Karsten on Free Software

My old friend Tom Giovanetti on ipblog.org finally is back in shape. While I do know a number of cholerics, he is the only one who can actually write cholerically in a credible manner. This time, he has taken issue with an article by Larry Lessig in Wired magazine. Lessig highlights the real risk behind the US Supreme court’s Grokster decision. Taking the complexity of Lessig’s reasoning down a notch or five, TomG does not actually have anything to say about Lessig’s article, but prefers to complain: “You’re always whining, Larry.”

While, intellectually, not going much beyond saying “YOU ARE WRONG”, TomG’s contribution to mankind’s progress nicely lists his basic views – and provides the opportunity to point out what is wrong with them. Generally speaking, what he writes suffers from over-simplification and his programmatic failure to distinguish between material property and intellectual monopoly rights. Here we go.

“Property is good. Intellectual property is good. Exclusion is good. Stealing is bad. Copying isn’t innovation. Copying and pasting isn’t innovation. Remixing isn’t invention. Sampling isn’t invention.”

Although I am aware of differing opinions, let us for now agree that property rights are good. Within human society, they provide economic incentives for caring about what is given to you, and for making it prosper. Moreover, property rights – at least in western societies – do have a fairly long tradition. They have proved useful.

As for the hypothesis that “Intellectual property is good”: This merits a bit of discussion, one which is carried out in countless courts (SCO, music industry against filesharers, you name it), parliaments (and adjoining expensive restaurants), and WIPO. Many of these debates suffer from a fundamentally flawed understanding of what “intellectual property” really is: One or more of various forms of monopoly rights, bestowed by society on someone who has an idea, or someone who paid for the right to market that idea. The question is not whether intellectual monopoly rights are “good” or not. The question is whether they are useful to society as a whole, and applied in ways that make them useful to society.

The fundamental difference from physical property is that ideas are non-rivalrous, i.e. that they can be shared losslessly. If you have an idea, and you tell me about it, I have the idea – and you still have it, too. This basic principle makes all the difference. It is especially marked in digital environments, where ideas are not bound to a single physical medium.

This has long been a blessing for mankind. By sharing knowledge about such things as the wheel, paper, medicine, and the best way of preparing steaks, the world has become a finer place to live. Why this should not apply to, say, medicine today, is not entirely obvious to me. Of course, people who come up with ideas should be remunerated for their effort, and an incentive system is just fine with me. However, the way remuneration is currently handled in many sectors obstructs the sharing and subsequent creation of knowledge, which has been so propitious to mankind in the past.

Grasping this basic concept, it does not appear that “Exclusion is good”, but rather that it is bad. It reduces the number of people who are exposed to ideas, and thereby the number of new ideas created.

The sentence “Stealing is bad” is non-functional on this background. Stealing means physically taking something away from someone. But ideas are impossible to steal. They can be copied, they can be used without permission – but they cannot be stolen. Mind your language.

Now for the second part of Tom’s quote. “Copying isn’t innovation. Copying and pasting isn’t innovation. Remixing isn’t invention. Sampling isn’t invention.” Innovation, from its latin root, means “to bring in something new”. The sentence represents an oxymoron, as copying is by definition the multiplication of something already in existence. What this simplicity obscurs is a fact that goes right to the root of TomG’s misunderstanding with the modern world: Innovation requires copying!

If you want to write a book, it is advisable that you read a number of other books first. This will probably make your book more interesting. For this, you need access to copies (sic) of those books. Then, by copying and pasting, you learn to identify the elements of what you’re looking at, and to rearrange them in a new manner. While this is not strictly innovation, it is a necessary part of every creative process. Ask any academic, who spends ages reading books, extracting individual arguments, rearranging and mixing them, to then come up with an idea of her own which takes the topic to a new level.

Considering this, it seems that remixing is indeed invention. Remember that Warhol guy with those Campbell soup cans of his? If he were to publish his famous pictures today, he would probably never have made it past the soup company’s lawyers. A more recent issue of remixing in art is that of Mark Chamberlain, who has produced a number of watercolour drawings showing Batman and Robin engaging in homosexual activities. He, of course, did not have to wait long for a “cease and desist” letter from DC Comics. What was fair and legitimate use of public culture some decades ago is now a copyright infringement.

So, yes, remixing is invention, and so is sampling. If you’re listening to music – any music, really – it would seem that musicians are taking inspiration from each other’s works. If you’ve ever played an instrument yourself or remixed something, you know about the enormous creative energy that goes into this process. DJ Danger Mouse’s Grey Album provides a good example of how creative “just” remixing can be.

So why does Tom make all these mistakes? Because he is confusing ideas with things. He does this because he is the head of an institute that is dedicated to the promotion of positions that suit a few big US corporations and their shareholders. These corporations have something of a hard time adjusting to the fact that their business models, mostly conceived in a totally analogue world, do not work anymore in the face of broadband internet connections. Instead of inventing to stay ahead in fair competition, they attempt to use their and their country’s clout to turn intellectual monopoly rights into real monopolies.

These rights are not granted by society for this purpose. They are granted for the good of society as a whole. If they do not serve this purpose, the way the system works needs to be changed. Whenever it comes to this point, TomG leaves us stumped with an amazing mixture of utilitarian (“it’s good because it’s useful”) and natural rights (“it’s good because God or the Flying SpaghettiMonster want it this way”) argumentation. Until he gets his thinking straight, I remain unconvinced. C’mon, Tom, you can do better than this.