Coming Regulation
Coming Regulation[1]
The development of the Internet and “virtual” space is much the same as other types of property which have been discovered through out the human existence. For example let’s take maritime law; there was no need to analyze disputes over property, its loss or insurance proceeds, or to analyze shipping lanes and coastal waterways until ships and sailing vessels were theorized and constructed. Immediately came the need to determine use rights and ownership rights. The concept of flight and ownership below and above the surface became of interest only after it was proven that human flight could be made. Immediately the question of ownership and privacy and use became evident because “now” the space could be used for enjoyment and perhaps of greater importance to make a profit.
As stated above the innovations of ICTs and the www have provided new ways to use and think of space and importantly to make money off of this conceptual space. Secondlife was mentioned a while back. TWU is even a member in this community now. That means perhaps for the first time questions about how to use this space are being formulated. Education, open use, and private use are probably being discussed as we consider this week’s materials. Just as the Tinie Causby case as inventions and new uses become known there then will arise the desire to maximize use and naturally parameters of use must be redesigned or established. Just as air became a public highway so too has become virtual – hyperspace (Lessig, 2004).
I like the statement Lessig makes in posting his central argument.
“The law’s role is less and less to support creativity, and more and more to protect certain industries against competition. Just at the time digital technology could unleash an extraordinary range of commercial and noncommercial creativity (emphasis added), the law burdens this creativity with insanely complex and vague rules and with the threat of obscenely severe penalties. We may be seeing … the ‘Rise of the Creative Class.” Unfortunately, we are also seeing an extraordinary rise of regulation of the creative class.”
There is also the question of taxation of purchases made over the Internet. So this question of how to regulate use of property in the Internet will be defined not only by the desire to control piracy, but to enable government to efficiently and effectively collect ‘use’ and ‘sales’ taxes which by and large are going uncollected at present.
Internet Exchange
Internet Exchange[1]
Lessig draws upon the events leading to the technology developed in the Camera by Eastman and the events of evolution of the Internet in an effort to compare these two phenomena. He wants to establish that the invention of Eastman was a social break through that had profound impact on all society. Not only was family, but news, media and advertising to mention a few were changed by photography using the new film process. He does a good job of illustrating the U.S. Supreme court analysis in justifying photography as a “non-taking” and he reflects that the court held that photographs for the mainstream of Americans did not require “permission” by the subject. The thought simply put was that taking a photo of someone was theft of their likeness. Each person has only one unique likeness and to take it is wrong unless permission is established. Actually the Court said that the photo was a taking, but a “legal presumption” was established in law that the subject gives their “permission” for the photo, at least if taken in a public place. Public figures were exempted because their image is a commercial item used in advertising, movies, record labels etc. We could interface an argument of power and capitalism at this point!
What is interesting is his analogy to Napster and the Internet in general in providing a platform of exchange of intellect and mental product (Lessig, 2004, p. 34). As the ability to efficiently and cost effectively produce pictures were in the late 1800’s so to Lessig says is the use of the Internet to burn, rip and record media. To Lessig the photo became a part of American life and allowed new dimensions of exchange and recording of memories, information, knowledge, etc, so the Internet serves a function in helping segments of society become well versed in communicating with others. His analysis of kids that do not read or write well becoming involved in media and thereby coming to the realization that being able to read and write are critical to communication is well taken (Lessig, 2004, p. 39). He states: “For like Kodak, the Internet enables people to capture images. And like in a movie by a student on the “Just Think!” bus, the visual images could be mixed with sound, or text” (Lessig, 2004, p. 40).
Free Culture
Free Culture[1].
Wow! Intellectual property rights have certainly sorting out a great deal of issues over the last 15 years. Since ICTs, the Internet in particular, have become a ‘graphic’ hyperscape no longer restricted to mere text we have seen a great deal of attempts to expand on the concept of “free use” of other’s creations. So much so that a new area of law practice has evolved in the name of “Cyberlaw”. Examples of practice area questions deal with computer crime, domain name, intellectual web design, freedom of expression, privacy, and technology licensing just to name a few. However, most of these are the product of basic intellectual / patent law, contract law, criminal law, business law, tort law and a few others combined with the fact that the locus of the activity is in the virtual/digital medium. This has created a practice area which concentrates on the basic legal principles enumerated above within a particular context.
Lessig’s call for ‘balance’ in administering property rights is well taken. His analysis of the freedom of property rights vs the contingent power of ownership in the feudal system is very good. In earnest he pleads that the central component of private property ownership arises from the unfettered ability to alienate yourself from your property in any degree that you wish. Therefore, the absolute ownership of a property whether real, or intellectual is the right to give it away or sell it or rent it for a term or in any way you wish. Feudalism was a system by which the powerful maintained the ownership of rights in property in perpetuity. For example before 1640 a person might sell a property right and there would be a right of either redemption, or a contingency which would either in turn limit the exchange to either a term of years /or life of the grantor, or else upon an event (a person’s birthday for example) the property would return to the grantor or the grantor’s assign(s). We still have this legal concept available for real estate and in lease of personal or real property. But, we have limited it to a term of time so the property will not be affected for perpetuity. The limit on patents is in part an evolution of this morph in law.
In Lessig’s analysis it seems that there are two primary issues in the use of patented property. One: what the owner of the right may do with the property to the exclusion of other non-owners? Two: what rights may be exercised by the non-owner of property in relation to non-exclusive use of the property by the owner of the right? In addressing #1, Lessig strength of the concept of private property rights is that inherent right to completely release all rights in the property or any part thereof. This is strengthened by his discussion of concepts such as open courses and free ware. For example the strength of the patent or copyright on freeware is that it is precisely the owner of that right that should be able to determine what it is used for. This is a simple enough proposition and seems to reflect our American ideology of freedom. The problem arises in #2 above, when considering the owner who does not wish to give away, reduce value in, or even sell for that matter a property use or right in something. Lessig argues against the U.S. government’s intervening in the African importation law case. The question to society and particularly American society was should the U.S. government intervene? Some might say what is the harm in Africa buying the drug that has been manufactured in another country? Without getting into the legal analysis the basic thought is this: to allow a patented drug to be marketed in areas outside the U.S. FDA controlled market is to encourage black market generics and potentially undercut drug mixtures which may be dangerous. So one issue is that there arises a potential for harm to the users of the drugs. Perhaps more important is that Americans (who are supposedly protected by FDA) are increasingly traveling and buying medications out side the U.S. Many are not up to standard and this increases potential for injurious use, and more importantly drives down the demand for American drugs which arguably cost more because of the need to recoup R&D, marketing and other costs. Hence, potential for great economic harm to American producers and a potential chilling of research (no profits). After all the pharmaceutical companies are in business to make a profit.
I agree! I believe in freedom to dispose of your property as you wish, but in balancing need vs property rights there are times that a central party must step in for the balancing analysis to be properly devised. While still preserving property rights there may be a ways in which more property may be shared without loss of recompense. For example Pandora radio is marketed as free. I listen to it all the time and select artists and their recordings in full length stream. Although marketed as free is it really free? True, I do not have to pay with money, but I know that I do pay. How? With cookies, right? Part of my personal life is exchanged in some myriad of hypertext corridors of space. Somewhere a composite of my habits and changes are being constructed. Why? I can only hope for marketing. That would be the least of my concerns. Otherwise let your imagination run wild!
Same goes for open software. If you have not looked at the open office software take a look. Our old friend Google is again involved in this endeavor. Actually the software is quite good.
Just as a byline you might find the following “open letter” from Paul Gerhardt, Co-ordinator
Creative Archive License Group on revising the license so those other than in the UK might enjoy the Free Culture software. http://creativearchive.bbc.co.uk/archives/2006/06/open_letter_fro.html
Basic rules of Creative Archive : http://creativearchive.bbc.co.uk/archives/2005/03/the_rules_in_br.html
Creators vs. Creativity
Creators vs. Creativity[1]
Lessig’s discussion of creative use is very good. He uses as examples Walt Disney’s parody of Keaton’s Steamboat Bill, Jr. and the use literature in the doujinshi style. He (in my opinion) brings up a good point in noting American law also draws a distinction between works that are copied and those that are sufficiently different, and therefore not a violation of copy (Lessig, 2004, p. 26).
The Internet too is a relatively new and vibrant medium of exchange. As sound to supplement video recordings was new in 1928 we are now seeing many individuals and groups attempting to organize methods for use for the Internet. Some of those interests are for profit in the form of currency while others appear to be interested in profit from various indirect methods. In some instances “profit” is the mere pleasure and self satisfaction of the creator. Regardless, the Internet as a means of generation of wealth are becoming more viable.
As I come across websites it is apparent that Lessig’s question: “How free is this culture?” becomes more important (Lessig 2004, p. 30). For instance I see students make mistakes by cutting and pasting” from time to time. At one time a couple of years ago this temptation became so prevalent that I was required even at first year class level to begin an integrated study of plagiarism and minimal levels of documentation to provide sources for ideas developed and material used. This has evidently become so prevalent and perceptively important to our culture that certain software makers now sell software to education institutions to check for “similarities” in works. Several software are available on the market, while some are freeware. For Example Turnitin is a trademark for a particular software designed to assist in plagiarism detection. < http://turnitin.com/static/home.html > I must admit that this is somewhat perplexing. As an instructor, I have as my primary goal to teach and encourage and edify others to use their mind and think and be able to apply that thought to circumstances in this world around them. I want them to some degree to test the water, their minds and try new ways. I am not a law enforcement officer, although to some degree all instructors are charged with duty to preserve order and proper process. Perhaps a much larger and critical question to ask is “How far can we legislate society?” while encouraging society to be creative. Ability to self regulate is one important aspect of socialization. Even though society has government law enforcement we rely by and large upon the dominant ideology of the society to erect barriers to behavior and encourage “proper” normative conduct. Education, religion, family add to the ability to self regulate behavior and make known these processes. However, as segments of deviation from the norm increase in incidence the propensity may be that over time the norm adjusts or changes. Often in law enforcement the critical question a law enforcement officer or agency must ask itself is “how popular is the activity that we seek to prohibit”. Perhaps in the past the conduct was not as popular, but in the present because of any number of factors the population or a major segment begins to participate in the conduct (burning CDs on the Web). So, the next question is “How do we stop this?” or “When do we stop enforcing current laws against the conduct?” and/or maybe even change the law?” With an unregulated Internet we are currently having to address these needs. We have a generation and a portion of at least the previous generation (baby-boomers) which are used to “cutting and pasting” and “borrowing” and “free exchange” of information. This trend has continued to grow since the “point and click” software came prevalent. Timing is critical to change. For instance, when will it become so “ingrained” that as a natural right we as a society make concrete the concept that “anything on the net is free”? Does this ability become habit or right? There is much discussion regarding the need to regulate the Internet for safety, content, collection of tax at both local and federal level and to preserve private property rights as well as privacy of the individual. If this is important; can we wait too long, and loose the opportunity? Will this be bad, or will loosing the opportunity to regulate lead to greater creative use of concepts?
Creativity is much like having someone proof read your term paper. No matter how many times it is proofed no doubt some small change can be made, or an inaccuracy revised or corrected. In other words it is much like social research. Conclusions should lead to further testing and examination. We should try new things against old principles. The ability to take a concept and manipulate it, to test it and search for new ways to use it may in some cases give invaluable information to people and society. As Lessig points out what is a “fair” use of something in order to enhance the benefit to society while protecting the originator’s work product and mental processes?
Following is a website that might be interesting for further discussion.
http://www.international.ucla.edu/article.asp?parentid=10831
[1] Lessig, L. (2004). Free Culture. (Creative Commons Edition). New York: Random House.
Creators vs. Creativity
Creators vs. Creativity[1]
Lessig’s discussion of creative use is very good. He uses as examples Walt Disney’s parody of Keaton’s Steamboat Bill, Jr. and the use literature in the doujinshi style. He (in my opinion) brings up a good point in noting American law also draws a distinction between works that are copied and those that are sufficiently different, and therefore not a violation of copy (Lessig, 2004, p. 26).
The Internet too is a relatively new and vibrant medium of exchange. As sound to supplement video recordings was new in 1928 we are now seeing many individuals and groups attempting to organize methods for use for the Internet. Some of those interests are for profit in the form of currency while others appear to be interested in profit from various indirect methods. In some instances “profit” is the mere pleasure and self satisfaction of the creator. Regardless, the Internet as a means of generation of wealth are becoming more viable.
As I come across websites it is apparent that Lessig’s question: “How free is this culture?” becomes more important (Lessig 2004, p. 30). For instance I see students make mistakes by cutting and pasting” from time to time. At one time a couple of years ago this temptation became so prevalent that I was required even at first year class level to begin an integrated study of plagiarism and minimal levels of documentation to provide sources for ideas developed and material used. This has evidently become so prevalent and perceptively important to our culture that certain software makers now sell software to education institutions to check for “similarities” in works. Several software are available on the market, while some are freeware. For Example Turnitin is a trademark for a particular software designed to assist in plagiarism detection. < http://turnitin.com/static/home.html > I must admit that this is somewhat perplexing. As an instructor, I have as my primary goal to teach and encourage and edify others to use their mind and think and be able to apply that thought to circumstances in this world around them. I want them to some degree to test the water, their minds and try new ways. I am not a law enforcement officer, although to some degree all instructors are charged with duty to preserve order and proper process. Perhaps a much larger and critical question to ask is “How far can we legislate society?” while encouraging society to be creative. Ability to self regulate is one important aspect of socialization. Even though society has government law enforcement we rely by and large upon the dominant ideology of the society to erect barriers to behavior and encourage “proper” normative conduct. Education, religion, family add to the ability to self regulate behavior and make known these processes. However, as segments of deviation from the norm increase in incidence the propensity may be that over time the norm adjusts or changes. Often in law enforcement the critical question a law enforcement officer or agency must ask itself is “how popular is the activity that we seek to prohibit”. Perhaps in the past the conduct was not as popular, but in the present because of any number of factors the population or a major segment begins to participate in the conduct (burning CDs on the Web). So, the next question is “How do we stop this?” or “When do we stop enforcing current laws against the conduct?” and/or maybe even change the law?” With an unregulated Internet we are currently having to address these needs. We have a generation and a portion of at least the previous generation (baby-boomers) which are used to “cutting and pasting” and “borrowing” and “free exchange” of information. This trend has continued to grow since the “point and click” software came prevalent. Timing is critical to change. For instance, when will it become so “ingrained” that as a natural right we as a society make concrete the concept that “anything on the net is free”? Does this ability become habit or right? There is much discussion regarding the need to regulate the Internet for safety, content, collection of tax at both local and federal level and to preserve private property rights as well as privacy of the individual. If this is important; can we wait too long, and loose the opportunity? Will this be bad, or will loosing the opportunity to regulate lead to greater creative use of concepts?
Creativity is much like having someone proof read your term paper. No matter how many times it is proofed no doubt some small change can be made, or an inaccuracy revised or corrected. In other words it is much like social research. Conclusions should lead to further testing and examination. We should try new things against old principles. The ability to take a concept and manipulate it, to test it and search for new ways to use it may in some cases give invaluable information to people and society. As Lessig points out what is a “fair” use of something in order to enhance the benefit to society while protecting the originator’s work product and mental processes?
Following is a website that might be interesting for further discussion.
http://www.international.ucla.edu/article.asp?parentid=10831
[1] Lessig, L. (2004). Free Culture. (Creative Commons Edition). New York: Random House.
Just Tinkering
Just Tinkering[1]
The analogy Lessig makes to “tinkering with your car”. That rang a bell for me personally. I recall as a 16 year old in Texas just fresh from the DPS license office with learner permit in hand. That 1962 rambler was a lot of fun. I’ll stop rambling! (no pun).
Strangely enough I do see myself now tinkering with the Net, experimenting and trying new things. Often trying to modify the present to see if it can be better or why not. Consistent with Lessig law can regulate a process to such a degree that change slows and experimentation is quieted. In some instances regulation may cause a brilliant mind to become happy with their progress and more or less stop experimenting with a new design or way of doing things. Another person might could take the process and with renewed vigor and desire to make their name known to the world bring new ways and discover new uses for the process. Law can chill the innovative process. It could be stated as “use it or lose it”. Perhaps this could encourage greater ways.
Whereas I have not experimented much with the open freeware it is an interesting concept. Seems that this is much the way science works. For instance, as time passes every once in a while a major contributor comes along that introduces a theory and process. But, by and large most scientific discoveries come in bits and pieces (maybe “bytes”). All in all the bits and pieces add up to considerable value for society.
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