Fri 25 Jul 2003
Who Owns What?
That’s the fundamental question, and it’s going to get more fundamental as
we roll toward the next presidential election here in the US. Much is
at stake, including Linux and its natural habitat: the Net. Both have
been extraordinarily good for business. Its perceived “threat” to
Microsoft and the dot-com crash are both red herrings. Take away Linux
and the Net, and both technology and the economy would be a whole lot worse.
Both the Net and Linux were created, grew and flourished almost entirely
outside the regulatory sphere. They are, in a literal sense, what
free markets have done with their freedoms.
How to get past the intellectual and political logjams that threaten Linux and the Net.
At the same time that media concentration restrictions are being
removed, such that three companies will own everything, so too are
neutrality restrictions for the network being eliminated, so that those
same three companies–who also will control broadband access–are
totally free to architect broadband however they wish. “The Internet
that is to be the savior is a dying breed. The end-to-end architecture
that gave us its power will, in effect, be inverted. And so the games
networks play to benefit their own will bleed to this space too.”
And then Dr. Pangloss says, “but what about spectrum. Won’t unlicensed
spectrum guarantee our freedom?” And it is true: Here at least there was
some hope from this FCC. But the latest from DC is that a tiny chunk of
new unlicensed spectrum will be released. And then after that, no more.
Spectrum too will be sold–to the same companies, no doubt.
So then, Dr. Pangloss: “When the content layer, the logical layer, and
the physical layer are all effectively owned by a handful of companies,
free of any requirements of neutrality or openness, what will you ask
then?”
–
target="_blank">“But Where’s the Internet?” by
Lawrence
Lessig, MediaCon.
“I think that I could turn and live with the animals… Not one of them
is demented with the mania of owning things.”
–Walt Whitman
Who Owns What?
That’s the fundamental question, and it’s going to get more fundamental as
we roll toward the next presidential election here in the US. Much is
at stake, including Linux and its natural habitat: the Net. Both have
been extraordinarily good for business. Its perceived “threat” to
Microsoft and the dot-com crash are both red herrings. Take away Linux
and the Net, and both technology and the economy would be a whole lot worse.
Both the Net and Linux were created, grew and flourished almost entirely
outside the regulatory sphere. They are, in a literal sense, what
free markets have done with their freedoms.
Yet, there are some who do not care. Unfortunately, they’re driving the
conversation right now. Hollywood has lawmakers and news organizations
convinced that file sharing is “piracy” and “theft”. Apple, Intel and
Microsoft are quietly doing their deals with the Hollywood devil,
crippling (or contemplating the crippling of) PC functionalities, to
protect the intellectual property of “content producers”.
As I write this, SCO claims to own whatever remains of AT&T’s original
UNIX. They’re suing IBM and spreading FUD by the trainload all over
Linux, which they claim is derivative. I’m getting e-mails from
technologists at big companies telling me that Linux use is now a Big
Issue for their corporate legal departments. I also heard recently from
a former Novell employee who says Novell intentionally held onto their
UNIX patents (acquired from AT&T) so SCO wouldn’t have full claims to
“owning” whatever it was that Novell sold them (after buying UNIX,
renamed UnixWare, from AT&T).
And I’m hearing from people who insist that Linux is not exactly
ownerless, either. “Linux is a registered Trademark of Linus Torvalds”
appears on 268,000 Web documents, Google tells me. In at least one
sense, these folks say, Linus owns Linux. That means it is, in a
limited sense, proprietary.
The Internet has been blessedly free of regulation for most of its short
life. But the companies that provide most Internet service–telcos and
cable companies–are highly regulated. They are creatures that live in
a regulatory environment that bears little resemblance to a real
marketplace. As natives of regulatory habitats, they see nothing but
Good Sense in regulating the Net. After all, any regulation will help
assert their ownership over the sections of the Net they control and
legitimize the limitations they place on what their customers can do
with, and on, the Net.
These companies have deep alliances with the big “content”: industries
(in the case of cable, they are one and the same) that want to see
control extended beyond the Net, into the devices that connect to the
Net, including PCs, which have also been blessedly free from regulation.
Intellectual property protections have been built into consumer
electronics devices for a long time. These guys see no reason why PCs,
as a breed of consumer electronic device, shouldn’t be subject to the
same restrictions, in the form of digital rights management (DRM), run
by content providers and burned into hardware at the factory. In fact,
they’re counting on the anti-circumvention provisions of the Digital
Millennium Copyright Act (DMCA) to prevent any hacks around those DRM
systems. Once those cripples (for which there is zero demand on the
customers’ side) are in place, you can count on Dell, HP and Gateway PCs
and laptops that are much less ready to run Linux.
Two oddly allied mentalities provide intellectual air cover for
these threats to the marketplace. One is the extreme comfort certain
industries feel inside their regulatory environments. The other is the
high regard political conservatives hold for successful enterprises.
Combine the two, and you get conservatives eagerly rewarding companies
whose primary achievements consist of successful long-term adaptation to
highly regulated environments.
That’s what’s happened with broadcasting and telecom.
There are barely more than 100 channels apiece on the AM and FM bands.
No region can allow more than a couple dozen local signals at most or
the signals step on each other–which they do anyway, as the FCC has
generally relaxed interference protections over the years to allow more
stations on the air. The carrying capacities of satellites and cable
systems also limit the number of available channels. If you want to
operate a new station of any kind on licensed broadcast spectrum, your
chances of finding an opening are approximately zero. It’s a closed club.
There’s also a problem with conceiving broadcast service–especially
the commercial variety–as a “marketplace.” Its customers and
consumers are different populations. The customers of commercial
broadcasting are advertisers, not viewers and listeners. In fact,
commercial broadcasting mostly is an advertising business. The “content”
it distributes is merely bait; the goods sold are the ears and eyeballs of
“consumers”. That means commercial broadcasting’s real marketplace is
Madison Avenue, not radio and TV dials. As a consumer of commercial
broadcast programming, your direct influence is zero because that’s
exactly what you pay. (Paying for cable or satellite service doesn’t
count, because that payment is for access, not for the content
itself.)
The notable exceptions are “premium” channels like HBO and public
broadcasting. The reason why programming on both is relatively higher
in quality is a simple one: there’s little or no split in their markets
between customers and consumers. As a viewer or listener, you get what
you pay for.
All of which is why this talk about the “media marketplace” is highly
screwed up. Relaxing broadcast property ownership rules, in the absence
of making larger chunks of available spectrum for everybody, is hardly
deregulation. It is a highly selective change in existing regulation
that opens opportunities only to the most successful players in a
completely closed marketplace.
This is all fine if you don’t care about television and radio. But what
if you care about the Net and Linux? What does broadcast deregulation
have to do with those?
Plenty. The local ISPs that pioneered Net delivery were born under a
transient regulatory protection that largely has been sacrificed to give
regulatory advantage to cable and telecom industries. Ironically, both
industries are in deep trouble, mostly because they have no idea how to
deal with the Internet. The Net wasn’t born inside their regulated
environments, yet they find themselves obliged to carry it anyway
because customers want it.
The Net’s problem, from telco and cable industries’ perspective, is it
was born without a business model. Its standards and protocols
imagine no coercive regime to require payment–no metering, no service
levels, no charges for levels of bandwidth. Worse, it was designed as an
end-to-end system, where all the power to create, distribute and consume
are located at the ends of the system and not in the middle. In the
words of David
Eisenberg the Internet’s innards purposefully were kept “stupid”. All
the intelligence properly belonged at the ends. As a pure end-to-end system,
the Net also was made to be symmetrical. It wasn’t supposed to be like TV,
with fat content flowing in only one direction.
The Net’s end-to-end nature is so severely anathema to cable and telco
companies that they have done everything they can to make the Net as
controlled and asymmetrical as possible. They want the Net to
be more like television, and to a significant degree, they’ve succeeded.
Most DSL and cable broadband customers take it for granted that
downstream speeds are faster than upstream speeds, that they can’t
operate servers out of their houses and that the only e-mail addresses
they can use are ones that end with the name of their telephone or cable
company.
And why not? These companies “own” the Net, don’t they? Well, no, they
don’t. They only “provide” it–critical difference.
The gradual destruction of the Net is getting political protection by
two strong conservative value systems. One values success, and the other
values property. Let’s look at success first.
Liberals often are flummoxed by the way conservatives seem to love big
business (including, of course, big media). Yet the reason is simple:
they love winners, literally. They like to reward strength and
achievement. They hate rewarding weakness for the same reason a parent
hates rewarding kids’ poor grades. This, more than anything else, is
what makes conservatives so radically different from liberals. It’s why
favorite liberal buzzwords like “fairness” and “opportunity” are
fingernails on the chalkboards of conservative minds. To conservatives,
those words are code-talk for punishing the strong and rewarding
the weak.
As George Lakoff explained in Moral Politics: What Conservatives Know
that Liberals Don’t (University of Chicago, 1995), conservatives
consider strength a “moral value”. Strong is good. Weak is bad.
In street basketball there’s a rule called “make it, take it”. If you score
a basket, you get to keep the ball. Three-on-three basketball works the
same way. So do volleyball and other sports with rules that favor
achievement over fairness.
Relaxing media ownership rules is all about “make it, take it”. Clear
Channel and Viacom have made it. Why not let them take more? It’s simply
the marketplace at work, right? Again, only in a highly regulated context.
We can’t change conservative value systems. But we can change the
emphasis on what we conserve and why. That’s why we need to figure a way
around the Property Problem too.
We met that problem head-on and lost, with
Eldred v. Ashcroft, a
case that challenged the
target="_blank">Sonny Bono Copyright Term Extension Act.
Eldred made it to the Supreme Court last year, shepherded from start to
finish by
Lawrence Lessig,
Stanford law professor, author, constitutional scholar and former clerk
for archconservative Supreme Court Justice Antonin Scalia.
target="_blank">Oral arguments were heard in October.
On January 15, 2003, the justices struck down the challenge by a vote of 7-2.
Justice Ginsberg wrote the
target="_blank">majority opinion.
Justices
target="_blank">Stevens and
target="_blank">Breyer wrote dissents.
A loud hubbub followed. Somewhere in the midst of all that, I did
target="_blank">my own thinking out loud on the
American Open Technology
Consortium (AOTC) site, suggesting the reasons for Eldred’s failure
had more to do with language than with politics and law:
I believe Hollywood won because they have successfully
repositioned copyright as a property issue. In other words, they
successfully urged the world to understand copyright in terms of
property. Copyright = property may not be accurate in a strict
legal sense, but it still makes common sense, even to the Supreme
Court…
Watch the language. While the
one
side talks about “licenses” with verbs like copy, distribute, play, share
and perform, the
other side
talks
about “rights” with verbs like own, protect, safeguard, protect, secure,
authorize, buy, sell, infringe, pirate, infringe and
steal. This isn’t just a battle of words. It’s a battle of
understandings.
To my surprise, Professor Lessig found my idea convincing. In
href="http://cyberlaw.stanford.edu/lessig/blog/archives/2003_01.shtml#000889"
target="_blank">Doc’s Diagnosis, Lessig wrote:
Doc has a brilliant and absolutely correct diagnosis
at the American Open Technology Consortium
web site about how we lost in Eldred. Copyright is understood to be
a form of simple property. The battle in Eldred thus sounded like
a battle for and against property. On such a simple scale, it was
clear how the majority of the Court would vote. Not because they
are conservative, but because they are Americans. We have a
(generally sensible) pro-property bias in this culture that makes
it extremely hard for people to think critically about the most
complicated form of property out there–what most call
“intellectual property.” To question property of any form makes
you a communist. Yet this is precisely our problem: To make it
clear that we are pro-copyright without being extremists either way.
So deep is this confusion that even a smart, and traditionally
leftist, social commentator like Edward Rothstein makes the same
fundamental mistake in
target="_blank">a piece published
Saturday. He describes the movement, of which I am part, as
“countercultural,” “radical,” and anti-corporate. Now no doubt
there are some for whom those terms are true descriptors. But I
for one would be ecstatic if we could just have the same copyright
law that existed under Richard Nixon…
How to change the debate is the hardest thing. But rather than
philosophy, perspective and pragmatics seems the best way. Build a
public domain (which
Creative Commons
will help to do), and show people and companies how the public
domain helps them. Indeed, of all the companies out there, this is
the one point Disney should certainly understand: Now that they
have won the Eldred case, they should be racing to embrace the
Eldred Act. No company has depended more upon the public domain.
The Eldred Act would give them much more to build upon.
I agree about perspective and pragmatics, and I think Creative Commons
is a brilliant institution that will change the game in the long run.
But, I still think we lose in the short run as long as copyright (and, for
that matter, patents) are perceived as simple property. Our challenge
is to change that.
So, how do we out-simple “simple”? It helps to revisit our original
concepts of property — concepts conservatives can espouse and promote.
Duhaime’s Law Dictionary defines property
this way:
Property is commonly thought of as a thing which belongs to
someone and over which a person has total control. But, legally,
it is more properly defined as “a collection of legal rights over
a thing”. These rights are usually total and fully enforceable by
the state or the owner against others. It has been said that
“property and law were born and die together. Before laws were
made there was no property. Take away laws and property ceases.”
Before laws were written and enforced, property had no relevance.
Possession was all that mattered. There are many classifications
of property, the most common being between
real property or immovable property
(real estate, such as land or buildings) and “chattel”, or movable
property (things which are not attached to the land such as a
bicycle, a car or a hammer) and between public (property belonging
to everybody or to the state) and private property.
In National Review,
target="_blank">John Bloom puts the same idea this way:
Whoever turned “copy right” into one word had to be a lawyer. We
don’t say “freespeechright” or “gunright” or “assemblyright” or
“religionright.”
As a result, 99 percent of the public thinks that a copyright is
some kind of formal legal document. They think you have to go get
it, or protect it, or defend it, or preserve it, or buy it, or
hire a lawyer to make sure you have it.
On the contrary, it’s simply a right, like all our other rights,
and it goes like this: Whoever creates something that has never
been created before has the exclusive right to copy it.
It’s not the person who registers it with the Library of Congress.
It’s the person who does it first. Just the act of creation
makes the right kick in.
Unlike other rights, though, this one is transferable. You can
sell your copyright, license your copyright, or give your
copyright away. What’s most often done is that you let a big
company–say, a book publisher–use the copyright for a specific
period of time, in return for money, and at the end of that period
the right reverts back to you.
One other difference: This is a right with a specific term.
The Founding Fathers wanted that term to be 14 years, with an
additional 14 years if the author [was] still alive. After 28
years, they figured you’d had your chance to exploit your
creation, and now it belonged to the nation at large. That way we
would never end up with a system of hereditary privilege, similar
to the printers guilds of Renaissance England, who tied up rights
to dead authors and tightly controlled what could or could not be
printed and who could or could not use literary material.
In America, land of free ideas as well as free people, this would
never happen, they said.
Well, it’s happened. It’s happened because for years now Congress
has allowed it to happen. We now have an exact replica of the
medieval Stationers’ Company, which controlled the English
copyrights, only its names today are Disney, Bertelsmann, and AOL
Time Warner. The big media companies, holding the copyrights of
dead authors, have said, in effect, that Jefferson, Madison, and
Hamilton were wrong and that we should go back to the aristocratic
system of hereditary ownership, granting copyrights in perpetuity.
To effect this result, they’ve liberally greased the palms of
Congressmen in the form of campaign contributions–and it’s
worked…
National Review is a conservative magazine. John Bloom is a conservative
columnist. This is significant.
What will it take to revitalize this understanding of property and to
cause outrage against the damage done to it by Congress?
I think we need a galvanizing issue. I suggest Saving the Net. To do that,
we need to treat the Net as two things:
- a public domain, and therefore
- a natural habitat for markets
In other words, we need to see the Net as a marketplace that has done
enormous good, is under extreme threat and needs to be saved.
The Internet has proven to be a fine marketplace for all kinds of stuff.
Look up any product on a search engine, and you’ll see free markets at
work all over the place, with power growing on both the supply and the
demand sides o every category you can name.
Markets flourish on the Net or with the help of the Net because the
Net is free. That’s free as in beer, speech, liberty and enterprise.
That freedom is guaranteed by the end-to-end nature of the Net, and
the NEA principles it engenders: “Nobody owns it, Everybody can use it
and Anybody can improve it.”
This may sound a bit like communism to conservative sensibilities,
unless it is made clear that the Net belongs to that class of things
(gravity, the core of the Earth, the stars, atmosphere, ideas) that
cannot be owned and even thinking about owning it is ludicrous.
Now, to the elections. Look at the two big political parties; both have
existed largely as funding mechanisms. For proof, ask yourself, “When
was the last time I went to a party meeting?” Whatever other functions
they serve, the parties are fundamentally about The Money.
At least until the Net came along.
As I write this, Democratic candidate Howard Dean just gathered
his party’s largest campaign fund for the most recent quarter. The
mainstream press has acknowledged that most of this money came from
fund-raising on the Internet. But they avoid visiting a fact that
should be deeply troubling to every candidate running (and then
governing) for money rather than for voters: Dean’s lead is owed to a
huge number of small donations, not to a small number of large special
interests. If he’s being bought, it’s by his voters. This is a New
Thing. It’s also been made possible by the Net.
I am not endorsing Howard Dean here (for the record, I’m a registered
independent who mostly has voted Libertarian in recent state and federal
elections). But I am endorsing a new kind of politics based on the
presence in the world of a free marketplace for ideas as well as for
products and services. We get to protect that free marketplace by
exercising our freedom to use it.
Saving the Net and the NEA goods that thrive on the Net should be a
paramount concern for technologists everywhere. Those goods include
Linux and every idea that’s good enough to grow when it passes from one
brain to another, gaining value along the way.
Our work is cut out for us. Let’s do it.
Additional Resources
Eldred.cc, the
plaintiff’s site.
Lawrence
Lessig’s site and
target="_blank">weblog.
target="_blank">“John Bloom’s Right and Wrong” (an excellent piece
in National Review) and the
target="_blank">Slashdot thread that followed.
target="_blank">“A Fine Balance” and
href="http://www.economist.com/opinion/displayStory.cfm?story_id=1547223"
target="_blank">“A Radical Rethink” in The Economist.
target="_blank">“Mickey Mouse in Chains” in the Sacramento Bee.
“Copyright Gets Sweeter for Big
Business”, in the Toronto Star.
target="_blank">“Voluntarily Limiting Copyright Terms”, on
Kuro5hin.
target="_blank">“Embrace File Sharing or Die”, on Salon.
Lawmeme,
Copyfight,
GrepLaw and
Bag & Baggage
also have provided piles of coverage and many links to more sources of
wisdom (B&B’s list of law weblogs is comprehensive).
Doc Searls is Senior Editor of Linux Journal.