Thursday, April 30, 2009

For a tech-savvy president, Obama doesn't get it

Today the Obama administration's Trade Representative, Ron Kirk, put Canada on the U.S. "Priority Watch List" of nations in need of copyright reform as the administration sees it.

It's been troubling to see a president who claims to "get it", who is addicted to his Blackberry, and who has harnessed the power of the Internet and free services such as Twitter to win a campaign turn around and appoint not one or two, but five Department of Justice positions to RIAA-friendly lawyers. He has also sided with the RIAA in upholding the notion that $150,000 penalty per infringement is not an excessive penalty....for a $1 song.....right.

My initial enthusiasm for candidate and president-elect Obama to create and appoint the nation's first Technology secretary cabinet position has now turned to horror. While Obama's choice for CTO of the nation was lauded by some I remain leery, especially given his choice in technology-related lawyers.

For a man surrounded in tech he's surprisingly ignorant of the futility of "intellectual property" (IP) and its enforcement. Do people have a right to their work? Absolutely. Should IP be protected and enforced? Sure, why not? Are we doing it right? NO WAY!

IP is a fancy way of saying "something I thought up that I don't want you to copy." We already have laws in place governing copying written works known as copyright laws. Some, including myself, think they are overly generous for the copyright owner and do not encourage ongoing creativity because a single solid gold idea that is copyrightable can become a cash cow for the rest of one's life (or longer). Additionally thanks to current copyright laws, that material will likely never make it into the public domain for future generations to enjoy once it is no longer profitable.

The biggest problem with IP as I see it in the U.S. is that there are generally two ways to protect it: copyright and patents. For the purposes of this article, I'm going to focus on copyright.

These days in the U.S. copyright is given to everyone and anyone the instant they put a thought into a medium, such as paper, canvas, marble, or a computer file. Copyright can also be registered with the U.S. Copyright Office (USCO) which provides a little better leverage in a dispute between two copyright holders about who came up with what first.

Originally copyright was not automatically granted and you had to pay for it annually with a limit on the number of years you could renew the copyright protection. The purpose of copyright as stated in the U.S. constitution is:
The Congress shall have 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
Key in that passage are the words "promote" and "limited". Since those words were penned the United States Code including the Copyright Act of 1976 which laid the foundation for today's laws has been modified dozens of times. The current incarnation of the copyright portions of the United States Code include the following:
  • piracy and counterfeiting provisions
  • provisions for computer code
  • protections for records (music recordings)
  • protections for semiconductor chip designs
  • protections for vessel hull designs
  • extensions of protection both in scope and duration (such as the Sonny Bono Copyright Term Extension Act or CTEA which extends copyright to the artists lifetime plus 70 years)
  • perpetually auto-renewing registrations
  • transfer of copyright, involuntarily in some cases
  • protections for tv programming transmissions
  • provisions for satellite providers
  • large monetary remedies for infractions
  • computer software rental protections
  • criminal punishment for gross violations of an otherwise civil nature
  • exemptions for dining establishments
  • provisions making circumvention of copyright protection devices illegal (Digital Millennium Copyright Act - DMCA)
  • protections for business who hire for creative works
  • protections for movies and rentals
It's clear that copyright has grown wild and unwieldy since its inception. Unfortunately as we have progressed through the years we have not progressed our common sense.

What purpose does an extensive copyright provide for the copyright owner? It seems it may provide unending wealth. While this may be good for the owner, is it good for our culture? If culture does not have access to these collected works over time our culture is lost in cobwebs and dimly lit corners of warehouses and collector's cellars.

Long copyright extensions do not promote creation of more than a few financially rewarding works. What it does promote is a lot of legal wrangling over who created something first and who copies whom. It neither promotes science or the useful arts nor is a limited amount of time.

Some argue that life plus 70 years is a limited amount of time for a copyright until you realize that the copyright can be transfered and renewed from the author's death to descendants or to his estate which may not end.

Where would we be today if we did not have any of the works of Shakespere, Bach, Bethooven, DaVinci, or any number of other artists and creative people whose works have moved into the public domain? No one person or entity owns all the rights to those works, and because of it everyone is free to use them to create new works (called derivitive works).

What does all this have to do with Obama? With his actions and with his support of the RIAA and all they stand for, President Obama is making a statement that the profits and interests of a few individuals are more valuable than the collected American culture. His actions show that he believes capitalism and profit come before heritage and creation of new works based on old.

I recommend reading more on copyright at the Creative Commons website - a website devoted to only restricting creative works to the minimum amount necessary to protect the author from financial harm without all the heavy restrictions of U.S. copyright law. Just for fun, here's a really good winning video in a competition Creative Commons held to promote the site and the idea.

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