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 opendotdotdot.blogspot.com