Just for Fun : The Story of an Accidental Revolutionary (27 page)

The other side of the picture is that yes, intellectual property may be unfair, and yes, intellectual property laws are largely designed to further the aims of large corporations over the rights of consumers or even the individual author or inventor. But boy is it
lucrative!
It concentrates the power of the powerful, and the very fact that it’s a powerful weapon makes it so effective in the marketplace. The same reason that made nuclear weapons the ultimate force in the Cold War makes intellectual property so attractive in the war of technology. And technology sells.

And it also generates a very powerful positive-feedback cycle. Because intellectual property is such a good source of revenue, a lot of money is being spent on creating
more
intellectual property. And that very fact is important. In the same ways that wars have historically always been a source of invention and great leaps in engineering (initially, the computer itself was largely developed for purely military purposes), the virtual war of intellectual property rights helps feed the engine and brings never-before-seen resources into technology development. This is a good thing.

Of course, I, as an intellectual snob, am convinced that merely throwing resources around is not really all that conducive to true creativity. Just look at the music business of today. Kajil-lions of dollars are spent every year on finding the next hot artist—yet nobody really thinks that the Spice Girls (who have been richly rewarded for their contributions to their art) can compare to Wolfgang Amadeus Mozart (who died destitute). So throwing money at the problem does not make for that kind of genius.

But intellectual snobbism—the you-can’t buy-a-genius philosophy—–doesn’t really work as a long-term business model. The creative juices are just so unpredictable, so hard to court on finding, that any long-term planning should not concentrate on the promise of pure genius. The technology development of today (and, sadly, the music) depends not on the Einsteins (and Mozarts) but on a huge army of plodding engineers (and, in the case of music, well-endowed young females) who may show only occasional flashes of brilliance. The added resources do not make for great art, but for slow and steady progress. And, in the end, this is all to the best.

The notion of plodding engineers may have less romantic appeal than the eccentric-genius approach. Just think about how many “Mad Scientist” movies there are compared to the number of “Plodding Engineer” movies. However, when it comes down to business, you do want your occasional flashes of genius but, even more than that, you want the steady stream of small improvements over time.

And this is where the power of intellectual property shines: Having grown so lucrative, it has become the holy grail of modern technology companies, feeding this big machine. And thus, thanks to IP protections the steady progress goes on, unhindered. It may not be all that creative any more, but it’s dependable.

So I see both sides—although I have to admit that most of the time I’d rather see a more fun and inspiring world of technology. One where economic factors wouldn’t
always
prevail. I have a dream—one day IP laws will be dictated by morals, not on who gets the biggest piece of the cake.

Trust me, I understand the economic issues. At the same time, I can’t help but wish they did not have such an overwhelmingly negative impact on modern intellectual property law. The economic incentives to strengthen the ownership of intellectual property, and the difficulty in expressing the notion of “fair use” and “morals” in legal text, have caused the two viewpoints on IP to grow further apart. As in a dispute between two neighbors, neither side is willing to even acknowledge that the right solution is likely to be somewhere in between the two extremes.

Clearly, as the unfortunate passing of the DMCA showed, economic incentives are doing well. The question is, what kind of intellectual property law would help drive development while being less driven by crass money-grabbing interests?

The issue is intensified by the fact that modern technology (and the Internet in particular) are weakening many of the traditional forms of intellectual property protection almost faster than we can keep up. And in ways nobody could have predicted. Who would have imagined that Midwestern grandmothers would be pirating needlepoint instructions over the Internet? The ability to copy works of art—and technology itself—on a large scale has become so widespread and easily available that institutions with vested IP are running around doing the best they can to shore up their interests. They are doing all they can to make such copying illegal, and introducing new measures to actually outlaw technology that can be used for piracy.

What’s wrong with this picture? The problem is that a lot of the new efforts to make it harder to illegally use other people’s intellectual property also make it much harder to use other people’s work in legal ways. The classic example of this from the Linux world is the so-called DeCSS lawsuit.

In the DeCSS suit, people who were working on technology to decode DVD movies were sued by the entertainment industry for making the code available to others on the Internet. It didn’t matter to the judge on the case that the ultimate aim of the project was perfectly legal; the fact that the project could
potentially
be used for illegal purposes made it illegal in the United States to distribute even the information on where to find the instructions to do the decoding. (The “DeCSS” name itself comes from the project undoing the DVD Content Scrambling System—CSS. So you “de-CSS” something in order to remove the scrambling so that you can watch the movie on your computer.)

This is a perfect example of intellectual property law being used not to help foster innovation, but to control the marketplace, to control what consumers can and cannot do. It’s an example of intellectual property law gone bad.

Such misuses of intellectual property power aren’t limited to technology, by the way. Another classic example is the use of trade secret law to prosecute and persecute the people who tried to inform the public about Scientology. The Church of Scientology successfully claimed that their scriptures (“Advanced Technology”) fell under trade secret protection, and used IP law to defend them from being made public.

What are the alternatives? Imagine an intellectual property law that actually took
other
people’s rights into account, too. Imagine IP laws that encouraged openness and sharing. Laws that say sure, you can still have your secrets, whether they be technological or religious, but that doesn’t
mandate
legal protection for such secrecy.

Yeah, I know. How unrealistic of me.

An End to Control

The way to survive and flourish is to make the best damn product. you can. And if you can’t survive and flourish on that, then you shouldn’t. If you can’t make a good car, then you deserve to go down like the rock that was the U.S. auto industry in the 1970s. Success is about quality and about giving folks what they want.

It’s not about trying to control people.

The trouble is, people and companies are too often motivated by pure greed. And that always causes them to lose in the long run. Greed leads to decisions governed by paranoia and a need for total control. Those are bad, short-sighted decisions that end up in disaster, or near disaster. The simple example on everyone’s mind has been the phenomenal early success of wireless technology in Europe at the expense of American companies. While the U.S. companies individually tried to control the market by using their own proprietary standards, the European companies rallied around a single standard, GSM, and chose to compete based on which company could produce the best product and provide the best service. The U.S. companies have fallen behind, plagued by their own competing standards. With a market buoyed by a common standard, the European companies have all shared in the boom. That’s why kids in Prague were swapping cell-phone text messages years before kids in Peoria had even heard about it as a new way of cheating on tests.

If you try to make money by controlling a resource, you’ll eventually find yourself out of business. This is a form of despotism, and history overflows with examples of its ill effects. Say it’s the 1800s in the U.S. West and you control the source of water for local farmers. You’re stingy with the water and overcharge. At some point, it inevitably becomes profitable for someone else to devise a way to bring it in from somewhere else, and then your market collapses. Or technology advances so that pipes can transport water, from a distance. Either way, as circumstances change your hold gets broken and you’re left with nothing. This happens all the time, and it’s amazing that people still can’t see it coming.

Flash forward to the music industry in the waning years of the twentieth century. The resource it controls is entertainment. A company owns the rights to an artist’s work. That artist produces a number of successful singles, but the company puts maybe one or two of those singles on each CD it produces. That way it can sell multiple CDs, instead of the one that everyone wants. Then somebody invents the technology for MP3. Suddenly, music can be downloaded from the Internet. MP3 is about doing the right thing for consumers by giving them a choice.

So if a typical CD costs $10 and contains two singles a consumer wants, it may make more sense for him to purchase those singles separately—along with others he wants—off MP3 for $1.50 apiece. No longer is the buyer trapped in a despotic situation, living by the greed-inspired rules of the music company, which wants to give up just the bite-sized pieces that it chooses to give up. There’s a good reason why the music industry is scared to death of MP3 and its sister technologies, Napster and Gnutella. The price of water got so high that it became profitable for somebody to devise a new method of bringing it in from somewhere else.

But this is an industry with a history of trying to control consumers—if not by what music it chooses to release, then by copyright and technology. This is the industry that tripped all over itself in the 1960s, trying to keep consumers from copying music onto tapes when that technology entered the market. Because the industry felt tapes were the perfect medium for people to disobey copyright laws, it argued for ways to protect its copyrights. This was a bad excuse. The industry was taking the moral high ground and pleading copyright when it was simply trying to maintain control of its niche franchise. The fact is, tapes never hurt the music industry. Sure, people copied music for their own use, but that only meant that people actually bought more LPs from which to copy. Duh. A few decades later, when CDs came out, the players were built so that you couldn’t copy your tape perfectly. Paranoia strikes again. Next came digital tapes. They involved a different sampling rate from CDs—48 kilohertz versus 44.1—to prevent users from copying their CDs onto digital tape. Again the industry tried to screw over the customer to get control. But in the case of digital tapes, the market never quite hit. It was a bit like fooling with Mother Nature.

By trying to control each successive technology, the music industry only helps inspire people to devise new ways around it. Are they ever going to get it?

That brings us, inevitably, to DVDs. This time the entertainment industry delivered much better sound and video than VHS tapes, plus a smaller format and greater ease-of-use. But they added encryption to prevent copying. And to add insult to injury, they added geographic area codes. The DVD you bought at the San Francisco airport wouldn’t play in Europe. It made a perverse sense to the industry: Hey you guys, we can sell movies at a higher price in Europe! So let’s make sure that Europeans can’t buy movies from the United States.

Could the entertainment industry not have predicted the obvious? That the price of water would get so high that somebody would devise a new method of piping it in from somewhere else?

Yes, while the industry was greedily trying to control people through technology, the DVD encryption was cracked—not even by people who wanted to copy DVDs but by people who simply wanted to view them under Linux. These are folks who actually wanted to
buy
DVDs, but they couldn’t; the discs would have been useless on their equipment. The industry’s moves to protect its fief-dom backfired: It simply prevented the market from expanding, and created the incentive for the cracking of the DVD encryption.

Once again, the short-term strategy turned out to be the wrong thing to do.

The entertainment industry is just one example. The same thing has been happening for years in software. That’s why Microsoft’s strategy of bundling software is ultimately doomed to fail. Open source products, on the other hand, cannot possibly be used in a despotic manner because they’re free. If somebody tried to bundle things with Linux, somebody else could just unbundle it and sell it the way people really want it.

It’s doubly futile to attempt to control people through technology. In the end, it always not only hurts the company but also hinders the acceptance of the technology. A recent example is Java, which has lost a lot of the appeal it originally had. By trying to control the Java environment, Sun Microsystems basically lost it. Java is still doing reasonably well, but it surely hasn’t lived up to its potential.

Sun wasn’t trying to make money on Java itself, but the company saw the programming language as a way to make its computer more unique to users and get us out of Microsoft’s grip—and sell more Sun hardware, by the way. But while they weren’t really trying to make money on Java, they did feel that they had to keep control of it as a phenomenon and as a microbe. All of their licensing terms came with a lot of extra baggage just for this control.

Good product. But the problem was that they were trying too hard to screw over Microsoft. They were motivated by fear, loathing, and hate, which is sort of a mid-to-late 1990s approach to business. (Think of the Grateful Dead lyric: “Ain’t no time to hate.”) And because they were so hateful of Microsoft and so afraid, they made all the wrong licensing decisions. They made it difficult for everybody, even their partners, to use the product. That’s why companies like Hewlett Packard and IBM all eventually decided to make their own Java implementations. They just said “Screw Sun.”