I know you fully expected questions like that, but I still thought they had to be asked! 🙂

Modern copyright law enables certain business models at the expense of others. Naturally, this has an effect on the nature of art, but why assume that those works which have made it through the modern copyright filtering system (centralized, gated, selectively and often anticompetitively marketed) are more representative of the fundamental nature of art than more collaborative sorts of projects? In particular, a direct parallel between FLOSS and creativity in general is the importance of the “right to fork” — .that is, the right to make properly attributed derivative works without the approval of the original work’s author(s). In the article “Seen Any Ghost Works Lately?” I’ve given some examples of the kinds of artistic creativity that flourish when people have this freedom.

Any system optimizes for some types of outcomes and against others, but that doesn’t mean all systems are equally good. We shouldn’t judge the new, zero-cost distribution system by how well it makes exactly the same things happen as happened in the old system (e.g., Hollywood blockbuster films, perhaps the only form whose creation — as opposed to distribution — is truly paid for by copyright royalties).

I don’t think there are two economies here, really. There’s one economy, and we’re all in it together. The question is whether we’ll maintain archaic laws that prevent us from using our giant, worldwide copying and editing machine to its full potential. True, those laws enable some business models (royalty-based publishing) at the expense of others (being a DJ, for example). But the enabling of particular business models is not the point of government, and I don’t see any evidence that the old model provides better support for artistic activity than freedom would. Suppose we found a way to bottle up all the oxygen in the world, so that we’d all pay a monthly oxygen-tank fee to one of several possible suppliers. That would certainly enable some new business models, ones that aren’t possible today in a world where everyone gets as much oxygen as they want for free. But few would argue that the world would be better off because those new business models are now available!

I know it’s a loaded analogy, but I think it’s illuminating. An advocate of scarcity has a steep hill to climb. You wrote that the free content advocates are “ignoring an important reality about the difference between these two economies”, but don’t ever quite articulate what that difference is. Could you? I don’t see any “radical simplification of social life” being proposed, any more than today’s free oxygen results in a radical simplification of life in general. Whereas restricted oxygen obviously would radically reduce the options available to everyone: all activities would revolve around the question of how much oxygen they require and who will supply it.

If anything, it is copyright that radically simplified the world of creativity, by closing off many options for derivative works. And today, of course, it closes off many more options than it used to, because the potential for copying and modifying is so much greater than it used to be.

Copyright does not pay for most artistic creation, and never has. It has been primarily a method of subsidizing reliable distribution, and it was successful during the centuries when distribution relied on a particular kind of technology. But the technological situation today is utterly changed. Can you articulate precisely what you’re afraid of?

Certainly we are already living within an increasingly hybrid economy. Think about Skype. A free online telephone service? Outrageous. Does it threaten the commercial interests of the first economy? (Not only the AT&T land-line economy but even the mobile economy of Sprint and Verizon.) To an extent, yes (although more threatening to the land-line economy than to the mobile economy). What the first economy has to realize is that, as we shift more to the second economy, value lies in service and labor, and in convenience and accessibility (i.e., delivery and distribution mechanisms), not in static product per se. The first economy, the analog economy, has relied too heavily on a product approach — hence, its focus on intellectual property.

Jim Porter | Okemos, MI

Benkler, Yochai. (2004). “Sharing nicely”: On shareable goods and the emergence of sharing as a modality of economic production. The Yale Law Journal, 114, 273-358.

This is art. Function is irrelevant. Freedom applies whether it’s a formula for a fractal, a score for a sonata, or a design for a droid.

Only careless craft constitutes a lack of art, although any item is a candidate given an artist’s consideration.

And what conceit can judge which art is economic and which not?

You’ve very likely seen it, but in case you had forgotten, Richard Stallman seems to have considered these issues some time back. Central to his ethos of “free software” is the word “functional” in describing software. The DeCSS lawsuits led FLOSS authors to claim “code is poetry,” but there’s a lot of truth in the idea that code is largely used to get work done.

With that view in mind, Stallman wrote, “Computer programs, being used for functional purposes (to get jobs done), call for additional freedoms beyond [noncommercial use]” (*) .

I hope considering the term “functional” and how it interacts with software vs. how it interacts with culture (reuse? remix? integrating cultural elements into personalities?) helps clarify your understanding. I think that you may be right about free software activists’ understanding of free culture being constrained by our background with functional works where the essential freedom is the ability to modify and share without restrictions on use; that’s why I look to you to help me understand free culture from another viewpoint.

“On the other hand if I want to keep mine within the bounds of copyright and make a living from it then that should also be fine……“

I would strongly suggest that if you authored software that you keep it within the bounds of copyright. I’m not understanding your point.

“The accusation that intellectual property is akin to slavery […]“

“Akin” would be too strong of a word. I said it “flirts”.

“a system where intellectual endeavour was not subject to proprietary rights would be to cause a person to work without reward, which as I understand it, constitutes a fundamental tenent of slavery.“

I don’t understand your point. Both free software and free culture are and can be subject to “property” rights. I don’t recall stating that I have a problem with that. Can you please clarify what you are trying to say?

I look forward to an improvement in the efficiency of your eloquence, for then the world will truly tremble as all swords dull in the gleam of your mighty pen.

Peter Drahos’s book Information Feudalism gives an excellent description of the way that control of information and technology rights is effecting significant change in the way we operate as people and communities, with a specific focus on international IP lobbying and law. He has also written subsequent information on the ratchet nature of these laws. these systems are designed to be progressively more exclusive and not to enable a relaxing by any party from a prior position.

FLOSS is supported by a wide community.
The full commitment to really free software is something which does have wide support. Software Freedom Day is an event which celebrates this. Check out the scale of this event.It grows every year. http://softwarefreedomday.org/

I feel that this debate is occuring because the ability to do things technically and the ethics or social goals of how we want to operate as a community are standing face to face. Technology can now access report and define the opportunities we have to interact in our communities.

All of our expressions take from what has come before.
It is how we construct dialogue and meaning at every level.

It is understandable that there is heat in the debate because the economic and technology systems have a lot of momentum and investment. They are not however the purpose. They are a means. The purpose is the community which can think speak and create and collaborate.

Current strategies for law including DMCA/EUCD and patents
are about pegging out every inch of our known space.
Often the beneficiaries are not the authors.

In proposed broadcast law the broadcaster want copyright over material they broadcast for +years. They lobby for right to control where the material is next broadcast regardless of whether it is copyright, copyleft, public domain content. these are people who have invested nothing more than those people who are sharing peer to peer. They have distributed something. The proposals do not even restrict this to material which they have specific right to broadcast. Broadcasters have the right to communicate information as news collectors and responsible bodies regardless of the intent of authors.

Right of way or control of information by individual entities in a context where technology has the capacity to punish people for every interaction or use of each individual piece of information or technology is not a recipe for a progressive and creative culture.

Basic free rights with information, ie to read for example are at risk, let alone fair use rights which the legislators in my country say we may not have because it doesnt comply with our promise to the USA. These are not defensive ownership rights. These are offensive rights. When one nation deems that the citizens of another nation may not have fair use which they themselvces enjoy the nonsense of any ethical underpinning for these processes is hard to ignore.

These restricted rights are used with DRM and technological protection measures which make felons of developers who develop the means to interact with information generally. The developers become felons if a third party uses these laws to circumvent copyright. ie The chair manufacturer is burnt with his chairs if there one used in a western brawl. Why? Because it is proposed that this is easier than catching the people who actually committed a crime.

I appreciate the creative commons project to establish some alternative ways of defining rights.

I am concerned that it is too easy to think that we are operating in a world where the choices of the author are the ultimate social outcome of the copyright, copyleft or DRM choice. The reality is that the information broker industries hold these rights with very few concessions made to authors. these groups do have the scale and technological capacity to effectively franchise culture so that local communities may not participate because all of the information around them is fenced.

The reason that GPLv3 is white ie strictly no DRM or patents is
because these copyright laws are offensive systems for colonising information, technology, market and social space.

All shades of grey are inherently able to be repurposed at any point to make dependent or derivatory technologies and creations compromised.

In my opinion
This does not mean that everything needs to be white.
It means that those things that arent need to be self aware.
Because all shades of DRM grey enable the material to become hostile at some future point this effectively makes them black for purposes of creative and finacnail investment.

I think it is easier for people to understand that really free is important for a computing infrastructure stack because we are accustomed to viewing these things as tools for expression. Tools are something which we have a ‘craft’ heritage for talking about.
They are utilitarian and therefore there purpose for public use is a part of their function. And yet interestingly patents and debates on control by individual entieis on these ideas is still hotly contested.

We seem to have lost the ability to recognise the utilitarian buidling block nature of information from a cultural perspective and also sadly from a medical and genetic perspective. That public responsibility in these areas has been losing significant battles is probably the clearest indicator that our whole system for allocating value in relation to ideas is broken.

For creative projects and are also part of our dialogue.
Authors use characters themes ideas and structures which are a part of an underlying fabric about how we construct language and character. As the traditional public domain tales and characters all become fenced there is no play dough for new generations.

For visual and sound media the prospect of copyright for broadcasting is a very short step away from copyright saturation where every permutation of colour space has been broadcast by an entity and so all expression is copyright. When it is copyright owned by a broadcaster debates about whether you created the idea independently will be at risk as well.

Exclusive rights have been a method for attaching value to creation. They are a method which nations like the US found unworkable when they were developing. Now more than ever there is a separation from the people fencing and the people aiming to create with information. Now more than ever the intrusion and prejudice of systems which operate for fencing entities is defining our communities and our laws.
These means are too expensive of our purpose and it is time to rethink.

Yes, I agreed, Mr Lessig, however I am concerned about predators who prey on this perception of “complicated logic” to get free labor/content/ and so forth… As Bill Joy has remarked once – it helps to be aware that predatory business models exist…

Greetings
Terry

Similarly, if artists were forced to publish their intellectual property free of charge, that would similarly deny them the liberty of selling their labour.

However, all artists at the moment are prohibited from building upon published culture. Their hands have been tied by monopolistic privileges intended for publishers.

No-one’s trying to force artists to work for nothing. Those in support of free culture are evangelising the restoration of the artist’s right to freedom of expression, to restore their liberty to build upon public culture.

So, this is about restoring liberty to the artist. The last thing it is about is enslaving them.

The only people upset are the publishers who are seeing their privileged distribution monopoly eroded by the Internet. The publishers are naturally persuading you that they represent the only source of income for the artist.

That difference to me is enough to declare my intention to push for free software yet also push for free culture knowing that “free” can mean a significantly different set of norms between the two.

Look Peter I think the essential point is that if you want to put your software out for free theat is fine…… On the other hand if I want to keep mine within the bounds of copyright and make a living from it then that should also be fine……

Software however, does flirt with the slavery analogy. When software is not free, it has the disasterous potential of telling you what you will do as well as many things you will not do. For example, you will not have feature X and you will provide information about yourself over a network (i.e. spyware). Proprietary software potentially controls you for it is a sequence of mathematical/functional steps that struts alongside the very actions you take using input devices.

If you dont want to be controlled by proprietary software then just dont use it …… problem solved.

The accusation that intellectual property is akin to slavery is baseless. In relaity a system where intellectual endeavour was not subject to proprietary rights would be to cause a person to work without reward, which as I understand it, constitutes a fundamental tenent of slavery.

Get off your high horse.