My old friend Alex wrote a column for the Boston Globe about copyrights and the Eldred case pending before the Supreme Court. Most of the time his writing is insightful, sometimes even courageous. The sophistry of this particular column has been bugging me so much, I finally feet compelled to respond. (I'd provide links, but they now cost money from the Globe archive.)

First off, intellectual property and copyright are not synonymous terms. Intellectual property is the set, of which trademarks, patents and copyrights are distinct subsets. In the US, trademarks and patents are granted by the US Patent and Trademark Office while copyrights are registered through the Library of Congress. Each type of registration has its own separate function. To lump them together is intellectual sloppiness.

He starts by trying to debunk the "information wants to be free" position. His argument is that is the Globe charges its customers to acquire the means to read his article. What Alex misses is the distinction between free as in beer -- it's mine and I decide to give it to you at no cost -- and free as in freedom. I dare say that Alex, as a journalist, columnist and general all-around curmudgeon gadfly, would be hard pressed to claim that information in a free society should not be readily available to all.

Then comes this howler: "My friend Dean Crawford builds houses and writes novels. Would we confiscate his rights to a home he built after 70 years? Of course not. Would we restrict his freedom to sell a home to whomever he chooses? No." Talk about a straw dog argument!

If Mr. Crawford built a house for himself, he doesn't have to let anyone inside to see what he had created. If, however, Mr. Crawford builds houses to sell, he looses all rights when the deal closes. In the same vein, if Mr. Crawford wrote a novel, he could keep it to himself and not let anyone read it. If he decides to publish, once a book is sold, like his house, he looses all rights to the book itself. He (or his publisher) retains rights to the certain expression of ideas, plots and characters for a prescribed period of time.

Alex claims that the public domain is a myth that only serves "the creator's enemy -- publishers". Bunk. The public domain has existed long before intellectual property laws and is the repository of all that humans have created for millennia. In fact, it is the public domain that is the enemy of the publishers. The first copyright laws were promulgated at the urging of publishers. Here they had paid off an author with a pittance, published the book, and god forbid, other publishers were coming out with cheaper copies. It took a superstar like Charles Dickens to wrest a copyright for the author. These days, publishers allow the author to receive the copyright as long as the author gives an exclusive license to the publisher. Same shit, different day.

His final argument: "the distinction between so-called real property -- a house -- and intellectual property -- a book -- is not so vast". Like hell. The value of real property is intrinsic to itself. The house is valuable because of its physical manifestation. For the most part, a book in and of itself has little value. It's just cardboard, paper and ink. It is not in its physical being, but in the intellectual content, that makes a book valuable.

Creators' enemy is control over the creative process and that process is taking existing ideas; manipulating them, tweaking them, rearranging them and coming up with something different or new. Permanent copyright control, which statistically is what the current law permits, prevents the full flow of this process. The greater travesty is not that the heirs of Margaret Mitchell don't get some additional royalties but that they can block publication of a novel that describes Gone with the Wind from a slave's viewpoint because it is supposedly "derivative" work.

He closes: "Sometimes people forget: Writers work for a living". Gee whiz, so do I. Does that mean I should get a royalty every time a computer is hooked up, or a web page is created?

Come on, Alex, it ain't about beer, it's about freedom.

Here's something on the Content Cartel that Alex sees so benignly.
Here's something by John Bloom in my OPW section.

November 20, 2002

from Bec: Well, duh. Maybe the only thing is that I think that you are establishing a huge difference between physical property and intellectual property in order to make this argument in the first place. You (and I) see this as a given, but I don't think you beat it over the head enough. You get to it towards the end, but really, to counter an argument like Alex's, it is the main point and could be even more helpful if made more explicit. It would then make your beer vs. freedom thing make more sense. Right now it's a bit too mixed up in many possible interpretations of value. Separate the physical from the informative/intellectual, and it will be clearer that there is no comparison between these two different systems of value, thereby necessitating a different language where you can't talk about some dude's house to support your intellectual property rights and you can't get away with being some writer that is blinded so much by some hope to make a better living that you shoot yourself in the foot and get had by the company you're handing off your money to.