Enough with Copyright

by Francois Joseph de Kermadec

As part of my work, I spend my time dealing with protected content: what I write is either copyrighted (such as my articles for the MacDevCenter) or released under a Creative Commons license (such as this very blog), what I develop has to fall into the hands of someone (usually the company that hired me) and the communication work I do for my clients draws on works they own, I own, my company owns and artists own. In other words, copyright issues are something I have to deal with daily, if not more often, and sometimes with potentially serious consequences.

Yet, I almost never think about copyright. Why? Because, to me, owning, sharing and stealing are facts inherent to life: they're important, they require some thinking about but they shouldn't swallow up our whole time — much like a cook making a croque-monsieur should ensure he doesn't put too much cheese on the sandwich, lest he wants the grill to catch on fire, but shouldn't let cheese divert his attention from the careful ham warming up business at hand.

I like to believe I'm a fundamentally honest person: I don't knowingly steal goods, services, or ideas from others. But I know my limits and I'm sure I have already broken the law without realizing it. I'm sure I have already used an idea in a campaign, a blog or an article that belonged to someone without my knowing. I'm sure, somewhere on my hard drive are two copies of a font or a picture for which I only bought one license. Why? Because I'm human, I can get forgetful or carried out by an idea. Yet, I haven't engaged in illegal activities, I am not tangibly hurting anyone and, so far, the cops haven't rung my doorbell to ask me questions.

As far as I can tell, we all more or less work in the same way. We're honest but not maniac. It has served us well, for generations, and the world has continued to invent, innovate, create and publish. Society and life have gone forward, and some of the most capitalistic societies have been built over the past century, the very century that supposedly is seeing an explosion of theft and stealing of ideas.

Now, I'm sure some people do illegal things. Downloading an entire music library and never paying for it is theft. Stealing a competitor's idea, packaging it in your product and making money out of it without having incurred any costs of R&D is stealing. There are laws governing theft (be it of a material good or of an idea) and they can be used for good.

However, I am afraid we have crossed the line into sheer obsession. Both us, the people who are accused of stealing by corporations, lawyers, governments and them, the governments, lawyers and corporations who spend their time accusing people of stealing. In my aggregator, I have about 60 articles daily popping up about the right or wrong of Creative Common licenses, about Google's right to scan books, about Intel's DRM schemes, about whether or not TiVo is allowed to do what they do, about Linux vs. Windows…

All the time, the question is brought back to the lowest of level: who is "right" and who is "stealing"? Well, we're all stealing. We, as human beings, care about one single thing: satisfying our needs and the ones of those deeply connected to us. Truth is, deep down we don't care in the least about the TiVo CEO, about starving authors or EPSON cartridges. We want to feel dry and warm, eat and reproduce. Of course, there is a strong moral layer that teaches us the difference between right and wrong and this layer is fundamental, essential to the constitution of an organized society: that layer makes a society what it is and separates it from anarchy. Nevertheless, it is bound to slip from time to time — and this does not obligatorily turn us into rapists, murderers or Bad People™.

Theft and ownership haven't been put in question by technology. Wondering whether Linux is better than Windows because it is open source isn't far away from wondering whether we should buy a Parker or a Waterman fountain pen — for those who don't know, Waterman advocates the open source cartridge format of the fountain pen world while Parker insists on a proprietary one, and these companies have been around longer than Linux. Does releasing our works under a Creative Commons license, under a text deeply connected to a specific country's jurisdiction, even make sense on a network like the Internet? Technology allows for faster, easier theft but it also allows for faster, easier compensation. Police used to hit you on the head and strap you to a chair for counterfeiting books, now they just stuff the files with DRM. The game goes faster, at a larger scale but, in the end, it hasn't changed much.

I believe in the good of Open Source, Creative Common licenses, the free sharing of information, etc... All that is great and I have said it many times. But I don't believe in procrastination. What if, for just a while, we stopped advocating Open Source and started building it? What if, instead of advocating the free sharing of information, we promoted it? How much more energy can we lose commenting on the acts of multibillion corporations that, not only can do great things we all praise, but won't budge an inch because a sea of bloggers criticize them? Neither Google nor Microsoft have a reason to change because they're criticized — whether the critics are founded or not. They may have a reason to change however if it comes to light that their business model no longer works or that consumers prefer a competitor.


2005-09-23 11:07:45
assume appropriate posture, and applaud.

thank you for articulating the glaringly obvious which we have all some how lost sight of.

2005-09-24 06:00:34
copyright infringement is NOT theft
Copyrights infringement is NOT theft. Its difficult to have a discussion about copyright if the basic premise is flawed. By infringing your copyright, i am denying you NOTHING. This is the fundamental point.

Because the rhetoric that they are the same thing has been pushed and pushed by record companies and movie industries, it does not make it so.

2005-09-24 07:44:06
Ideas cannot be stolen.
Overall I agree with what you had to say, except for your comments about the wrongness of "stealing" ideas.

Ideas are mental constructs--when you have an idea, you can either keep it to yourself, try to keep it secret within your company, or let it free. However, don't be fooled into thinking that ideas are property--it is not possible for someone else to "steal" your ideas and stop you from using them.

I personally think it is a dangerous state of affairs for people to believe that they have the right to stop ideas from being diseminated. We've being through many periods of history in which despots have tried to stop ideas and knowledge from being widely known. The hoarding of ideas and the oppression that comes from trying to keep others from knowing them is never a good thing.

It may seem as if a corporation has the right to sue others from using ideas they've cooked up, but in the long run putting profits ahead of the advancement of humankind is a bad thing. The cornerstone of capitalism is a free market and competition--corporations should not be afraid to let their competitors find out about their ideas and use them to create competing products.

The Free Software movement understands this very well, but it seems like the rest of the world still has some way to go...

2005-09-24 11:54:19

Thank you very much for your kind words!


2005-09-24 11:59:05
Copyright infringement is not theft

First of all, thank you very much for taking the time to post, I really do appreciate it!

It is true that, in that theft is defined as "the action to take another person's property without permission or legal right and without intending to return it", copyright infringement may not, in itself, consist of a "theft".

I guess many people have equated the two in their discourse as an attempt to simplify a potentially complex debate. Also, in many cases, what is considered is the result of the infringement that may, itself, be considered theft.

In such matters, it is true that the precision of the terms used is of the utmost importance. Thanks for underlining that difference!


2005-09-24 13:19:19
Ideas cannot be stolen.

First of all, thank you very much for taking the time to post!

I agree with you that ideas, as such, cannot be considered "property": their very nature makes the attribution of the ownership of an idea almost impossible. Also, I fully agree than sharing ideas and helping mankind go forward are essential points.

Nevertheless, I feel there is a distinction to be made between an idea in the abstract and an idea in the context of the development of a specific product or service. For example, an "idea" on how to put an end to world hunger and an "idea" on how to design a processor pipeline are two different things. The former is a general concept that, as such, can hardly be protected while the latter, that draws heavily on certain production secrets and patents and, therefore, would be useless per se, outside of that specific context, may warrant some form of legal protection.

Most protection systems, such as patents, are only defined for a certain time, the idea being that they allow inventors to recover their R&D costs as well as to make profit out of an idea (therefore stimulating research by promising a potential gain to individuals) but also allow the public at large to use the idea after a certain time, by releasing them automatically. Any system that can be abused to grant ever-renewing copyrights or patents is, in my humble view, harmful.


2005-09-28 12:10:07
Copyright's not so easy these days
[W]hat I write is either copyrighted (such as my articles for the MacDevCenter) or released under a Creative Commons license [....]

That's a false dichotomy. The stuff you apply a Creative Commons license to is just as much copyrighted as something you write for hire for The Massive Corp. In the first instance, you reserve only some rights, not ``all rights reserved''. (In the second instance, you don't even own the copyright, but that's another kettle of worms. :-)

The only way your stuff can not be copyrighted is by you placing it in the Public Domain. (And there are some who suspect, under the New, Improved! laws, that may be impossible.)

By the way---you're infringing copyright on the word `blog'. By current law, everything you ever write is copyrighted the instant you put it on paper (or in electrons), including, for instance, a memo to yourself, your shopping list, and, I suspect, any words you coin. Copyright in `blog' resides with the first person to use it---good luck finding her, so you can pay royalties.

2005-09-28 13:27:45
Copyright's not so easy these days

First of all, thank you very much for sharing your ideas with us!

You are right in pointing out that there is a not a clear dichotomy between "Creative Commons" and "Copyright". My main goal here was to contrast both approaches to the ownership of some content and the releasing of rights associated to it: Creative Commons Licenses, by granting some rights to readers can be opposed to a traditional Copyright that is infinitely more restrictive. Legally speaking, though, it is true that the Creative Commons license is applied on top of the copyright and does not replace it.

The point you raise about "blog" certainly is interesting. I do not know to which extent its de facto inventor could enforce copyright on it as it is the contraction of "web log", and could have been coined simultaneously by many people in different places. That sure would be a fascinating topic to research.


2005-09-28 14:08:59
Copyright's not so easy these days
One word (such as "blog") is not enough content to be protected by copyright. What is possible, though, is to use it as a trademark, but that's a completely different story...