The Copyright Lobotomy: How Intellectual Property Makes Us Pretend To Be Stupid

from the or:-how-to-build-an-intellectual-cage dept

Here are two words that have no business hanging out together: "used MP3s." If you know anything about how computers work, that concept is intellectually offensive. Same goes for "ebook lending", "digital rental" and a host of other terms that have emerged from the content industries' desperate scramble to do the impossible: adapt without changing.

These concepts are all completely imaginary, and yet we treat them as if they are real, and have serious discussions about every last detail of how they function — like a debate about the best mutant superpower, but with multimillion dollar lawsuits. Copyright necessitates that we all pretend we don't know any better. It makes us act stupid.

Take "used MP3s" for example. The idea is instantly nonsensical, and proposing it seems on par with asking how all those people fit inside the television. A "used MP3" is indistinguishable from a "new" one, and on the internet there's no such thing as an individual, discrete copy of an MP3 that gets "moved" from one person to another anyway. Speaking even more broadly, a "file" is not a "thing" at all — it's a concept that we use to help organize and visualize the even more abstract concept of "information" in many different places and states, whether magnetically inscribed on a hard disk platter or being transmitted via radio waves (not to mention the internal operation of a computer, where pieces of the information are shunted around between multiple different components and caches).

A "file" is an analogy, and like all analogies, it's incomplete. It breaks down when taken too far, and then it must be discarded, because analogies only exist for our convenience. "Moving" a file is also an analogy — in reality, we are copying it and then deleting the original. Even deleting a file is usually an analogy — the data is still recoverable, the computer has just been instructed to pretend it's not there anymore.

The purpose of these analogies is not to impose limitations on reality. We don't give up the ability to copy a file because we simulated the ability to move it. We don't have to pretend information degrades like physical objects just because we chose to conceptualize it that way. If we want to describe something as "the size of 10 football fields", we don't demand there be gridiron lines painted on it. There's a reason that stubbornly sticking with analogies is referred to as torture, and every discussion about "used files" or the difference between moving and copying is another turn of the screw.

Because of copyright, we are constantly asked to pretend that these analogies are binding. When we "lend" a Kindle ebook, we must pretend that we gave a thing away and don't have it for a while, when in fact our device is just refusing to let us access it. When a library wants to lend out ebooks, they must pretend they have a "limited number of copies available." When we buy software with an activation code, we must pretend that we "only bought one" and thus can only have it in one place at a time. When we rent a digital movie, we must pretend that we "have to give it back". We have to pretend we're stupid and that our devices have limitations which don't actually exist.

But here's the real kicker: the moment there might be any benefit to the consumer, the content companies toss the analogy out the window, and suddenly want to talk about reality. Thus you get things like ReDigi, the would-be used MP3 market that recently lost in court. ReDigi attempted to make MP3s simulate discrete items by enforcing the analogy of "moving a file" using a monitoring system, such that when you sold an MP3 to someone, it would make sure you deleted your own copy. Though we always suspected it was doomed, it was at least rather fascinating from a legal and policy perspective, potentially creating a clash between copyright and first sale rights. After all, if we are expected to treat digital files like physical property, we should at least be getting the rights that come with that.

But this time the record labels wanted to focus on the fact that there's no such thing as moving a file, and pointed out that ReDigi involved making copies whether or not it also involved deleting other copies — and the judge agreed. This is actually correct, technically and realistically — just don't tell them that next time, when it doesn't benefit them and they're back to calling infringement theft. As if to underline their masterful doublethink when it comes to the nature of property, the labels are all about having their cake and eating it too.

ReDigi is hardly the only example. We've written before about the insane situation with TV and movie streaming, where companies do things like set up a warehouse full of separate DVD players that stream from individual discs, or install a separate TV antenna on the same rooftop for every customer who wants an online stream. They are forced to willfully ignore technological capabilities, engineering principles and simple common sense just to conform to all these broken analogies — and they still face massive opposition from content owners and broadcasters every step of the way.

The real issue, when you get down to it, is that copyright itself is imaginary. A "song" or a "novel" is just as analogical as a "file". Originally, copyright law was very concerned with separating the expression of an idea from the idea itself, and in theory that's still the case, but in practice the line has proven almost impossible to draw. So first we conceptualize an abstract thing like "content" as discrete pieces, then we conceptualize all the abstract rights associated with those pieces, and then we conceptualize the discrete units of distribution and ownership within those rights.

These are all imaginary concepts, built on top of other imaginary concepts, built on top of still more imaginary concepts. It's turtles all the way down.

This does not necessarily mean that there's no place for copyright in the world. But in order for it to function, we have to remember that it's an analogy — it's something chosen and used to achieve a purpose, not something that binds and shapes reality, or that we must conform to at the expense of our better judgement. Originally, copyright was just that: a choice by society to employ the analogies of ownership and property in limited, specially-tailored ways in order to achieve a desired result — a flourishing intellectual and artistic economy. Today, copyright is worlds away from what it was then, and it does more to hinder that goal than help it... but many people seem to have forgotten that it's a just a tool, and we can always put it down.

In all the discussion about the various reasons people give for violating copyright, I think there's one that goes unmentioned: a lot of people just refuse to pretend to be stupid.

Filed Under: analogies, copyright, intellectual property, reality, services
Companies: aereo, redigi

Yes, Online And Offline Rules Are Different... Because Online And Offline Are Different

from the basic-economics dept

In the past we've discussed the ridiculousness of claiming that the internet is some sort of "wild west" without laws just because some people don't like the laws covering the internet. Clearly, there are plenty of laws that deal with the internet. What people really mean when they call the internet "the wild west" is that they simply don't like the laws -- and specifically that those laws don't fit into the analogy they have crafted for the internet.

But it's important to recognize that the analogy they have crafted is just an analogy.

Just as claiming that copyright infringement is "the same as taking a CD out of the store" is a bad analogy, so are the claims that the internet is lawless. The fact is that the internet is different. That doesn't mean that there shouldn't be any laws online -- and as noted, there are tons of laws that impact the internet already. It's just that you can't do a one-to-one comparison between situations online and offline, because they're not the same.

And this works in reverse as well, which was brilliantly demonstrated a few weeks back by Julian Sanchez, who sought to flip the analogies by posting the typical "lawless internet" script, followed by a similar screed looking out from the internet:

At regular intervals—too short for it to even be amusing anymore—we now hear that debates over Internet regulation would be more productive if only people would get it through their thick skulls that the Internet is not some special free-for-all zone. There’s no reason it can or should remain magically exempt from the rules that apply everywhere else (we are reminded) and it is absurd and mysterious that some people (we are assured) believe otherwise.

This is a fair point. But what about all these hippy-dippy Real World anarchists who think meatspace can remain immune to the rules any well-managed virtual community understands to be essential? How is it, for instance, that citizens are physically capable of injuring each other, regardless of whether they’ve opted in to player-versus-player? And what fool designed it so that my image is visible to all other users in the same city, even if we aren’t friends? You’ve even apparently got to jump through a bunch of hoops to get something called a “restraining order” just to implement a simple user block!

The key point: there are certain things that are simply different in both worlds, and while you can try to create a direct analogy -- or even say that we must create an analogy, all of those analogies break down as you dig deeper. In the real world, someone taking a CD means there's one less CD to sell. That's not true online. While you can make copies of something in the real world, online it's instantaneous and exact. No matter what the analogy, you'll run into problems, which is why relying on analogies never involves looking at the real issues. So using such analogies is always going to be a mistake. Again, to Sanchez:

What will actually make debates over Internet regulation more productive is universal recognition that the first paragraph is exactly as dumb as the second. (Possibly more so, since the second at least hints at some interesting possibilities.) You cannot implement an analogy. The rules that you’d want to apply if you could make it so just by wishing are not always the rules it is wise or feasible to attempt to actually put in place, once you’ve factored in the probable efficacy of that attempt and its unintended side-effects. Both of these, alas, are determined by annoyingly stubborn “facts” about the nature of the technological context in which you want to enforce the rules.

If we're going to address issues involving the internet, it's going to take actually understanding the internet, rather than trying to apply misleading analogies that don't actually represent the situation. The internet is different. That doesn't mean it is (or should be) lawless. But if there are going to be appropriate laws, they need to recognize the realities of the technology, not pretend that the internet is just like the physical world... but in pixels.

Filed Under: analogies, copyright, laws, offline, online

Home Cooking Is Killing The Restaurant Industry!

from the something-must-be-done dept

For many years, whenever people insisted that the ability to download movies would kill the movie business -- including the box office revenues -- we've made the analogy that just because people can prepare food at home (for much lower cost!) it hasn't changed the fact that sometimes people still go out to dinner. It's an apt analogy. People go out to dinner for a variety of reasons, despite cheaper (and potentially healthier) fare at home. Basically the overall experience makes it worthwhile as a social experience. That applies equally to movies and eating out. I was reminded of this recently. A whole bunch of you sent over Gizmodo's post about the old Dead Kennedys cassette tape mocking "Home Taping is Killing Music" by leaving the second side blank so "you can help": This image (or a similar one) shows up every couple of years and makes the blog rounds. So, at first I wasn't going to bother posting it, but then the Freakbits guys pointed me to various "offshoot" slogans and images, including the following one that's so good it needs to be shared widely: Yes, folks, home cooking is killing the restaurant industry. Why won't Congress and the USTR deal with this pernicious problem?

Filed Under: analogies, cooking, home taping, moral panics

Revisiting The Replicator Analogy: How Infinite Goods Create More Jobs

from the bring-in-the-tomatoes dept

Recently, in writing about a DRM scheme, I used the analogy of the Star Trek food replicator to explain why it made no sense to turn infinite goods, like content, into artificially scarce goods. There was a lot of back and forth in the comments about the appropriateness of the analogy, though I still think the basic point stands: it makes no sense to artificially limit an infinitely available resource. In fact, it only leads to bad things. However, one of our readers has written up a fantastic blog post where he tries to present a similar, but much, much better analogy:

A better analogy would be if the replicator only made tomatoes. You could have as many tomatoes as you wanted, they'd always be perfect and delicious, and they'd always be free. This would put tomato farmers out of business. But these tomato farmers could likely start growing something else instead. And what happens to the rest of the economy? Pizza and pasta restaurants suddenly find that a major ingredient in many of their dishes just became free. Now, for the same dish, they can charge less, or buy higher quality ingredients, or make more profit. And if you're a really talented cook specializing in tomatoes? Your skills are now in very high demand.

And there is still a demand for the people who bring the tomatoes from the replicator to your table. There is still a demand for the person who stews and cans the tomatoes, or dices and seasons them. And all the other food items, the ones that aren't in infitnite supply, still need people to produce, process, and distribute them.

This is what's happening in the music industry, and starting to happen in the publishing industry. Some parts of the industries are finding their functions obsolete. Instead of looking at the money they could save with electronic distribution, and what good use they could put that money to, the industry is seeking new laws and regulations to limit the infinite supply so business can continue as usual.

Even if every single song, book, and movie was distributed digitally for free, there would still be a need for the music, publishing, and movie industries. There would still be demand for editors, producers, marketers, and all sorts of other services that these industries have always provided.

Reasonable people aren't calling for the abolition of the music, publishing, and movie industries. They're just asking these industries to look to the future, and stop trying to limit supply to protect obsolete business models.

Read that over a few times. It's about the best description/analogy of what we've been trying to say here that I've ever heard.

Filed Under: analogies, drm, infinite goods, replicator, tomatoes