Autumn Symposium Rakes Over Copyright and Patent Law
Pages: 1, 2, 3

Open Information and Open Source

Rina Pantalony, a counsel for the Library and Archives of Canada, pointed out in a session I attended about the public domain that the most frequent users of Brewster Kahle's Internet Archive are trademark holders. Through the archive, they can find infringing uses. Pantalony used this fact to illustrate the value of open information.

In general, there was much hand-wringing at the symposium over the state of open information and the public domain, and many comparisons to the civil rights movement, concerning the scale and nobility of the tasks that face defenders. But it's hard to fashion a campaign around the highly abstract notion of preserving the public domain--particularly in a country seen by so many as "an ownership society"--when there are so many other pernicious closures around us: governments refusing to release data, information disappearing through cost-cutting or obsolete storage mechanisms, mainstream news blackouts, and so on.

Fair use is in worse shape than a review of court cases would make it seem, because institutions are afraid to depend on fair use to defend ordinary citation. For instance, many university presses require authors to get approval for every quote, even a single sentence--something that clearly falls under the purview of fair use. Documentary filmmakers also fear being trapped by the inadvertent filming of protected works, even though court cases have granted the filmmakers a lot of leeway.

We must be proud and protective of fair use in the United States, the only country that has established such a doctrine. Other countries have similar policies under the name "fair dealing," but they are merely customs rather than legal doctrine. Canada, which used to have very restrictive copyright practices, recently made what Pantalony called "a 180-degree turn" and is now very open, but this can be attributed to judicial reinterpretations rather than new laws.

Big changes in U.S. law--such as reversing the recent copyright extension--are off the table for some time to come, but small improvements can make a difference. For instance, copyright owners should be required to register copyrights, as they did before the 1976 Copyright Act. This would create a database that potential users could search, just as there now exists a patent database.

At a conference sponsored by Red Hat and attended by many free software leaders, one could expect open source to crop up regularly. In fact, its success could be one of the few things we had cause to celebrate at the conference, but attendees tended to worry over the threat to open source posed by patents.

Just as we have to learn to live in a patent world, we have to realize that open source is part of a closed license world. That is why, even though GNU/Linux can furnish an excellent consumer desktop, completely free distributions such as Debian and Fedora are not for average users. This is because they shun anything with a whiff of a commercial license, which rules out such basic software as MP3 players, access to Windows-formatted disks, and most wireless card drivers. You either have to upgrade your system yourself (a demanding system administration job) or buy a commercial version.

End-user license agreements came up during the conference because they are a necessary prop to technical controls. And in this area occurred one of the few victories for the public interest in recent years, in the areas discussed by the conference. An appalling extension of corporate rights at the expense of customer rights--promulgated under the name UCITA and then UCC 2B--was haggled and pushed throughout the 1990s by a group of corporate interests, but ending up being adopted by only two states, one with serious restrictions, and essentially falling dormant.

The Big View

The very term "intellectual property" is subject to a ban by Richard Stallman and like-minded thinkers who, guided by the history of ideas, seek to influence debate through language itself and the metaphors it embodies. But given that the term is ineradicable by now, a parsing of "intellectual property" can guide the new center at UNC toward a research agenda.

The two words "intellectual" and "property" suggest that the field needs examination by at least two different disciplines. The "intellectual" side calls for psychologists and others who study the generation of ideas. The "property" side would bring in economists, who can explain how incentives and restrictions affect the growth and use of ideas.

Only after the psychologists and the economists have their say should the center involve lawyers, who currently dominate the discussion. By this logic, laypersons like me should be pushed to the sidelines altogether, but we can always make an argument for participation on the grounds of promoting civil society.

This article ends where the conference began, with Professor James Boyle's biting talk about the state of intellectual property regimes. Billing his keynote as "ways to ruin a technological revolution," he regaled us with the ideologies and practices wielded by the guardians of current business models to prevent the emergence of alternatives.

These practices include frightening policy-makers with the downside of every change (while ignoring their positive aspects), making policy in international bodies far away from representatives of civil society and independent producers, trying to substitute closed protocols and platforms for the open ones that created the internet revolution, and creating legal standards around the elements of the regime that IP interests like (such as length of copyright) while stripping away legal protection for elements they don't like (fair use). Conceptually, the old guard has managed to keep actual facts--such as comparisons of economic performance under different regimes--out of the discussion, and have insisted that debate concern only their business needs with no consideration of the general public.

Technologists, artists, and the public have a lot more work to do on these issues. Thanks go to Matthew Szulik of Red Hat, David Harrison of UNC, and Paul Jones of the ibiblio information site, for thinking up and pulling off this conference. A number of local law firms were also sponsors.

Detritus Carolingus

My visit to Chapel Hill, North Carolina had great timing. I arrived in the middle of the Halloween party, which drew crowds estimated from 70,000 to 100,000. There were enough folks in cool costumes to keep me interested for some time, although in the case of some young people, what they weren't wearing was more interesting than what they were wearing.

The University of North Carolina also happens to be hosting a tour of Jack Kerouac's famous On the Road manuscript, typed in a creative fury on paper taped end-to-end in long rolls to avert any need for him to interrupt the Muse. The scroll as it now appears under glass is a miracle of Kerouac magic, still alive for us after all this time. I can vouch that the book sprang from inspiration: his pen and pencil mark-up was relatively sparse. I was so inspired I thought of creating this entire article in the same manner, but I decided against that--in this way intellectual progress occurs in fits and starts, through sharing and imitation.

Andy Oram is an editor for O'Reilly Media, specializing in Linux and free software books, and a member of Computer Professionals for Social Responsibility. His web site is www.praxagora.com/andyo.

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