Copyright Issues: Professional Development day, Feb 22, 2002

The first public presentation of my submissions to the 2001 copyright reform process was on Friday February 22, 2002. I was invited to speak to a group of teachers at their professional development day.

This was a small group of 5 teachers, one of which was familiar with my perspective on this topic as she had previously invited me to her classroom. Her students had seen the movie "Anti Trust" and I came in to discuss issues of Open Source, and the particular irony of that movie.

The slides from the presentation are online.

The workshop was for 70 minutes, including any questions. We fortunately started into questions even before the slides were finished, making for a very dynamic discussion.

I will paraphrase some of what were the most interesting questions asked.

When talking about DVD's and the DVD-CCA, what about DVD burners?
The most important thing to remember is that the DVD-CSS (Content Scrambling System) is unrelated in any way to the ability to copy CD's. If you have a DVD reader and a DVD burner, you can always make a bit-for-bit copy of the original that no CD reader will be able to distinguish.

The DVD-CSS technology licensed by the DVD-CCA (Content Control Association) is intended to control "access" to the data, and most specifically what players can be used. This is why I argue that the DVD movies and DVD players represent an illegal "tied selling" (IE: A DVD movie encoded with CSS tied to a player licensed by the DVD-CCA). I argued as part of my submission that this technology should not be protected in copyright as it is unrelated in any way to the ability to copy a DVD.

This is an example of the new "third right" that the publishing industry is trying to have added to copyright laws. This seems to sometimes be used as a back-door to enable them to accomplish through restricting access rights things which they cannot restrict via normal copyright (IE: fair dealings).

More information can be read at the OpenDVD site.

Of a particular interest in this discussion was the movie "AntiTrust".

"AntiTrust" -
Metro-Goldwyn-Mayer encoded this DVD with CSS Region 1 - U.S.A, U.S. territories and Canada. The irony will not be lost to anyone who has seen the movie of MGM being actively involved in, and lobbying for protection of, a technology that attempts to make viewing this movie using an Open Source player illegal. Some of us in the Open Source industry can't believe they have the NURV to be doing this.

I try to keep all the different copyright licenses clear, but with so many of them I know I am likely violating one. What can I do?
I was not the best person to answer this question as I don't believe this is a legal issue so much as a legislative problem. What kind of a society are we building when some of the most critical roll-models for the next generation of our society are made to feel like criminals? Teachers are paid to share information with their students. The culture of intellectual property, which is aimed at restricting the sharing of information, is incompatible with education.

The "socialist" ideas presented in this discussion may be easier to morally justify, but we live in a capitalist society.
I believe that the Open-Source discussion is quite separate from traditional "Left-vs-Right" politics. There are many people involved in this movement that are in other aspects of their life very much on the far-left or far-right. They may not get along in any way on issues of gun control, government regulation, welfare reform or other such issues, but they share a belief in Free Markets and Open-Source.

I believe we in North America started out with a system of free-market capitalism, and most believe we still are in that system. All the discussions I have heard that praise capitalism are actually praising features of free-market economics. The system of copyright reform being discussed here, with Open-Source being an example for computer software, is simply the restoring of our economy to a free-market economy from one based on governments encouraging and supporting monopolies and cartels.

In an innovation- or information-based economy, there are two ways to succeed: continue to innovate and always make a better mouse-trap, or claim ownership to the concept of a mouse-trap and thus disallow any competition. Applying this to the free-market race analogy: we want a race that strives to push people to always be faster and faster runners, not a race where crippling other runners becomes part of how one becomes the first (and possibly the only) runner to make it to the finish line.

While there may appear to be a greater incentive to win "the first race" if the winner of the previous race is automatically given a head start on any future races, I believe this to be a misconception. There may be a small advantage for the first few races. After this beginning, all ambition is gone for new and potentially faster runners to enter a new race, or the past winner to bother to run.

In economic terms we need to encourage each competition to be independent of past competitions. We encourage the market to have open competition on smaller incremental steps rather than a monopoly on larger-steps based entirely on winning the first stage of the competition.

The equivalent in a free-market economy of the required "drug testing" we seen in the Olympics is competition policy (Anti-Trust in the USA). As I wrote in a previous article "Eric Raymond doesn't represent me" , being opposed to antitrust laws in support of free markets is like being opposed to laws against theft in support of private property.

[For more information on these ideas, see "Owning the Future: What tree huggers can teach us about the public domain of ideas"]

Why did you quote Thomas Jefferson? The rest of the slides were your own words except this quote.
This quote from letters written by Thomas Jefferson in 1813 was used partly to remind people that this debate has been ongoing for quite some time, and copyright itself has only been around since 1710 (Some Myths about Intellectual Property)

At the time of these letters it was the British that were trying to create a new form of property, and the new founders of the United States were rejecting that idea. I believe that the USA got it right at that time, as do a growing number of people who wish to return copyright and patents back to their origins.

I also believe there is an irony in that it is now the USA that is not only creating new interpretations of these laws domestically, but exporting them world-wide through organizations like WIPO (World Intellectual Property Organization). It is now Europe and elsewhere in the word (including Russia and China) that are fighting for communications freedoms by opposing the idea that ideas should be treated as a new form of property.

What is Microsoft ".NET"?
This is Microsoft's push into the "software as a service" business model. The .NET technology is in many ways based on an enhanced version of Java (C# - pronounced like "See Sharp"). This environment allows the software to be hosted across the network. .NET makes use of a very network and object oriented system such that different components of your software may be hosted at different locations.

Like many ideas from Microsoft the technology is positive, but the legal and business aspects pose a threat to the industry and to the intellectual commons. The basic technology is being released as a standard. Microsoft is holding onto various controversial software patents in an attempt to ensure that they have no competition in compatible environments.

There is already an Open-Source project called Mono which is working on providing this development framework in a Free Software environment.

Whether Mono or other projects will be a fully compatible competitor to Microsoft's implementation of the .NET platform will not be decided by the merits of any particular software in a free market. It will be decided by the courts by their interpretation of copyright and patent laws.

If you don't restrict peoples ability to copy, how do you make money? Why would I spend 2 years developing a game if everyone could simply copy it?
This is the most common question in relation to Intellectual Property, and is the hardest to answer as it is based on many assumptions with are dominant in our current culture.

It is believed that without the incentive of the government granting very long monopolies on an idea, that people would not develop new ideas. It assumes in the context of computer software that the only business model being used is "selling licenses", rather than the variety of alternatives including the "servicing software" business model which I use.

I do not personally understand this mindset.

Human development of ideas involves taking old ideas and molding them into new ideas. As more and more ideas are protected as a monopoly to specific rights-holders, it becomes harder and more expensive to have intellectual development. While it may be true that there is a minimum monopoly needed to create incentive for certain works, there is also a maximum monopoly possible before the laws backfire and cause the opposite to what they are intended to do.

I believe the current length of copyright and patents are already beyond the maximum limit. I see patent and copyright laws currently as a dis-incentive to intellectual development. This is in fact the argument that Professor Lawrence Lessig is presenting as lawyer in the Eldred v. Ashcroft case.

The question of why one would spend 2 years developing an idea without a monopoly is an interesting one. It seems to pre-suppose that large new ideas should be developed over long periods of time requiring long monopolies to finance them. The more successful projects in Open-Source actually have a philosophy of "release early, release often". As such each of the new ideas are released in smaller increments.

An intellectual economic model based on the ideas presented here would discourage ideas being kept secretive for such long periods of time. There may be special cases that require long development time and thus longer monopolies as an incentive, but they should be understood as the exception and not the rule. Many copyright reformers have suggested that copyright length should be tied to the nature of the information, rather than some unreasonable "one size fits all" copyright length.

Related to this question is whether or not we should be protecting existing businesses and business models that are dependent on copyright and patents for survival.

When electricity was discovered and the light-bulb was invented, we did not hold back these ideas because the candle-producing industry had a monopoly on (non direct solar) light production. The newer technology was allowed to replace the old, the economy adapted, and nobody was crying fowl as if the light bulb was "stealing" market-share from candles.

If a company cannot make money in a changing market without being granted extreme government monopoly protection measures, it is simply best for the economy if that company (or part of the industry) was simply allowed to fail. New emerging companies and markets that have adapted to the modern realities will simply replace them. These new free-market based businesses will be much more robust and stabilize the economy.