... copyright is an outdated modality, but as long as it exists there needs to be a meaningful fair use clause to allow people to criticize, satirize or contextualize copyrighted material and to report on newsworthy material within copyrighted contents.
...and How They Are Currently Being Killed.
They say with enough money you can buy whatever verdict you want from the American justice system. And they are right.
Case in point: Late last year Judge Denny Chin of the United States Court of Appeals ruled on the 8-year long legal saga between Google and the authors upset over the internet giant's “Google Books,” the ambitious project to scan millions of books into the Google servers and make them searchable by the general public.
From the moment the project was announced in 2004, publishers and authors were incensed over the plan, which they felt was a flagrant violation of copyright laws. And, indeed, under copyright laws as they were generally understood in 2004, the case seemed fairly open and shut: republishing copyrighted works for commercial purposes without the express consent of the author is prohibited. Except this is not 2004, this is 2014, and what seemed unthinkable before is perfectly reasonable now.
As Judge Chin noted in his decision, “words in books are being used in a way they have not been used before.” Indeed. But perhaps the most remarkable part of his decision was this: “Even assuming Google's principal motivation is profit, the fact is that Google Books serves several important educational purposes.” This is remarkable because the question of profit has always been seen as integral to determining whether or not the use of a copyrighted work can be shielded by “fair use” laws. Under the law, which has been purposefully left vague and ill-defined to allow for case-by-case interpretation, the use of copyrighted works for non-profit, educational purposes or the purposes of news reporting has generally been seen as allowable, meaning that the use of copyrighted works in for-profit endeavors has been seen as beyond the protection afforded by the fair use clause. With this decision, Judge Chin has put into case law a precedent for for-profit work to be fair use as long as it serves “several important educational purposes.”
All things being equal, this is the brilliant thing about American jurisprudence and an example of how the system should work. Yes, copyright is an outdated modality that should go the way of the dodo, but as long as it exists there needs to be a meaningful fair use clause to allow people to criticize, satirize or contextualize copyrighted material and to report on newsworthy material within copyrighted contents. This helps to ensure a vibrant, rich space for social critique, remixing, and news reporting by independent outlets, and is part of the reason that there is such a vibrant alternative media flowering occurring online.
But looking beneath the surface of the ruling reveals some more pessimistic undertones to the verdict. For one, the lawsuit against Google was originally brought by both publishers and authors. After years of wrangling, Google ended up negotiating directly with the publishers and settled with them for an undisclosed sum, leaving the authors out there by themselves, twisting in the wind in their legal struggle. This ruling was just putting the cap on Google's fait accomplis. Essentially, they bought this ruling.
Sadly, this is par for the course for the American “justice” system and its counterparts throughout the so-called developed world. We have been tricked into believing myth after myth about the laws that seek to control what we say, write, or even think, so much so that it's difficult to know where to start when deconstructing them. On the surface level, the point that favorable decisions can be bought outright needs to be made, but by now this is fairly common knowledge to anyone with an eye on the legal system as a whole.
More to the point, the copyright and patent laws themselves need to be challenged at their root. This is still a difficult mental chasm for many to cross, steeped as they are in the mythology of the current copyright regime. In this mythos, copyright protects intellectual work from theft in the same way property laws protect physical commodities from theft, thus enabling intellectual workers (artists, authors, musicians, etc.) from having their livelihoods taken from them by knock-offs and plagiarists. This seems to make sense. Similarly, patent laws are designed to protect engineers, software coders, and others who make their own contributions to the sum of human knowledge from being ripped off. And to a certain extent, this mythos made some sense in a bygone era, before the possibility of instantaneous digital duplication and distribution. But this is no longer a bygone era, and we are most certainly not in Kansas anymore, Toto.
As has been pointed out at length in online circles, the age of digital duplication completely subverts the idea that works are being “stolen” from artists, or that artists are losing out in this new paradigm. The concept of theft itself lies on an underlying notion of the scarcity of goods. If you take someone's bicycle, they don't have that bicycle anymore. However, in the digital world, the so-called “piracy” does not result in the disappearance of an original good. Instead, a new good can be literally copied into existence at the stroke of a keyboard. In such a world, rules that were set up to protect the physical ownership of physical goods become increasingly irrelevant. Still, despite how often (or how articulately) this position is explained there are those (generally the legal representatives of acronym-laden organizations claiming to represent the rights of copyright holders) who refuse to concede these points.
Earlier this week, a Dutch court lifted a censorship order on The Pirate Bay, a torrent tracker site that helps people find and share copies of their digital files online. After years of legal challenges and the creation of an entire political party (the “Pirate Party” in Sweden) devoted to reforming copyright and patent laws to reflect this new digital reality, this latest ruling is a small sign of success on the road toward changing the current legal paradigm. This time it's the underdog (The Piraty Bay) that's winning, and even though the judge only ordered the censorship order lifted because it was “ineffective,” that ruling still effectively negates all other such orders across the Eurozone. As Pirate Party founder Rick Falkvinge writes in an op-ed on RT.com this week, the copyright paradigm is not set up for the benefit of the artists or inventors themselves, but only those who position themselves as middlemen in the outdated industries that used to be required to bring their works to us.
“Today's copyright monopoly structures make sure that 99.99 percent of artists never see a cent in copyright royalties. The overwhelming majority, 99 percent of artists never get signed with one of the gatekeeper middlemen, and out of those who do get signed, 99 percent of those never see a cent in royalty. It comes across as very odd to defend a system that makes sure that only 1 in 10,000 artists can make money with the question 'How will the artists get paid if you remove this system?' It's at that point that you start looking at who, specifically, is asking that question – and discover that it's consistently the obsolete middlemen and the already-rich artists who are asking it, who have a vested interest in not allowing more artists into the moneymaking crowd. Meanwhile, the struggling artists are relying on sites like The Pirate Bay to make money – sites that these gatekeepers therefore desire to banish, to keep control of that entire economy to themselves.”
But what of patents? Surely it's one thing for people to share music, books, or other media in communities that are increasingly favoring the artists themselves and getting rid of the corporate middlemen, but how does this apply to the world of physical objects? As the infamous and oft-ridiculed ad puts it, “You wouldn't download a car, would you?”
...Well, I don't know if you would or wouldn't download a car, but the reality is that you could if you wanted to. One example would be Tabby, designed by OSVehicle.com. It is the world's first industrializable, production ready, versatile, universal, roadworthy chassis that was designed and distributed in an open source manner. You can go to their website today and download the 3D blueprints today. For all intents and purposes, yes, you can literally download a car.
Welcome to the open source revolution. The “open source” concept is one that is truly threatening to bust down the doors of the copyright and patent paradigms so thoroughly that they can never be erected again. The idea is remarkably simple: instead of walling off human knowledge behind the artificial fences of copyright and patent, these ideas are shared openly and widely in communities of interest to be used, modified, and redistributed freely. Sound like a crazy idea? It's already transforming the fields of agriculture and economy, software and hardware, medicine and pharmaceuticals, robotics, fashion and a list of other fields too long to enumerate here. Even colas have gone open source, with a community of volunteers having developed an open source recipe for a cola beverage that is said to be indistinguishable from the closed-source (proprietary) recipe of the big corporate cola companies.
If you don't know about this revolution, you're already behind; but don't worry, it's not hard to catch up. Interested in making your own furniture? Just StartPage (not Google) 'open source furniture' and find downloadable blueprints and the documentation on how to put it together. Want to create your own pen pot in the shape of a fish's gaping mouth or a set of Star Wars cufflinks or a decorative Asian lantern or any of a million other products? All you need is a 3D printer and access to the internet, where you can find and download the digital files required to instruct your printer how to make them.
Not familiar with 3D printing? It's a remarkable “new” technology that threatens to completely overturn the fundamental assumptions of the manufacturing industry and everything downstream of it. Of course, 3D printing is not really “new,” it's been around for decades, but thanks (appropriately enough) to the expiration of various patents that have been keeping this technology artificially expensive, cheap tabletop 3D printing is finally starting to catch on with a wider and wider section of the home hobbycraft market and is threatening to spill over into the general populace.
In a nutshell, 3D printing is the opposite of traditional manufacturing, where objects are created by removing, trimming, or contouring materials. Think of Michaelangelo explaining to the pope that it's easy to sculpt David; you just chip away all the parts of the stone that don't look like David. In 3D printing, though, there is no chipping away, no waste, no bother. Instead, a digital design is created on CAD software and built up by a “printer” that generally works by fusing layer upon layer of material together to create perfectly realized 3D objects.
The home 3D printing phenomenon exploded in 2009 when a key patent on the technology (“Fused Deposition Modeling,” or “FDM”) expired. Nearly overnight a small but growing community sprang up around FDM printers like the RepRap and the Makerbot, and online fora arose for people to share their designs with each other. Suddenly, people who would've gone to the store to buy that little knick-knack were making it at home instead. Home printers have been fairly limited in their abilities so far, generally producing simple objects of one type of material. But as more advanced technologies become available (such as “Selective Laser Sintering” or “SLS” printing) to the public due to expiring patents, we move closer and closer to a world in which more of your everyday products will be designed and printed at home rather than purchased at a store.
The transformation of the economy implied by this revolution is staggering. It will eliminate so much of the waste of the manufacturing process, from waste materials in the production process itself to the enormous costs of mass producing an item and having it shipped from a manufacturer to stores across the country and around the globe on the off chance that someone wandering through a store might come across it and buy it. Contrast that to a world where people design their own products or download designs that have been specifically custom-designed for their own needs and tastes and printed off on a desktop printer, all from the comfort of their living room.
The best part is that, although there are still those who wish to protect the concept of “intellectual property” and guard their designs as proprietary secrets, the community that is springing up is generally committed to open source sharing of human knowledge. This is not a loss for individual designers and creators; they still can and still do sell their designs online to a public that is happy to pay for quality work, just as they always have been. But with these designs widely published and distributed throughout communities of interest, the possibility of constructing (for example) a freely downloadable car goes from sci-fi silliness to everyday reality very quickly.
We are on the cusp of unlocking the potential of human productive capacity itself. All it will require is for more people to join the open source movement and shun the old paradigm of copyrights and patents. And the best part is, it doesn't really matter what the courts say about it. The technology is writing its own rules.