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Cory Doctorow: IP (2020)

227 points by akkartik 6y ago

akkartik 6y ago
"Forty years ago, we had cake and asked for icing on top of it. Today, all we have left is the icing, and we’ve forgotten that the cake was ever there. If code isn’t licensed as “free,” you’d best leave it alone."
jbotz 6y ago
Cory nails it. Or at least part of it. I've long had a nagging feeling that there was a deep connection between the current state of our "post truth" society and the continuously widening scope of "IP" (digital monopoly) protections. Cory disentangles some of those connections and shows some of the ways IP has become a tool for restricting freedoms. But there's more: I think that those same mechanics are narrowing the overton window and putting all thinking that's outside on the same level... and we end up in a world where the ordinary person can't distinguish between the credibility of un-approved ideas.
- breck 6y ago
  Truth is bad business. Truth lasts for years, centuries even. You need to bury truth, so you can keep selling people a stream of "novel" information. Truth doesn't get you monopoly profits, only novelty. Rearrange the truth every couple decades into crappier versions and profit. Incentives matter. #ImaginaryProperty is the worst. #IntellectualFreedom YOLO!!!
stonecraftwolf 6y ago
“IP is any law that I can invoke that allows me to control the conduct of my competitors, critics, and customers.” Doctorow never uses this word, but the dynamic he describes — where tech companies, rather than try to keep customers by offering good products, prefer to keep customers by making it impossible for them to leave — is fundamentally abusive. The entire essay is a detailed explanation of the ways that tech companies exploit and abuse their customers and society as a whole, but he never uses those words. I’m in agreement — they are abusive; they are exploitive; they are preying upon society and need to be regulated — but it’s odd that he doesn’t use the words.
- onethought 6y ago
  So he is referring to copyright. Books do the same thing, do you find books abusive as well? I don’t quite buy the leap that “software companies being exploitative” is at all related to “protecting IP through the use of copyright”. Cory does not link the two successfully in my mind.
  - NobodyNada 6y ago
    > Books do the same thing Huh? If I have a book, I can lend it to a friend, sell it on eBay, or even put it in a library where thousands of people can read it for free. If I "own" a book on a Kindle, I can do none of those things -- and if our corporate overlords decide they don't want me to read that book anymore, then they can remotely remove it from my device, even if I paid for it [0]. The abuse is that DRM is being weaponized to criminalize fair use and other consumer rights that copyright law otherwise would not give corporations authority over -- and because of DMCA 1201, it is illegal to work around DRM even for fair-use purposes. In fact, DRM does next to nothing to prevent piracy, as evidenced by the thriving piracy "industry" today. Every DRM system can eventually be bypassed, somehow -- there has to be some way to decrypt the content, otherwise I wouldn't be able to watch it. It's akin to putting up a "no stealing" sign outside my house -- sure, it means that thieves are technically trespassing now -- but they were already breaking the law to begin with and no flimsy little sign is going to stop them. It could be argued that DRM only makes piracy more enticing, because consumers can use pirated content in completely normal, fair-use ways that are blocked by DRM. As Doctorow explains in the article, DRM was never about protecting copyright, it's about protecting monopolies. DRM means I can only watch a movie with an approved web browser on an approved operating system on an approved computer using an approved cable to connect to an approved monitor, and that I can only repair a tractor at an approved tractor dealership. [0]: https://www.nytimes.com/2009/07/18/technology/companies/18amazon.html https://www.nytimes.com/2009/07/18/technology/companies/18am...
    - onethought 6y ago
      In your book example... I don’t think you can (legally) redistribute your book. It’s just publishers don’t really care if you do, because cost of enforcement is too high. That’s why they like kindles. Software used to be like this too, back when it was distributed as a physical thing (disks). DRM was about protecting copyright, your book/kindle example was a perfect illustrator of that. But I agree, it has been weaponised and misused.
lazulicurio 6y ago
A very good article. A section that really spoke to me: > Prior to the rise of the “intellectual property” as an umbrella term, the different legal regimes it refers to were customarily referred to by their individual names. When you were talking about patents, you said “patents,” and when you were talking about copyrights, you said “copyrights.” Bunching together copyrights and trademarks and patents and other rules wasn’t particularly useful, since these are all very different legal regimes. On those rare instances in which all of these laws were grouped together, the usual term for them was “creator’s monopolies” or “author’s monopolies.” > The anti-IP argument leans into the differences between the underlying rationale for each of these rules: > * US copyrights exist to “promote the useful arts and sciences” (as set out in the US Constitution); that is, to provide an incentive to the creation of new works of art: copyright should offer enough protection to create these incentives, but no more. Copyright does not extend to “ideas” and only protects “expressions of ideas”; > * Patents exist as incentive for inventors to reveal the workings of their inventions; to receive a patent, you must provide the patent office with a functional description of your invention, which is then published. Even though others may not copy your invention during the patent period, they can study your patent filings and use them to figure out how to do the same thing in different ways, or how to make an interoperable add-on to your invention; > * Trademarks exist as consumer protection: trademarks empower manufacturers to punish rivals who misleadingly market competing products or services that are like to cause confusion among their customers. It’s not about giving Coca-Cola the exclusive right to use the work “Coke” – it’s about deputizing Coca-Cola to punish crooks who trick Coke drinkers into buying knockoffs. Coke’s trademark rights don’t cover non-deceptive, non-confusing uses of its marks, even if these users harm Coca-Cola, because these do not harm Coke drinkers. > Seen in this light, “intellectual property” is an incoherent category: when you assert that your work has “intellectual property” protection, do you mean that you can sue rivals to protect your customers from deception; or that the government will block rivals if you disclose the inner workings of your machines; or that you have been given just enough (but no more) incentive to publish your expressions of your ideas, with the understanding that the ideas themselves are fair game? > When you look at how “IP” is used by firms, a very precise – albeit colloquial – meaning emerges: > “IP is any law that I can invoke that allows me to control the conduct of my competitors, critics, and customers.”
naringas 6y ago
what worries me is that our mind (at the very least mine and all like it) are ultimately intellectual constructions. thus intellectual property leads the way to mind property. how can it be that if I know something, this knowledge is not mine?
- kmeisthax 6y ago
  What you're talking about isn't a problem until and unless whole-brain emulation becomes a thing. You cannot assert copyright over a human brain because you cannot copy a human brain; and insamuch that brain is capable of copying other works, that's already covered by standard copyright law. It would be a good plot for a 2000s-retro-futuristic cyberpunk book (P2Ppunk?) but I suspect the Supreme Court would rule that the 14th Amendment overrides copyright interest in human brains were that to become a problem. (If you wanted a 2010s-retro-futuristic cyberpunk sequel book you'd have some far-right militia group arguing for bringing back slavery to protect author's rights or something. Call it Twitterpunk.)
  - bookofjoe 6y ago
    You might enjoy "Replicas," — https://youtu.be/ze_ANsckvS0 https://youtu.be/ze_ANsckvS0 — a 2018 sci-fi thriller starring Keanu Reeves, which centers on whole-brain emulation. No spoiler review here!
  - naringas 6y ago
    I disagree, what you describe is the extreme version of what I am worried about. I'm not worried that about an external entity owning my entire mind. I'm worried about a society in which institutions and corporations have ownership over some parts of what I know. And this is already happening, so many engineers and academics have signed NDAs, essentially giving up ownership (the ability to determine how to use) of certain information they have learned, in some cases even their own original ideas.
  - bencollier49 6y ago
    I disagree with this - if I've memorised a tune, I'm not allowed to replay it without paying a fee. But the line between biological and physical memory seems arbitrary to me, and this will become increasingly so. We can already read basic images from a brain using AI to reconstruct the image[1]. If that device shows an image which is copyrighted, who is liable, the person with the scanner, or the brain that was scanned? How about if I create a device which helps people who are physically disabled - or locked in - to communicate by projecting sounds from their brains - but not at will? If the person thinks about a tune ("Happy Birthday"), have they "performed" it? What happens if they think something which is considered enough to have you banned from popular platforms? What about if the technology is forced to remove their services because the thoughts you're creating are unacceptable? These things don't seem at all unlikely within the next 10-20 years. 1. https://www.sciencemag.org/news/2018/01/mind-reading-algorithm-can-decode-pictures-your-head https://www.sciencemag.org/news/2018/01/mind-reading-algorit...
kmeisthax 6y ago
Software copyright was an absolute mistake that fundamentally misunderstood the delicate balances between copyright owners, the market for creative works, and the public at large. I have no faith in Congress to fix it.
- II2II 6y ago
  Keep in mind that copyright also enables free software. Without it, there would be no incentive to share source code since there would be no mechanism to stipulate that modified versions must be shared. That would significantly diminish the role of collaboration and significantly increase the role of opportunism. It is also worth noting that copyright increases the financial incentive to progress the state of the art. The real problem with the current IP regime is its use to impose restrictions that go beyond reproduction.
  - sounds 6y ago
    Copyleft is generally regarded as a clever "fix" because of the brokenness of software copyright. Cory Doctorow even addresses this at the beginning of this article. He mentions that the GPL came out around the same time software copyright was first implemented. He distinguishes between copyleft (the "icing") and interoperability (the "cake") to point out how the new software copyrights took away interoperability. By the end of the article, he suggests we have no more cake and the icing may vanish soon.
  - kmeisthax 6y ago
    Yes, you can use software copyright to prohibit object-only releases, but that doesn't necessarily mean that software copyright is helping. In fact, once software copyright became the norm, there was a huge disincentive to publish source. After all, why would you do that when you can withhold the source to prevent unauthorized modification of your work? Effectively, using a compiler is the software equivalent of encoding your movie with DRM. Furthermore, copyright has to go beyond mere reproduction rights, because it's designed to cover creative works. The most lucrative part of copyright is not the monopoly over publication, but the monopoly over sequels. Disney is a multi-billion-dollar corporation not because it happens to own a bunch of old movies and comic books from the 60s, but because it has a monopoly over making sequels and remakes of that material. This is perfectly reasonable for creative works. However, it breaks down completely for software, because software is a mixed work of function and creativity that does not stand on it's own like a book or a movie can. There's already precedent for how you handle these sorts of mixed function works: you give them a sui generis right. Around the same time software copyright was asserting itself, Intel and several other chip manufacturers lobbied Congress for copyright over IC designs. Congress instead decided to instead create an entirely separate monopoly regime for chips that only lasts 10 years and has explicit exceptions for reverse-engineering. That's what they should have done for software: give it 10 years of protection against duplication, require source code disclosure as a rights formality, and publish that source at the end of the protection term. It would work more like a patent, albeit without the terrible problems most software patents have.
onethought 6y ago
It’s also worth pointing out that different countries have nuanced interpretations and applications of Copyright Law. The US is only one. For instance “Fair Use” is a US inspired thing that other countries don’t have. Rather than having a “defence” (when prosecuted) some countries actually give permission to copy things (as a right, not a defence)
- deleted 6y ago
  [deleted]
- sircastor 6y ago
  Yes, but we aggressively export the unbalanced rights all over the world via trade agreements.
- matheusmoreira 6y ago
  The US is known for forcing other countries to adopt laws similar to its own via trade agreements. If they don't do what the US wants, its trade office will put them in a naughty list which results in political and economic pressure being applied.
visarga 6y ago
The author makes a point about interoperability, and I wholly agree. But it must be balanced with diversity, we don't care just about being interoperable, we want a thousand flowers to bloom.
ylkdhruei 6y ago
am I only one who find it diffucult to get what IP referred? it is not about internet protocol it is intellectual property ! wuh
breck 6y ago
Down with #ImaginaryProperty. Up with #IntellectualFreedom. YOLO!
b0rsuk 6y ago
I get an unpleasant feeling that Free Software was never really popular. It was somewhat popular early on, because it formalised the way things were done at the time. This is why it received relatively little friction. So it wasn't really accepted. It was ignored.
hilbert42 6y ago
This is an excellent article; as always, Cory Doctorow succinctly and perceptively cuts to the core of the matter. From my own observations over recent years, I've come to the conclusion that the IP, copyright, patent and DRM issues that Doctorow discusses in this article are even worse than he has let on about (perhaps he's worried about overly frightening the horses and or is worried that his opponents would attempt to discredit him if he spilled all the beans). In Western countries and especially the US, the field of software and so-called IP has become so monopolistic and proprietary—and ordinary users so disempowered from the consequences thereof that they're having not only a serious negative effect on productivity and the national economy but also they're dysfunctional to the extent that they even threaten national security. Much software development is technically moribund (or it's more of the same). Time limits me to cite only one example here—the multiple, never-ending security breaches that we see day-by-day—breaches that we're never able to manage properly or get on top of—or engineer our way out of. (There, too, are dozens more examples.) Whilst Western corporations maul both one another as well as poor long-suffering users over IP licenses, copyright and patent disputes that are, by nature, intrinsically trivial, China's 'command' economy is able to bypass all that nonsense and move on regardless—for the Chinese, it's IP be damned, and it's patently obvious that that attitude is benefiting them mightily. China pays lip service to international copyright law but behind the scenes it does the exact opposite despite the fact that everyone knows it. As we've seen over the past 30 or so years, China has stolen more Western IP than would fill many a volume of old-fashioned telephone directories and all that Western countries have ever done in response is to make token complaints and objections which never amount to anything more than a kowtowing whimper. Clearly if you're big and frightening enough, no one's game enough to complain (or do anything) about the fact that one's ideas were stolen). To make matters worse, the West even has the utter damned hypocrisy to buy manufactured product from China that was made using this pirated technology! (It all reminds me a bit of Neville Chamberlain and the appeasement of Hitler.) It seems to me that unless the West (and again, especially the US) pulls its collective head in over this IP nonsense and dismisses most of it—all the unfair stuff—then China Inc. will continue to gain an even further technological march upon us. To catch up to China's manufacturing technology and output, the US and other Western nations need to adopt a capitalist command economy (à la China's and along the lines the US implemented in WWII). Even the Chinese have never equaled the heights the US achieved in manufacturing during WWII: https://en.wikipedia.org/wiki/United_States_aircraft_production_during_World_War_II https://en.wikipedia.org/wiki/United_States_aircraft_product... "William S. Knudsen, an automotive industry executive who was made Chairman of the Office of Production Management and member of the National Defense Advisory Commission by the Roosevelt administration to organize war production, said, "We won because we smothered the enemy in an avalanche of production, the like of which he had never seen, nor dreamed possible." https://civilianmilitaryintelligencegroup.com/8695/us-industrial-might-in-world-war-ii-by-the-numbers https://civilianmilitaryintelligencegroup.com/8695/us-indust... In any such scenario, the current unfair and very unreasonable IP/copyright/patent laws (and concomitant wars) wouldn’t be tolerated. Post COVID-19, it'd make sense to implement such a scheme to rebuild the economy. Right, it's only a pipe dream—we no longer have people of sufficient aptitude, caliber and with solid ethics of the likes of FDR, Harry Hopkins, Vannevar Bush (FDR’s top science advisor), Fredrick Terman, LTG Leslie R. Groves, William S. Knudsen et al to undertake such an ambitious project.
kstrauser 6y ago
I think intellectual property should be taxed as are other properties and assets. This would seem to have the nice side effect of setting a monetary value in IP lawsuits. If you declare that your property is worth $X when you file taxes, you couldn’t really argue that it’s worth $10X when suing over violations of it. And frankly, I think IP should be taxed since holders rely on the government to protect it. If I have a house, it’s at least hypothetically possible that I can defend it myself. That’s not possible with intellectual property. So if holders are relying on that government to uphold its value, they should be expected to contribute proportionally to that value for the service.
- frongpik 6y ago
  That's really clever to tie taxes to the declared scope of IP rights. Would be good to get this idea seen by Sanders. RIAA would do just about anything to stop this law. Right now they claim that a downloaded song (without their permission) or a movie makes them lose 10k usd a some fantasy amount in that range. But then IRS could multiply this amount by the number of songs they own and demand 2% - in line with property taxes. Better 3%, since IP rights, unlike houses, are active assets that bring royalties.
- sriku 6y ago
  Isn't it the case that the use of IP generates wealth which is taxed anyway? So wouldn't that amount to a kind of double taxation?
  - haakonhr 6y ago
    Double taxation is completely normal. You pay taxes on dividends, which have been taxed as company earnings already. In many places you pay a tax on real estate and other assets, which you of course bought with (presumably) already. Inheritance taxes are another example.
  - grishka 6y ago
    If you own a house and rent it to someone, you would pay both the property tax on the house itself and the income tax on the rent. Seems normal to me.
jancsika 6y ago
I feel like we're passively reading a piece about this rather than doing anything about it because Stallman never thought, "How ya gonna pay the bills," was an interesting question. I offer WSB-- the assholiest of domains, yet one where that is an interesting question-- whose users are actually doing a better job of showing the world the corruption of their domain. I shall endeavor to write a weird piece of Gnu fan fiction about this.
- octostone 6y ago
  I like this.
- frongpik 6y ago
  People keep saying this about WSB. Is it just the abrasive language they use?
frEdmbx 6y ago
We have gotten to the point where we either use and develop open source, individual empowering, tech... or we work for our slavers, against our own best interest.
billsix 6y ago
> Now, free software advocates – and free culture advocates – hate the term “intellectual property.” The argument against IP rails against its imprecision and its rhetorical dishonesty. Now? https://www.gnu.org/philosophy/not-ipr.html https://www.gnu.org/philosophy/not-ipr.html https://www.gnu.org/philosophy/words-to-avoid.en.html https://www.gnu.org/philosophy/words-to-avoid.en.html
kemitchell 6y ago
The "paradise lost" story of a "free state of nature" in software prior to 1980 only seems to come up in writings of free software people. The more I read other sources, the more that seems romantic, even nostalgic. And frankly academic, as in "endemic to college students". Back in the mainframe era, there wasn't really a "software industry" as we know now. And there weren't so many rules about software specifically, because published software wasn't terribly relevant commercially. The question wasn't whether the law would step in to enable software developers to market their work, rather than hoarding it. It was whether they'd get their own software-specific regime, like Japan had, or come under some existing one. But even before software copyright, it wasn't as though source code wasn't anybody's intellectual property. It was kept as trade secrets. There may not have been any specific public laws preventing you from doing as you liked with source code you had. But it was highly unlikely you would ever get source code you wanted in the first place. GPL made peace with copyright, chose to depend upon it, to declare war on trade secrecy. To hear RMS tell The Parable of the Printer, the paper causing the problems was nondisclosure agreements---the tools of trade secrecy protection---not copyright statutes. And trade secrecy hasn't gone away. Folks working at software companies these days will have signed legal terms requiring them to keep company code close. So yeah, maybe kids had their cake with icing back in the day. But they were cupcakes, mostly homemade. Not the 2^n-layer, all-you-can-eat wedding cake bonanza we gorge on now. The appearance of a software industry made that difference. Similar rose-colored story with "intellectual property". Yes, that's in recent fashion, from about the 1980s. But there were other names before it. The near-neighbors "incorporeal property", "industrial property" (excepting copyright), and especially "intangible property" enjoyed popularity before the World Wars. I suspect we're on about "intellectual property" because RMS turned hating on it into activist catechism. One of his many, largely failed attempts at Sapir-Whorf manipulation. But he's losing "intellectual property", too. It was and remains useful for lawyers, managers, accountants, and scholars to distinguish bundles of exclusive rights in physical assets from bundles of exclusive rights in ideas and information. "Bundles of exclusive rights" is exactly how we define "property" on the first day in law school. Arguing that IP protection has gotten stronger because clever Bernays types chose a slippery-slope metaphor, which lawyers at court and in Congress just couldn't help sliding right down, conveniently avoids acknowledging the well organized interests behind stronger IP laws. Which, as a general rule, have knocked "commons" activists out cold in every bout since long before Lessig took up Eldred v. Ashcroft and lost. "Monopoly", alas, is just another very general way to describe "property". And it's a bad choice here, because it's overloaded, as Cory points out. See also "patents", which didn't mean anything specifically to do with inventions to start, but all manner of government- or monarch-granted rights. There were "land patents". Before just anybody could form a corporation, they had to get a charter from the government, a form of "letters patent". Playing guilt-by-pun-association, hopping from one meaning of "monopoly" to another, leads to some head-scratchers. Especially the definition of IP as "any law that I can invoke that allows me to control the conduct of my competitors, critics, and customers". In practice, with crafty enough business people, that's nearly all of privately enforceable law. Defamation? Regulatory licenses? Business torts? Contract? It's important to keep in mind even IP laws aren't weapons just laying around. They only apply to certain voluntary conduct. The nondisparagement clause in Goldman Sachs' font license doesn't entitle it to go back and sue Matt Taibbi for calling them a "vampire squid" in Rolling Stone. No more than RMS can sue Facebook for making non-free software under the copyleft clause of his GPL grant for Emacs. The issue is when "voluntary conduct" doesn't feel so voluntary any more, as when a particular firm totally dominates a market for essential goods or services. Railroads and telegraphs played that hand hard, and not primarily thanks to IP. Those dangers remain real, and Cory's been on about them, very honorably, for a few years now. It's the connection he tries to make between IP and antitrust that's weak. As for where he ends up, in the end, "rights" and "freedom" are just vacuous generalities, like "community", "liberty", "innovation", and so on. We pour our hopes and dreams into them and feel happy feelings when others invoke them. Others like to hear us use the words, too. But we can't know which hopes or dreams they're swooning over when we do. They could be the same as ours. They could be in direct conflict. During the civil rights movement, "freedom" to some meant the right to live, work, eat, study, and worship free of racial discrimination. To others, it meant the right to enforce segregation in states that wanted it. It's tempting to paper over conflicts with vague words, to make win-lose scenarios sound like win-wins. If you feel strongly about traditional hacker causes---privacy, autonomy, hackability, transparency---you will be in direct conflict with large, well organized, heavily capitalized chunks of industry. If you want that fight, play to win.
b0rsuk 6y ago
eReaders seem to be dying as a hardware device and becoming merely a form of DRM. Newest models, inluding all Kobo readers, have a soldered SD memory card. And it's not just cutting costs. They're deeply bothered by your ability to copy books and various text files to the device you paid for. Memory cards fail. eReaders are now essentially hardware Steam browsers, or book consoles. You can only load books from a store. I was holding off from buying one to get a more open device, but the tendency is to become LESS open and featured, not more. I could buy an old device, but they're by definition not supported.
sriku 6y ago
> """ It’s not just DRM. Take “Goldman Sans,” a free font released by the finance giant and global supervillain Goldman Sachs. Goldman Sans is a copyrighted work, and it comes with a copyright license that you “agree” to when you download the font. Among the license terms for Goldman Sans is a non-disparagement clause – that is, a clause that prohibits you from criticizing Goldman Sachs. Goldman Sachs doesn’t need copyright law to prevent people from copying its font. It gives the font away for free. Goldman Sachs needs copyright law so it can boss people around – so it can tell them what they may (and may not) say.""" Wow! That this even exists blows my mind. It reads almost as evil as surreptitiously inserting a "all your money belongs to us" clause in a EULA in the hope that nobody will read it. I'm exaggerating, of course, but I'm not sure what part of the license is actually this "non-disparagement clause". https://design.gs.com/d/legal/goldman-sans-license https://design.gs.com/d/legal/goldman-sans-license The closest I could find in the above "restricted font license" is in the "Governing law" section - "The User and Goldman Sachs hereby waive any right to a trial by jury and consent to exclusive jurisdiction of the U.S. District Court for the Southern District of New York or, if federal jurisdiction is lacking, New York Supreme Court, New York County, for the resolution of any dispute regarding this License or the parties’ relationship arising therefrom." .. which is limited to disputes regarding *this license or the parties’ relationship arising therefrom* .. and which doesn't seem as out of line as the article's wording suggests.
- alphazino 6y ago
  it seems they changed it at some point. https://web.archive.org/web/20200624213857/https://design.gs.com/d/legal/goldman-sans-license/ https://web.archive.org/web/20200624213857/https://design.gs... > c. The User may not use the Licensed Font Software to disparage or suggest any affiliation with or endorsement by Goldman Sachs. (emphasis mine)
  - sriku 6y ago
    Again .. wow! Buy a pen at a store and it comes with a usage agreement that you may not write anything against <insert-party-name> using the pen! Not surprising that they removed the term as it would be overreach or something.
Proven 6y ago
> To make your software “free” is to promise that its users will have freedom – as the saying goes, code is “free as in speech” even if it’s not necessarily “free as in beer.” That's simply untrue. Everyone knows that copyleft licenses disallow certain forms of free speech (with code), for example the GPL 3.0. In fact the GPL 3.0 was designed specifically with the intent to constrain the "excessive" liberties allowed by the GPL 2.0 (which isn't very permissive to begin with). If you want to make your code free, release it to Public Domain. Copyleft proponents pretend they're above the detested capitalists and IP enforcement but in reality they use "IP" to enforce their agenda just like all other people who license their IP under non-permissive licenses.

227 points by akkartik 6y ago

"Forty years ago, we had cake and asked for icing on top of it. Today, all we have left is the icing, and we’ve forgotten that the cake was ever there. If code isn’t licensed as “free,” you’d best leave it alone."

jbotz 6y ago

Cory nails it. Or at least part of it. I've long had a nagging feeling that there was a deep connection between the current state of our "post truth" society and the continuously widening scope of "IP" (digital monopoly) protections. Cory disentangles some of those connections and shows some of the ways IP has become a tool for restricting freedoms. But there's more: I think that those same mechanics are narrowing the overton window and putting all thinking that's outside on the same level... and we end up in a world where the ordinary person can't distinguish between the credibility of un-approved ideas.

breck 6y ago
Truth is bad business. Truth lasts for years, centuries even. You need to bury truth, so you can keep selling people a stream of "novel" information. Truth doesn't get you monopoly profits, only novelty. Rearrange the truth every couple decades into crappier versions and profit. Incentives matter. #ImaginaryProperty is the worst. #IntellectualFreedom YOLO!!!

stonecraftwolf 6y ago

“IP is any law that I can invoke that allows me to control the conduct of my competitors, critics, and customers.” Doctorow never uses this word, but the dynamic he describes — where tech companies, rather than try to keep customers by offering good products, prefer to keep customers by making it impossible for them to leave — is fundamentally abusive. The entire essay is a detailed explanation of the ways that tech companies exploit and abuse their customers and society as a whole, but he never uses those words. I’m in agreement — they are abusive; they are exploitive; they are preying upon society and need to be regulated — but it’s odd that he doesn’t use the words.

onethought 6y ago
So he is referring to copyright. Books do the same thing, do you find books abusive as well? I don’t quite buy the leap that “software companies being exploitative” is at all related to “protecting IP through the use of copyright”. Cory does not link the two successfully in my mind.
- NobodyNada 6y ago
  > Books do the same thing Huh? If I have a book, I can lend it to a friend, sell it on eBay, or even put it in a library where thousands of people can read it for free. If I "own" a book on a Kindle, I can do none of those things -- and if our corporate overlords decide they don't want me to read that book anymore, then they can remotely remove it from my device, even if I paid for it [0]. The abuse is that DRM is being weaponized to criminalize fair use and other consumer rights that copyright law otherwise would not give corporations authority over -- and because of DMCA 1201, it is illegal to work around DRM even for fair-use purposes. In fact, DRM does next to nothing to prevent piracy, as evidenced by the thriving piracy "industry" today. Every DRM system can eventually be bypassed, somehow -- there has to be some way to decrypt the content, otherwise I wouldn't be able to watch it. It's akin to putting up a "no stealing" sign outside my house -- sure, it means that thieves are technically trespassing now -- but they were already breaking the law to begin with and no flimsy little sign is going to stop them. It could be argued that DRM only makes piracy more enticing, because consumers can use pirated content in completely normal, fair-use ways that are blocked by DRM. As Doctorow explains in the article, DRM was never about protecting copyright, it's about protecting monopolies. DRM means I can only watch a movie with an approved web browser on an approved operating system on an approved computer using an approved cable to connect to an approved monitor, and that I can only repair a tractor at an approved tractor dealership. [0]: https://www.nytimes.com/2009/07/18/technology/companies/18amazon.html https://www.nytimes.com/2009/07/18/technology/companies/18am...
  - onethought 6y ago
    In your book example... I don’t think you can (legally) redistribute your book. It’s just publishers don’t really care if you do, because cost of enforcement is too high. That’s why they like kindles. Software used to be like this too, back when it was distributed as a physical thing (disks). DRM was about protecting copyright, your book/kindle example was a perfect illustrator of that. But I agree, it has been weaponised and misused.

lazulicurio 6y ago

A very good article. A section that really spoke to me: > Prior to the rise of the “intellectual property” as an umbrella term, the different legal regimes it refers to were customarily referred to by their individual names. When you were talking about patents, you said “patents,” and when you were talking about copyrights, you said “copyrights.” Bunching together copyrights and trademarks and patents and other rules wasn’t particularly useful, since these are all very different legal regimes. On those rare instances in which all of these laws were grouped together, the usual term for them was “creator’s monopolies” or “author’s monopolies.” > The anti-IP argument leans into the differences between the underlying rationale for each of these rules: > * US copyrights exist to “promote the useful arts and sciences” (as set out in the US Constitution); that is, to provide an incentive to the creation of new works of art: copyright should offer enough protection to create these incentives, but no more. Copyright does not extend to “ideas” and only protects “expressions of ideas”; > * Patents exist as incentive for inventors to reveal the workings of their inventions; to receive a patent, you must provide the patent office with a functional description of your invention, which is then published. Even though others may not copy your invention during the patent period, they can study your patent filings and use them to figure out how to do the same thing in different ways, or how to make an interoperable add-on to your invention; > * Trademarks exist as consumer protection: trademarks empower manufacturers to punish rivals who misleadingly market competing products or services that are like to cause confusion among their customers. It’s not about giving Coca-Cola the exclusive right to use the work “Coke” – it’s about deputizing Coca-Cola to punish crooks who trick Coke drinkers into buying knockoffs. Coke’s trademark rights don’t cover non-deceptive, non-confusing uses of its marks, even if these users harm Coca-Cola, because these do not harm Coke drinkers. > Seen in this light, “intellectual property” is an incoherent category: when you assert that your work has “intellectual property” protection, do you mean that you can sue rivals to protect your customers from deception; or that the government will block rivals if you disclose the inner workings of your machines; or that you have been given just enough (but no more) incentive to publish your expressions of your ideas, with the understanding that the ideas themselves are fair game? > When you look at how “IP” is used by firms, a very precise – albeit colloquial – meaning emerges: > “IP is any law that I can invoke that allows me to control the conduct of my competitors, critics, and customers.”

naringas 6y ago

what worries me is that our mind (at the very least mine and all like it) are ultimately intellectual constructions. thus intellectual property leads the way to mind property. how can it be that if I know something, this knowledge is not mine?

kmeisthax 6y ago
What you're talking about isn't a problem until and unless whole-brain emulation becomes a thing. You cannot assert copyright over a human brain because you cannot copy a human brain; and insamuch that brain is capable of copying other works, that's already covered by standard copyright law. It would be a good plot for a 2000s-retro-futuristic cyberpunk book (P2Ppunk?) but I suspect the Supreme Court would rule that the 14th Amendment overrides copyright interest in human brains were that to become a problem. (If you wanted a 2010s-retro-futuristic cyberpunk sequel book you'd have some far-right militia group arguing for bringing back slavery to protect author's rights or something. Call it Twitterpunk.)
- bookofjoe 6y ago
  You might enjoy "Replicas," — https://youtu.be/ze_ANsckvS0 https://youtu.be/ze_ANsckvS0 — a 2018 sci-fi thriller starring Keanu Reeves, which centers on whole-brain emulation. No spoiler review here!
- naringas 6y ago
  I disagree, what you describe is the extreme version of what I am worried about. I'm not worried that about an external entity owning my entire mind. I'm worried about a society in which institutions and corporations have ownership over some parts of what I know. And this is already happening, so many engineers and academics have signed NDAs, essentially giving up ownership (the ability to determine how to use) of certain information they have learned, in some cases even their own original ideas.
- bencollier49 6y ago
  I disagree with this - if I've memorised a tune, I'm not allowed to replay it without paying a fee. But the line between biological and physical memory seems arbitrary to me, and this will become increasingly so. We can already read basic images from a brain using AI to reconstruct the image[1]. If that device shows an image which is copyrighted, who is liable, the person with the scanner, or the brain that was scanned? How about if I create a device which helps people who are physically disabled - or locked in - to communicate by projecting sounds from their brains - but not at will? If the person thinks about a tune ("Happy Birthday"), have they "performed" it? What happens if they think something which is considered enough to have you banned from popular platforms? What about if the technology is forced to remove their services because the thoughts you're creating are unacceptable? These things don't seem at all unlikely within the next 10-20 years. 1. https://www.sciencemag.org/news/2018/01/mind-reading-algorithm-can-decode-pictures-your-head https://www.sciencemag.org/news/2018/01/mind-reading-algorit...

kmeisthax 6y ago

Software copyright was an absolute mistake that fundamentally misunderstood the delicate balances between copyright owners, the market for creative works, and the public at large. I have no faith in Congress to fix it.

II2II 6y ago
Keep in mind that copyright also enables free software. Without it, there would be no incentive to share source code since there would be no mechanism to stipulate that modified versions must be shared. That would significantly diminish the role of collaboration and significantly increase the role of opportunism. It is also worth noting that copyright increases the financial incentive to progress the state of the art. The real problem with the current IP regime is its use to impose restrictions that go beyond reproduction.
- sounds 6y ago
  Copyleft is generally regarded as a clever "fix" because of the brokenness of software copyright. Cory Doctorow even addresses this at the beginning of this article. He mentions that the GPL came out around the same time software copyright was first implemented. He distinguishes between copyleft (the "icing") and interoperability (the "cake") to point out how the new software copyrights took away interoperability. By the end of the article, he suggests we have no more cake and the icing may vanish soon.
- kmeisthax 6y ago
  Yes, you can use software copyright to prohibit object-only releases, but that doesn't necessarily mean that software copyright is helping. In fact, once software copyright became the norm, there was a huge disincentive to publish source. After all, why would you do that when you can withhold the source to prevent unauthorized modification of your work? Effectively, using a compiler is the software equivalent of encoding your movie with DRM. Furthermore, copyright has to go beyond mere reproduction rights, because it's designed to cover creative works. The most lucrative part of copyright is not the monopoly over publication, but the monopoly over sequels. Disney is a multi-billion-dollar corporation not because it happens to own a bunch of old movies and comic books from the 60s, but because it has a monopoly over making sequels and remakes of that material. This is perfectly reasonable for creative works. However, it breaks down completely for software, because software is a mixed work of function and creativity that does not stand on it's own like a book or a movie can. There's already precedent for how you handle these sorts of mixed function works: you give them a sui generis right. Around the same time software copyright was asserting itself, Intel and several other chip manufacturers lobbied Congress for copyright over IC designs. Congress instead decided to instead create an entirely separate monopoly regime for chips that only lasts 10 years and has explicit exceptions for reverse-engineering. That's what they should have done for software: give it 10 years of protection against duplication, require source code disclosure as a rights formality, and publish that source at the end of the protection term. It would work more like a patent, albeit without the terrible problems most software patents have.

onethought 6y ago

It’s also worth pointing out that different countries have nuanced interpretations and applications of Copyright Law. The US is only one. For instance “Fair Use” is a US inspired thing that other countries don’t have. Rather than having a “defence” (when prosecuted) some countries actually give permission to copy things (as a right, not a defence)

deleted 6y ago
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sircastor 6y ago
Yes, but we aggressively export the unbalanced rights all over the world via trade agreements.
matheusmoreira 6y ago
The US is known for forcing other countries to adopt laws similar to its own via trade agreements. If they don't do what the US wants, its trade office will put them in a naughty list which results in political and economic pressure being applied.

visarga 6y ago

The author makes a point about interoperability, and I wholly agree. But it must be balanced with diversity, we don't care just about being interoperable, we want a thousand flowers to bloom.

ylkdhruei 6y ago

am I only one who find it diffucult to get what IP referred? it is not about internet protocol it is intellectual property ! wuh

breck 6y ago

Down with #ImaginaryProperty. Up with #IntellectualFreedom. YOLO!

b0rsuk 6y ago

I get an unpleasant feeling that Free Software was never really popular. It was somewhat popular early on, because it formalised the way things were done at the time. This is why it received relatively little friction. So it wasn't really accepted. It was ignored.

hilbert42 6y ago

This is an excellent article; as always, Cory Doctorow succinctly and perceptively cuts to the core of the matter. From my own observations over recent years, I've come to the conclusion that the IP, copyright, patent and DRM issues that Doctorow discusses in this article are even worse than he has let on about (perhaps he's worried about overly frightening the horses and or is worried that his opponents would attempt to discredit him if he spilled all the beans). In Western countries and especially the US, the field of software and so-called IP has become so monopolistic and proprietary—and ordinary users so disempowered from the consequences thereof that they're having not only a serious negative effect on productivity and the national economy but also they're dysfunctional to the extent that they even threaten national security. Much software development is technically moribund (or it's more of the same). Time limits me to cite only one example here—the multiple, never-ending security breaches that we see day-by-day—breaches that we're never able to manage properly or get on top of—or engineer our way out of. (There, too, are dozens more examples.) Whilst Western corporations maul both one another as well as poor long-suffering users over IP licenses, copyright and patent disputes that are, by nature, intrinsically trivial, China's 'command' economy is able to bypass all that nonsense and move on regardless—for the Chinese, it's IP be damned, and it's patently obvious that that attitude is benefiting them mightily. China pays lip service to international copyright law but behind the scenes it does the exact opposite despite the fact that everyone knows it. As we've seen over the past 30 or so years, China has stolen more Western IP than would fill many a volume of old-fashioned telephone directories and all that Western countries have ever done in response is to make token complaints and objections which never amount to anything more than a kowtowing whimper. Clearly if you're big and frightening enough, no one's game enough to complain (or do anything) about the fact that one's ideas were stolen). To make matters worse, the West even has the utter damned hypocrisy to buy manufactured product from China that was made using this pirated technology! (It all reminds me a bit of Neville Chamberlain and the appeasement of Hitler.) It seems to me that unless the West (and again, especially the US) pulls its collective head in over this IP nonsense and dismisses most of it—all the unfair stuff—then China Inc. will continue to gain an even further technological march upon us. To catch up to China's manufacturing technology and output, the US and other Western nations need to adopt a capitalist command economy (à la China's and along the lines the US implemented in WWII). Even the Chinese have never equaled the heights the US achieved in manufacturing during WWII: https://en.wikipedia.org/wiki/United_States_aircraft_production_during_World_War_II https://en.wikipedia.org/wiki/United_States_aircraft_product... "William S. Knudsen, an automotive industry executive who was made Chairman of the Office of Production Management and member of the National Defense Advisory Commission by the Roosevelt administration to organize war production, said, "We won because we smothered the enemy in an avalanche of production, the like of which he had never seen, nor dreamed possible." https://civilianmilitaryintelligencegroup.com/8695/us-industrial-might-in-world-war-ii-by-the-numbers https://civilianmilitaryintelligencegroup.com/8695/us-indust... In any such scenario, the current unfair and very unreasonable IP/copyright/patent laws (and concomitant wars) wouldn’t be tolerated. Post COVID-19, it'd make sense to implement such a scheme to rebuild the economy. Right, it's only a pipe dream—we no longer have people of sufficient aptitude, caliber and with solid ethics of the likes of FDR, Harry Hopkins, Vannevar Bush (FDR’s top science advisor), Fredrick Terman, LTG Leslie R. Groves, William S. Knudsen et al to undertake such an ambitious project.

kstrauser 6y ago

I think intellectual property should be taxed as are other properties and assets. This would seem to have the nice side effect of setting a monetary value in IP lawsuits. If you declare that your property is worth $X when you file taxes, you couldn’t really argue that it’s worth $10X when suing over violations of it. And frankly, I think IP should be taxed since holders rely on the government to protect it. If I have a house, it’s at least hypothetically possible that I can defend it myself. That’s not possible with intellectual property. So if holders are relying on that government to uphold its value, they should be expected to contribute proportionally to that value for the service.

frongpik 6y ago
That's really clever to tie taxes to the declared scope of IP rights. Would be good to get this idea seen by Sanders. RIAA would do just about anything to stop this law. Right now they claim that a downloaded song (without their permission) or a movie makes them lose 10k usd a some fantasy amount in that range. But then IRS could multiply this amount by the number of songs they own and demand 2% - in line with property taxes. Better 3%, since IP rights, unlike houses, are active assets that bring royalties.
sriku 6y ago
Isn't it the case that the use of IP generates wealth which is taxed anyway? So wouldn't that amount to a kind of double taxation?
- haakonhr 6y ago
  Double taxation is completely normal. You pay taxes on dividends, which have been taxed as company earnings already. In many places you pay a tax on real estate and other assets, which you of course bought with (presumably) already. Inheritance taxes are another example.
- grishka 6y ago
  If you own a house and rent it to someone, you would pay both the property tax on the house itself and the income tax on the rent. Seems normal to me.

jancsika 6y ago

I feel like we're passively reading a piece about this rather than doing anything about it because Stallman never thought, "How ya gonna pay the bills," was an interesting question. I offer WSB-- the assholiest of domains, yet one where that is an interesting question-- whose users are actually doing a better job of showing the world the corruption of their domain. I shall endeavor to write a weird piece of Gnu fan fiction about this.

octostone 6y ago
I like this.
frongpik 6y ago
People keep saying this about WSB. Is it just the abrasive language they use?

frEdmbx 6y ago

We have gotten to the point where we either use and develop open source, individual empowering, tech... or we work for our slavers, against our own best interest.

billsix 6y ago

> Now, free software advocates – and free culture advocates – hate the term “intellectual property.” The argument against IP rails against its imprecision and its rhetorical dishonesty. Now? https://www.gnu.org/philosophy/not-ipr.html https://www.gnu.org/philosophy/not-ipr.html https://www.gnu.org/philosophy/words-to-avoid.en.html https://www.gnu.org/philosophy/words-to-avoid.en.html

kemitchell 6y ago

The "paradise lost" story of a "free state of nature" in software prior to 1980 only seems to come up in writings of free software people. The more I read other sources, the more that seems romantic, even nostalgic. And frankly academic, as in "endemic to college students". Back in the mainframe era, there wasn't really a "software industry" as we know now. And there weren't so many rules about software specifically, because published software wasn't terribly relevant commercially. The question wasn't whether the law would step in to enable software developers to market their work, rather than hoarding it. It was whether they'd get their own software-specific regime, like Japan had, or come under some existing one. But even before software copyright, it wasn't as though source code wasn't anybody's intellectual property. It was kept as trade secrets. There may not have been any specific public laws preventing you from doing as you liked with source code you had. But it was highly unlikely you would ever get source code you wanted in the first place. GPL made peace with copyright, chose to depend upon it, to declare war on trade secrecy. To hear RMS tell The Parable of the Printer, the paper causing the problems was nondisclosure agreements---the tools of trade secrecy protection---not copyright statutes. And trade secrecy hasn't gone away. Folks working at software companies these days will have signed legal terms requiring them to keep company code close. So yeah, maybe kids had their cake with icing back in the day. But they were cupcakes, mostly homemade. Not the 2^n-layer, all-you-can-eat wedding cake bonanza we gorge on now. The appearance of a software industry made that difference. Similar rose-colored story with "intellectual property". Yes, that's in recent fashion, from about the 1980s. But there were other names before it. The near-neighbors "incorporeal property", "industrial property" (excepting copyright), and especially "intangible property" enjoyed popularity before the World Wars. I suspect we're on about "intellectual property" because RMS turned hating on it into activist catechism. One of his many, largely failed attempts at Sapir-Whorf manipulation. But he's losing "intellectual property", too. It was and remains useful for lawyers, managers, accountants, and scholars to distinguish bundles of exclusive rights in physical assets from bundles of exclusive rights in ideas and information. "Bundles of exclusive rights" is exactly how we define "property" on the first day in law school. Arguing that IP protection has gotten stronger because clever Bernays types chose a slippery-slope metaphor, which lawyers at court and in Congress just couldn't help sliding right down, conveniently avoids acknowledging the well organized interests behind stronger IP laws. Which, as a general rule, have knocked "commons" activists out cold in every bout since long before Lessig took up Eldred v. Ashcroft and lost. "Monopoly", alas, is just another very general way to describe "property". And it's a bad choice here, because it's overloaded, as Cory points out. See also "patents", which didn't mean anything specifically to do with inventions to start, but all manner of government- or monarch-granted rights. There were "land patents". Before just anybody could form a corporation, they had to get a charter from the government, a form of "letters patent". Playing guilt-by-pun-association, hopping from one meaning of "monopoly" to another, leads to some head-scratchers. Especially the definition of IP as "any law that I can invoke that allows me to control the conduct of my competitors, critics, and customers". In practice, with crafty enough business people, that's nearly all of privately enforceable law. Defamation? Regulatory licenses? Business torts? Contract? It's important to keep in mind even IP laws aren't weapons just laying around. They only apply to certain voluntary conduct. The nondisparagement clause in Goldman Sachs' font license doesn't entitle it to go back and sue Matt Taibbi for calling them a "vampire squid" in Rolling Stone. No more than RMS can sue Facebook for making non-free software under the copyleft clause of his GPL grant for Emacs. The issue is when "voluntary conduct" doesn't feel so voluntary any more, as when a particular firm totally dominates a market for essential goods or services. Railroads and telegraphs played that hand hard, and not primarily thanks to IP. Those dangers remain real, and Cory's been on about them, very honorably, for a few years now. It's the connection he tries to make between IP and antitrust that's weak. As for where he ends up, in the end, "rights" and "freedom" are just vacuous generalities, like "community", "liberty", "innovation", and so on. We pour our hopes and dreams into them and feel happy feelings when others invoke them. Others like to hear us use the words, too. But we can't know which hopes or dreams they're swooning over when we do. They could be the same as ours. They could be in direct conflict. During the civil rights movement, "freedom" to some meant the right to live, work, eat, study, and worship free of racial discrimination. To others, it meant the right to enforce segregation in states that wanted it. It's tempting to paper over conflicts with vague words, to make win-lose scenarios sound like win-wins. If you feel strongly about traditional hacker causes---privacy, autonomy, hackability, transparency---you will be in direct conflict with large, well organized, heavily capitalized chunks of industry. If you want that fight, play to win.

b0rsuk 6y ago

eReaders seem to be dying as a hardware device and becoming merely a form of DRM. Newest models, inluding all Kobo readers, have a soldered SD memory card. And it's not just cutting costs. They're deeply bothered by your ability to copy books and various text files to the device you paid for. Memory cards fail. eReaders are now essentially hardware Steam browsers, or book consoles. You can only load books from a store. I was holding off from buying one to get a more open device, but the tendency is to become LESS open and featured, not more. I could buy an old device, but they're by definition not supported.

sriku 6y ago

> """ It’s not just DRM. Take “Goldman Sans,” a free font released by the finance giant and global supervillain Goldman Sachs. Goldman Sans is a copyrighted work, and it comes with a copyright license that you “agree” to when you download the font. Among the license terms for Goldman Sans is a non-disparagement clause – that is, a clause that prohibits you from criticizing Goldman Sachs. Goldman Sachs doesn’t need copyright law to prevent people from copying its font. It gives the font away for free. Goldman Sachs needs copyright law so it can boss people around – so it can tell them what they may (and may not) say.""" Wow! That this even exists blows my mind. It reads almost as evil as surreptitiously inserting a "all your money belongs to us" clause in a EULA in the hope that nobody will read it. I'm exaggerating, of course, but I'm not sure what part of the license is actually this "non-disparagement clause". https://design.gs.com/d/legal/goldman-sans-license https://design.gs.com/d/legal/goldman-sans-license The closest I could find in the above "restricted font license" is in the "Governing law" section - "The User and Goldman Sachs hereby waive any right to a trial by jury and consent to exclusive jurisdiction of the U.S. District Court for the Southern District of New York or, if federal jurisdiction is lacking, New York Supreme Court, New York County, for the resolution of any dispute regarding this License or the parties’ relationship arising therefrom." .. which is limited to disputes regarding *this license or the parties’ relationship arising therefrom* .. and which doesn't seem as out of line as the article's wording suggests.

alphazino 6y ago
it seems they changed it at some point. https://web.archive.org/web/20200624213857/https://design.gs.com/d/legal/goldman-sans-license/ https://web.archive.org/web/20200624213857/https://design.gs... > c. The User may not use the Licensed Font Software to disparage or suggest any affiliation with or endorsement by Goldman Sachs. (emphasis mine)
- sriku 6y ago
  Again .. wow! Buy a pen at a store and it comes with a usage agreement that you may not write anything against <insert-party-name> using the pen! Not surprising that they removed the term as it would be overreach or something.

Proven 6y ago

> To make your software “free” is to promise that its users will have freedom – as the saying goes, code is “free as in speech” even if it’s not necessarily “free as in beer.” That's simply untrue. Everyone knows that copyleft licenses disallow certain forms of free speech (with code), for example the GPL 3.0. In fact the GPL 3.0 was designed specifically with the intent to constrain the "excessive" liberties allowed by the GPL 2.0 (which isn't very permissive to begin with). If you want to make your code free, release it to Public Domain. Copyleft proponents pretend they're above the detested capitalists and IP enforcement but in reality they use "IP" to enforce their agenda just like all other people who license their IP under non-permissive licenses.