Tag: copyright

Scholar Takes on Empiricist View of IP

Photo by porpeller

Empirical evidence tells us that all human existence is a sand castle. At best, if no other cataclysm comes first (and one probably will), the inexorable expansion of our sun will wash away the Earth and any evidence that we were ever here. One possible exception may be the two records affixed to the Voyager spacecraft, still traveling years beyond their life expectancy as Voyager 1 is now about 13 billion miles from Earth. Of course, the odds of those records being discovered by intelligent beings—let alone beings that find us interesting—are less than minuscule.

Empiricism can tell us which notes, instruments, chords, time signature, and lyrics describe Chuck Berry’s recording of “Johnny B. Goode” are on board Voyagers 1 and 2; but these data can hardly explain what it is about Berry’s playing that moves us more than others—or for that matter, why anyone would invent a guitar or learn to play it in a certain way, or why humans would bother building a pair of spacecraft to explore the solar system and then choose Chuck Berry as one of a very few representatives to say, This is who we were.

“In the Bible’s second creation account, God breathes the ‘breath of life’ into the first human, charges him with the responsibility of tending the garden, and provides him with a companion with whom he will fill the Earth with descendants. In other words, God gives humanity the opportunity to create culture.”  

This excerpt comes from a new paper by David W. Opderbeck, professor at Seton Hall University School of Law.  It is a fresh response to Mark A. Lemley’s 2015 paper, which asserted that all non-empirical arguments for the purpose of intellectual property law are “faith based” in the sense that they represent the kind of magical thinking that rejects science, data, and logic.

In May, inspired by Professor Robert P. Merges’s response to Lemley, I wrote a post discussing the utilitarian vs. natural rights views of intellectual property.  But Opderbeck, an IP scholar and theologian, offers a rebuttal that is ostensibly a response to Lemley, but which more broadly balances empiricism itself with the notion of “faith,” if we can use the term to generally describe the intangible principles that motivate humans to make choices, with or without religion.

As a secularist myself, I find the subject engaging because, contrary to many assumptions about us non-believers, atheism neither demands nihilism nor moral ambiguity nor a reduction of all human activity to the cold analysis of empirical study.  In short, one need not believe in God or practice any particular religion in order to act on “faith” that first principles exist upon which we can build a humane system of law. This is particularly important in nations where laws are meant to be secular.

Intellectual property law is particularly vulnerable to attack by academic (and not so academic) theorists because it is conceptual in nature and its utility is applied by a relatively small segment of the population.  Although society as a whole benefits from IP, the legal mechanisms are generally arcane; and so, it is relatively easy to propose and evangelize wide-ranging skepticism regarding IP’s original purpose.  Moreover, because one commonly-accepted goal of IP law is “incentive,” and because we Americans tend to view everything in the context of business—and because American creators are among those who can attain considerable wealth—it is not very surprising that many opinions tilt away from a natural-rights view of IP toward a utilitarian view.  Opderbeck, however, quarrels with the premise that we should approach any body of law—not just IP—from this perspective. “Without some first principles that justify why some form of consequentialist calculus produces normatively ‘good’ results,” he writes, “the utilitarian approach hangs in mid-air.”

Here the word good refers directly to the Bible’s creation myth, as in “God saw that it was good,” which is a theologian’s way of saying that purpose cannot be defined exclusively, if ever, by measuring specific outcomes. In fact, the values we cherish most—empathy, charity, love, creativity, civil liberty, etc.—do not derive their inherent “goodness” by virtue of measurable results.  “The legal positivism and related utilitarianism Lemley espouses … can speak in terms of maximization, but it cannot answer on its own terms why maximizing social welfare is ‘good’,” Opderbeck writes.

Where I imagine confusion is likely to occur with Lemley’s description of “faith based intellectual property” is the inherent tension that often exists between secular views, which are assumed to be rational; and religious views, which are assumed to be irrational.  As a secularist, I would agree that certain religiously-based views are either dysfunctional or mere rationalizations for cruelty toward the heterodox; but the same can be said of a strictly empiricist view as well.  And this is one of the more compelling points Opderbeck makes:  that Lemley’s view “reflects a monochromatic picture of human culture. Indeed, it reduces the human to the technological, and thereby encodes the very sort of authoritarianism it purports to eschew.”

Here, Opderbeck cites the story of the Tower of Babel as an allegory for technocracy.  “The utilitarian technocrats of our age are like Babel’s tower-builders,” he writes. The effort to encompass all human values within the rubric of what is quantifiable produces a convincing simulacrum of the ziggurat: precise, logical, geometric, orderly. It reaches to heaven, but never comprehends the transcendence that awaits it there, complacent in the belief – the faith – that it occupies the center of the universe, that there is no God or other power beyond its foundations in the Earth.”

If I may presume to place this in context to the current, public debate about intellectual property and the internet, the industry’s chronic assertion that an individual, human right like copyright “stands in the way of innovation” is analogous to the Tower builders’ blind insistence that their industry represents some grand, collective endeavor without regard for direction. Meanwhile, the curse of Babel—that we will no longer understand one another—is manifest daily in our contemporary politics.  “Utilitarian theories of culture do not produce precision and order. In the end, they produce oppression and violence, which leads to the babble of Babel,” writes Opderbeck.  Sounds like Twitter to me.

On the other hand, there is something to be said for building ziggurats, and no tower has ever reached higher or come closer to “touching the hand of God” than the Voyager mission with its gold record sampler plates of human history.  And while it is true that many religious (and even not so religious) people would not describe Chuck Berry himself as “good,” and some will have even described his music as “wicked,” I think most of us (even if we’re not from Boston) would agree that his music is “wicked good.”  This wordplay of course is echoed in the song’s polysemic title “Johnny B. Goode,” implying effort toward some goal (and morality?) not yet achieved.  So, the idea that this particular recording is among the evidence we sent into the unknown distance of eons, most likely to be received by nobody, suggests that we humans need not be blindly religious in order to consider that we do some very great things as a matter of faith. 

HART: Copyright and the Historical Record

In a new post on Copyhype, Terry Hart responds to the general assumption that the Founders would be “appalled” by the state of copyright today.  Personally, I think the Founders would be appalled by the application of the 2nd Amendment today and impressed as hell by the role professional authors and creators play in their Republic–but that’s me.  Hart writes …

“…there’s always a danger with using history. Someone who’s trying to make a point may try to find evidence in the historical record to support that point, so there’s a danger of abuse. And perhaps there’s no period more prone to this type of myth and mischief then the Founding period, the period beginning after the end of the Revolutionary War, through the drafting and ratification of the Constitution, and through the first Congress.”

Read full article at Copyhype here.

How Napster Gave Us Donald Trump

I finally had a chance to read Move Fast and Break Things by Jonathan Taplin.  A former music manager and film producer from the period I would describe as America’s true golden age, Taplin is now director emeritus of the Annenberg Innovation Lab at the University of Southern California. The book, which debuted a few months ago, explains how the internet oligopoly has steadily undermined democratic principles—and how we’ve helped them do it.  Taplin condenses a lot of information into a highly-accessible book that I would recommend for anyone first approaching these issues, or as a well-articulated reference for anyone already engaged.

While reading Taplin, the thought occured to me that I bet the left-leaning advocates of media piracy, along with many of the anti-copyright voices in academia, and the “digital rights” groups who scorn enforcement of copyright online would hate to know how much they helped elect a guy like Donald Trump as president.  But that’s kinda what happened.

When young, digital natives first bought into the idea that music piracy was justified because they were “sticking it to the Man,” they could not see that they were lighting the first match on a long fuse that would blow their own labor rights all to hell by the time they entered the workforce.  By consuming all the free candy, and subscribing to the progressive-sounding PR of Silicon Valley corporatists, millions of Americans unwittingly surrendered in the first battle of a war they didn’t even know was being waged against the basic rules of democracy.  Now that war is becoming more apparent. As Taplin describes in the book, it is a war being prosecuted by ultra-libertarian, monopolists like technology VC Peter Thiel—a member of Donald Trump’s inner circle—who has publicly stated his disdain for us “unthinking demos,” as he likes to put it.

Democracy is of course anathema to the warped ideology of Silicon Valley’s most powerful corporate leaders; it’s messy and inefficient, imposing rules (like copyright) that stand in the way of boy geniuses who’ve overindulged at the gold-plated bong of libertarianism while swooning to the ravings of Ayn Rand. These are men who want more than the unprecedented wealth they’ve already acquired—men who sincerely believe that their ability to reshape society with technology has earned them the right to be the new landlords of the nation. And we plebs have no business trying to stop them.  Notice I keep saying men. Here’s Taplin’s citation of Thiel’s allusion to American women’s suffrage, as written on the CATO Institute website in 2009:

“Since 1920, the vast increase in welfare beneficiaries and the extension of the franchise to women — two constituencies that are notoriously tough for libertarians — have rendered the notion of ‘capitalist democracy’ into an oxymoron.” [Emphasis added]

That’s the kind of thinking that permissionless innovation, beginning with piracy and the erosion of copyrights, has helped finance into extraordinary political power today. So, let’s not mince words.  If copyright infringement was in fact the first battle in a larger technological war against individual rights, led by a group of egotistical, male capitalists, then I’m afraid every woman who ever justified piracy has—like Ayn Rand’s Dagny Taggart in Atlas Shrugged—demurely told these assholes she’d like them to be in charge.

The extraordinary power of the tech oligopoly owes much to both political parties’ unwillingness to wield anti-trust law, and to a business and technology press too busy star-fucking to notice that journalists’ heads have been on the chopping block for years.  But perhaps the most insidious element in this narrative is the role played by “digital rights” organizations like the Electronic Frontier Foundation, PublicKnowledge, and Fight for the Future, along with their satellite and sister organizations around the world.  Adopting the tone of left-leaning, anti-corporate activists, the people in these organizations would probably hate to think that their advocacy dovetailed quite nicely with the election of a guy like Donald Trump. But it has.

Whether these institutions are co-conspirators or just useful idiots for Silicon Valley’s wealthy elite, their absolute rejection of copyright—or of any enforceable, democratic rules—in cyberspace has largely served to advance the interests of the most powerful aristocrats the modern world has ever known. The paradox the folks in these organizations refuse to recognize—indeed, which they cannot afford to recognize—is that their micro-defenses of the First Amendment on the internet have largely empowerd a tiny group of men whose stated ambition is to disrupt the Republic as an incovenient, inefficient, and outdated model.  And since no Republic means no First Amendment, it’s hard to fathom what exactly these activists think they’re achieving.

The fact that mass copyright infringement is still viewed as rebellion against corporatists, rather than playing into the hands of oligarchs, probably has a lot to do with the word property.  This is a particularly loaded word in America. Liberty, as it was codified into law at the beginning of the nation, meant liberty for property-owning, white men, including white men who owned black men and women as property. From these morally corrupt beginnings, the progress of demanding that civil liberties apply to all citizens has generally been one of wresting control from the propertied and privileged classes, which is why labor rights are so deeply intertwined with civil rights overall.

While copyright is a kind of property right, it is also analogous to a labor right whereby the right of the worker to negotiate terms is embodied in the protection of the work after completion.  With the appearance of Napster in 1999, the subsequent growth in piracy, and all the ideological bullshit that growth spawned, copyright was incorrectly subsumed into the broader narrative of the people reclaiming territory that was unfairly occupied by the propertied classes.

Though it would not be accurate to say that the major, corporate rights holders are beyond reproach, the general failure to recognize copyright as an individual right was a huge mistake—one that accelerated and financed the agendas of elitists, who view a wide range of individual rights as barriers to their own wealth and power. The destruction of copyright in the service of Silicon Valley’s interests may prove to be the cracked keystone that ultimately allows the whole democratic structure to collapse.  Unless of course we find the political will to tell these guys to get stuffed.

In this narrative, Trump himself, like the “digital rights” activists, is just another useful idiot. His innate disdain for the pesky rules (and even common courtesies) of democracy, coupled with his allegiance to the wealthy elite, make him an effective tool for the likes of much smarter men like Thiel, Larry Page, Sergey Brin, Marc Andreesen, Mark Zuckerberg, and Jeff Bezos.

If we think of the unorthodox presidency of Trump as one that defies traditional, ideological labels, what it really represents is a vote of no confidence in American democracy. And that’s what makes it so dangerous. As noted in a recent post, the World Values Survey concluded that only 30% of Americans born after 1980 believe that it’s important to live in a democratically governed society at all. Presumably, then, the remaining 70% comprises that cacophony of views we see on social media—including many that would be opposed to Trump, but are equally anti-democratic in other ways.  To be clear, I would not make a case that Hillary Clinton, or any other candidate who has yet emerged, reveals the kind of Teddy Roosevelt moxie needed to restore balance between public and corporate interests; but electing such a figure would actually require the public to restore some faith in the system itself.

I’ve speculated in past posts that the anti-establishment trend is creating an ideological vacuum, which is already being filled by tech corporations and their owners’ libertarian agendas. This may lead to a state of technological feudalism, when all labor rights will be obliterated, taking the soul of other civil liberties with them.  The right of free speech, for instance, would become mere illusion because no citizen’s voice would actually matter in that kind of society. Speech would thoroughly devolve to noise—as effective as playing with a fidget spinner—we make on tech devices just to amuse ourselves, and to tell the computers how we can serve them rather than the other way around.

There’s a reason why one of the first steps toward authoritarianism is to silence the artists. To acheive this in a democratic society, it must be done subtly by degrees, by eroding their rights and economic power.  So, wouldn’t it be a cruel joke on ourselves if the anti-democratic, dystopian end game really did begin with everybody stealing music?