<nettime> Steal This Essay 4: Are We Just Rationalizing Theft?

[Jeremy Quinn <jeremy@hrc.wmin.ac.uk>(by way of richard barbrook)]

>Steal This Essay 4: Are We Just Rationalizing Theft?
>----------------------------------------------------
>  by Dan Kohn
>
>   "Information is the currency of democracy."
>     - Thomas Jefferson
>
>  At least since the U.S. Constitution explicitly granted Congress
>  the power to protect copyright, an intellectual foundation has
>  been built up regarding intellectual property. My previous essays
>  argued that foundation is now crumbling, and will be gone within
>  10 years as broadband connections (to enable easy transfer of
>  large files) become ubiquitous and people become more comfortable
>  viewing material on computer screens (where it becomes impossible
>  to stop copying) versus on paper (where content is still somewhat
>  excludable). In other words, if you make money from selling
>  content, the news is worse than you think.
>
><http://db.tidbits.com/getbits.acgi?tbser=1209>
><http://db.tidbits.com/getbits.acgi?tlkthrd=1503>
>
>  But whether or not this trend is inevitable, one could stop and
>  ask whether it's a good thing, and whether the death of excludable
>  content should be grieved or cheered. Property is generally
>  defined by economists as goods that are rival (e.g., if I take
>  your car, you don't have one) and excludable (e.g., you can lock
>  your door to keep me out of your home). As information has become
>  digitized (and therefore nonrival and nonexcludable), the
>  intellectual underpinning of intellectual property has eroded, so
>  that today the term intellectual property is little more than an
>  oxymoron. Intellectual property may, in a few years, sound as
>  strange to the ears as "reasonable attorney fees", "low tar
>  cigarettes", and "Zero Administration Windows" do today.
>
>  Note, however, that while this erosion applies to all forms of
>  copyright, 99 percent of patents remain valid and enforceable.
>  That's because the majority of patents entail securing property
>  rights regarding the manipulation of atoms, not bits. If someone
>  steals your patented concept of how to build a better mousetrap,
>  you can still sue that company, shut down their mousetrap factory,
>  and get a large cash settlement. Even patents regarding the way
>  information is stored on physical media, such as the MPEG patents
>  that apply to DVDs, remain enforceable because you can sue to shut
>  down DVD factories that violate them. The patents that will become
>  increasingly unenforceable are those regarding the transfer of
>  digital information over networks, such as the patents that
>  Fraunhofer holds over software that creates MP3 music. Yes,
>  Fraunhofer can sue large companies that might infringe, such as
>  Microsoft or Real, but they are unlikely to succeed in stopping
>  individuals that create MP3 software as a hobby and release it for
>  free. Bits are virtual; atoms are real. The rule of thumb is that
>  if you can't kick it, you can't sue it.
>
>  Won't people's conscience stop them from "stealing" other's
>  "property?" Ask the millions of college students who popularized
>  Napster. The reality is that new technology almost always changes
>  the views of its users as to what is permissible and even what is
>  moral. For example, the Pill radically changed society's view of
>  the permissibility (and feasibility) of sex outside of marriage,
>  and had even larger effects on the role of women in all walks of
>  life. Going back further, it is hard to see how Martin Luther's
>  Protestant Revolution could have taken hold without the broad
>  availability and consequential wide literacy enabled by the
>  Gutenberg Bible. In fact, the drastically reduced cost of
>  information distribution that Gutenberg's printing press entailed
>  can be seen to underpin the entire Enlightenment, as well as its
>  intellectual offspring, liberal democracy and market capitalism.
>  (Not to mention the similarity that the printing press was quickly
>  applied to the production of erotic texts and imagery, just as
>  VCRs caught on as a way to watch adult movies in the comfort of
>  one's home, and the sons-of-Napster are exchanging an increasing
>  quantity of adult materials in addition to MP3 music.)
>
>  As the marginal cost of distributing information goes from a few
>  pennies per megabyte (the approximate cost of most media today) to
>  zero, it is likely that the impact on larger society will
>  accelerate. Most people will probably come to see the terms
>  property and stealing as simply unrelated to how information is
>  distributed and how its creation is funded.
>
>> Price per megabyte of different media today
>> ------------------------------------------------------------
>> book             $20/50 MB      $0.40 per MB per copy
>> newspaper        $0.50/10 MB    $0.05 per MB per copy
>> 30 second TV ad  $500,000/5 MB  $0.03 per MB per person
>>                                 (assuming 3 million viewers)
>> CD-ROM           $15/650 MB     $0.02 per MB per copy
>> DVD              $50/7000 MB    $0.007 per MB per copy
>
>  A.J. Liebling said that "Freedom of the press belongs to those who
>  own one." The reality is that throughout history, the distribution
>  of information has been monopolized by a tiny, yet extraordinarily
>  powerful, elite. In ancient Egypt, priests would jealously guard
>  their astronomical knowledge so as to ensure their place at the
>  top of society by being able to predict the annual flooding of the
>  Nile. The Roman Catholic Church used the literacy of its clergy
>  and monks to develop a parallel government that was more powerful
>  than the theoretically sovereign kings during the 1,000 years of
>  the Middle Ages. Although freedom of the press is enshrined in the
>  First Amendment to the U.S. Constitution, the reality today is
>  that the majority of information distribution channels are still
>  controlled by a small elite of publishers and broadcasters. An
>  oligopoly of five powerful companies has nearly exclusive control
>  in deciding what music will be heard. (This is certainly one of
>  the fundamental reasons that Britney Spears is so popular.)
>
>  The influential media theorist Ithiel de Sola Pool described the
>  concept of a technology of freedom, which he said, "aims at
>  pluralism of expression rather than a dissemination of preferred
>  ideas." Pool analyzed the radical differences in how
>  communications technologies were regulated by the government,
>  based on the perceived scarcity of how many publishers could be
>  supported. The press was the gold standard by which others were
>  measured, which because of its wide availability, is given the
>  broadest First Amendment protection. But radio and television
>  broadcasters, by convincing the government that there is a
>  scarcity of available radio spectrum, have successfully argued the
>  need for heavy regulation. Thus, the government not only regulates
>  the kinds of content that can be broadcast (allowing almost any
>  level of violence as long as no nudity is shown) but also makes it
>  far more difficult for new entrants to compete with the
>  established players.
>
>  If he were alive today, Pool would surely believe that the
>  Internet is the ultimate technology of freedom. Or, as Judge
>  Dalzell said in his historic ruling in ACLU v. Reno that
>  pronounced the Communications Decency Act unconstitutional, "It is
>  no exaggeration to conclude that the Internet has achieved, and
>  continues to achieve, the most participatory marketplace of mass
>  speech that this country - and indeed the world - has yet seen."
>  Intriguingly, he implied that the Internet may therefore deserve
>  even greater free speech protection than what is currently
>  available for print. That's because anyone with basic literacy
>  skills can use the Internet to reach an enormous and growing
>  audience for almost no cost. If Liebling was right and the
>  limiting factor is the availability of the printing press, than
>  that price has been reduced to the $1 an hour or so charged by
>  Internet cafes, or the free Internet access made available in many
>  U.S. libraries.
>
><http://www.aclu.org/court/cdadec.html>
>
>  The world we seem to be entering, then, is one in which the
>  distribution of content is essentially free, even while its
>  creation must still be funded. However, the group most responsible
>  for promoting the concept of intellectual property is the
>  recording industry, which generally gets the ownership rights to
>  artists' music in exchange for agreeing to distribute it. Is it
>  any wonder then that the recording industry routinely makes absurd
>  comparisons such as that there is no difference between stealing
>  music and stealing a car? (The recording industry also routinely
>  refers to copying music as piracy, trivializing a real crime in
>  which hundreds of people are killed every year on the high seas.
>  Piracy on the seas is violent as a direct result of the fact that
>  physical goods are rival.)
>
>  A world in which distribution is free is one where many more
>  voices can be heard (and also hopefully in which the corresponding
>  mouths can be fed). It is unlikely, though, that there will be
>  enough money left over to support the recording industry. On the
>  night when the RIAA's last lawyers are laid off - they will go out
>  toasting, "Well, at least we brought Napster down with us" - few
>  tears will be shed for the demise of the music oligopoly.
>
>  Of course, the music industry as it currently exists is not giving
>  up without a fight, and a future essay will examine how their
>  announced digital offerings compare with the many services that
>  have risen up in place of Napster.
>


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