I very rarely blog about technical things. But I am, after all, a geek by nature and by profession.
I used to think of intellectual property as a pretty black-and-white issue. Downloading music is just like stealing. Copyright infringement is always bad. Intellectual property is just like tangible property.
Lessig hits a lot of related points in his book, but here are some things that stood out to me.
Intellectual property is not the same as tangible property, at least in the Anglo-American legal tradition. English law in the late 1700s formally established that copyrights were only for a limited time. The US Consitution clearly treats intellectual and tangible property differently. Congress is explicitly granted authority to protect and regulate intellectual property. No explicit authority is given to protect tangible property. It’s pretty clear that our Founding Fathers did not consider them to be the same. IP is only protected for a limited time (theoretically, although extending copyrights every few years is indistinguishable from “forever” in my mind).
Even if intellectual property _was_ the same as tangible property, and it’s not, property rights are not absolute. We don’t live in a libertarian utopia. In this world, you give up some of your rights, including some of your property, to participate in society. Taxes are the most obvious example. Also consider, young men can be drafted to fight and die in a war. Your land can be seized under eminent domain. A wide variety of laws and ordinances, from zoning regulations to environmental protection laws, can restrict your rights to control your own property. If it is in the best interests of society to do so, your rights to your property can be infringed.
The Constitution provides for the protection of intellectual property to _promote progress_. The most natural way for progress to happen is if someone can make a buck from it. I write a book, I sell a book, I make money. But, this also means we should evaluate our IP laws to see if they are promoting or hindering progress. There is a balance that must be struck, which is why the Constitution does protect intellectual property, but only for a limited time.
Most intellectual property stops producing revenue for its creators within a few years. At that point, progress is no longer promoted by protecting this property. Progress can only be inhibited by it. Our IP laws should be structured around the period of time a work is actually making money for its creator.
The IP battle is being fought on several fronts, ranging from cases of simple copying, to producing derivative works. Lessig chronicles several absolutely silly cases in which ip laws hindered the creation of new creative works. He also explains why “Fair Use” is fairly useless in these cases.
Our laws also ought to make a big distinction between how IP is used. If I make a copy of a CD for my own use, that’s entirely different from reselling copies of a CD to the general public. It’s also different than making a derivative work (say, a parody) and selling that. There are lots of points in between these exremes, and the law should regulate some cases much more strongly than others.
And finally, we have to decide as a society just how much collateral damage we’re willing to accept in the fight over intellectual property. There is good evidence that even p2p file sharing (like Napster) does little, if any, economic harm. But the fight to shut down these IP violations may well do lots of harm by stifling creativity and the economic benefits that go along with that. We should not use a shotgun to kill a mosquito here.
Go read the book. It’s 300+ pages, but well worth it, and it goes quickly. It certainly helped me understand that there’s a lot more involved here than a black-and-white case of “stealing music”.