. Maybe the whole poem. It doesn’t matter.

When she is finished, she roughly checks that there’s 60% of novel art in it and then goes ahead to distribute the poem – either herself or via a publisher.

This model, by the way, works. It’s in use today. Everyday. It’s an invention by geeks like you and me. It’s called Free Software. It doesn’t even have a limitation that defines a percentage of new content to allow for redistribution under ones own copyright.

Despite creating a platform where knowledge can be openly shared, people are still able to make a living out of their work. The money is in the services rendered for a specific need. Customize a piece of software for a specific working environment. Publicly present that poem from the samples above at some poetry event. Provide the end user with a package of multiple poems collected together in one book…

There are so many things still to do and which are completely doable without forcing all scientific and cultural advancement of society to stop or at least go through a lawyer and through courts.

We are the new generation. It’s our task to see the shortcomings of the current system. It’s our task to see opportunities to create a new and better system.

It’s our task to fix this problem once and for all.

The whole Free Software movement is a big step in the right direction. Thank you, Free Software community. You show us the way we all have to go.

Let’s move!

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