Monday, May 31, 2010

A Fresh View of Copyright Law in the Digital Age

Larry Lessig is a lawyer and self-proclaimed liberal leftist, but don't let those facts keep you from watching his TED talks! He sheds a bright new light on our previous discussions of L-Mind vs C-Mind issues here at The Virtual Philosophy Club. He has shaken some of my biases and awakened me to new possibilities. Perhaps he will do the same for you.

In the first [click above image to view it], recorded a couple months ago, he contrasts the traditional conservative values with modern liberal ones with logic that will twist your mind into a knot. In the second [click image below to view it], recorded a few years ago, he uses common sence to suggest a balanced view of ownership of creative content.

I'd appreciate your comments. He has clarified and corrected some of my views and, at this point, I am almost completely in agreement with him.

Ira Glickstein


Howard Pattee said...

I have no problem softening copyright laws, but that is all about money. Lessig’s connecting it with L- and C-minds is without any basis.

My own opinion of remix as found on You Tube (including what Lessig shows us) is that it is harmless except for being a waste of time for most teenagers.

Lessig may be an expert in internet law, but he is weak on history. Theodore Roosevelt would be thrown out of today’s Republican Party! T. R. was in the forefront of liberal social thinking in his day, advocating for women's rights (His undergraduate thesis at Harvard was on this topic.) and vigorous government intervention to protect people from selfish corporate interests. Roosevelt helped pass laws such as The Meat Inspection Act of 1906 and The Pure Food and Drug Act. Roosevelt dealt fairly with unions. When the United Mine Workers went on strike he set up a fact-finding commission which resulted in the workers getting more pay for less hours. Fed up with Republicans, he founded the Progressive Party. “The welfare of each of us is dependent fundamentally upon the welfare of all of us."

Lessig also does not mention that The Digital Millennium Copyright Act (DMCA) was passed by a unanimous vote in the United States Senate (so he should not blame democrats!). Furthermore, the law merely implements two 1996 treaties of the World Intellectual Property Organization (WIPO). The DMCA's principal innovation in the field of copyright is the exemption from liability of internet service providers and other intermediaries. It also makes it illegal to manufacture and disseminate technology or devices, (e.g., anti-dongles) intended to circumvent control of copyrighted works. The European Union passed the Copyright Directive or EUCD, which addresses the same issues as the DMCA. There are dozens of exception like personal use, research, archiving, etc. I don’t think“ remix” is even defined.

I don’t see any way the Internet can ever be effectively controlled by laws. It is an international uncontrolled (malignant) growth. Enforcement of laws on sites like and are useless.

Ira Glickstein said...

Thanks for your Comment Howard, and I agree with nearly all of it.

Lessig is a very effective speaker who uses clever argumentative ploys. For example: 1) Walt Disney's reuse of classic tales (Pinnochio, Cinderella) as an example of remix, and 2) The right of airplanes to overfly without permission of landowners as an example of how technology requires legal concepts to be modified.

For readers who -like me- did not know what a remix is, it is a "derivative work" that takes snipits of copyrighted audio or video. For example, making it look like Pres. Bush is singing a song recorded by someone else.

1) Lessig congratulates Disney for his wonderfully creative long-form animated features. However, the tales Disney appropriated were out of copyright, so it is not clear how what Disney did is comparable to a remix of contemporary material without permission of the copyright owner.

2) In the second linked TED talk he says the advent of air travel changed the idea that landowners had title of their property all the way up to space. Of course, it would be utterly impractical to get permission of each individual landowners, so laws allow overflight at particular altitudes. Similarly, the advent of digital copying, which, unlike previous technology, produces a perfect copy at almost zero cost, requires us to rethink the whole concept of copyright.

Here he is on to something. Modern society must come up with a way to balance and better define "fair use" without completely abandoning intellectual property rights. I do not know the most beneficial solution, but I am sure it is a balance between absolute digital rights management (DRM) and totally free copying. I generally supported the Digital Millennium Copyright Act (DMCA) passed unanimously by both Republicans and Democrats and signed by Democratic President Clinton. However, in the light of Lessig's arguments, it may need to be softened a bit, as Howard says.

My only quibble with your Comment is when you say of the Internet: "It is an international uncontrolled (malignant) growth". I agree its growth cannot be completely controlled with laws, but I don't like your use of the word malignant. [DEFINITION: evil born 1. having or showing desire to harm others, 2. tending to cause great harm; injurious].

The invention of the Internet is highly disruptive (as was metaphoric language and writing and the printing press and representative democracy and electronic communications and broadcasting and computers). But, is it evil?

Perhaps, from the point of view of the other animals, humans could be considered malignant in that we use (or misuse) our big brains to rule (or attempt to rule) over Nature.

I, as a human, prefer to believe Nature created us to accomplish things She could not do "naturally" such as genetic engineering and spreading life to other planets and solar systems. The Internet is a step along that path. Yes, there is a risk our technological zeal may well destroy the planet. But it is certain that inaction will allow Earth to be destroyed when the Sun goes Red Giant in a mere 5 billion years. Do you think the ultimate goal, saving human life and civiliation for an infinite future, which can only be achieved via UN-Natural technology, is evil?

Ira Glickstein

Howard Pattee said...

I agree that the Internet and in fact all of technology is inherently amoral. Cancer is also amoral, but we call it malignant. I think we should reserve the concept of "evil" for acts that are intentional, whatever that means.

Ira Glickstein said...

Interesting view of amorality Howard.

Morality, it seems to me comes in two flavors: Local and Universal.

From the Universal perspective, you are correct that technology and cancer are amoral, if and only if the Universe (or God for someone who believes in a sentient Deity separate from His Creation) does not have any special care for any form of life (or non-life). However, if the Universe (or God) prefers life to non-life, or some particular instance of life to some other instance, then something (technology, cancer, ...) that distinguishes between the preferred and non-preferred, is no longer amoral from that perspective.

On the other hand, from the Local point of view, morality obtains to all things, according to how they affect the life, liberty, and pursuit of happiness of a given society. We call cancer malignant when cells grow out of control and kill us or someone we love. On the other hand, we may celebrate when lung cancer cures smoking in someone we do not love.

There is also an issue of the time horizon when we judge morality. For example, denying your child sugar candy causes distress in the short term but may pay off for him or her in the form of better health in the longer term. Analogously, technology may cause some of us distress, loss of employment or death in the short term, but, considering the overall society and a very long time horizon, it may be beneficial to society overall.

If humans on Earth are the only sentient force that may preserve civilization beyond the inescapable and natural death of our Sun, can it be moral to let that happen? If there is other life in the Universe, would we be moral if we prefer to have it die with their Sun rather than spread out and potentially come into conflict with us? Would the Native Americans have been better off, in the long run, had European civilization stagnated in place?

I think these are valid moral issues.

Ira Glickstein

Howard Pattee said...

Ira proposed that, “from the Local point of view, morality obtains to all things, according to how they affect the life, liberty, and pursuit of happiness of a given society.”

This is too broad a usage to be of much value. Most philosophers say that the possibility of choice is necessary for moral behavior. A rock can affect your life but it has no choice, even if you trip on it or it falls on your head. That’s called an accident. Accidents are amoral even if they are catastrophic.

Ira Glickstein said...

I agree Howard that choice is necessary for some organism (or some group of organisms) to be a moral agent. Good point, and I misspoke when I claimed "morality obtains to all things..."

Thus, cancer cells, which have no choice but to grow uncontrollably, are not immoral or evil, though they are properly called malignant by their host organism because they grow out of control and are bad for the host organism.

Similarly, children, whose critical faculties are not fully developed, are considered incapable of being moral agents until the age of, say, seven, and not fully so until the age of puberty or perhaps 18 or 21. Indeed, even adults with IQs below 70 or 80, or mental handicaps, are treated differently by the law.

Can an entire society be considered a moral agent or is that designation applicable only to individual leaders? Say society "X" does horrible things while "Y" does good things. Most of the members of "X" are neither more nor less moral than those of "Y", but, I would say society "Y" is a moral agent, and "Y" is more moral than "X".

Analogy: 99% of the cells that make up the body and brain of a criminal murderer are no more nor less moral than those that make up yours or mine, yet we properly consider their sum to be a moral agent, a criminal murderer who is evil.

So, back to the Internet. It is a super-society - the sum of the engineers who who created it (most of whom probably could not imagine how quickly it would develop), the entrepreneurs who developed the commercial services, and the people like you and me who surf the Internet and create content.

In what way is the Internet malignant? Yes, it has grown rapidly and uncontrollably and promotes porn and other dangerous products and false ideas, but it is incredibly beneficial to the spread of accurate information, knowledge and healthy entertainment.

Perhaps, as I point out, the Internet and related technologies are key to preserving human life and civilization beyond the inevitable explosion of our Sun. How much "bad" stuff would it take to cancel out that potential benefit?

Could the Intenet be considered an organism? If so, could it be a moral agent?

Ira Glickstein

joel said...

I'm sorry, but I've been out of the loop for awhile. It seems to me that what's missing from this discussion is the philosophy behind patents. As you see below, Jefferson believed that there is no natural right (like life, liberty and the pursuit of happiness) to exclusivity of one's inventions. The state or society grants exclusivity when it is in the interest of society. Do we all agree on that much? Note that Jefferson thought that it was not the business of the courts.

From ( It has been pretended by some, (and in England especially,) that inventors have a natural and exclusive right to their inventions, and not merely for their own lives, but inheritable to their heirs. But while it is a moot question whether the origin of any kind of property is derived from nature at all, it would be singular to admit a natural and even an hereditary right to inventors. It is agreed by those who have seriously considered the subject, that no individual has, of natural right, a separate property in an acre of land, for instance. By an universal law, indeed, whatever, whether fixed or movable, belongs to all men equally and in common, is the property for the moment of him who occupies it; but when he relinquishes the occupation, the property goes with it. Stable ownership is the gift of social law, and is given late in the progress of society. It would be curious then, if an idea, the fugitive fermentation of an individual brain, could, of natural right, be claimed in exclusive and stable property. If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property. Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without

joel said...


claim or complaint from any body. Accordingly, it is a fact, as far as I am informed, that England was, until we copied her, the only country on earth which ever, by a general law, gave a legal right to the exclusive use of an idea. In some other countries it is sometimes done, in a great case, and by a special and personal act, but, generally speaking, other nations have thought that these monopolies produce more embarrassment than advantage to society; and it may be observed that the nations which refuse monopolies of invention, are as fruitful as England in new and useful devices. Considering the exclusive right to invention as given not of natural right, but for the benefit of society, I know well the difficulty of drawing a line between the things which are worth to the public the embarrassment of an exclusive patent, and those which are not. As a member of the patent board for several years, while the law authorized a board to grant or refuse patents, I saw with what slow progress a system of general rules could be matured. Some, however, were established by that board. One of these was, that a machine of which we were possessed, might be applied by every man to any use of which it is susceptible, and that this right ought not to be taken from him and given to a monopolist, because the first perhaps had occasion so to apply it. Thus a screw for crushing plaster might be employed for crushing corn-cobs. And a chain-pump for raising water might be used for raising wheat: this being merely a change of application. Another rule was that a change of material should not give title to a patent. As the making a ploughshare of cast rather than of wrought iron; a comb of iron instead of horn or of ivory, or the connecting buckets by a band of leather rather than of hemp or iron. A third was that a mere change of form should give no right to a patent, as a high-quartered shoe instead of a low one; a round hat instead of a three-square; or a square bucket instead of a round one. But for this rule, all the changes of fashion in dress would have been under the tax of patentees. These were among the rules which the uniform decisions of the board had already established, and under each of them Mr. Evans' patent would have been refused. First, because it was a mere change of application of the chain-pump, from raising water to raise wheat. Secondly, because the using a leathern instead of a hempen band, was a mere change of material; and thirdly, square buckets instead of round, are only a change of form, and the ancient forms, too, appear to have been indifferently square or round. But there were still abundance of cases which could not be brought under rule, until they should have presented themselves under all their aspects; and these investigations occupying more time of the members of the board than they could spare from higher duties, the whole was turned over to the judiciary, to be matured into a system, under which every one might know when his actions were safe and lawful. Instead of refusing a patent in the first instance, as the board was authorized to do, the patent now issues of course, subject to be declared void on such principles as should be established by the courts of law. This business, however, is but little analogous to their course of reading, since we might in vain turn over all the lubberly volumes of the law to find a single ray which would lighten the path of the mechanic or the mathematician. It is more within the information of a board of academical professors, and a previous refusal of patent would better guard our citizens against harassment by law-suits. But England had given it to her judges, and the usual predominancy of her examples carried it to ours.

Ira Glickstein said...

Great to have you back in the "loop" Joel!

Yes, we need to agree on the philosophy behind patents.

I agree with Jefferson and you that the right of exclusivity to an idea, once it has been made public, is not a natural or basic right like life, liberty and the pursuit of happiness. Rather, intellectual property rights are justified only insofar as they tend to benefit the greater society.

I find it interesting that Jefferson is lukewarm about patents, writing: "England was, until we copied her, the only country on earth which ever, by a general law, gave a legal right to the exclusive use of an idea. ... and it may be observed that the nations which refuse monopolies of invention, are as fruitful as England in new and useful devices."

Well, that was written 200 years ago. If he were aware of the history of the past two centuries, Jefferson might revise his views of nations that refuse monopolies of invention. It seems to me that England and the US, and the other countries that protect intellectual rights, have indeed turned out to be far more fruitful that those that have not. Virtually all modern countries recognize intellectual property rights (though many do not enforce these rights as well as we'd like).

Reading Jefferson's beautifuly written words and cogent arguments further reinforced my view of American exceptionalism and how fortunate we were to have founding fathers of such high intelligence, education, knowledge, and -most important- common sense!

He summarizes what is and is not a patentable idea in a very clear way.

I was also struck by his example that sharing an idea was very much like allowing someone to light his taper from yours - it does not diminish your light in any way!

Or does it? If you were the first to invent fire and were in the business of cooking food for others, or lighting their way for a fee, once you shared that fire, they would be able to do it themselves and you would be out of work. So you would be diminished.

Which brings us back to copyright law. In the recent past, copying a book or a recording of a musical performance was relatively expensive and the product was often inferior to the original. With digital copying, there is almost no cost, and the copy is exactly as good as the original. This is very much like allowing someone to light his taper from yours.

So, where does this get us? Well, we have to balance the rights of the person who invested time and resources to come up with the idea against the benefit to society of granting exclusivity so as to encourage invention and creativity. Absent patents, valuable formulas would be kept as trade secrets and might die with the inventor or never be released to public use. With patents, those ideas are immediately made public and, after the fixed period of exclusivity, made available for all to use freely.

What do you think of Lessig's views on this Joel? How would you apply them to reform our copyright (and patent) systems for the benefit of society, particularly in the digital age?

Ira Glickstein

joel said...

I don't know if I made my point clearly (or Jefferson's). Individuals have no inherent right to their own ideas. The instant they share those ideas with others, others may use those ideas. There is no "balancing" of the individual's right to his creations versus society's needs, because the individual has no such right according to Jefferson. Only the state can grant the individual a monopoly such that no one else can make use of an idea (at least without paying).

The question is why the state might do such a thing. What is the advantage for the collective to forbid its members from using what they have learned from an individual? Jefferson considered this a great inconvenience to the members of the collective and a hinderance to progress. (Though both he and Franklin invented many useful devices, neither ever applied for a patent.) He believed that the monopoly ought only be granted under extreme circumstances in order to encourage invention.

We have strayed very far from this principle even though Jefferson was the first head of the patent office and despite the fact that the Constitution makes it quite clear that patents exist "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." In my opinion it's too easy to obtain exclusivity for trivial improvements to old technology. I recall a lecture at the Imperial College in which the speaker bragged about obtaining a patent for a device that measured the scatter from a sample illuminated by a beam of light. Normally the film is rotated, but in his apparatus the sample was rotated. That permutation was enough to award a patent. I doubt that this would hold up in an infringement case, but all these trivial patents serve to stifle research for fear of doing something illegal. Jefferson was right that the patent board is the place to determine the worthiness of a patent, not the courts.

So what has this got to do with remixing? It is the basis or philosophy that can tell us whether or not music clips or video clips can be used in remixed videos. When in doubt, no monopoly should be given. Jefferson constantly hummed tunes of the day and played them on his violin for guests. He would have been appalled that copyright was used to prevent girl-scouts from sitting around a campfire from singing copyrighted material. I think that he would have approved of totally free remixing especially if it made a profit from the internet. I think it's hard to argue that composers would not have their material performed and recorded out of fear of remixing. Remixing=Progress.

Ira Glickstein said...

Joel, I generally agree with you that a patent should not be granted for a simple permutation like rotating the sample rather than the film. That fits into Jefferson's statement that substituting square buckets for round ones does not deserve a patent.

I also agree with you and Lessig that most remix stuff is not copyright infringement.

That said, I am still in favor of a more robust copyright and patent system than Jefferson and you seem to support. I do so on the basis of the relative economic and creative success of countries that have protected intellectual property as against those that have not.

Back over 100 years ago, Gilbert and Sullivan wrote several very popular comic operettas (a few of which I have memorized to a large extent). Competitors would attend the initial performances in London and, using shorthand, copy the libretto and music. These unauthorized copies were transported to other cities in England and to America and other English-speaking countries reducing the value of the originals when they finally made their way to these other markets. These and other popular writings were also translated to other languages without authorization.

I cannot help but think that was (and is) as wrong as stealing.

American copyright pirates thrived during the time our law did not protect foreign authors:

"Particularly hard hit were W.S. Gilbert and Arthur Sullivan, whose delightful operettas were performed throughout the United States in the last decades of the nineteenth century. Having gotten burned on their productions of H.M.S. Pinafore and The Pirates of Penzance, they tried various schemes to try to beat the American system. For Iolanthe, they published the libretto and basic piano accompaniment, but withheld publication of the full Sullivan score, on the assumption that it would be better protected as an unpublished work. They then assigned the American performance rights to D’Oyle Carte, whose company specialized in the production of Gilbert and Sullivan operettas, and arranged for a simultaneous opening of the work in London and at the Standard Theater in New York.

"Notwithstanding their efforts, an American producer hired John Philip Sousa, leader of the Marine band in Washington, to arrange his own orchestral accompaniment to Iolanthe. When Carte tried to stop the competing American performances, the circuit court in Maryland, in the Iolanthe case, found that the work, having been effectively published in England, was not protected under the existing American copyright law. Commenting upon the unique orchestration, the court observed that, 'as enjoyed by the vast majority of these [thousands of] persons, the musical niceties of the orchestration are quite subordinate to the wit of the libretto and the airs and harmonies of the voice parts,— the orchestration being indeed a subordinate accessory.' (Had the judge never seen and heard an authentic Gilbert and Sullivan performance?)

"For The Mikado, Gilbert and Sullivan not only withheld publication of the Sullivan orchestration, but they hired George Lowell Tracy, a Boston composer, to come to England and create a piano accompaniment; they then assigned the American performance rights to Tracy. To thwart the 'Mikado-mania' in anticipation of their new production, Gilbert and Sullivan kept everything about their new production a secret; Carte and his company sailed to the United States under assumed names."

On a related issue, Mozart, as a 14 year old back in the 1630's, supposedly memorized Allegri’s Miserere. The Pope had ordered excommunication for anyone who transcribed that secret mass. But the child prodigy was able to reproduce the entire score after having heard it just once in the Sistine Chapel! (Edward Teller uses this story to illustrate that great works of bth art and science have a simple pattern at their heart that can be discerned in an instant by experts in that field.)

Ira Glickstein

joel said...

Ira said:
That said, I am still in favor of a more robust copyright and patent system than Jefferson and you seem to support. I do so on the basis of the relative economic and creative success of countries that have protected intellectual property as against those that have not.

Joel responds: I don't see how you can imply cause and effect in the case of more generous patents and economic well-being. There are so many other factors involved. Also, don't mistake my advocacy for Jefferson for my personal opinion. I haven't made up my mind yet, being torn between Jefferson and Ayn Rand.

Ira said: I cannot help but think that was (and is) as wrong as stealing.

Joel responds: I'm not so sure. It can be argued that violation of someone's natural rights (stealing, murdering, etc. for example) is worse that violating their government privilege (trespassing, copying, for example). Perhaps the law recognizes by making the former a felony while the latter is a civil tort.

Ira Glickstein said...

Joel: I can only hope that Ayn Rand wins out over Jefferson when you make up your mind.

As for the possible benefit the British and American patent/copyright systems have had in making our countries more prosperous, it is, as you say a multi-factor analysis. Perhaps we could greatly weaken or abandon protection of intellectual property with no great loss. On the other hand, we might be killing the goose that lays golden eggs. Is the risk worth it?

Yes, the mere unauthorized copying of a Gilbert and Sullivan libretto and score is a civil tort. If 100 or 1000 or 1000000 people merely copied it, that would be no great loss to the authors.

The great loss came when the unauthorized copies were used to stage performances. Unauthorized performances diminished Gilbert and Sullivan (G&S) in two ways: 1) If they were substandard, they could ruin G&S's reputation, and 2) If they were of good quality they would spoil G&S's opportunity to stage subsequent performances in those cities. I am no lawyer, but that is awfully close to a criminal matter.

For example, McDonalds has built up a great reputation. If you copied their hamburgers and served them to your family, that would do McDonalds no great harm. On the other hand, if you opened faux McDonalds restaurants, that might be criminal. If your product and service were substandard you would diminish McDonalds reputation. If your products and service were as good as the original, you would pre-empt them from expanding into those areas you were serving and would be a free-loader on their reputation and their investment in product development and advertising.

Ira Glickstein

joel said...

If we follow Ayn Rand's philosophy, we would believe that there is something special about "creators." They are entitled to a different morality than the rest of humanity. You'll remember that Roark in "The Fountainhead" dynamites the low income apartments, because they didn't follow his design precisely. Rand would probably be in favor of the notion that all men are not created equal. Monopolies for creators would be merited simply based upon their position as privileged creators. I don't know if she would accept the notion of monopoly being passed on to descendants. One could argue that descendants not being creators themselves have no right to the proceeds. Contrary to Jefferson's view, she wouldn't care about the benefits to society.

Personally, I see that I've gone through a transition. When I was young and more creative and more impressed with myself, I sided with Ayn Rand. Now I can see Jefferson's point. In my current view, creators are still special, but they do not create in a vacuum. They stand on the shoulders of giants and they take advantage of what society and culture provide them. We need to recognize what creators owe to the collective.

Ira Glickstein said...

I have not read Ayn Rand for several decades. As I recall, her characters are cartoonish and her points are overly sharp, which is part of the reason her books had such a great impact. I certainly do not think Rand's ideas are meant to be interpreted in a totally literal way.

Yes, she would support the (temporary) protection of intellectual property afforded by copyright and patents. As for the descendants of creators, I believe she would take the position that the money and income stream earned by a creator is his or her absolute property, and he or she could pass it on (or not) to heirs or to anyone else according to his or her discretion.

Are you moderating in old age? Perhaps now that you (and I) are, on net, consumers of the products of society and no longer major producers, we are more sympathetic to others who are "on the dole".

My view remains the same - intellectual property should be protected only temporarily and only to the extent such a policy benefits society in the long run. I believe the history and relative success of English-speaking countries, which, in the tradition of our Mother Country, afford greater protection of intellectual property than most other traditions, speaks to the value of patents and copyrights. On the other hand, some drug patents and others are questionable, as are some aspects of digital rights management, so we need some hard-headed, common sense limitations along the lines suggested by Lessig.

Ira Glickstein