FSCONS 2010 talk about how copyright and patents were created to deal with scarcity; in today's world of creative and inventive abundance, we need neither. Freeing up knowledge for all to use would cause a positive feedback loop of creativity and invention.

1.
ethics of intellectual
monopolies
glyn moody

2.
the wars
 1971 – the war on drugs
 1971 – the war on cancer
 2001 – the war on terror
 2010 – the war on digital sharing

3.
ACT(A) of war
 Anti-Counterfeiting Trade
Agreement
 US, EU, Japan + 7 others
 negotiated in secret
 analogue counterfeits; digital
piracy added later
 HADOPI (.fr), Digital Economy Act
(.uk), similar ”3-strike” laws in
S.Korea, Taiwan, Finland

4.
the engines of war
 collison between:
 uncontrolled, decentralised
technologies designed to share:
the Internet
 government-backed, centralised laws
designed to monopolise: copyright
and patents
 fundamentally antagonistic
 software code vs legal code
 (TCP/)IP vs ”IP”

5.
Internet
 relatively familiar
 new: its history as a mass medium
is only 16 years old (Netscape
Navigator released October 1994)
 perfect, near-instant, near-
frictionless, global replicator
of digital content
 feature, not a bug
 once a digital file is online
anywhere, it is effectively
ubiquitous and abundant

6.
”IP”
 relatively obscure
 ”IP” is a bundling of totally
disparate things: copyright,
patents, trademarks etc.
 nothing in common – except the fact
that they are time-limited,
government-granted monopolies
 ”IP” is a clever rebranding of
something generally deprecated
(monopoly) as something generally
approved (property)

7.
intellectual monopolies
 ”IP” a relatively recent invention
(1888)
 World International Property
Organisation (WIPO) - 1967
 Trade-Related Aspects of
Intellectual Property Rights
(TRIPS) - 1994
 but patents and copyright are
medieval monopolies

8.
anglophone bias: an apology
 personal reasons
 historical reasons
 practical reasons
 *good* reasons
 war on digital sharing is being
driven by the US, whose law is
based on the English tradition

9.
letters patent
 issued by monarch to grant
monopoly for particular industry
 called ”patent” because not sealed
– early ”open source” law
 first English patent granted a 20-
year monopoly to Flemish stained-
glassmaker (1449)
 ”pirating” skills from continent
 afterwards, knowledge released
 later abused: patents on salt,
etc.

10.
Statute of Monopolies
 1624
 ”making of any manner of new
manufactures within this realm to
the true and first inventor”
 ”which others at the time of making
such letters patents and grants
shall not use”
 ”so as also they be not contrary to
the law nor mischievous to the
state by raising prices of
commodities at home, or hurt of
trade, or generally inconvenient”

11.
inventive scarcity
 patent law was framed in a world
with few inventors, and few
inventions
 monopoly was offered
 to attract foreign master craftsman
 to make technical knowledge freely
available after monopoly expired
 to stimulate local industries
 to encourage more inventions

12.
inventive abundance
 today, we live in an abundance of
inventors and invention, as the
creaking patent system shows
 in 2009, 482,871 patent
applications filed with USPTO;
135,000 in Europe
 abundance creates patent thickets
that impede progress, rather than
promoting it
 most evident with software patents

13.
software patents
 abstract – patent of maths/idea
 obvious – Wang's overlapping
frames/windows
 trivial – Amazon's 1-click
 ridiculously wide
 ”system for reproducing information
in material objects at a point of
sale location” (1985)
 used to sue generic e-commerce
sites

14.
software patent problems
 most litigated – causing much of
the backlog of cases in US
 3% in 1984, 26% in 2002
 for 1996-1999, the total cost of
litigating software patents in US
was $3,888 million per year
 total US profit attributable to sw
patents annually was $100 million
 software patents = overall net
loss

15.
why have software patents?
 patent infringement lawsuits
 entrench incumbents' position
 raise barriers to entry for
newcomers
 make innovation harder
 ACTA is all about *strengthening*
enforcement of intellectual
monopolies, including patents
 raise barriers to entry higher,
reduce innovation further,
disadvantage developing countries

16.
”copy right”
 in 16th
and 17th
century England,
the Stationers' Company had
exclusive and perpetual state
monopoly over producing copies
every registered book (their
”copy right”)
 aim was to *control* what was
printed by establishing
responsibility – instrument of
censorship

17.
Statute of Anne (1710)
 ”An Act for the Encouragement of
Learning, by Vesting the Copies
of Printed Books in the Authors
or Purchasers of such Copies,
during the Times therein
mentioned.”
 gave limited monopoly (14 years +
14 year extension) to authors or
publishers (”purchasers”)
 quid pro quo was book entered
public domain after that period

18.
US copyright law
 US Constitution (1787) Section 8
 To promote the Progress of Science
and useful Arts, by securing for
limited Times to Authors and
Inventors the exclusive Right to
their respective Writings and
Discoveries;
 US Copyright Act (1790)
 An Act for the encouragement of
learning, by securing the
copies...during the times therein
mentioned. (14+14)

19.
copyright then and now (1)
 originally: books
 now: books, maps, charts,
engravings, prints, musical
compositions, dramatic works,
photographs, paintings, drawings,
sculptures, films, sound
recordings, choreography and
architectural works

20.
copyright then and now (2)
 originally: 14 years + optional 14
years extension
 public domain relatively soon after
first appearance
 public domain included recent books
 now: UK, US, Sweden etc.: life +
70 years
 public domain hugely impoverished
 no longer have free access to
creation of our contemporaries

21.
copyright then and now (3)
 then: analogue
 now: analogue *and* digital
 adds computers and the Internet
into the mix

22.
copyright infringement then
 analogue publishing of an
unauthorised copy required:
 somebody to typeset the text
 somebody to print the sheets
 somebody to bind the book
 somebody to distribute the book

23.
copyright infringement now
 digital publishing of an
unauthorised copy requires
 digital content (CD, DVD, ebook,
etc.)
 a computer + (free) software
 an Internet connection
 they've been available for years:
why the war on digital sharing
*now*?
 it's all about abundance...

24.
of CDs...
 first CD appeared in 1982
 without any kind of copy protection
 because it was impossible to copy
the CD's 700 Mbytes of data: the
1983 IBM PC XT had a 10 Mbytes
hard disc – less than one song
 similarly impossible to share it
across the Internet: the Hayes
Smartmodem, released in 1981, had
a speed of 300 bits/s – about 400
hours to upload one song

25.
...and MP3s
 developed in early 1990s, just as
Internet was taking off
 used clever tricks to reduce music
file size to 10% of original –
reduced time to upload file by
factor of 10
 modem speed then 14.4 Kbit/s
(Netscape Navigator was optimised
for this speed) – less than one
hour to upload/download one MP3
song: slow, but possible

26.
today
 Mbit/s broadband connection means
that entire films can now be
shared
 P2P networks like BitTorrent make
it even easier to distribute
those files and share them in the
background
 1 Terabyte hard disc (1000 Gbytes)
costs 50 euros; stores 150,000
MP3s

27.
tomorrow
 gigabit/s connections will
transmit 1000s of mp3 files
anywhere in seconds
 a 1 Petabyte (1000 Terabytes) USB
stick will cost 50 euros and
store every song ever recorded
 a 1 Exabyte hard disc (1000
Petabytes) will cost 50 euros and
store every film ever recorded

28.
unless
 the content industries win the war
on digital sharing through
increasingly Draconian
legislation - ACTA 2.0, ACTA 3.0
 if they do, they will err towards
too much enforcement – already
seen with DMCA abuse
 as a result, much less will be
shared freely, and much more
content will be paid for

29.
●would that be so bad?
 maybe not – for you and me
 maybe not - for those who can
afford to pay
 but...

30.
what about the others?
 what about the billions that can't
afford it?
 what about the 4 billion that
don't even have access to the
Internet?
 double obstacle to overcome:
 they must get connected
 they must then pay for access to
the world's knowledge

31.
●what if the war on digital
sharing is ”lost”?
 every person on this planet with
Net access could obtain a copy of
every digital artefact – text,
image, sound, video - ever
created
 could give access to practically
all human knowledge, to anyone
with a Net connection – not just
the developed world, or the rich
 shouldn't we hope for this Pyrrhic
”defeat”?

32.
back to basics
 copyright not about preserving the
West's grip on content
 copyright not about protecting old
business models
 copyright not about defending
authors' or publishers' ”rights”
 copyright is about ”the
Encouragement of Learning”

33.
creative scarcity
 copyright was framed in a world of
creative *scarcity*: few authors
producing few books
 designed to encourage more authors
to write more books, and for
publishers to print them
 because the process was
complicated and costly, and
incentives were needed

34.
creative abundance
 today, we live in a world of
creative abundance
 the Internet liberates creativity
by removing barriers to
publication
 anyone with an Internet connection
can create and publish for near-
zero cost
 incentives are no longer needed

35.
the virtuous circle
 today, the optimum way of
”encouraging learning” is to free
it up for the billions who
currently have little access to
it
 educating them through access to
knowledge will feed back even
more creativity into the system
 self-fuelling, positive feedback

36.
but
 ”nobody has the right to diminish
my copyright in this way”
 but society *does* have that right
- just as it had the right to
strengthen copyright, repeatedly,
by extending its range and its
term
 society might well decide changed
circumstances require *reduced*
copyright terms

37.
the precedent (1)
 for those who insist that simply
can't be done, there is a
historical precedent: the first-
sale doctrine
 rights to control the change of
ownership of a particular copy
end once that copy is sold
 society decided this was a fair
and reasonable limitation for the
sake of balance

38.
the precedent (2)
 those who talk of ”IP” compare
copyright infringement with
trespass
 in 20th
century, law on trespass
radically limited by taking away
airspace rights
 "every transcontinental flight
would subject the operator to
countless trespass suits"

39.
digital airspace
 we need to allow copies to pass
freely through the associated
digital space ”above” analogue
objects, just as planes can pass
freely through airspace above
private property
 if not, the war on digital sharing
becomes a war on the ability of
the mind to connect, to share, to
collaborate freely online

40.
ethical copyright?
 copyright was originally 14 years
+ 14 years; the copyright
”ratchet” has been moving it up
to 70 years + life
 the ratchet went the wrong way –
should have decreased the term of
copyright as more creators
arrived, less incentive needed
 for analogue content, perhaps
bring it back to 14 years

41.
Internet time
 what about digital content?
 famously, one calendar year is
seven Internet years
 digital content lives on Internet
time, so for that, should measure
copyright on Internet time
 14 Internet years = 2 calendar
years

42.
ethical patents?
 what about patents?
 as for copyright, there are two
kinds of patents: analogue and
digital
 analogue patents operate on
calendar time, so leave the term
of 20 years (as it was in 1449)
 digital patents – software patents
– block innovation
 abolish them

43.
ethical intellectual
monopolies?
 are ”ethical copyright” and
”ethical patents” a contradiction
in terms?
 perhaps need to abolish both
completely to allow all knowledge
to be shared freely, to let
humanity soar
 growing evidence that's not only
ethically right, but economically
possible

44.
share nicely
glyn.moody@gmail.com
@glynmoody on identi.ca/Twitter
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