Copyright, Ethics and Theft
* Article: Copyright, Ethics and Theft. Stephen Downes.
URL = http://www.downes.ca/files/FreeLearning.pdf
See the Free Learning essays for more.
"I argue in my article, copyright is essentially a means of allowing people to take what they've borrowed from elsewhere (like Paul Simon did in 'Graceland') and stamp the label 'Theirs' on it. Virtually nothing is completely original, but copyright acts as though the whole work was. It allows people to steal from the ideas, culture, language that we have all created in common and to label it their own." 
"This essay was written early in 2003 in response to a lively exchange of opinion that took place on the corporate-oriented trdev mailing list. I am including it in this volume because it is the first and foundational statement of my position on these issues. This essay challenges many of the preconceptions surrounding copyright and the ownership of creative works and ideas. And it is the starting point from which many of my later, more nuanced, writings depart.
Published as Copyright, Ethics and Theft in USDLA Journal Volume 17, Number 2, online April 17, 2003.
The relation between copyright and ethics is not nearly so clear as supposed. While it is easy to piously pronounce that people who copy online content are unethical and even evil, it is also wrong. The copyright debate is not a case of the morally right trying to maintain the defense against the morally wrong. It is a debate about what should even count as morally right or wrong."
A discussion has erupted on trdev discussion list, hosted on Yahoo! Groups, about the copying of members' posts to another Yahoo! Groups discussion list. As one member wrote, "In other words, people are participating on lists, and then someone is taking their posts and putting it on the Training Ideas list without their permission. Then others are replying to these bogus messages, generating activity on the Training Ideas list."
I posted a response to trdev to the effect that "this is pretty funny" and with the observation that "there was zero chance of getting away with it." I also commented that "this is a (more or less) public bulletin board. When you write here, it's like you're tacking your missive to the office wall. Sometimes people will move your post, sometimes they'll photocopy it (on the office photocopier with company paper). You've put your words 'out there.' They're going to get circulated. If you didn't want that to happen, then you should never have posted them on the open web."
A number of people replied to my comments and to similar comments offered by Brad Jensen. The tenor of these comments varied but the message was uniform: not only was it inappropriate for someone to copy these posts to another list, it was probably illegal and most certainly ethically wrong. One person even wrote that it was evil. Illegal? Ethically wrong? Evil?
I have been working in the field of online learning for a long time. I have written volumes of materials concerning the design, pedagogy and technology behind online learning. I have even been paid for my work from time to time, paid enough that I have on occasion contemplated building a business based on my writing and thinking. And even though I am happily employed as a government researcher, my personal website remains my calling card, establishing my credentials and expertise, acting as my personal forum, functioning as my online research lab.
Over the years I have seen most of what I have written appear, in one form or another, elsewhere on the web. Very often, entire texts were copied to other websites. More, often, though, what I see are my concepts and ideas repeated elsewhere. Not just what I have printed in text, but features and attributes of software I have designed and shared over the net. Descriptions of the future of online learning. Designs for online learning modules (now called learning objects). Outlines of essential attributes for online communities. The learning object economy.
But even where the concepts are not explicitly attributed to me (and very frequently, they are not), I do not consider this to be theft. For what I have done is to throw an idea or a concept out into the public commons, using a medium explicitly designed for that purpose. I expect it to be shared, and if it is a good idea, replicated throughout the online world. I have no problem with that.
What I have also seen, though, disturbs me a lot more. Many of the concepts and ideas that I and others have distributed through the open web have been appropriated by others as their own personal property. Scanning through the U.S. patent web page, for example, I see ideas that I have discussed in person or in print listed as patents granted to major corporations. Common terminology is registered as trademarks. And the concepts and ideas are codified as academic articles, granted copyright, and locked away as having been 'discovered' by the author in question (yours to view for only thirty dollars an item).
To me, this is theft. It comes in many guises, many forms. But it has in every incarnation the same appearance, the removal of something from the common domain and the making of that idea or concept the property of some person or corporation with the resources to defend it. It has become nearly impossible to simply share an idea on the open internet without it being stolen in this way. And (to judge from the list of patents) it seems that anything new that appears on the net is instantly seized upon by a horde of vultures determined to profit from someone else's work. How did it come to this?
Now I can hear your response already. I could have protected my work, you say, had I merely copyrighted it, or as applicable, registered a trademark or filed a patent. Well, yes, I could, which is why today the Creative Commons logo is attached to all of my work. But this is only a reluctant admission that the system is deeply broken. And worse, it legitimizes all those copyrights and trademarks and patents. It allows these vultures to say that they have legitimately acquired that which they have stolen.
Copyright, from my perspective, is a haven for thieves. It is a license to claim ownership over anything you might happen to find on the internet (and elsewhere) that isn't clearly nailed down. Worse, it is providing a means for those who enter this free and open space called the internet to put up fences and say "this is mine," to appropriate a network designed for open exchange and to convert it to a private publication and distribution system.
In the replies to my previous post most writers staked the ethical high ground. "It is not pointless," writes David Ferguson, "for members of a list to decry a practice that is technically illegal and certainly unethical." Will Pearce expresses the hope "that we will choose to maintain the high level of ethics [and] integrity." Robert Bacal wrote, "As an author and intellectual property creator, I'm just frickin fed up with rationalizations and defences of decrepit dishonest behavior." And Christopher Tipton states it bluntly. "Plagiarism is thievery."
I do not concede this ethical high ground so easily. I do not think it is so clear and obvious that the reuse of someone's content is such a breach of morals. And leaving aside the question of what the law in fact says, I certainly do not think that such reuse should be illegal.
How can I say this, you ask? Well, would it bother anyone if I retrieved my stereo system from the burglar who broke into my house and took it? Would it be all right were I once again to drive my car after having recovered it from a thief? Obviously. Retrieving and reusing something that has been stolen from me is obviously something that is ethically permissible. And in just the same way, retrieving and reusing something that has been stolen from the public domain is something any person should have the right to do. Where the error lies in the current interpretation and application of copyright law is in the presumption that the many multifarious works produced by the members of this and other lists, much less the applications filed for copyright, patent or trademark, are the original creation of the author. It is simply not so. Though original authorship is frequently claimed, it is seldom, if ever the case. Even the greatest work of prose stands, as they say, on the shoulders of giants.
As I look through the various posts that comprise the digest to which I now respond, I am witness to a large number of concepts, ideas, sentiments and even expressions that clearly have their origin in some prior source, an origin that is unattributed, an origin that the author does not even acknowledge exists. "Plagiarism is thievery," writes Christopher Tipton. Well congratulations to Mr. Tipton for having come up with that original idea! Should I now respect his ownership of those words? His origination of that idea? Of course not. It would be absurd. And yet, according to the many writings of authors asserting that I must respect copyright, that is exactly what I must do.
I recognize that the principle of copyright is not to protect an idea, but rather, the specific expression of that idea. That is why it is legal, say, to express in your own words the ideas that you may have found elsewhere. Thus, IMS (say) can create and copyright the idea of a "search application" without ever having acknowledged to having ever heard of a metadata repository before. That is how someone from MIT can blandly assert that the Open Courseware project was devised entirely by staff from that institution, without acknowledging any external influence or source for that idea.
But this line is blurring. With the advent of "business methods" patents in the United States, with the ever-widening use of trademarks to appropriate common terms and abbreviations, the idea itself is increasingly becoming a type of property. The term Freenet, for example, was in wide use before it and the concept were trademarked, thus forcing an entire sphere of activity to call itself instead "community networking." The term "blog" was around long before Blogger became a trademark, and now the method and manner of posting your thoughts to a website has become private property. "One click" - not just the words, but the practice - is now the property of Amazon, their ownership resting on the absurd premise that nobody thought of that principle before it was embedded in concrete by the U.S. patent office.
Let there be no mistake about this: when you place a copyright on your own work, then unless you are explicitly crediting external sources, you are claiming to have created every word, every idea, in your work by yourself. It I were to utter the phrase, "Plagiarism is thievery," without crediting Mr. Tipton, he, by virtue of his copyright, may now claim that I have appropriated his idea. Should I reproduce an entire paragraph, he now claims he has unique ownership over that phrasing. Well I ask: does he know this? Can he prove that each sentence in his work is unique? Much less the ideas expressed therein? On what ground, therefore, does he claim copyright? On what ground must I recognize that this expression now belongs to him and him alone?
Moreover, even though copyright was intended to protect a particular expression of an idea, as any academic scanning for plagiarized student essays will attest, the mere rewording or rephrasing of content does not count as the creation of a new work. Students the world over have tried cutting and pasting sentences, introducing grammatical errors, replacing words, reordering sentences, and a host of other techniques, in order to circumvent plagiarism restrictions, and each of these has been rejected. Well, what now, of the ownership of a string of ideas in slightly different wording? Who can say who first came up with the idea that "Many of us benefit free of charge from the ideas, suggestions, and even the rants of some of the folks on this list." Surely this is not original! The mere rephrasing of this concept does not make it the unique creation of the author.
In the creation of my daily newsletter, I read dozens of articles a day. I cannot count the number of purportedly original creations that do not lift, in whole or in part, concepts and ideas previously expressed elsewhere. Each one of these has a copyright label attached to it, as though it were some sort of unique contribution to society. If I read one more "original" explanation of XML I am tempted to scream! And then I see these articles cited as authorities, as though their authors contributed to the debate. I see the "Lego" analogy of learning objects attributed to David Wiley more times in a week than I can count, as though he came up with the idea.
Copyright may protect only the expression of an idea. But in virtually every article, every post, there is more than a little reuse even of the expressions of ideas, much less the ideas themselves. It's not that I am saying that there is nothing original under the sun. But what I am saying is that there is far less that's original than the supposed originators would like to claim. It is in my view blatantly dishonest to slap a copyright label onto anything you have written unless you are quite sure you have checked and verified the original statement of every idea in your work. For otherwise, your claim to copyright is nothing less than theft, and theft of the worst sort, for you did not even bother to acknowledge the existence of the person from whom you stole the idea.
I stated above that copyright is used to protect thieves. Let me explain this a bit. The purpose of copyright is to control how the expression of some concept or idea is used. This is very clear, for example, in the terms and conditions of the trdev discussion group (and countless other forums where the same conditions are stated). Nobody is to copy, assert these terms, the posts in this group without the explicit permission of the author. Even the Creative Commons licenses contain this assumption. The idea is that the work cannot be used without adhering to the conditions stated in the license.
The purpose of copyright, then, is to prevent others from using the material. Hence the use of the word "copy" in the term. It restricts the right to make copies of the work except under the terms and conditions outlined by the author. That is why I refer to the use of copyright as protection for theft. If I express an idea, and you take that expression (modified to disguised the original authorship), and place a copyright on it, then I can't use that idea any more, at least, not without explicit attribution, and subject to your terms and conditions.
Now quite the opposite sort of thing happens when I copy your work without permission. Even granted that your work may be your original idea (an assumption which, recall, is generally dubious), I cannot be said to have stolen anything from you. You are still in possession of your original work. You are still able to use it, reproduce it, cite it, have it cited.
Of course, what you have lost is your ability to control my use of your work. You have lost the ability to force me to pay money for it. Or to force me to acknowledge you as the sole author and originator of the work. You have lost the ability to prevent me from reproducing the work in order to criticize it. You cannot stop me from creating a parody of the work. Or even from using it as evidence to show that your work is not, in fact, original.
Many people feel this as a real loss, and hence call the unauthorized copying of a given work a type of theft. But something is a theft only if you can show that I have taken from you something that you previously had. And while it may look, from the phrasing above, that I have indeed taken something you had, you never had any of those things to begin with. They are, at best, what might be called counterfactual properties. Under certain conditions, you might have had them. But you never did have them, and under most conditions, you never would have had them.
Consider, for example, your ability to charge me money for the work. This lies near the surface of the minds of most defenders of copyright. My copying of a work is frequently represented as a substitution for paying for the work. That is how the billions of dollars "lost" income is calculated by software publishers in their endless tirades against what they call piracy (another form of "theft", but with an entirely fictitious element of force connoted by the expression). But this income is only lost if there is any circumstance in which I would have paid you. And there isn't. Had I not copied it for free, I would not have copied it at all.
This is a clear example of how unauthorized copying is not theft. If you steal a CD from a store, not only has the copy not been paid for, the store has also lost the ability to charge anyone else for that CD. That is not the case here. It is as though I had taken the CD (which I would never have purchased) and yet left the copy of the CD in the store. The store has not lost any income, because a person who would pay for the CD could come into the store, pay money, and leave with the CD.
You may argue that I may send a copy of the CD to my friend, a fiend who, in other circumstances, would have purchased the CD. That may be true, but this example only shows the dangers of relying on counterfactual properties. For now I can argue, with equal plausibility, that my sharing of a copy of the CD prompted a person who would not have purchased the CD to now go to your store and buy one. And empirically, it appears that your sales actually increase if you allow people to copy the CD. And conversely, as happened with the shutting down of Napster, if you prohibit copying, then your sales decrease.
The ethics of copying cannot be established by pointing to financial loss, because there are many cases in which my copying can produce more gain than loss. It reduces the question of ethics to a financial calculation, which isn't the point at all. And it is especially not the point when the material being distributed is being distributed for free, as on the trdev discussion list and most elsewhere on the internet.
Your holding of a copyright over a certain work isn't about money at all. It is about control. You want to control my use of what you have claimed to be your work. You want to control who I show it to, if anyone. You want to control my use of the expressions or ideas for the purposes of analysis or criticism. You want to force me to quote you accurately, to ensure that I do not quote your words out of context. When I copy your work without authorization, you have lost all of this.
But where we disagree is whether you had any of this in the first place. And where I deeply disagree is in your assertion that it is somehow unethical (much less something that should be a criminal offense) for me to disrupt your control over me. Quite the contrary: I allege that it is inherently dishonest, unethical, and should be illegal, for you to assert that you can control me in any of these ways.
Take, for example, the sharing of your work with my friend. This is a right I have always had. I could play your music at my party. I could pull your book off the shelf and show it to anyone I pleased. We would all gather around my radio and listen to the evening news. You couldn't tell me who I could share this content with. Even if my friend was someone who was evil incarnate, you couldn't prevent me from doing this. But online, the equivalent of showing somebody a page of printed text is to make a copy and send it by email or to post it to a discussion list. You don't want me to do this because now other people might start talking about your work, and making comments about your work. And you can't stop them, you can't respond to their comments, you can't ensure that they are understanding what you said in the right way.
It is the epitome of a desire for control to assert that the discussion of a work must occur in only one forum. After all, isn't that the major reason why posters to trdev do not want their material copied to another list? Because people on that other list - some of whom are disliked by the original authors - might conduct an illicit discussion of the work. But of course people have never had the right to control the discourse of others. They have never had the right to prohibit the sharing of a piece of text for common dissection, criticism, and even misinterpretation (where would we be if Kant had got Hume right?). People have never had the right to prohibit parody and derivative works. It is only in the digital era, where every form of sharing amounts to a form of copying, that people have even begun to assume that they have, and can enforce, these rights. Now the Church of Scientology stifles internal and external dissent. Now Dow Chemicals (the current owners of Union Carbide) shuts down criticisms of their actions at Bhopal.
I do not accept anyone's assertion that they have that much control over the use of their work. When I obtain some sort of content - whether it be by buying a CD, reading it on the office wall, borrowing a book from the library, or reading it on a discussion board, I do not under any circumstances give up the right to share the work with others, to comment, criticize, parody, misinterpret or do any of a hundred things the original author may find distasteful. No doubt Mr. Tipton would really prefer that I did not hold up his words as an example for all to see. But he never had the right to prevent this use, and that is the risk he took when he allowed me to view it in the first place. And it is a travesty of ethics to somehow suppose that he has not only a legal, but moral, right to control my expression in this way.
There is a growing assumption on the part of software vendors and content producers to the effect that, when I access their content, I have or can in some way sign away my rights. This is the essence of what are called "shrink wrap" licenses, and the essence of the terms and conditions of the trdev discussion list, among others. The use of trdev is contingent on the "guidelines" and within those guidelines is the assertion that the deliberate violation of copyright will get a member banned.
The language used in the trdev guidelines is as fuzzy and dubious as the language used in many such shrink-wrap licenses. What counts as, for example, a violation of copyright? Are we all to be subject to U.S. copyright laws and therefore the loathsome DMCA? If someone alleges that copyright has not been violated, who makes that determination? If I maintain that copying posts to another list does not, in fact, constitute a breach of copyright, am I subject to any sort of hearing and appeals process? Does the rule of law even apply on trdev (or in similar environments), or is more along the lines of the stipulation, posted in jest, that you will be sanctioned for "saying the wrong thing when one of us coordinators is in a bad mood?"
And of course the purpose of this (and similar) statements of conditions is to assert that my use - my reading - of your content is subject strictly and solely to the list owners' discretion. There is no law: what constitutes a law is created by, interpreted by, and enforced by the list owners. There are clear restrictions - some contained in the terms of service, some enunciated in passing by list owners' posts - on what I can say and how I can say it. And if I want to offer a criticism that is beyond the bonds of what is allowed on this list, then I cannot take the discussion to another forum, for that, too, is prohibited by a wide and liberal reading of the copyright provisions.
Acceptance of the terms of service, therefore, is tantamount to my explicit recognition that I have no rights. It is an explicit abrogation of any of the freedoms I assumed I had when I conducted my affairs in the old world of print and oration. This, I am told, is the contract that I agreed to when I signed up to this (and other) lists, and for that matter, the sort of contract I agree to every time I buy a book, listen to a CD, or install some software. And the members of this list, in part, expect me not only to accept this elimination of my rights, they hold me to some sort of odd moral code in order to do so. Jack McCarty tells us that our violation of the terms of service is "evil." How did this come about? How did my assertion of my own rights become evil?
In fact, no matter what U.S. and other legislators and courts may have to say, it remains not only ethical but even morally responsible to hold and to protect my freedoms, even in the face of products and services that seek to limit these rights. My reading of the posts on this or any other list does not, by virtue of some terms of service, limit my right to restate the points contained therein, to criticize them, or to discuss them in other manners not approved by the list owner.
It is morally and ethically wrong to allow copyright to be used to stifle the freedoms we enjoy, and morally reprehensible to use copyright in an effort to stifle someone else's freedoms. But that, in the digital age, is what the application of copyright is all about.
There is a response to my assertion that trdev is "a (more or less) public bulletin board." Specifically, Will Pearce responds that "it's not at all like a public bulletin board" in that "no one has the "right" to post anything he wants or do anything he wants with others' postings--there's not even a "right" to be a member, as the list owner can toss you off any time he or she chooses." In various other posts are assertions that trdev is a private space, that the owners may therefore control a person's conduct and enforce it as necessary.
I do not deny that the owners have the power to enforce their will. They could ban me from trdev (at least until I created a fictional identity). They could moderate my posts. That is why I said "more or less" (a qualifier that was conveniently ignored by all the critics).
But I maintain my assertion that trdev is a public forum. Part of my assertion rests on the practical. As Pearce himself stated, "anyone can join." Only the most trivial and flimsy of barriers prevents me from reading the posts, a barrier so insignificant that it may as well not exist at all. The discussion board is hosted through a service on the World Wide Web, meaning that almost everybody with an internet connection already has the tools and means needed to access the list.
Saying that trdev (or any similar discussion board) is a private space is like saying that a poster on a wall facing a public street is a private space. Technically, it may be true, but the effect of posting a message in a place where it may be viewed by the entire world is tantamount to mounting it in a public place. You cannot place a message on a wall in public view and then claim that anything contained in the message can be read and discussed only under a set of rules and conditions established by the owner of the wall, not even if you post those rules and conditions in large text on the message itself.
There are many things a list like trdev could do to become a private space. For one thing, it could move itself from the World Wide Web to a much more private system. Groove, say, or even individual emails to a set of trusted friends. Many other discussions happen in this way and these discussions remain private. There is no illusion that they are public discussions because there is no chance of the public viewing them.
But of course, trdev and similar lists will not do that because nobody would join them. The advantage to a person posting on a list like trdev just is that it is a public space. Because it is so open to a large readership, posting on trdev ensures that their work will receive a large audience. Posting to trdev is just like posting a message to a wall facing a public street. The people who post to trdev take advantage of the fact that they are posting to a public place, and by their use of the internet and the web, are taking advantage of all the opportunities offered by the fact that it is a public place. But they do not want to give up the control that exists in a private place.
But it doesn't work this way. You cannot put up bulletin boards with the notice that "anyone viewing this material must refrain from talking about it to others." Anyone who tried would be laughed of the street. In the same way, a great many people on the world wide web are laughing at the idea that you can post something to a (more or less) public website and expect its contents to remain sacrosanct, the rules expressed by the author to be adhered to.
Again, this is not about me stealing your property. This is about you telling me what I can do, about you asserting your power. And even if you have the punitive weight of the moderator or the U.S. Supreme Court to back you up, the simple fact is that might does not make right and that my defense of my own liberties is at least ethically grounded as your attempt to abrogate them.
My main point in this post has been to show that the relation between copyright and ethics is not nearly so clear as supposed. While it is easy to piously pronounce that people who copy online content are unethical and even evil, it is also wrong. The copyright debate is not a case of the morally right trying to maintain the defense against the morally wrong. It is a debate about what should even count as morally right or wrong.
In what I have written above, I have tried to show that the deployment of copyright has led to as much abuse and injustice as it has tried to prevent. I have tried to show that it legitimizes the theft of ideas and opinions from the common weal. I have tried to show that it incorrectly ascribes ownership to unoriginal content. I have tried to show that violating copyright is no sort of theft at all. I have tried to show how copyright is used to exercise power, to stifle criticism. I have tried to show that it is being used to stifle our freedoms. And I have tried to show that it is used in an effort to convert public spaces into private domains.
No doubt some people will read what I have written as some sort of endorsement of plagiarism. Or as some sort of advocacy of the idea that all content should be free. I am not making either point here.
There is something dishonest about taking some words or ideas and passing them off as your own. But we need to be clear about the ethics of this sort of misrepresentation. This is not some sort of theft from the original author of the idea, because the original author has not lost anything (indeed, they may be dead and by definition cannot have lost anything). No, plagiarism is a breach of trust between the plagiarizer and the reader of the plagiarized work. It is a misrepresentation of one's self as something one is not.
A person who plagiarizes cannot be trusted. That is the beginning and the end of it. What he plagiarizer said (or inferred) is true, is not. It certain circumstances, such as affidavits and financial reporting, laws and sanctions are required to enforce honesty. In other cases, such as academic misrepresentation, lesser sanctions are imposed. But in general our reaction to instances of dishonesty is a community-wide condemnation of the individual in question. No further penalty is applied because no further penalty is needed. Nor am I saying that all content should be free. Nothing in what I have said implies that no person should ever sell content. My objection to the design and use of copyright isn't based on the idea that people should not sell content, it is based on my objection to the manner in which the sale of very similar (and sometimes more original) content is prohibited, and in its use to impose illegitimate terms and conditions on the sale of content.
Indeed, many business models involving the sale of content are possible even in cases where copyright is not imposed. As companies such as Red Hat have shown, it is possible to sell content you don't even own. Moreover, the distribution of content at low cost or for nothing is often seen as a means of establishing credentials and landing contracts for service (that's why those many private consultants on trdev are so willing to give their stuff away). Content can be sold if it is offered in a more convenient format, if it is distributed to a more convenient time and place.
The purpose of copyright is merely to establish a monopoly over certain kinds of content, a monopoly over some piece of software, some piece of music or art, some piece of writing. The purpose of copyright is therefore, in all cases in which it is applied, to prohibit the sale of content. But just as in other areas of endeavour we have learned that a monopoly is not the only viable business model, so also with regard to the sale of content monopoly is once again not necessarily the only viable model.
I would like to conclude by considering one more objection. This objection is essentially the assertion that unless creative content is protected by copyright, people will not produce original content.
As Gary Lear wrote, "What will happen if we allowed people to take other's words and do what they wanted is that people who have great ideas will cease to share. Conversations will stagnate, and those who are not creative will not be able to generate any new ideas. Those who are creative will also end up cutting themselves off from those who might stimulate their very creativity."
Quite the opposite is the case. The more restrictive a copyright regime one works under, the less likely you are to share your own ideas, and even more to the point, the less likely you are to seek out and use the ideas of others.
The former is the case because, if you share your ideas, you leave yourself open to the possibility that someone may appropriate the essence of those ideas, or use those ideas as a starting point, to develop and control a product or idea you could have developed in time. You are therefore risking being cut off from the fruits of your own labour.
IBM, for example, has a patent application, filed on December 12 (United States Patent Application 20020188607), of a system "for providing multi-user electronic calendaring and scheduling functions." What it essentially involves is the use of a system very similar to a learning object repository to provide access to live events in just the way you would provide access to learning objects. Now this is an idea I have talked about in my papers and presentations for the last twelve months. Did IBM get its idea from me? Who can know? Should I have kept my big mouth shut? Probably.
The fact that IBM can, by dint of its lawyers and financial strength, appropriate and say that it invented an idea which is, on the face of it, obvious, tells me that any discourse of anything genuinely new in the public sphere is inherently dangerous. It forces me to rethink whether I should post anything on the internet at all. Certainly, if I had run to the patent office instead of writing papers and sharing ideas, then I - and not IBM - would own that idea.
The latter is also the case. This is clearest in the area of music publishing, where recording artists are very clear about their refusal to listen to song proposals. Were they to listen to the song, then they leave themselves open to the allegation that they stole the song in question, or at the very least, were influenced. Thus we get cases like the suit against George Harrison who, it was held, copied his song "My Sweet Lord" from the Chiffons hit, "He's So Fine." It is a wise (but creatively stifled) musician who does not listen to any music at all!
People forget that the periods of true innovation and creativity through history were those periods when copyright and the ownership of ideas was at its minimum, and that long periods of stagnation occurred when arts and crafts were the exclusive domain of restricted castes or guilds.
Certainly, legislators in the United States realized this in the 1800s when they refused to enforce Charles Dickens's copyright. This, of course, was at a time when London and Paris were the cultural centers of the world and Los Angeles was a backwater. Even at the relatively late date of 1928, it was permissible for a then young Walt Disney to copy not only the appearance, but even the music, from Steamboat Bill (released that same year) to create what would become his icon, Mickey Mouse.
When people like Plato can copy freely and build upon the work of people like Socrates, creativity and new ideas flourish. But when the copying and creation of new work is rigidly controlled, as in the Middle Ages, creativity and innovation is stifled.
The suggestion that people will not create new products, content or services if they are not protected by copyright is a myth. Nobody owns the rights to apple pies, but I can buy them in any store in the world. The patent does not exist that would prevent me from cooking my own hamburger, but McDonalds is one of the largest hamburger vendors today.
Nobody is being paid through royalties or other protections for their work on Apache (the world's most popular web server), Linux, Perl or Free-BSD. Nobody is paying the hundreds of thousands of individual weblog or website authors. Nobody paid me to create "Stephen's Guide to the Logical Fallacies," "The Future of Online Learning," or this very post. But I did it anyways.
As Mark Pilgrim writes, people create because they can't not create. They are motivated not by some external reward but through some sense of internal satisfaction. It is, indeed, only when this process of creation by people with a genuine need to create is corrupted by the needs and prohibitions of commercialized, royalty-driven commerce that we see lurches and interruptions in the steady stream of creativity provided by people around the world. Only when we see creativity motivated by the dollar rather than the joy do we see a needless proliferation of copies and knock-offs. If there were no need to sell a thousand copies, would we really see a magazine print a half-rate description of XML rather than referring readers to better written and more authoritative accounts already available on the web?
If the objectives of those who defend copyright were really to stimulate creativity rather than monopoly and control, they would throw off the fetters of intellectual property legislation and embrace the opportunities a genuinely free market of ideas would provide. But they are not willing to do so. And so, we all lose." (http://www.downes.ca/files/FreeLearning.pdf)
Update, January 6, 2003, from page 22 onwards, at http://www.downes.ca/files/FreeLearning.pdf