I would like a show of hands: if you have ever used a library, bought a used book or CD, rented a movie, recorded a TV show to watch later, made a backup of a computer program, quoted a writer in an essay, or loaned a book to a friend. If so, you care about intellectual property. Downloading music for free off the internet seems to be a big deal these days, but its just the tip of the iceberg, intellectual property laws deal with information and our rights to it, and it affects every facet of our lives. For me, and probably several others in the room, my future employment will consist solely of the creation of intellectual property.
The aim of this talk is primarily educational. I am going to what intellectual property is, both legally and philosophically, I'm going to explain why it's important, for me personally, and society at large. I will admit that I have strong feelings about this issue, but I am trying to present facts, and both sides where possible. Then I want to examine the way technology is fundamentally altering the way we interact with information, then talk about ways in which people are working around intellectual property laws, and finally I would like to encourage each one of you to further examine this and come to your own conclusions, and take action.
There once was a man who went to a computer trade show. Each day as he entered, the man told the guard at the door: "I am a great thief, renowned for my feats of shoplifting. Be forewarned, for this trade show shall not escape unplundered."
This speech disturbed the guard greatly, because there were millions of dollars of computer equipment inside, so he watched the man carefully. But the man merely wandered from booth to booth, humming quietly to himself.
When the man left, the guard took him aside and searched his clothes, but nothing was to be found.
On the next day of the trade show, the man returned and chided the guard saying: "I escaped with a vast booty yesterday, but today will be even better." So the guard watched him ever more closely, but to no avail.
On the final day of the trade show, the guard could restrain his curiosity no longer. "Sir Thief," he said, "I am so perplexed, I cannot live in peace. Please enlighten me. What is it that you are stealing?"
The man smiled. "I am stealing ideas," he said.
(The Tao of Programming, http://epims.gsfc.nasa.gov/tao.html, Sec 3.1)
The term intellectual property gets thrown around a lot these days, people own it, you can buy and sell it, companies make vast sums of money from it, but how is it different from other property? Why does it need legal protection? If you own a bicycle, and I take your bicycle, you no longer have a bicycle. When I take your idea, like the master thief, you never know you've been plundered, you still have your idea.
For a long time though, we have associated intellectual property with real property. A book is a physical thing you can carry around with you, a movie exists on a reel of film, and compact discs make great Frisbees. But these are all mediums. Mediums carry messages, but they are not the message itself, and the message can exist apart from the medium. Technology greatly expands the kinds and costs of mediums available to us. In fact, lots of things are "messages", intellectual property is really just any kind of information, from the genes in your body, the source code to a computer program, the bits of mp3's, and the letters of text on the page of a book, are all forms of information.
The idea of intellectual property is a legal fiction. In the United States, the Constitution explicitly grants Congress the right to make laws about it. In many ways it is also tightly connected with Free Speech as well, after all, speech is another medium for conveying information.
The Constitution in granting Congress the ability to make intellectual property rights set conditions. The first condition is:
So the rights granted will not last forever, and when they expire, become public with no rights retained by the author or inventor. I do find it interesting that no works produced this day will enter the public domain in the lifetime of anyone in this room. What constitutes limited times? The first copyright laws, which lasted to the early 1900's, had only 14 year copyrights. The next clause is what I call the monopoly clause.
The exclusive right to their respective writings and discoveries;
Which says that creators get a monopoly on the information, subject to the two limits expressed above. Monopolies haven't always been popular, but here in the Constitution, Congress was granted the right to create monopolies in a systematic fashion.
All this amounts to is the idea of a social contract. Information can be copied freely, it has always been easy, and technology just makes it easier. Society could just take any ideas and use them. But the contract here says, that we, as Society, will for a limited time let creators restrict our abilities, because it will later on benefit all of us. Also in this contract is the idea that if creators cannot exert some control over their information, they may not make it.
This is in many ways the central problem. How do we fairly reward people who make the books, movies, and medicines and protect the large number of consumers against outrageous assertions of control? Starving artists tend to die young, and people want to be able to feed their families, and if they can't do it making information, they will probably consider some other line of work.
There are four kinds of intellectual property that exists, and several important legal precedents.
Copyrights are most familiar to people. According the U.S. Copyright Office's own Frequently Asked Questions, Copyrights "protect[s] original works of authorship including literary, dramatic, musical, and artistic works such as poetry, novels, movies, songs, computer software and architecture. Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed."
http://www.loc.gov/copyright/faq.html
More explicitly, according to U.S. Copyright Office's Copyright Basics Circular; in order for something to be copyrighted, it must be exist on some medium for conveying information, and must be either a literary work, a musical work including any accompanying words, a dramatic work including any accompanying music, pantomimes, choreographic work, pictorial work, graphic work, sculptural works, motion picture, audiovisual work, audio recordings, or architectural works. These categories are to be treated broadly. For instance, computer programs are traditionally considered literary. Computer programs, uncompiled, are typically many pages of text, so this is not quite the stretch any nonprogrammer may think.
There are many restrictions on what can be copyrighted. An idea in your head cannot be copyrighted until you do something with it, like writing it down or drawing a picture. Also, anything consisting "entirely of information that is common property and containing no original authorship" cannot be copyrighted either. Calendars, tape measures, lists and tables taken from public documents are examples they give. There are other things not copyrightable, but they are covered by other types of intellectual property, and will be discussed later.
http://www.loc.gov/copyright/circs/circ1.html#wwp
Some other copyright facts. You do not have to register your copyright to get one, one is automatically granted by fixing it in a medium. Also, from the time an author creates a work, the copyright is held for 70 years after the death of the author. For works owned by corporations, the work will enter the public domain after 95 years. An interesting consequence of these time spans is that, anything produced on this day, will not enter the public domain in the lifetime of anyone in this room.
http://eon.law.harvard.edu/openlaw/eldredvreno/
http://www.nytimes.com/2000/10/06/business/06LEGA.html
http://cyber.law.harvard.edu/cc/
http://www.salon.com/comics/boll/2000/08/24/boll/index.html
On February 7th the Washington Post wrote about the terror sweeping the publishing world. Apparently, someone told them about libraries, and it has them worried. After watching the RIAA deal with Napster, and the MPAA and DVD-CCA deal with DeCSS, book publishers seemed to get the nagging sensation that something was happening in the world of copyrights and content and this new internet thing. Actually, they are gearing up to release electronic books, and having seen the mistakes of their brethren with other media they are laying the legal groundwork before the technical groundwork.
http://washingtonpost.com/wp-dyn/articles/A36584-2001Feb7.html
The idea of Fair Use is as old as it is simple. The idea that, although the cartoonist who drew this cartoon has a copyright on it, it is a fair use of his work that I can "quote" the cartoonist in my talk. In 1983 the Supreme Court in its Betamax decision ruled that it is legal to sell and use a device like a VCR to record a TV show and that such recordings are a form of Fair Use, as well as making backup copies, quoting, and loaning out a copy, as libraries do. Parodies such as Weird Al's music, and works of fiction are also considered a form of Fair Use.
http://www.virtualrecordings.com/betamax.htm
But Fair Use is more than just a way to legally reuse copyrighted materials, it is a concession to the first amendment. Lawrence Lessig has argued that extending the length or reach of intellectual property laws is taking away first amendment rights. The Church of Scientology has recently put this concept into practice, in effort to silence critics of the church, they have sued former members for violating the Church's copyright on certain church documents that were posted to the web.
http://www.nytimes.com/2000/10/06/business/06LEGA.html
http://www.eff.org/pub/Legal/Cases/Scientology_cases/ssteele_eff_nyt_120995_cos.article
http://www.eff.org/pub/Legal/Cases/Scientology_cases/anon_server_compromised.announce
Were it not for Fair Use, a book reviewer would have to get the permission of the copyright owner before quoting or talking about the book in question. Fair Use allows parodies and satire because they are protected speech. In the light of Fair Use, it becomes clear that protections of intellectual property are in opposition to our right to freely criticize, explain, and discuss the ideas at stake.
It might also be worth adding that, VCR's single handedly created the movie rental industry, which has turned into one of the bigger sources of income for the movie industry which initiated the very same Betamax lawsuit against Sony, and claimed that the VCR would be the destruction of the movie industry.
In 1997 Richard Stallman of the Free Software Foundation wrote a short story called "The Right to Read". This short story paints a picture of a dystopian future where controls have been instituted on books and any other form of information. People are only allowed to read their own books, and even then they do not own them. It is illegal to allow others to borrow or even look at your books, you have pay to have continuing access to those books. Scholars have to get grants just to be able to read books in libraries.
http://www.gnu.org/philosophy/right-to-read.html
Of course that's a horrible proposition if you're a consumer; but its not so far fetched. During the last couple of years, some in the movie industry were working on the failed Divx standard. The idea of Divx was that you could pay download a movie, after a few days, you rights to watch it would be turned off, but you could pay to have permanent rights for it, but it would only play on your player. Divx failed, but the idea of turning media consumers into continuously paying customers is not dead.
Of course this would never happen with books? But now we are seeing a gradual shift toward some form of electronic books. The hardware can be built and the controls instituted. The New York University College of Dentistry are selling their textbooks on DVD, of course, they are password protected so only the authorized viewer can read them, and after paying 4 years of subscriptions to updates, students get to keep the books at the end(after paying another fee). But if a student decides at any time to go with a more traditional route, he loses access to those textbooks. This is not the dystopia in the Right to Read, but it's not a terrible stretch to see where this can lead.
Time limited text books:
However, the First Sale Doctrine, established in 1909, and reestablished in 1976, and greatly limited by the Digital Millenium Copyright Act of 1998, has a lot to say about this sort of activity. The First Sale Doctrine determines that a copyright holders control over a physical embodiment of a work ends after the first sale. The First Sale Doctrine means it is entirely legal for me to buy a book, then resale it to a used book store, loan it to a friend, reread it every day, or burn it in a bonfire. The First Sale Doctrine makes it legal for used CD and book stores to exist. There was actually a large fight over this at the beginning of the twentieth century, and ironically enough, its being fought 100 years later, except this time its electronic books, DVD's, and software, rather than paper books.
http://www4.law.cornell.edu/uscode/17/109.html
How many of you have actually sat down to read those End User License Agreements when installing software? I challenge everyone to go read one, you may be surprised to find out just what kind of rights you don't have. Yet, fundamentally, software is just information like a book, it is copyrighted and managed by the same laws. In fact, one of things that prompted the 1909 establishment of the First Sale Doctrine was that books used to have very similar(but shorter) licenses written inside the front cover. The courts declared it illegal. 100 years later we have UCITA, another law, this one is going to explicitly make those software licenses legal. Someone has read the history.
Rambus used to make memory for computers. They still do, but it seems that it is no longer their primary business. JEDEC is the organization that sets standards for computer memory. As any other large manufacturer would, Rambus participated in the committees for setting standards at JEDEC. JEDEC requires that a company disclose any patents they have that would influence a patent. Rambus did this, but did not disclose any pending patents. In addition, they have recently been accused of starting the patent process for ideas discussed in these committee meetings. This is a violation of JEDEC's code, and generally considered a rude thing to do.
But they are also suing just about every other manufacturer of computer memory for violating these patents. If those cases are won, most of these companies would be paying Rambus licensing fees for a long time to come.
http://www.electronicnews.com/news/6333-47NewsDetail.asp
A Patent, according to U.S. Law may be granted for "Any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof." (35 U.S.C. Section 101)
http://www.uspto.gov/web/menu/helpfaq.htm
http://www.uspatentinfo.com/patentfaq.html
There are three tests against which a potential patent is measured. It must be "Novel". As such there are prior art checks performed against other patents, and the literature of the field the patent is in, to find if someone has already been there and done that. A patent must not be obvious to a person having ordinary skill in the field in question, and a patent must be useful by having an actual purpose, actually work, and is it not frivolous.
Patents can be granted for lots of things, and most of them are not what would typically be thought of as inventions. A new way of doing business is patentable, thus allowing people to claim patents like Amazon.com's one click patent, which they promptly used to attempt to sue BarnesandNoble.com, their competitor, profit margin out of existence(much like their own), software, genetically engineered organisms such as disease resistant crops, and discoveries of genes.
Its very important to take the standard into consideration. Patents are the strongest form of intellectual property available. If a person is sued for patent infringement, and its discovered that they knowingly violated the patent, they must be pay triple damages. A patent is also absolute. If two people discover something independently, and one of them patents it first, the other person can be sued for patent infringement. Patents can also have a very broad scope. For instance, Microsoft Excel is copyrighted, so it is illegal to make a program that looks exactly like Excel, but if it were patented, any attempt to make software the performed the spreadsheet functions of Excel would be in violation of the patent.
Overturning a patent is also a herculean effort. The burden of evidence is entirely on the party attempting to overturn it. They must show that, at the time the patent application was filed, that public prior art was available with same idea, or that it was obvious at the time to a person knowledgeable in the field. That last one is so subjective that it prior art is the only potential successful option. And if the attempt to overturn the patent fails, beware the patent infringement suit that may come, and the triple damages for knowingly violating it.
Of course, large companies do not have to worry about patent infringement lawsuits. Assuming both companies have large patent portfolios, they will settle out of court. The settlement usually involves some money changing hands, and an agreement that each company can use the others patents with impunity. The technique of defensive patenting is well understood, and causes many companies to file patents that border on the level of acceptability. Coupled with the fact that getting a patent can cost upwards of $10,000, facts conspire to force the small inventor to sell off a patent rather than attempt to develop and market it himself.
In any sort of ecology it is natural that parasitic organisms will evolve over time, and in the world of patents, patent holding companies are probably the best candidate. These are companies whose business plan involves buying, and sometimes making lots of patents. As their patent portfolio expands, they begin to sue other people and companies for patent infringement against their large portfolios.
The most intriguing area under the auspices of patent lawyers is genetics. It is probably easy to see how a genetically engineered organism meets the test for patentability, but we should be grateful that the mapping of the human genome was accomplished by a nonprofit organization. Genes can be patented whether they have been used to engineer an organism or not.
Patents are for inventions not discoveries. Genetic research is discovering the functions of certain genes in our bodies, this will eventually be used for creating cures for diseases, and improvements to our lives, but should the discovery of gene be patented?
http://www.scientificamerican.com/2001/0301issue/0301reviews1.html
http://www.ornl.gov/hgmis/project/privatesector.html
http://www.nytimes.com/2001/02/13/health/13HERO.html?pagewanted=all
http://seattlep-i.nwsource.com/local/geno12.shtml
Gap, Walmart, Coca-Cola. Brand names. The whole dot com industry was fascinated by brand names for a while, of course they are currently in the process of realizing that businesses must actually sell something as well, but they did understand the importance of brands. In fact, as of last year, I believe all the 4 and 5 letter words that are actually included a dictionary were unavailable as a dot com domain name. There are 456,976 combinations of 4 letters for reference.
Trademarks are of course the kind of intellectual property you seek to get to protect your brand name. Trademarks were instituted to protect consumers rather than businesses. Trademarks make it illegal for someone to set up a sweat shop style factory to churn tennis shoes labeled Nike, and pass them off as the real thing. Of course, trademarks are limited by the idea of dilution. In cases like copying machines where the term xeroxing is synonymous with photocopying, irregardless of who made the copying machine. In these cases, a company cannot continue to claim their trademark.
Trademarks have not been subject to the same magnitude of abuse that other forms of intellectual property have. There are abuses, and I would worry that the entire body of the English language is in danger of being trademarked, but with companies paying 2 million dollars for other companies to make up nonword names like Agilient and Lucent, this fear is largely exaggerated, although I'm sure the US Patent and Trademark office is secretly breathing a sigh of relief as the dot com mania to secure a multitude of bizarre names as trademarks is slowing.
http://www.uspto.gov/web/offices/tac/tmfaq.htm
http://www.uspto.gov/web/offices/tac/doc/basic/basic_facts.html
Trade secrets are not actually protected by intellectual property law, but I bring them up because many companies use them. The underlying assumption of patents and copyrights is that you are disclosing a "secret". The creator gets a temporary monopoly, and when the term of the monopoly is over, the work belongs to the public domain, to be used by anyone however they see fit.
A trade secret is some "intellectual property" a company wants to keep secret, ideally for forever. The way trade secrets work is that they are a secret as long as they can be kept one, but once the public is made aware of them, the cat is out of the bag, and there is no legal recourse.
The primary method of keeping trade secrets closed is a contract called a Non Disclosure Agreement or NDA for short. Basically, it says that "I'm telling you a secret, and if you tell anyone, I can sue you for everything you own". These work remarkably well, and as an engineer, I will more than likely have to sign dozens in my lifetime. There is an interesting twist to this. If you're selling a product, and it contains a trade secret, I can probably go out and buy one, and if I don't sign a contract of any sort when I buy it, I can take it apart and figure out how it works, and write down what I find out. Then I can publish this description far and wide, and your trade secret has been destroyed. This is fundamentally what Reverse-Engineering is, and it has been entirely legal to do this for a long time. I want to come back to this later, because as of two years ago, the Digital Millenium Copyright Act (DMCA) has changed a great deal of this.
The Digital Millenium Copyright Act has many deep implications for the use of technology and intellectual property. Enacted in 1998, largely unnoticed, it is a sweeping reform of U.S. Intellectual Property Law. It was enacted to bring the U.S. in compliance with WIPO treaties signed in 1996. Just for reference WIPO is the World Intellectual Property Organization. Last year, you may remember the riots that occurred in Seattle, WIPO was the treaty organization that those people were protesting, and many of the agreements they sought to reach involve this and similar laws.
Text of DMCA: http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=105_cong_bills&docid=f:h2281enr.txt.pdf
http://arl.cni.org/info/frn/copy/band.html
http://www.loc.gov/copyright/legislation/dmca.pdf
http://arl.cni.org/info/frn/copy/dmca.html
The first big change of the DMCA is what has been called the Anti-Circumvention Provision. Although it creates an exception for reverse engineering in order to make a competing device that will interoperate, there are problems with the wording and the scope of what can be reverse engineered has been greatly diminished. It says that any attempt to circumvent, or sell a device that circumvents any form of copy protection on a device is illegal. What makes it interesting is that although the law itself does not outlaw Fair Use, many manufacturers are creating devices, which respect all kinds of copy protection mechanisms embedded inside future products.
In all likelihood, there will be no VCR's that will record HDTV signals, the HDTV signal broadcasts a copy protection bit, and although recording a TV signal is your right under Fair Use, if you have no VCR to record the signal, you in effect, no longer have this right. The FCC has mandated that any recording equipment produced respect the copy protection information transmitted in the HDTV signal. If this is done, you would not be able to exercise your Fair Use rights explicitly granted by the "Betamax" ruling.
http://www.eff.org/pub/Intellectual_property/HDTV/20000918_fcc_hdtv_rule.html
EFF FCC comments: http://www.eff.org/pub/Intellectual_property/HDTV/20000907_eff_comments_hdtv.html
Another case is the suit by the DVD Copy Control Authority against a program called DeCSS. DVD's are encrypted, in order to play a DVD, the contents have to be decrypted, anything that plays a DVD is able to decrypt movie stored on the DVD. The scheme they created is called CSS for Content Scrambling System. It is a trade secret of the DVD-CCA, in order to see how DeCSS works you must sign an NDA after paying the DVD-CCA lots of money. You cannot build a DVD player unless you cough up the money. This gives the DVD-CCA a monopoly on who can build DVD players, and what those players will do.
DeCSS is a program written by a teenager in Norway which is able to defeat the encryption used on DVD's. He distributed the program over the internet. It was meant to be the first step in an effort to make a free DVD player, i.e. one that was not licensed by the DVD-CCA. The DVD-CCA has sued a great number of people who put up the source code to DeCSS saying that these people have violated the DMCA.
What is interesting is that CSS is not a copy protection mechanism. If you want to copy a DVD illegally, you just make a copy of whatever is on the DVD, any player will already be able to decrypt it. Large-scale pirates in Taiwan were already pressing out encrypted copies of DVD's before DeCSS was ever written. In all likelihood they did not notice it. But since the DVD-CCA says it's a copy protection measure, and that people are going to use it to decrypt DVD's and send them across the internet, the DMCA has prevailed. Most of the DVD lawsuits are already on appeal across the country.
I now want to talk about the public domain. I have mentioned it several times, but now I'm going to explain it. The public domain is like the Commons of old New England towns. Its where expired patents and copyrights go. The public domain belongs to all of us, and we can do whatever we like with it. The works of William Shakespeare, fairy tales, folk music, classical music, and classical literature, and a great deal of older culture exists entirely within the public domain. This is our heritage, and it belongs to society as a whole.
Napster has created quite a stir lately, and just last week, the Ninth Circuit Court said that Napster was encouraging people to violate the rights of copyright holders, and that the injunction against them was the right path, but needed a little reworking. It is expected that once the injunction is redrafted, the RIAA will send them a list of the 2.5 million files that are violating their rights and Napster will be temporarily upset while they write a business plan that will not involve lots of people suing them.
Napster is the reason behind the DVD-CCA suit for DeCSS. The DVD Consortium can envision a future where more than just music is massively swapped on the internet, and book publishers are getting fairly worried since books once in electronic form do not need the sorts of compression of music or movies(the uncompressed King James Bible is the same size as 4 minutes of compressed music stored in MP3 format used by Napster).
Napster's flaw is not the technology however. It's the fact that as a business, they encouraged and allowed people to get music for free without any thought of compensation to the artist who created said music. There are many arguments, such as the monopoly of the record industry and unfair charging practices, and that people will probably hear and buy music from groups they would not have ordinarily spent money on, and that if you already have a copy of the music its Fair Use to have an MP3 copy of it, that not all the music is pirated, and that it is possible to find things no longer for sale.
All these arguments have elements of truth. Napster is great for the consumer. Unfortunately, none of them address the problem of being great for the artists. Artists may get their works heard on Napster, but that does not guarantee a record contract, nor sales.
Napster is not an exercise in civil disobedience. They created a business whose chief product was allowing other people to trade the product of someone else's hard work, and not giving anything back to those who created the music. This dilemma goes back to the original reason for creating intellectual property and its social contract. How to be fair to both the creator and society.
What about society that held no intellectual property, in which it was encouraged to give away whatever you made. Could it work? There are examples. In software, the term Open Source has recently come into vogue, but it is a phenomenon that is twenty years old. Programs are written in special languages, which are then compiled into the programs on your computer. If you have a copy of this special document, you can see how the program works, and then modify it or build an exact copy of it. The Open Source Software movement, and the Free Software movement encourage programmers to give away copies of this source code, so that other programmers and anyone else, can change it, improve it, and use it to get work done.
Most of the important software controlling the internet is in fact free of charge, and given away. The operating system Linux is completely available for free, source code and all.
In the Cathedral and the Bazaar by Eric Raymond, the author talks about gift cultures. In a society of plenty, where everything you need is there for the having, how do you gain social status? By giving stuff away. The free software movement is a gift culture. Since computers, and network connections are fairly cheap(for those who can have them), the best way to gain prestige among fellow computer hackers is to give away the source code to your software. In a networked setting like the internet this becomes even more important. By opening up your code to everyone, they can make other computers on the network talk to it. They can improve it. They can fix it when it goes wrong.
http://www.tuxedo.org/~esr/writings/cathedral-bazaar/
Richard Stallman of the Free Software Foundation wrote a license to protect this open source software. It uses the principle of "Copyleft", which is a play on the idea of Copyright. His license says that, you can use the software for free, and you can give copies of to anyone you want, but if you do, you MUST provide a copy of the source code, and if you make changes to it, you must provide those changes under the same terms as the rest of the program, and this source code must be available for free. This license is called the GPL, for GNU Public License. The GPL requires that you provide changes under the GPL as well. This prevents someone from taking your program, improving it, and then selling it without releasing the improved source code.
In fact, companies do sell GPL'ed software, but since they have to provide it free of charge, they sell value added services such as technical support and training that would otherwise be unavailable.
Another example of a culture which relies on information untethered by restrictions is the scientific community. Peer review is an important part of the publication process, and where science is involved, it is imperative that a researcher give enough information for someone else to reproduce his results. Unless results can be duplicated, theories cannot be validated. In mathematics a theorem is only worthwhile if it can be proven, proofs have to be checked and open to all, otherwise its useless. In Cryptography, an encryption method is only secure if everyone knows how to do it, but no one can figure out how to break. The DVD-CCA's CSS encryption was broken easily by a 16 year old, if they had told the cryptographic community, and not used it for monopolistic purposes, they would have been able to expose its flaws.
An interesting trend is that this openness in academia is in danger. Private funding is becoming increasingly important for areas of research, and in engineering and several other areas, patents are being awarded to researchers working at public institutions and then turned over to private corporations, or used by the researchers to make money. I personally feel that there is an ethical problem of research done at public institutions under partial or complete public funding being withheld from the society that paid for that research.
If there were no laws regarding intellectual property, would creators be able to make money? It is already demonstrable that certain elements of society work and even rely on an unfettered flow of ideas and information. What about those who wish to make money?
Stephen King recently experimented with publishing a book on the internet. He released a chapter at time, and asked that anyone downloading those chapters to pay a dollar. If a certain percentage of people downloading the book from his website had paid those dollars by the time he released chapter 8, the rest of the novel was going to be written and released. But if at anytime, less than that percentage had paid, he was going to stop writing the novel.
Many say his experiment failed because he had decided that enough people were not paying that he would stop writing the book. However, this is a wrong interpretation of the facts. First off, his book could have been bad, and the people who were downloading it, may have decided that it was not worth even a dollar. In this case it was not a failure, it means that Stephen King places too high a market value on his work.
There is something deeper though. Stephen King held his book for ransom. He in effect said, if its not worth it to enough people to pay for my book, then no one will get it. Either way this is good. He gets enough money for the whole book and writes it. He is happy(since he got enough money), and the public gets the book. Or he is not happy, and the public does not get the book, which is okay, because he still has his book, and the public does not get all of without paying.
The artist formerly known as Prince, who is now calling himself Prince again also did something. He is no longer bound by his record contract, which he was protesting a while back with the name change and getting Slave tattooed on his forehead. He decided to put out a new album, with some new and old material on it. He put it out himself, and announced to the world that it would not be released if he did not get enough preorders. He more than exceeded the number of preorders he required, and shipped the CD. It probably ended up on Napster the next day, but since Prince had sold more than enough CD's already, it was probably not as relevant. Its worth noting that he claims to have made more off that album than any other he has released.
These two incidents both involve people working outside the bounds of intellectual property in order to sell their works. Neither effort depended on the creator having a copyright on the work he was selling. Both of them required the public to pay up before getting complete access to the work.
As part of this talk I have consulted a lot of references, and for your benefit I have included them on the handout given to you. The entire text of my notes is available at the website mentioned in the handout. Since I have a copyright on this talk, and its accompanying text, I would hate to seem hypocritical, and this talk is released under the terms of the GNU Free Documentation License. I thought about releasing it into the public domain, but here are the reasons why I did not. This talk is in many ways a communal effort. I have been made aware of the issues presented here because of my involvement with the community of programmers worldwide. We care about this because it is becoming a central issue and problem in the work we attempt to do. Not everyone agrees on a solution, or even that there is a problem.
Since I agree with many of the aims of the Free Software Foundation, you can now have, in addition to your Fair Use rights to quote this talk, to publish, for profit or not, in any medium you want. You may not enable any copy and viewing controls to obstruct those using that medium. You may modify it, and publish the modifications with notice that this is not the original talk I made, but it must be provided under the same terms as I have provided it, and there are a few other restrictions, but those are the important ones, and they are in the same spirit.
http://www.gnu.org/copyleft/fdl.html
To leave you with a final analogy. To use the property analogy. Think of ideas as a landscape. This is a fairly large landscape, and it used to be full of open fields with no fences, and it can be expanded by anyone bringing a new idea to it. Now we are witnessing the first big land grab of the Information Age, and some people wanting to put up lots of big fences. Seward's purchase of Alaska will look expensive compared to the cost of the current legal maneuvering.
Intellectual Property is the legal implementation of a social contract between "creators" and the public. If current trends are allowed to extrapolate, new Intellectual Property laws will represent the first big "land grab" of the information age, and will make 19th century robber-baron monopolists pale in comparison. The falling costs of production and new technologies are creating changes which will force society to reexamine its views about "Intellectual Property" and how best to implement this contract.