Extreme copyright

My latest video illustrating with several examples how the recent tendency toward extreme copyright inhibits artists and ordinary people from creativity and participation in culture.

Note that this is not a video about weighing the merits of copyright, but looking at some of the more disturbing recent trends.

Here’s a transcript (added 2012-06-17):

In my last video I said there are a number of factors inhibiting ordinary people from participating in culture. Unfortunately today one of those is copyright. So in this video I will look at some examples of what I would describe as extreme copyright. I’m not trying to weigh the merits of copyright law here; what I want to do is focus in on what I think are some destructive recent tendencies.

Now in a way this seems cheap, because finding cases extreme copyright seems to me like shooting fish in a barrel. There’s a case almost every single day. I picked four cases and I’ll mention a few others because I wanted to give an idea of a range of what’s happening, and I oriented these around the United States. The United States is both perhaps the most active player in this area and also a powerful country that’s been pushing for changes to copyright law elsewhere in the world.

The first case I’ll look at is Capitol versus Thomas. For several years now, the Recording Industry Association of America, the RIAA, has been seeking out people who’ve been engaged in file-sharing and sending them letters demanding that they pay thousands of dollars or they will be sued for copyright infringement. The vast majority of people settle, and I think you’ll see why. But in this case the defendant didn’t settle, and the case went to court.

Jammie Thomas was accused by the RIAA of sharing twenty four songs. They don’t actually know whether anybody had actually downloaded those songs from her, but they did know that she’d made them – or they claimed that she’d made them – available for download by others. And juries agreed.

There ended up being three different trials. What I want to point to, however, is the jury awards, which were: for the first, twenty two thousand dollars, second one point nine two million, third one point five million. In two cases the judges said those numbers are absurd and reduced them to fifty four thousand dollars.

But in fact the RIAA said she didn’t actually share only twenty four songs: should actually shared seventeen hundred and two. They just chose to sue her for twenty four. If they’d soon her for all of those the penalties would have been extraordinary. Because they were using statutory damages – that is, not knowing exactly how much damage she might have done to their business, if any – the law provides for statutory minimums and maximums.

The minimum would be seven hundred and fifty dollars per count. Multiplied by one thousand seven hundred two, that produces about one point three million dollars in damages. So if they had sued her for all 1702, and the jury had found her guilty, the jury would have been obliged to hit her with penalties of at least one point three million.

But if we take the maximum figure that the juries picked out of the three awards, which was actually eighty thousand dollars per count, they would have awarded one hundred thirty six million dollars for sharing music for an ordinary person.

In reality there is not a lot of difference between these figures because if you’re an ordinary person and you get hit with penalties in the millions of dollars, it’s life-changing. That’s it: you can never pay it, it just turns your life upside-down.

Now the thing is, this is a civil case so although it it does look to me as if she was probably guilty, the burden of proof was only balance probability. So the jury thought it was probable that she had broken the law here, then they would have been obliged to award at least seven hundred and fifty dollars per count, and the penalties could have been as high as you see here.

What we’re seeing is that a law that was designed for institutions, designed to regulate the internal operation of industries, is being applied to individuals. And when that happens the penalties, I think, are extraordinarily disproportionate.

One of the reasons that is often given for such extreme damages is that infringement is so widespread that an example needs to be set of a few people. And that’s probably why the RIAA has said that they don’t want to accept the fifty four thousand dollar figure: they want a bigger example to discourage file-sharing. But despite several cases like this, file-sharing continues unabated. Fear of extreme penalties simply isn’t working.

The second case I want a look at is the dancing toddler. Stephanie Lenz was a mom. She was playing some music and her son was two years old. If you’ve had a two-year-old, the two-year-old hears music: he’ll start dancing. So she did the natural thing: she grabbed a videa camera and she taped it. And then she did the other natural thing: she wanted to share with friends and family, so she uploaded it to YouTube.

It turned out that the song was Let’s Go Crazy by Prince. Prince was not pleased, so he went to YouTube and said someone is infringing my copyright, take the video down. And YouTube did because in order to not be sued for copyright infringement under U.S. law, YouTube can protect itself by taking stuff down, simply based on an accusation – no proof needed. If that happens to you, though, and you want to get your material back up, you have to claim – under penalty of perjury – that you’re not infringing copyright.

Well, Lenz was incensed by this and she got a lawyer and she went to court and she sued Prince, or his record label, saying, Hey! This is ridiculous. This is reasonable under U.S. law. I should be allowed to do this. So far the court has been sympathetic. You can imagine, though, when it’s easier to get something taken down than it is to get it put back up, that this can be abused.

In the run-up to the 2008 U.S. election John McCain had this problem. Now John McCain actually voted for the law back in 1998. What happened in 2008 was that his campaign had some ads in which they use news footage. And the owners of the news footage, networks like CBS and Fox, issued take-down notices to YouTube. The material went offline.

McCain’s campaign responded and said, this is fair use under U.S. law: put it back
up. But there was a delay of ten days to two weeks. In an election that can be a long time. McCain’s solution was that, maybe politicians should have an exemption. You could imagine if this happens to John McCain, and an accusation merely needs to be made to to take something down, that there is a serious risk that ordinary people have stuff taking down frequently. And it has happened.

Now a similar problem has happened just in general with copyright being used to stop what are potentially creative works. So for example, Alice Randall in 2001 tried to publish a book called The Wind Done Gone, which was inspired by Margaret Mitchell’s famous Gone With the Wind. The Wind Done Gone, however, is from a slave’s point of view, and it avoids the names of the locations and the characters in the original Gone With the Wind. Nonetheless, her publisher was sued, and in the end she settled to pay an undisclosed sum to a charity, in return for which she was permitted to publish the book that she had written.

The point I want to make here is that it’s remarkably easy for copyright to stop artists and ordinary people from expressing themselves in original ways.

The third case i will look at is that of Mark Fiore. Mark Fiore is a political cartoonists, a caricaturist, which obviously I am not. Mark wanted to distribute his cartoons as an app in the App Store so that people with iPhones or iPads could download it. But the thing is, if you want to get something into the App Store you need Apple’s permission. And Apple said No.

One of the reasons they gave was that “it contains content that ridicules public figures.” Well, the guy is a cartoonist. If he’s not ridiculing public figures, he’s really not doing his job. In any case, he had also won a Pulitzer Prize for his work. When Steve Jobs found out about the uproar over this he said, Hey wait a minute – we’ll look at this one again. Resubmit your app to the App Store. And indeed it was approved.

Well of course the App Store belongs to Apple. Apple should decide what goes into the App Store. But: the App Store is also the only way to get something onto the iPhone or the iPad. If I am somebody who creates a piece of art or an application, and I want to give it to you know – so I’ve got a willing seller and a willing buyer – or perhaps i just want to give it to you for free, we can’t do it without Apples permission. Because Apple has a lock on the device They have a lock on what the iPhone you own or the iPad that I own is permitted to do. You can’t put software on those machines with Apples permission. Furthermore, if you try to work around the restriction that Apple has placed on the device – to work around their so called digital lock – you’ll be breaking copyright law: at least in the United States.

Here we have a case where copyright is being used to limit the ability of artists to distribute their work – and not at the behest of creators, but in the interests of the manufacturer of the technology. What Apple has done is it has used copyright law and digital locks to create a distribution channel over which it has complete control. Even if we own the devices, they still control them. Historically of course it’s through control of distribution that artists have been screwed over and over and over again.

In another case of this a couple of years ago, Amazon discovered that it had accidentally sold some copies of George Orwell books, Nineteen Eighty-Four and Animal Farm, that it shouldn’t have. So it went into the Kindles that people owned and it remotely deleted them without notifying them first. So this isn’t the first time that technology and digital locks is being used to control what people can read and what they can write and distribute.

Finally, I’m going to look at the case of Andrew Ainsworth, another creator. Now Mr Ainsworth in 1977 was involved in the design and the production of the original storm trooper masks for the first Star Wars movie. He’s not the only person who was involved in that mind you, there were other people: it was a collective effort.

To make a bit of money, recently Mr Ainsworth made copies the masks and he sold them and he made about thirty thousand dollars. When Lucasflim found out they sued him in California and the court awarded them thirty million dollars.

However, Mr Ainsworth lives in England, so this judgment was not enforcable there. So Lucasfilm went to England to sue. The court decided first that it was implied that the copyright, if it existed, would belong to Lucasfilm, even though there was no documentation to that effect. The second thing they decided was that the masks, in fact, were not covered by copyright – because they weren’t works of art. They weren’t sculptures. The masks, the court said, were tools. They were part of the process of making the movie. Therefore, as industrial designs their term of protection was much shorter, only fifteen years. So Ainsworth was not liable. Ainsworth, however, has a bit of a problem. If he ever goes to the United States, he could be hit with that thirty million dollar judgment.

Furthermore, it occurs to me that the mask looks to me like it could be a work of art. The court judged that it was effectively a tool. It could also be seen as fashion. If we see it as a tool, there’s no harm no foul here. If we see is the work of art, the penalty could be extraordinary. And if we see it as fashion – well fashion isn’t covered by copyright, so if it’s a hat, not a mask, there’s no problem.

What these four examples illustrate is that ordinary people and artists alike are vulnerable to having their lives turned upside down by copyright law. The line between being creative, which is good, and infringing copyright is a fine one that’s often decided only on a balance the probabilities. The consequences can be disastrous. Furthermore, while most ordinary people who infringe copyright are not caught, artists operate in public so they are. So they are either at most risk, or most likely be chased into the arms of corporations and organizations that can shield them from copyright.

How this happened, how did this come about? That’s something i want to talk about in a future video.


Monopolies of Culture and Knowledge

I was on a panel about copyright at Media Democracy Day in Vancouver on November 6. I was fortunate to share the panel with Hart Snider, who makes wonderful remix films, and the tireless
Martha Rans, who provides a legal support clinic for artists. The moderator was Meera Nair, an expert on fair dealing in Canadian copyright law.

The Georgia Straight blog has posted an article I wrote based on my panel remarks. I spoke about public discourse and the potential of malformed copyright laws to secure monopolies of culture and monopolies of knowledge. I am increasingly concerned that cultural participation, which has the potential to help us develop as active citizens and form relationships with other people, is instead used against us. The more we participate in culture, the more we invest our emotions and ourselves in it. When that participation is captured, part of us is also.


RIP: A remix manifesto

Last weekend I saw RIP: A remix manifesto, a new documentary about remix culture and the war over copyright. The movie is fantastic. It has interviews with Lawrence Lessig, with Mary Beth Peters, head of the U.S. copyright office, with Bruce Lehman, architect of the DMCA. This documentary is not a script put to film. It is a movie, with all the sound and imagery that make that such a powerful medium. It doesn’t just tell how remixing can improve society: it shows how the freedom to create has liberated poor Brazilians from a lifetime of violence. It shows remixing in action, and it is a remix itself. Just brilliant. Anyone who gives a damn should see it.

One interview in particular was shocking. Lehman explained American copyright policy in the 1990s. He said America made a deal with the world: the U.S. would open its borders, allowing other countries to supply it with consumer goods. In exchange, American IP laws would be imposed elsewhere. He seemed bitter about the failure of the policy, saying the U.S. had kept its part of the bargain, but the Chinas and Indias of the world had not.

Here’s the important bit: Lehman described the U.S. policy in terms of exporting industrial jobs in exchange for high-margin information work. Now I’m a computer programmer, so I’m happy when governments take knowledge work seriously, but I know that’s not for everyone. To read between the lines, they wrote off Michigan, they wrote off Ohio, they wrote off the industrial heartland of their country. They wrote off the people who can build a car but not program a computer or film a movie. I find this outrageous. On top of that, the payoff was to be the imposition of coercive controls on culture and ideas around the world, effectively preventing competition by poorer countries.

In some circles this is pretty much a standard critique of the U.S. policy. It’s another thing entirely to hear it from the horse’s mouth. This was presumably filmed before the financial crisis, but I’m still amazed that Lehman would put a statement with such obviously explosive implications on the public record. Today GM and Chrysler flirt monthly or weekly with bankruptcy, depending on huge cash infusions from the government. A major information-based industry (finance) has cratered, taking the economy with it. Copyright warfare makes outlaws of an entire generation. Nice policy.


My Media Democracy Day talk on copyright

I spoke about copyright at Media Democracy Day. You can view a video of my talk online in a number of formats. Unfortunately I was unable to stay to see all the other panels and discussions, which I hear were very good.

I quite enjoyed the chance to speak and thought it went well. Seeing the video now I’m stunned at how much I cut in order to fit the time restriction. The full speech is about 12-15 minutes long and fills in some of the explanatory gaps.


Is copyright a natural right?

This is an old question, reaching back to the 18th century, when copyright applied only to writing. A writer takes resources available to all – language, symbols, ideas, etc. – and mixes them with his labor to produce a new work. The question was whether investing that labor in the work gave the writer a natural right to control over it. One court case said yes, and overruled the term limit on copyright.

There is another question, however. Do the common resources (language, ideas, etc.) belong to all? Or do they belong to no-one? In the former case, the writer needs the permission of the community in order to assert a natural right on his work. In the latter case, they have no business interfering in his right1. This is assuming natural rights exist at all. Are rights given by God, do they already exist somewhere out there, or are they created by human beings? In the latter case, the whole argument for natural rights is short-circuited.

Later court decisions found that although a writer might have a natural right to his work, enforcing that right impinged too much on the freedom of others. Instead, the law was grounded on the economic principle that it should encourage writers.

Another way to approach this is the idea of authorship, which arose in the 18th and 19th centuries. According to the Romantics, authors played a special moral role in society. Furthermore, their works were unique personal expression of themselves. This was an innovation. The idea of human creativity wasn’t widely accepted until the 20th century; many non-Western cultures that still do not share it.

Of course courts aren’t run by philosophers. The ideal of the romantic author who creates something original from nothing has been very influential in intellectual property rulings. It appears to resolve a number of serious inconsistencies in intellectual property law2. In practice it creates as many problems as it solves. It’s also just just plain wrong: authors don’t create from nothing.

For most creators, the question of rights is rendered moot by the fact that they neither own nor control their work. This is famously the case for music, but is prevalent in other fields.


1 Peter Drahos, A Philosophy of Intellectual Property.

2 James Boyle, Shamans, Software & Spleens.


Respecting Culture?

John Degen writes, “I think intellectual property is an economic model based on a constant request for respect”. Elsewhere he writes, “My personal opinion . . . boils down to this . . . respect the text.” I have seen this elsewhere. Usually this argument treats respect and payment as interchangeable, conflating a thing’s worth with what is paid for it1. But taken seriously, I see a more fundamental conflict about authority.

Degen apparently sees a text as a stable object with a fixed meaning. It deserves respect because it is the product of the sweat and inspiration of the author. It should be taken as it is, or not at all. Because it is the product of the author’s labor, it is proprietary. Copyright, I believe John claims, should recognize this by granting the author exclusive control over her work.

The understanding I have just described is fundamentally flawed. Texts do not have fixed meanings. They are always interpreted. This is not simply my opinion; it is the conclusion of decades of research in communication and culture studies. In a living culture, interpretations vary between people and they change over time. The Stars and Stripes may mean one thing to an American, another to someone else. The meaning of Mao’s Little Red Book is unlikely to be the same for a Canadian today as for a Chinese during the Cultural Revolution. The Teletubby with the handbag is gay for some people, but merely purple for others.


Texts do not have “correct” interpretations. You could say the author’s understanding is the right one, or you could argue for a particular analysis, or for the common understanding, and so on. Disputes over the “real” meaning of a text are actually attempts to establish a particular interpretation as dominant.

Interpretation is not a passive activity. Nor, oftentimes, is it a solitary one. Experiencing a text is work. It is a creative activity. Many people have had the experience of reading a book, then watching the movie and finding that the characters don’t look the way they imagined them. That act of visualization is a creative act. It is like the creativity of the author who experiences and interprets the world when she puts pen to paper2.

This does not diminish authorship. But it does place it on a continuum. The author of a text is usually the greatest contributor to its meaning. The interpretation of the audience is guided by the text itself – though not determined by it. (Similarly, the author is not free to express the text in just any way, but must take into account cultural conventions and the expectations, resources, and demands of the audience.) Collectively, however, the contribution of the audience can sometimes exceed that of the author.


Degen privileges the intention of the author. It seems that for him there is a correct interpretation, which he argues should be respected. Copyright, then, is a legal assertion of authority. The author is in the position of a priest of the middle ages: a conduit to something higher who preaches to the congregation in a language they do not fully understand. But this is no longer how we see culture. We do not treat it as an authority held at arms length. We bring it into our homes and our lives. What we express for our culture is not respect. It is passion.

I see the pursuit of copyright control (as distinct from copyright income) partly as a romantic attempt to recapture the authority of an era (largely imagined) when The Text was a distant object of veneration. The argument for respect ultimately leads to an attempt to dispossess all of us of our ability to engage and participate in our culture. I am afraid this may be invisible to Mr Degen and others like him. They do not see the multiplicity of meanings, nor the passion of the audience. In a tragic unintentional way, they do not respect them.


1 Degen appears to mix up worth and money himself when he suggests a “request for respect” is the foundation of intellectual property as an economic model.

2 Degen is a fiction writer. It strikes me that his argument sells his own craft short: one of the great benefits of literature compared to film and television is the scope it leaves for the reader to fill in the blanks with his imagination.


Buttons, Calico and Copyright

Copyright is not the first instance of government implementing draconian prohibition and disproportionate penalties to shield established industries from innovation. In centuries past, people have been searched, tortured, and killed over clothing manufacture and imports outside guild monopolies.

The invention of cloth buttons in 17th century France threatened the monopoly of the button-makers guild. In response, makers of cloth buttons were fined. But that was not enough. The guild “demanded the right to search people’s homes and wardrobes and even to arrest them on the streets if they are seen wearing these subversive goods1.”

Nor were these the most extreme measures taken. Importers of printed calico fabric were imprisoned, tortured, even hanged. Sixteen thousand people were killed.

In spite of the penalties, prohibition ultimately failed. But not before many lives had been ruined.


1 Examples from Robert Heilbroner’s The Worldly Philosophers, 1961, pp. 17-18.


Fair Copy Site

The Canadian government has indicated that it intends to push ahead and change copyright law – without consulting with ordinary Canadians who will be affected in their everyday lives. But the issues remain unclear to many citizens and journalists. I have put together the faircopy site to help explain what this is about, how it affects all Canadians, and what we can do about it. This is intended to put together a clear overview, augmenting existing efforts like the Fair Copyright for Canada Facebook group.


Canada's Copyright Disaster

Canada faces a copyright disaster. Next week, Canada’s Industry Minister is set to introduce a revision of the Copyright Act. A similar revision in the United States produced the Digital Millennium Copyright Act (DMCA), which has hobbled innovation and produced lawsuits against ordinary people while failing in its aim to stop piracy. The government has not consulted with Canadians, but by all accounts the Canadian law has been written in close consultation with American interests. Over the past few days thousands of angry Canadians have joined the Fair Copyright for Canada group on Facebook to work to stop this law. There isn’t much time. Canadians who want Canadian culture and innovation to maintain vibrant and independent should join us by writing to their newspapers and members of Parliament (scroll down for contact information) immediately to stop this disaster from becoming law.


The Ownership of Ideas as Rights or Responsibility

There is a contradiction in how we talk about the ownership of ideas. On the one hand, we speak of property rights over owned ideas (as with copyright and patents); on the other, we talk about shared works – such as free and open source software – having “owners” – by which we mean people who take responsibility for them. Thus, ownership has two distinct meanings: one rooted in rights, the other in responsibility. For physical property, the two are frequently allied; but in the case of creativity and intellectual works, property rights are often the enemy of responsibility.

The Case for Property

There are two main arguments for property rights. The first is that they are natural rights, deriving both from physical possession (I hold the deer, so it is mine) and from the inherent right of an individual to his labor (I killed the deer, so it is mine). Physical possession obviously does not apply to ideas, so I will not pursue that line of reasoning here. And because new ideas are always based on and difficult to disentangle from old ideas, the right to one’s labor is as often in conflict with the ownership of ideas as it is in sympathy with it.

The second argument for property rights is typically framed in economic terms. Because the owner of a thing has exclusive right to the use of that thing, there is an incentive for her to make the best use of it. Ownership captures both the benefits and negative consequences of such use. For example, if I own a pasture it is to my benefit to graze many cattle – but not to over-graze, for if I did the pasture would be ruined. When the land is open for use by all, however, each individual has an incentive to over-use the resource, and it is likely to be ruined.

This second argument is broader and more significant when stated in moral terms: ownership encourages responsibility1. The negative externalities of overgrazing are lessened by ownership, for owners are more prone to take responsibility. Similarly, home ownership is thought to be good for society because owners take better care of their property and their neighborhood than do renters. On the flip side, responsibility can be taken as the basis of ownership. In the case of squatter’s rights, the act of taking responsibility for a piece of land over time becomes the basis for assigning rights over that land.

Unfortunately, property rights can also lessen resposibility. In reality, the things over which we claim rights tend to overlap the boundaries we attempt to build around them, while exclusive rights bar others from interference. Property rights over part of a river, for example, can permit the owner to pollute the river while preventing intervention by others.

The Ownership of Ideas

This difficulty with boundaries is especially applicable to ideas. Furthermore, often the benefit of using ideas arises outside the bounds of what we consider a particular idea or intellectual work. The development of radio technology, for example, was blocked by the patents held by various individuals and corporations. What we think of as a single technology was effectively divided into pieces, each of which was exclusively controlled. It wasn’t until the U.S. government stepped in and forced cooperation that this “tragedy of the anticommons” was overcome and the technology moved forward2.

Thus, property rights may actively discourage the effective use of ideas. A partial explanation may be transaction costs: the cost of implementing those rights can reduce efficiency. So the early failure of radio could be blamed on the cost and complexity of licensing patents Such costs are absent where there are no property rights; the benefits of property rights may be counterbalanced by the costs.

I suspect there is a more powerful explanation. For property rights in ideas erase an essential competitive feature of non-property arrangements – one which has much in common with the market3.

Control and Competition

Ideas aren’t like wheat or pork bellies or timber. They aren’t interchangeable. Because of this, property rights over ideas are monopoly rights. I can own a pile of wheat and not be a monopolist because wheat is also available from others. But if I have exclusive rights to Cinderella (for example), then I am the only source – there is no possibility of competition to provide Cinderella. Some competition does exist, in the form of different ideas, but it is far less than in a market of fungible commodities because ideas are not interchangeable or equivalent. Thus, the exclusive ownership of ideas creates a hierarchy of control, one which is subject to relatively few external pressures.

Ownership, as I have mentioned, also subsists in the commons, though here it is clearly tied to responsibility. An owner of a project, effort, or work in the commons is someone who husbands the process of creation and maintenance: who takes responsibility for it3. While exclusive property rights are legally encoded and enforced, ownership in the commons is socially determined. Because the commons is not exclusively controlled, everyone in the commons benefits from improvements to it. Ownership is the acknowledgement and respect afforded by those who benefit from the responsibility and activity undertaken by the owner.

The key is the tension between the benefits of cooperation and the possibility of division. Members of the commons participate because they benefit from the efforts of others. Cooperation requires coordination, which is supplied by the owner or owners of a given effort. There is a strong incentive to maintain cooperation rather than dividing and duplicating work. Thus the control of the owner is a product of the consent of the other members of the community; that consent can be rescinded if ownership is no longer in their best interests. Competing ownership, or separate projects, can result. Free and open source software developers call this a fork: a situation in which two visions of a piece of software are irreconcilable, producing two separate versions. As a failure of cooperation and consensus it is generally avoided, though it can can also be a source of innovation and an way to resolve with conflict.

Thus, a commons of ideas is managed through the influence of competing interests and responsibility. It bears some resemblance to a market, albeit one without the signaling function of price (nor its tendency to reduce divergent characteristics to a single value) or the investment of capital (activity or responsibility appear to be the closest equivalent).

In contrast, an economy based on ideas as property is more like a hierarchical command economy. Without responsibility, ideas are often underused or wasted4. It is particularly telling that the corporations who favor strong property rights over information seldom institute such arrangements within themselves. Internally, they often result to commons-type arrangements5. The comparison of proponents of the commons to communists is not just inaccurate, it is exactly wrong6. The rights claimed by those who oppose the commons insulate them from responsibility.


1 The pasture example is taken from Garett Hardin’s The Tragedy of the Commons. , which only uses pasture as an illustration of problems with population growth. His argument for the need for either private property or other regulation is often misapplied: the historical commons of land was effectively managed in most cases, and seldom fell prey to the tragedy he describes.

2 The phrase “tragedy of the anticommons” is credited to Michael Heller. See Yochai Benkler’s The Wealth of Networks for details of the relevance to the development of radio (p. 191 in the book or paragraph 350 online).

3 Some have proposed that holding copyright over an idea constitutes ownership in a commons. For example, the creater of a piece of open source software generally retains the copyright while distributing it under an open license. But this is beside the point, because this “ownership” does not confer any special rights on the creator – at least, none within the commons (he could choose to also distribute under a non-open source license, but that’s beside the point). In practice, many successful projects (such as Linux) often have multiple creators and a tangle of ownership, so that dual licensing is difficult or impossible. In general, therefore, copyright in the commons is not a useful or consistent basis for a concept of “ownership”.

4 Lawrence Lessig’s heartbreaking description in Free Culture of the 90-odd percent of old films decaying into nothingness as they sit moldering in vaults only drives the point home.

5 They even justify mergers on the basis of “synergy” – the merged companies can now share each others’ ideas more efficiently. With no economies of scale for creativity or thought, the consolidation of firms that produce ideas implies the inefficiency of property rights in ideas.

6 My appropriation of the language of the Right – ownership, responsibility, markets, competition – is quite deliberate. Too often proponents of the commons have been called “communists” by those who favor strict regimes for “intellectual property”, while the reality is that the ownership of ideas by corporations often goes hand-in-hand with centralized control and planning that would not be out of place in the Soviet Union.

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