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Information Is NOT Property

It would be curious then, if an idea, the fugitive fermentation of an individual brain, could, of natural right, be claimed in exclusive and stable property. If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property.
--Thomas Jefferson, 13 Aug. 1813 Writings 13:333--35
In this quote Thomas Jefferson eloquently states the premise of what I am trying to argue here, that the nature of information makes it unsuitable for assignation to the realm of property. It would be hard to describe better how information differs from physical property, but there are many who insist on information being property.

This campaign to convince the public that information is property has been going on in the US for around 40 years. According to Lawrence Lessig:
Jack Valenti has been the president of the Motion Picture Association of America since 1966. [ A year later the World Intellectual Property Organization was formed in the UN ] He first came to Washington, D.C., with Lyndon Johnson's administration--literally. The famous picture of Johnson's swearing-in on Air Force One after the assassination of President Kennedy has Valenti in the background. In his almost forty years of running the MPAA, Valenti has established himself as perhaps the most prominent and effective lobbyist in Washington.

. . .

In 1982, Valenti's testimony to Congress captured the strategy perfectly:
No matter the lengthy arguments made, no matter the charges and the counter-charges, no matter the tumult and the shouting, reasonable men and women will keep returning to the fundamental issue, the central theme which animates this entire debate: Creative property owners must be accorded the same rights and protection resident in all other property owners in the nation. That is the issue. That is the question. And that is the rostrum on which this entire hearing and the debates to follow must rest.[1]
Before Jack Valenti's appointment, ideas were never considered to be "property". While ideas such as this existed at least since the enactment of the Statute of Anne in 1710, Jack Valenti and his MPAA managed to "educate" the public more effectively than anyone before. Using the television, radio and print news media (the owners of which of course had similar things to gain from territorializing information), these enemies of intellectual freedom have been largely successful at convincing the public that their ideas are "property".

They have successfully made people believe that movies are their "property" and that this property can be "stolen" (when they are downloaded). They have convinced the public that the act of downloading is an act of "piracy". Further, they have claimed that this "piracy" hurts artists. Finally, and most recently, they have managed to associate "sharing" so closely with "piracy" that the two are almost interchangeable in many newspaper and magazine articles.

Of all these claims, the one that seems most correct is that of "piracy". It seems intuitive that if one downloads a movie from the Internet, one is committing an act of "piracy". Before that conclusion is jumped to, however, the definition of piracy should be consulted. Title 17 (US copyright law) defines "Criminal Infringement" (ie. piracy) thusly:
§ 506. Criminal offenses
(a) Criminal Infringement. - Any person who infringes a copyright willfully either -
  1. for purposes of commercial advantage or private financial gain, or
  2. by the reproduction or distribution, including by electronic means, during any 180-day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000,
shall be punished as provided under section 2319 of title 18, United States Code. For purposes of this subsection, evidence of reproduction or distribution of a copyrighted work, by itself, shall not be sufficient to establish willful infringement.
§ 506 (a) was modified by the Piracy and Counterfeiting Amendments Act of 1982, presumably adding or modifying clause (2), but clause (1) basically states the intent of the law concerning criminal piracy, "for purposes of commercial advantage or private financial gain". Basically, piracy in the strictest sense is attempting to profit from someone else's creative effort.

From this standpoint, it is easy to agree that the intent of the law is correct. It is obvious that the person who profits from the work should be the author of the work. With this, anyone can agree.

What if, however, the creative work produces no "finantial gain" for anyone? Or what if it produces "finantial gain" in an indirect way (not through direct sales)? What if the "finantial gain" has been guaranteed (as in advertising where the value is in getting the message out, not in getting paid for the art in it)? Do authors, or entities like the MPAA, who claim to represt authors, have a "right" to compensation for all creative work? What if, in the case of the Internet, a customer wants to compensate only the author of the work and not all of the middlemen in between?

The Internet and filesharing programs, such as Napster, and some proposed solutions have demonstrated that many of these questions have not been answered. Jack Valenti and the MPAA's answer would obviously be that all this information is just "property" and should be treated as such. Once again quoting Lawrence Lessig:
... to call a copyright a "property" right is a bit misleading, for the property of copyright is an odd kind of property. Indeed, the very idea of property in any idea or any expression is very odd. I understand what I am taking when I take the picnic table you put in your backyard. I am taking a thing, the picnic table, and after I take it, you don't have it. But what am I taking when I take the good idea you had to put a picnic table in the backyard--by, for example, going to Sears, buying a table, and putting it in my backyard? What is the thing I am taking then?
The answer is that he is not taking anything. The table is the property, and the idea cannot be property. Copyright has always recognized this. In fact, it is stated explicitly at the beginning of Title 17 in § 102:
§ 102. Subject matter of copyright: In general26
(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:
  1. literary works;
  2. musical works, including any accompanying words;
  3. dramatic works, including any accompanying music;
  4. pantomimes and choreographic works;
  5. pictorial, graphic, and sculptural works;
  6. motion pictures and other audiovisual works;
  7. sound recordings; and
  8. architectural works.
(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.
[Emphasis mine.]
So, the ideas are not property. Then just what is "intellectual property", anyway? "Intellectual property" is the copyright itself. The saleable monopoly "rights" to the work in question.

But what just happened here? It may be noticable that an assignation of "rights" cannot be stolen. Priveleges are either assigned to a person, or they are not. There can be no theft in this case. A person can reproduce a work without permission. A person can distribute the work without permission. A person can even sell the work for "finantial gain" without permission. But it would be impossible to "steal" a copyright or even the work it covers.

Copyright lawyers all know this, and they tend to assume it is as obvious to everyone without legal training as it is to them. This, however, has never been obvious to the general public, and Jack Valenti and the MPAA have taken excellent advantage of this fact. They have pulled the wool over the public's eyes and produced nearly tangible assets from ether.

Who are the real thieves? Jack Valenti and his MPAA have stolen something from you, something you did own before, something that was very important to you. That something is your freedom, your freedom to learn and exchange ideas, your freedom to speak. Like Flint and his band of brigands in Treasure Island, Jack Valenti and the MPAA stolen "their" treasure from everyone and piled it up on an island and sealed it away with a mysterious map (written in incomprehensible legalese). Who should be accused of piracy?







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