Friday, January 20, 2012

SOPA and PIPA: Who Are the Pirates?

We forget, in our discussions of piracy of Intellectual Property, that those complaining loudest about piracy are pirates themselves.

Or, at least, are the descendants of pirates, still profiting by the piracy of their ancestors.

The initial patent and copyright laws in England, in the 17th and 18th centuries, allowed for "ownership" for a period of 14 years, renewable once. US laws, by 1800, had followed suit. This limitations codified an intellectual commons of material open for use by everyone. The particular creators, who had made use of the commons in their own activities, were provided an incentive, the right to profit from their work for up to 28 years. After that, what came from the commons went back to the commons.

Nothing, of course, is created out of thin air. Everything is based on what went before. Creativity in the future can only occur if 'what went before' is available for use.

The system made sense.

Oh, and it had another factor: things weren't in copyright by virtue of publication. It took an effort on the part of the creator. If someone didn't want a work copyrighted, it was quite easy: don't copyright it. Newspapers, for example, which were generally political organs, wanted to see their stories reprinted as often as possible. Automatic copyright would have added an unwanted barrier to that, reprinters having to make sure they had clear right to republish instead of just going ahead.

That also made sense.

But, soon, that sensible system was encroached upon, by people who had begun to see the creator as the individual genius and the creation as "property" like any other. They chafed at what they saw as limitation of their rights over their creations.  By 1831 (earlier, in England), the duration of copyright had been doubled.

It has gotten longer (and stronger) ever since. It would last forever in the US, except that would require a Constitutional Amendment (the Constitution specifically calls for copyright of limited duration).

Why? Because the companies and corporations (who hold most of the valuable copyrights) have the money to push Congress to expand their ownership rights.

To steal from the intellectual commons.

That's right, to steal.

Under the law as it was established during the infancy of our republic, there was a robust intellectual commons, a wide range of work "owned" by all of us. Today, that commons is quite a bit smaller, much of it stolen from us and given to copyright holders. Today, The Jazz Singer belongs not to the culture that created it and sustains it, but to a corporation that "protects" it, a corporation that has no connection to the initial act of creation but that has stolen our common right in order to maintain continued profit. Today, Mickey Mouse, whose popularity is ours as a whole and who has become a part of our broader culture, place maintained by us, is not owned by us, but by people with no connection at all (except in law) to his creation. Our rights to Mickey have been stolen from us.

This is very real theft, though we have been taught to look at it the other way around. What we once had is no longer ours, but belongs to corporations who continue to profit on our cultural legacy, making "theirs" what should be "ours."

There's reason for strengthening protections of Intellectual Property for new creations. I am all for that. But, at the same time, let's start trying to get some of our own back, our cultural heritage, the commons that makes future creativity possible.

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