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Articles from the past – Essay: A fast-forward debate Uncategorized

Essay: A fast-forward debate

By Edward Rothstein The New York Times


NEW YORK In 1709, Daniel Defoe compared them to “House-breakers,”
“High-Way Robbers” and “Pick-Pockets,” not sounding that different,
perhaps, from the way software manufacturers, movie studios, television
producers, and some performers and writers sound today when they speak
about copyright pirates.

Why, Defoe asked – at a time when authors had no rights in their
own work – should there be laws against one kind of villain, and not
against those who steal another kind of property created “after
infinite Labour, Study, and Expence”?

Why, his colleague at arms, Joseph Addison, asked, should
“Mechanick Artizans” be able to reap the “Fruit of their Invention and
Ingenuity without Invasion” while a writer who has “studied the Wonders
of the Creation” has “no Property in what he is willing to produce?”

Defoe and Addison were demanding such consideration at a time,
like ours, of great technological and cultural change. In their London,
the right to “copy” or publish any book was held not by the author, but
by members of the Stationers’ Company – booksellers and printers who
held a monopoly on that right in perpetuity – something that must have
seemed reasonable just after the introduction of the printing press and
the considerable expenses needed to print, distribute and sell a book
to the small percentage of literate citizens.

But that guild’s monopoly inspired dissent, and here, too, the
objections sound familiar. The poet John Milton called the Stationers
“monopolizers in the trade of book-selling” who do not “labour in an
honest profession.”

By the beginning of the 18th century, in fact, that old order
could no longer be sustained: Printing was becoming less expensive;
international and provincial publishers were creating competition;
literacy was increasing; and authors were growing in public stature. So
over the next half century, British laws limited the control of the
Stationers and expanded the rights of authors, while putting time
limits on all forms of control, creating an eventual beneficiary in
what became known as the public domain.
Then came another wave of technological change: the industrial
revolution. And similar controversies erupted over intellectual

Inventions were once relatively immune from competitive copying
because of the immense amount of craft they required; the execution
could seem more difficult than the idea. Once manufacturing was
mechanized, though, the idea could become vulnerable on its own,
leading to both increased governmental control and increased industrial
espionage. Both those who copied and those who protected became ever
more vigilant.

In the 18th century, for example, England passed protective laws
prohibiting the export of machinery. But the fledgling United States
welcomed insiders with manufacturing information from England, Russia
gave incentives to hire specialist foreign workers, and Sweden spied on
England’s iron and copper industries. Eventually, some governmental
controls loosened while patent protection grew.

Now comes another wave of change. The cost of copying – once a
major obstacle – has become nearly nonexistent for digital media and
software. And just as increasing trade and decreasing costs helped lead
to the breakdown of the Stationers’ monopoly in the 18th century and an
increase in industrial espionage in the 19th, the elimination of costs
for the transmission of digital media has led to another wave of
copiers and protectors, along with accusations of theft and heated

But this time, there is an important difference. When a breakdown
of control over patents and copyrights is championed today, it is
imagined not as a triumph for authors (as was initially the case in the
18th century) or as a triumph for profiteers or national ambitions (as
in the industrial espionage of the 19th) but as a form of liberation:
The ideology has changed.

Contemporary issues might seem to be limited to whether
Amazon.com should be able to patent its one-click purchasing system, or
whether file-sharing of films and music should take place freely on the

But take a few steps back, and you can hear the firings of
ideological muskets. Traditional arguments over public good and private
rights have taken a turn; this time, idealism confronts materialism,
socialism confronts capitalism, beliefs about communal virtue confront
conceptions of individualism.

Lawrence Lessig, a professor at Stanford Law School and one of
the major polemicists opposing what he calls “the copyright warriors,”
has argued that the preponderance of moral and social virtue lies not
with the protectors of copyright but with its “pirates” who open the
way to cultural evolution and innovation.

“We are less and less a free culture,” he has said about
copyright enforcement, arguing that the crackdown on piracy is
“something more extreme than anything we’ve seen before.”

Another challenger of copyright warriors, the New York University
professor Siva Vaidhyanathan, explicitly champions “information
anarchy” in response to copyright control, using rhetoric that echoes
the anti-globalization movement. He has argued that a worldwide
confrontation is taking place between oligarchs who seek to control
information (ranging, he says, from university presidents to corporate
executives) and those who seek to free information (ranging from
computer programmers to political dissidents).

This is not just the perspective of members of the professoriate.
In June, Jesus Villasante, the head of the software technologies unit
at the European Commission’s Information Society and Media directorate
general, warned that major corporations like IBM, Sun and
Hewlett-Packard had become so dominant in the open source marketplace –
a realm originally meant to be a refuge from commercial interests –
that the “open source community” effectively had become a
“subcontractor of American multinationals.”

In forum after forum, challengers of copyright and patent
legislation portray themselves as liberators, bravely opposing an
avaricious global corporate culture that attempts to claim each bit of
intellectual property for itself the way an imperialist explorer would
try to plant the motherland’s flag on every unclaimed piece of land.

The advocates of tighter control over copyright, of course, see
things very differently, viewing this attack as harmful – an assault on
their liberties, creating obstacles for those prepared to invest their
time and labor to answer human needs.

For a while, books and articles predicted that technological
change would bring about profound social change; an international
counterculture developed around the new technologies, sometimes spurred
by the same figures who had been active in the political counterculture
of the 1960s and ’70s.
Steward Brand, for example, the creator of the Whole Earth Catalog and
a pioneer in online communities, coined the now familiar mantra,
“Information wants to be free.” Lessig, in his books, writes about the
Internet as if it were once on its way to being a world of liberatory
interchange, free of concerns about property and payment. The open
source movement grew out of a similar intellectual atmosphere.

But of course, information doesn’t want to be free; people want
it to be free. And organized information – information given shape and
meaning – almost never is free. Of course, neither is the Internet
really a different realm, but an extension of the real world in which
human concerns and commerce replicate themselves. Expectations of
social and human transformation by the Internet have been greatly

So has the way open source software is supposed to spur the
“evolution of society.” The continued success of the operating system
Linux, for example, is partly due not only to the ways in which varied
individuals are freely contributing to its evolution, but to the ways
in which companies are supporting it, and panels of overseers and a
strict organizational procedure govern its specialized licenses; those
procedures lead to reliability and uniformity.

Technological change always leads to anxiety among both parties
of this long debate. It also pulls the rug out from under their

The same should be true now: Some new forms of control will be
needed to prevent unrestricted copying and plunder; but technological
innovation will undermine attempts to apply too much control. Some
flexibility in control is needed to prevent the stifling of
communication and commerce, but technological innovation will foil
those who believe it should not exist at all.
This doesn’t make things easy: It makes them unpredictable.

This is even true in our era’s most notorious legal cases in
which control over intellectual property has been considered too
extreme: the antitrust cases brought against Microsoft. These cases
essentially assert that Microsoft’s control over its intellectual
property is stifling innovation and that, because the company wields
monopolistic power, it must sacrifice control. Many counter-copyright
figures are also vigorously counter-Microsoft.

But the cases are based on already archaic concepts of the personal computer and its operating system.

The U.S. District Court’s 1999 Findings of Fact that became the
foundation for all later American antitrust court decisions regarding
the company, for example, suggested that not every user of a personal
computer would want Internet access; now Internet access is a presumed
feature of a PC.
And the court’s other idea, that there should be strict boundaries
between how a user interacts with a PC and interacts with the Internet
– an idea that Microsoft was challenging by integrating the browser and
operating system – now seems well worth discarding.

It is being undermined not just by Microsoft but by Google,
which, for starters, is demonstrating how closely knit the Internet and
desktop will become for doing searches and exchanging information.
Not many people imagined just three years ago that Google could become
Microsoft’s greatest challenger. Microsoft couldn’t control this
evolution; why do courts believe they can?
Notions of intellectual property will also mutate under pressure,
leading to unexpected forms of control and freedom. But for now, there
is bound to be a continuing wrestling match over continuously
transforming terrain.

There will be echoes of earlier battles, of course, but the hope
is they will resemble the ones always fought, and not the ones that
dream for more than can be won.

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