Wednesday, 21 November 2012

The Top 5 Things You Will Forget to do This Morning

  1. You will forget that you promised yourself you'd do real work this morning before checking your dozens of inboxes.
  2. You will forget that thing that you needed to do... you know... the one... with the thing. For the colleague with the other thing. Remember? Ah, dagnabbit.
  3. (I'm hoping) you'll forget to unsubscribe or unfollow moi.
  4. You will forget to stop being sucked in by posts that start "Top [number] somethings." It's clich├ęd link-bait.
  5. You will forget the fifth thing.

Saturday, 17 November 2012

A Brief History of Copyright

It feels like it's becoming impossible to shock anyone any more, although not from lack of trying. Even the Catholic Church is slow to let loose its wrath and fury. But in 1517, a single, scholarly monk managed to do exactly that, setting off a chain of events that plunged Europe into war for over a hundred years.

It was a lesson in the power of networks, and it was the origin of copyright.

Martin Luther
Martin Luther, a German monk, wrote a document titled “Ninety-Five Theses on the Power and Efficacy of Indulgences.” It was a scholarly critique of certain Roman Catholic Church's practices at the time. In particular, it attacked the corrupted practice of indulgences, where "pardoners" had started to aggressively market and sell salvation from Hell in exchange for money[1].

There was something else Martin Luther did in that document. He appeared to question the pope's authority. He asked why the pope needed to raise money from the poor when he had so much already. He actually questioned the legitimacy of papal policy.

Naturally, all hell broke loose.

There was an historical context of course. A match that small doesn't set off a fire storm without a lot of tinder and fuel lying about. There was also an accelerant, a change in the environment that meant subversive ideas could spread, rally support, and threaten states. That change had two parts: an increasingly literate peasantry and the printing press.

Johannes Gutenberg
Johannes Gutenberg had invented a system of "moveable type" printing in 1439. Together with other inventions of his own, he created a practical system for the mass production of books, at marginal costs for publisher and reader alike. By the end of the 15th century, his printing press had spread throughout almost all of Europe.

Luther's 95 Theses was the match. When his friends translated it into German and began printing copies, the match was lit and dropped on the dried-out frustrations, alliances, and accumulated discontent from hundreds of years. The ruling elites noticed that they too were standing on mountains of tinder and sawdust. Knowledge and ideas were no longer tools of the well-off: a literate, affluent peasantry were discussing new ideas amongst themselves.

Clearly, something needed to be done.

Queen Mary, aka "Bloody Mary"
Forty years later, Queen Mary I was trying to restore Catholicism to a briefly Protestant England.  The "menace" of the printing press and its use in fermenting opposition and revolt had already been well noted in many ruling courts. What a happy coincidence it was then, when the Stationers' Company, a guild of printers, approached the Royal Crown with a brilliant idea to control the copying and reproduction of documents. 

The idea was copyright.

In 1557, Queen "Bloody" Mary issued a Royal Charter to the Stationers' Company. In return for a monopoly on book production, Stationers were empowered to seize books that violated the standards set down by the Church and State, and guild members would not print books that were seditious or heretical.

Of course it didn’t work. By the time she died in 1558 her heavy handed tactics, which had grown to include burning protestants at the stake, had made her deeply unpopular. Her successor, Queen Elizabeth I, restored Protestantism to England.

Still, this concept of “copying rights” was a useful thing. And useful things are not easily surrendered by governments. Thirty years later the Star Chamber was chartered to curb the "contentious and disorderly" people "professing the art or mystery of printing books."

John Milton
However these excessive, heavy-handed and ultimately futile attempts to limit dissent led to a shift in attitudes towards "subversive" literature. The notion of "freedom of speech", that the expression of dissent should be tolerated had begun emerge, alongside the rise of newspapers and the press. John Milton for example argued for a new freedom of expression, and that pre-censorship should not be a function of government[4].

In 1694, the Stationers' Company monopoly on printing rights expired, and was not renewed by the British Parliament. This was potentially fatal to their business model. Unable to convince the legislature to create a new monopoly on censorship grounds, the publishing companies set about lobbying for a new way to ensure the viability of their business. They hit upon the idea of joining forces with authors (such as Jonathan Swift) to argue for essentially the same monopoly controls, but for the benefit of authors rather than the preservation of their business model.

In 1710, the Statute of Anne, the world's first copyright statute, came into force.

The justification for copyrights had changed however. It was no longer about controlling the distribution of subversive information (although copyright law has been used repeatedly for precisely that purpose ever since[5]). The justification now was that these rights were necessary in order to encourage learning. On the one hand, to encourage "the learned men" to commit their knowledge to books, and on the other, to allow booksellers and publishers a limited time to exclusively reproduce and sell those books so that the public could benefit from them.

The central tenet then was a quid pro quo. In exchange for a government-enforced, limited-time monopoly, the public would benefit from greater learning, the advancement of science, and the enrichment of culture. This value of reciprocity (the public benefits, the rights-holder benefits) is a recurring theme in the patent system as well, as we shall see.

That is where I will leave this history of copyright[2]. Let me explain. No, there is too much. Let me sum-up:
  • Copyright evolved in tandem with literacy, the cheap distribution of ideas, and a desire to control the distribution of information.
  • Modern notions of freedom of speech tempered the censorious nature of copyright, but added a publisher-centric (not author centric) set of copying rights.
  • At the heart of the first modern copyright acts, is the idea that there is a "pragmatic bargain", a mutually beneficial deal between the people and the publishers: that in order to improve the world, knowledge must be shared. And that this involves both the incentive to create the knowledge and write it down, as well as the right to copy and share it.
There is some use of metaphorical reasoning throughout the history of copyright[3]. However the Statute of Anne and the statutes that followed it did not rely on metaphor for their justifications. It was understood in its own terms. The stretch to metaphor as justification is a relatively recent invention it seems.

Next step: the origins of patent law.


Wednesday, 14 November 2012

Rough Cuts: Cut

I had a few posts here titled "rough cuts." They were essentially unstructured drafts that were just brain dumps. As such they seldom made much sense.

So I've removed them from here (really I just marked them as "revert to draft").

Update: I've moved them over to my Tumblr page.


What's a Rough Cut?

"Rough Cut" is the term used on Safari Books to indicate a draft book. I like the idea -- authors get feedback on early drafts prior to publication and readers get an early look at a coming book.

But here "rough cut" means "unfinished thought or unpolished post" -- it's thinking out loud and really only meant to help me sort out things in my head.

[This posted published 14 November was edited 26 November to add the "What's a Rough Cut?" text. Edited again to remove the actual text as well as the 2 other "rough cut" posts. Updated 16 December to point to Tumblr tagged pages.]

Friday, 9 November 2012

The Intellectual Property Metaphor

There is no such thing as intellectual property.

Richard Stallman is probably the best known person who has made this argument. Stallman wrote:
It has become fashionable to toss copyright, patents, and trademarks—three separate and different entities involving three separate and different sets of laws—plus a dozen other laws into one pot and call it “intellectual property”. The distorting and confusing term did not become common by accident. Companies that gain from the confusion promoted it. The clearest way out of the confusion is to reject the term entirely. [1]
Stallman's argument is technically correct. There really is, legally at least, no such thing as "intellectual property" (IP) in its own right. Rather, the term is an umbrella term, which brings together copyright, patents, trade secrets, trade marks, design rights, plant breeders rights and possibly others (depending on the jurisdiction).

Those items are brought together because they have similarities: they deal with proprietary rights (rights that can be enforced "against the world") over intangible things. Apart from this, these areas of law are largely unrelated. They do not share a common jurisprudence, historical origin or even a common purpose. However, this is changing, as more and more of a nation's economy becomes invested in these rights over intangible things, forcing both a rethink of how we manage such rights in parallel with an increasingly vocal effort to cement "intellectual property" into place.

Despite the arguments that "IP does not exist", most people seem to support the notion that it is not fair for others to benefit from someone's hard work. This idea of "unjust enrichment"[2] is arguably the one thing that does link all forms of intellectual property. It is unjust, it is argued, that someone should be able to profit from another's "sweat of the brow."

The sweat of the brow. It is a powerful metaphor, conjuring as it does the very real effort that is physically expended when we do physical labour. The metaphor easily lends itself to comparisons of another person reaping a farmer's crops, or stealing their cattle, or draining the water from their dam. When viewed in this way, we feel an emotional outrage at the idea that there are people who freely take an author's intellectual property for their own use and profit, with no benefit flowing back to the originator.

However -- it was just a metaphor. I've started to wonder if the unacknowledged use of metaphorical thinking is at the heart of our struggles with intellectual property. Apparently, I am not the first. Some very cursory searching (I refuse to call it "googling", for that is not a real word) has turned up some interesting reading[3].

The ultimate metaphor behind all of this of course, is the word "property" itself. To treat intellectual property ("IP") as property requires both an act of imagination and a suspension of disbelief (very similar to how we need to approach money in order for it to work). It also seems to require increasingly constrictive and aggressively enforced laws. As if they are trying to hold back a tide with just the hands of a million lawyers.

Acts of imagination are not inherently wrong. We do not complain about having to suspend our disbelief when someone hands us a scrap of paper that claims to be worth "100 dollars". We just call that a bank note and trust that it will hold some value. We also do not complain when our employer moves some imaginary numbers from their account to our account (which are also figments of our imagination and that of the banks), because we know and trust that something of value has been passed.

However, these acts of imagination and belief can cause problems when they are fundamentally at odds with reality. A very large amount of government intervention and social consent is required for the money system to operate. Crises in confidence (a collapsing of belief) in the money system are invariably catastrophic to their societies, at least in the medium term until belief in the system can be rebuilt. Consequently, the "creation" and distribution of money is heavily regulated (not as heavily as some people would like). Consequences for stepping outside this system (for example, printing counterfeit bank notes) is dealt with harshly.

What's interesting about money for me is that it does not rely on metaphor to work. We understand money in its own right. We have physical manifestations of it (notes and coins) which make it easy to learn as children. We understand the historical evolution of it, and why societies have evolved from using things of genuine direct value (eg grain) to proxies for value (eg cash) and finally to acts of mutually agreed imagination (bank accounts, cheques, credit cards and electronic transfers).

This is not so for IP. We continually rely on metaphors to define it, argue about it and enforce its existance. We speak of "theft" and draw direct analogies to car stealing and shop lifting. Even the use of the very word "property", with all the legal baggage that word carries, is using a metaphor (albeit, one with a sophisticated legal jurisprudence behind it). I suspect that most of our concepts from copyrights and patents have metaphorical origins.

Is it possible to understand IP "in its own right?" Is it possible to define a legal framework that matches both our instincts to protect peoples hard work, as well as our needs to share and exchange information to both improve our societies and enrich our cultures?

What I'd like to do next is explore the origins and stated aims of three kinds of intellectual property: copyright, patents and trade marks. I don't intend these to be to a scholarly standard (there's an alibi for you!). This is, after all, just a blog to dump some thoughts. Looking at the origins and stated aims of these distinct areas of law might help me to articulate a way to approach IP with a common thread. A theory of law (jurisprudence) to support our instinctive reaction against free riders.


Monday, 5 November 2012

So here's some code then...

Well, as "reboots" go that was extraordinarily short-lived.

So a while ago I wrote a post about converting RSS to Atom to feed into Blogger. A few people have left comments over the years, asking for the code. For a while there I wanted to clean it up first, then I forgot about it, then I lost it, and now that I've found it I remember why I wanted to clean it up first!

Note to future employers: this code was just for testing. I have much better code for you to judge me on!

Since I'm not going to get to cleaning it up any time soon, here is the code that will convert an RSS feed to Atom for importing into Blogger.

Enjoy.

This worked once upon a time. I haven't tested it with Blogger since I wrote it a few years ago. Such perverse XML formatting hijinks may no longer be required.