Earl Mardle (rlmrdl) wrote,
Earl Mardle

Eldred v Ashcroft - Corporate America Pulls Its Memes Out of the Pool

[This is a work in progress, expect updates, feel free to have your say]

There has been much wailing and gnashing of teeth on the outcome of this legal challenge to the extension of copyright by the US Congress. Of course Eldred should have taken the case and of course Lessig should have prosecuted it and of course we should be aghast at their failure, but we should also stand back and consider what this is about.

If you don't want to read the rest of the rant, quite a lot of it is summed up here.
Zimran Ahmed thinks that Digital Rights Management is closer to suicide for music industry incumbents.

I think that as labels make some progress towards implementing DRM technology, they'll start to see the content equivalent of open source software start to become more popular. Ultimately, they'll be relegated to a small, uninteresting corner of the content market.

In a world where convenience is king, DRM is the road to serfdom for the companies that rely on it.
The stage has now been set for future congressional decisions, acting on precedent, with the support of the Supreme Court, to extend copyright indefinitely, 20 years at a time. As long as the term is an actual; number, it will be legal - but desperately stupid.
I suspect that it is nothing more in the broader scheme of things than a necessary stage in the process of reinventing the way information and knowledge moves through human societies. The decision is not the beginning of something, but rather the acknowledgement of a current reality. The original legislation could not have been adopted unless those with their hands on the levers of power believed that they should do this, and the court would not have accepted the legislation unless it too was attuned to the zeitgeist of those whose hands are on the levers of power. This decision has been an undiscovered fact of life for years and now it is made clear and whole and for all to see. But it is most assuredly about a past event.

Forking the Cultural Code
Open Source programmers deal with this issue all the time; someone wants to do something with an application that someone else doesn't accept. It is a problem that OS people strive to avoid where possible because there is less value in a proliferation of vaguely similar but slightly differentiated software. But if it happens, it happens and people go forward. It hasn't greatly damaged the OS model, and it hasn't greatly damaged any other form of code that forks either.

At some point in the past a fork in the DNA code lead to hominids and other primates, many of those code forks survive together, a later fork lead to Homo Sapiens and Neanderthalers. One fork survived and the other died, we have no way of predicting which one is right until far too late. We have now had a fork in the cultural code, one fork holds that locking its memes away and withdrawing them from the meme pool will preserve their concept of creativity and innovation, the other fork believes otherwise. The results of this forking will play themselves out, but the existence of the fork will not affect one iota the amount of creativity or innovation in the world.

One of the attractive, but distorting slogans of the Internet has been "Information Wants to Be Free" as in speech and as in beer. But Information doesn't "want to be free" any more than water "wants to go to the beach". The water simply flows in the channels of least resistance, and in the process brings enormous advantages to the surrounding landscape. From that perspective, the US Government, at the behest of corporate owners of copyright, have chosen, of their own free will, and without any support from the actual creative people in the world, to plug their pipes. That will become a serious problem for anyone depending on the flow of creativity and innovation for their business, but it will not in any way stifle innovation and creativity itself, which will slowly move to other places.

In essence these people have chosen to excise from the panoply of human memes the ideas and concepts they 'control" and to set them in stone. As long as you want to sell stone, and there is a market for it, that is fine. But if you want creativity and innovation you have both to draw from the well, and pour back into it. That doesn't mean that these ideas will not be available for a price, simply that they will cease to be the foundation for new ideas, they will cease to participate in the emergence of human knowledge, they will no longer take part in the conversation. For a while that wont matter to the corporations who will lean back in satisfaction knowing that their IP is protected. But it is also dead IP, the original creators will die off and no-one will take up their IP and do anything with it. There will be a black hole in the meme flow that contains althea perpetually protected IP in the world, and it will be worthless.

The model assumes that innovation and creativity are caused by access to financial markets. The fallacy of this is completely obvious. Of all the people driven to create artistic products of all kinds, only the tiniest percentage ever make a living at it, let alone prosper. As a career choice, or a rational economic decision it is laughable. But those who buy and sell cultural products are absolutely dependent on the vast pool of people creating and innovating with no realistic prospect of ever being paid for their work, and from that pool they dip a few ladles from which they profit. No doubt they will continue to do that, but with the new legislation in the US, the corporations have raised their own bar.

Extending the purview of copyright will not at all benefit the original creator of a work. They can only benefit from it until they die and, if they sell that copyright into what amounts to a perpetual source of profit for the company, the price of that asset will rise proportionally. If the potential benefit is infinite, the front end cost is going to become very hard to calculate but I'm sure those members of the creative communities who wish to participate in that fork of the meme pool will, however, be quite ready to bargain on the value of the asset.

My bet is that as we come better to understand the genuine sources of creativity and innovation and the immortality that the process confers on the memes that participate in it, the people who create those memes will slowly begin to circumvent the pipes that are choked and seek out the ones that flow freely.

This will be the same kind of process that leads some software programmers to the free and OS communities, and others into closed source businesses, the choices people make will depend on who they are and where their influences come from.

A few years ago there was general panic that Microsoft would end up owning the entire information world because Windows was everywhere. Yet slowly, inexorably, the balance of power has shifted. From excoriating Free and OS software as "Anti-American" and theft and any number of other marketing department-inspired stupidities, the behemoth is now considering when it will enable its applications to run on Linux which holds a very significant portion of the server market. Under pressure from heroes such as Peruvian Congressman Dr. Edgar David Villanueva Nuñez, the MS grip on Government and Educational software is being loosened and we now have the company offering to allow governments to peek under its skirts at the source code.

Three years ago the Free software enthusiasts were still being laughed at, the laughter has died. Change is occurring and the issue is the free (as in speech) and open flow of information. That OS is not only surviving, but slowly prising open the closed source meme is an indicator of where the actual power of intellectual property lies.

Since the corporate world discovered the Internet it has been trying desperately to lock it away in a place where the business model of scarcity and control can continue to divert large amounts of money into its pockets.
I have been saying for 5 years now that the web is only a transitional phase in the development of the internet; I have had no idea what might follow, but I knew for certain that we had not reached the pinnacle with online gaming, porn and "paying for content".

Now we know what the next stage is likely to be. As the individual or small player has been squeezed out of the website field and the clamps have gone down, the creative and innovative people have shifted their focus and reinvented the interface. While the corporate world talked a great game about collaborative software, software collaborators have built the Blogosphere and the first round of innovation and personal access to the internet where we all inspected the source code of web pages and learned to build our own, has been superseded by hundreds of thousands of people running blogs. Many of them publish rubbish, quite a few however, are fine examples of intelligent minds who are not merely publishing their "first drafts of history" but then interacting with each other, carrying on call and response dialogues across cyberspace.

Vastly more interesting are the rash of new applications that are growing out of the Blogosphere. It has seized on XML and created RSS, the web has had a great deal of trouble coming to terms with XML because it entails a retrofit, blogs started out with it, guess who will do a better job. Projects like Syndirella then use those tools to collect and present the "news" in stand alone desktop tools while Trackback may be the most powerful tool of all. Where the web consists of only one-way linking, Trackback ties the recipient and the sender back together again and the power of the Blogosphere will consequently be much greater than the web.

People like Jon Udell use the tools to create web services that were never contemplated by the people who originally posted the materials and resources on which those tools are based, then they convert them to trivial bits of code called bookmarklets and start another revolution. More to the point, he converted a customer list on a proprietary library software company into a web services directory that enable book hunters to check an online bookshop and immediately discover whether the book is available at their local library. It is completely consistent with the corporate approach to the internet that the software company, as soon as it discovered the use to which its customer list was being put, removed the list, despite the fact that it was a free, added benefit to its customers from their purchase of the product.

On the one hand we have innovation and the other corporate control for its own sake. The reality is that by placing information on the web, you give it to the community of users and you cannot control how it will be used. To imagine that you can is to profoundly misunderstand what you are doing.
Does Microsoft or Oracle or SAP create this stuff? Of course not, and they can't because nothing can happen until someone has a business plan; talent, intelligence, innovation and creativity don't have business plans, they just do it and if they make a buck they are happy and if not, they carry on creating till they drop dead of hunger. It has always been this way.
If we are to have a knowledge economy, then innovation will be the capital and information will be the currency and knowledge will be the product. Not everyone can innovate, but not everyone involved in the movie business is an innovator, some are traders, some are processors, some use the brilliant tools in entirely mundane ways and some for appalling purposes, this is what constitutes the financial economy and it does not differ from a knowledge economy. The only thing is that there are certain points at which these two economies can trade with each other through some common means of exchange, but at other times they are completely separate.

For generations homosexuals were both utterly reviled in western society and the drivers of cultural development. By the time repressive and stupid laws were being repealed, gay people had been very significant grinders of the cultural lens through which western society saw itself, eventually the lens enabled those societies to look on homosexuality with sufficiently few distortions to recognise a common humanity and a common pain. It could not have happened without innovation and creativity that proceeded from the very edge of society in "Boys in the Band" to "Philadelphia" and on.
Creativity has almost always been an edge phenomenon and corporatism has been a centralised one. They have few overlaps and even fewer strands of communication between them,

This seems to me a model for how waves of innovation and creativity move through societies, always from the edges towards the middle where the products are captured by centralised power holders who try desperately to preserve the sources of their current wealth and power in the face of the next wave coming through. You can't blame them, their skill is in capturing the value created by others and the endless creativity is of humanity is a threat because while someone will capture the value of the next wave, it probably wont be the incumbents.

What About the Stuff that is Locked Away?
Yes, it is true that derivative works will not be created from works locked down under perpetual copyright controls and no-one will be inspired by works that are hidden away by corporations who, simply from neglect, do not publish them. But that assumes that the best of all talents are already made available by these channels and that is palpably not true, at least we have to hope so, given the highly variable quality of material, lets say music, that is pushed through the channel. I lived through bubblegum, I have been scarred.

I recently watched a BBC documentary on the lost work of Archimedes which still has not been fully decoded and the point that it makes is that, had we had the book continuously, humanity might have reached its current level of mathematical and scientific wizardry 100 years ago. Probably true, I wont quibble, but then, if he had not been murdered by a Roman soldier he might have gone on to create even more astonishing ideas and we may have gained 1,000 years of technological progress, although given that he was already 75, perhaps not, unless the last few conundrums on which he was working were orders of magnitude more powerful than his previous work etc etc. Yes, so what? We are here now, we cannot lament the closed opportunities because they don't exist.

How many geniuses have been killed off in their late teens by countless wars since Archimedes? How many more millions of potential advancers of human achievement have starved, frozen or been driven into slavery and early death by human stupidity and greed and short-sightedness in the past? If we genuinely cared about human advancement based on knowledge and innovation, we would not practice half of the life denying, unsustainable greed powered, short-term practices that we do. Beside that loss of human capacity, the mere locking away of a few documents is a trivial issue and we will survive it.

[To be continued]
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