October 1st
Our class spent much of September looking at early hackers and underground hackers. As we move to discuss free and open source software hackers, we needed to spend a little time learning the basics of copyright and other forms of so-called "intellectual property" that undergird the discourse of these hackers. (Hacker-activist Richard Stallman explains in the GNU Manifesto and elsewhere how the term "intellectual property" contains bias and causes confusion.)
Before jumping into definitions, we watched a rich video (included below) that connected for our class the free software public with other publics facing related issues. By tracing the history of “the world’s most important” six-second drum loop (the Amen break), this video raised the issue of music sampling and its intertwined relationship with authorship, copyright, appropriation, and the way in which new culture builds on existing culture. The narrator, Nate Harrison, showed how leeway in copyright enforcement led to innovative cultural production in the form of hip-hop and electronica. He explained how recent judicial decisions and legislative changes to copyright law are eliminating that leeway while making legal sampling all but impossible for artists without ample financial backing.
The video also demonstrated how the separation between law and practice causes confusion. According to Harrison, musicians freely appropriated samples "perhaps under the assumption [that they could] be freely used in the spirit of a pledge to new forms." The Amen break, by virtue of its ubiquitous use, "had entered into a type of public domain, if not legally, then certainly culturally." This comment illustrates the divide between an intuitive understanding of public domain and and the legal definition. Furthermore, companies later appropriated and passed the Amen break off as their own work, both in terms of authorship and copyright, thus confusing artists wishing to license the sample.
After watching this video, we moved on to the basics of — and differences between — United States copyright, patent, trademark, and trade secret law.
Copyright "is a form of protection provided... to the authors of 'original works of authorship,' including literary, dramatic, musical, artistic, and certain other intellectual works."[1] It protects the expression of ideas — works fixed in a tangible medium — but not the ideas themselves, though the line is often hazy between form and idea. Despite the name, copyright affects more than just the right to copy. It gives the copyright owner exclusive rights to "reproduce, distribute, adapt, publicly perform and display" the copyrighted work.[2] Since copyrights can be bought and sold, the protections often apply to corporations rather than the original creators.
The premise for copyright (and patent) protection is a part of the U.S. Constitution that gave congress the power "to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." When first enacted in 1790, copyright law protected books, maps, and charts for a period of 14 years, renewable once for an additional 14 years of coverage. Authors registered works for which they wished to receive protection. Over time, Congress repeatedly increased the scope and duration of copyright protection. Of particular relevance to our class, Congress added protection for software in 1980. Because registration is no longer required, all software — along with basically every utterance and scribble — now falls within the scope of copyright protection. That protection currently lasts for the life of the author + 70 years or, for corporations, 95 years.
The fair use doctrine, codified in 1976, allows limited use of copyrighted material, without requiring permission from the copyright holder, "for purposes such as criticism, comment, news reporting, teaching,... scholarship, or research." Fair use is determined by courts based on a four factor balancing test. The hazy nature of the fair use test means that a creator is often unable to tell whether or not her intended use would qualify as a fair use.
Patent:
While copyrights cover works fixed in tangible form, patents cover invented products or processes that are non-obvious advances over "prior art." A patent gives an inventor for 20 years "the right to exclude others from making, using, offering for sale, or selling" their invention. In exchange, inventors must share details of their invention with the public. The scope of patents has increased over time so that it now covers software algorithms and business methods. It remained unclear for some time exactly what software was eligible for patents, but the 1981 Supreme Court case of Diamond v. Diehr led to a flood of applications for the patenting of software algorithms. Many programmers question whether software algorithms can be considered non-obvious. Regardless, it is clear that many obvious software algorithms and business methods have been approved by the patent office.
Trademark:
Trademark law protects in perpetuity words, symbols, slogans, logos, product names, and other marks that "identify a particular manufacturer or seller's products and distinguish them from the products of another."[3] The law attempts to prevent use of trademarks that would cause consumer confusion.
Trade Secret:
Specifics of trade secret law vary by state, but the laws protect companies' confidential information from misappropriation. Reverse engineering is not considered misappropriation.
(Incidentally, the talk page for OpenCola's wikipedia entry includes a good example of the computer geek public engaging in discussion and "figuring out" of licenses.)
Software today is protected through multiple means — primarily copyright and patent. This leads to at least some confusion and difficulty for programmers.
After our discussion of the law, we talked in class about Carla Hesse's paper, "The rise of intellectual property, 700 B.C. – A.D. 2000: an idea in the balance". (Daedalus, Spring 2002: 26-45) Hesse's history shows, in the words of classmate Tiffany Chang, that "the development of intellectual property was not only sparked by Enlightenment thinking in which humans are creators and owners of ideas, but has been defined by this quid pro quo assumption with the universe where an individual can say, 'I create, therefore I own.'" For as long as ideas were considered the creation of God, it was unthinkable to treat ideas as property. However, following the rapid expansion of commercial printing in the eighteenth century, authors and printers went ahead and began treating creations as property. Two models competed to explain this newly discovered intellectual property. John Locke and Edward Young asserted that authors have a natural property right in their ideas. (Hesse, 33) This "property" should be protected forever and be transferable just like tangible property. Condorcet argued that ideas come out of a collective process of experience. (Hesse, 36) If society chooses to treat ideas as property, it must do so based on social utility rather than because of a natural right.
The English parliament, through the Statute of Anne and the Donaldson v. Becket decision, came down on the utilitarian side. Authors could obtain copyrights on creations (but not ideas) for a limited time before works were released into the public domain for the encouragement of learning. The relevant clause in the U.S. Constitution was based on the Statute of Anne. In practice, nations' positions on this debate have hewn to their commercial interests. Net exporters of content have moved toward the natural rights view, while net importers have advanced the utilitarian view. Recently, the United States and other highly developed nations have used trade treaties to impose their position — which increasingly resembles the natural rights stance — on developing nations. As a consequence, most content worldwide is now, in effect, protected by copyright forever. This is particularly true for software, given that no benefit will accrue to the public when today's software enters the public domain sometime in the 22nd century.
Classmate James Hodges noted that our "assumption that intellectual works should produce capital for creators who need to make a living is contrary to the far longer-standing notion that intellectual work belongs '...not to the artist exclusively, but to man.'" (James Hodges, with quote from Hesse, 29) He went on to connect the Hesse paper with our readings of Richard Stallman's GNU Manifesto and the epilogue of journalist Steven Levy's Hackers. (Levy, S., 1984. Hackers. New York: Anchor Press/Doubleday.) (Levy's epilogue describes the decline of the hacker ethic at MIT, despite Stallman's attempts to keep it alive. The GNU Manifesto was Stallman's explanation for why he was setting out to write a free computer operating system that anyone could use and modify.)
"The issue of intellectual property is one conjured by capitalism—without a notion of property or ownership, the debate is rendered meaningless. Famed hacker Richard Stallman noted this keenly, realizing that most discussions about intellectual property (in this case, code) were actually about their ability to generate capital. 'I have resigned from the AI lab in order to deny MIT any legal excuse to prevent me from giving GNU away' he wrote in his GNU Manifesto. With the GNU project, Stallman hoped to advance computing through cooperation. 'Many programmers are unhappy with the commercialization of system software,' he wrote. 'It may enable them to make more money, but it requires them to feel in conflict with other programmers in general rather than feel as comrades.' He believed that mutual aid would advance computing further than competition—in the case of MIT hackers, cooperation had yielded amazing results." (Hodges)
Richard Stallman (aka RMS)
Classmates raised philosophical and practical questions about knowledge, creators' rights, and the public good. Katie Anderson asked, "What is knowledge? Is knowledge property, and if so, who owns it?" She concluded that today's changed social context means that we should "once again (just as it has been done throughout history) re-examine the ownership of knowledge in the larger context of public good." Chelsea Noll linked hackers' obsession with the free flow of information to the utilitarian view of intellectual property. "Stallman supports the utilitarian notion, that what is better for the greater masses is the free flow of knowledge...." It should be noted though that Stallman is opposed to any use of software copyright that takes away user freedoms. Other adherents to the utilitarian view may support limited term copyrights as long as the public eventually gets some benefit.