Ethics and Law in New Media/The Millennium Bug in the WIPO Model

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The paradigm shift[edit]

In the introduction to the legal issues in Chapter 13, we alrady referred to a Jose Luis Malaquias' essay "A New Economic System for the Information Era" (previously available at his personal domain at, nowadays from the Internet Archive).

The problem, as also pointed out by Malaquias, seems to be rooted in a simple notion - throughout the human history, resources have very rarely been plentiful, satisfying everyone in need. During the early days, people had to fight over hunting game or arable land, later they fought over natural resources. The very value of resources was often measured by their scarcity - essential-to-have, but widespread resources like water and wood measured only a fraction against scarce, even if practically nearly useless things like precious stones and gold, even the value of simple drinking water was totally different for, say, Vikings and Arabs at around 1000 AD. Finally, being brutally fought over for centuries, use of resources was attempted to be regulated by legal means during the later, "more civilised" times. The paradigm of scarcity got entrenched so deeply into the human mind that when things started to change, there was a huge moment of inertia.

During the last decades, technology has changed the world in many ways, but perhaps the greatest of changes was that of the paradigm. A new resource - information - has emerged to acquire a central position in social life. Bill Gates, the founder of Microsoft, describes in his best-selling book "The Road Ahead" a hypothetical dialogue sometime in the future, citing Switzerland to be a great country for its abundance of information (not the money in the famous Swiss banks!). However, while recognising the central position and great value of information, Gates proceeds to quote another hypothetical person about the information price indexes starting to rise. This is the exact point where the two paradigms clash.

Information, in contrast with nearly all the previously important resources, has a fundamental difference - it does not disappear from its original location when handed over. When one has a piece of bread and she gives it to another person, she does not have it any more. However, when one tells her friend a joke, there will be two people who know it instead of one. Information in its pure form can only be copied, not moved. This makes it behave very differently from other resources, also meaning that legal regulations which were appropriate for others do not necessarily work here.

Sure, information has been like this throughout the human history. But only recently, with the emergence of the Internet and the "information superhighway", has this exceptional resource become the most critical one. One of the main factors here is the multiplication of information, or simply copying. For example, early books were rare and expensive due to the great effort needed to produce them. Thus books were regarded not so much as information per se but as definite material objects which were subject to legal treatment similar to other material resources (e.g. someone bought a book for 15 gold coins). XX century with its multitude of new data carriers (vinyl records, magnetic tapes etc) started to gradually change the situation and when the days of universal networks arrived, information had gone through a major shift from something attached to a material object (record, tape, book) towards a much purer form available on networks. This is where the old legal measures started to fall behind - and currently the situation is most probably irreversible.

The Millennium Bug[edit]

Although the problems with the traditional IP have increasingly been visible during the 2nd half of the XX century, they have surfaced really prominently around the turn of the century. Some of them were already discussed in Chapter 13.

Let's return to the story of Edward Howard Armstrong, the inventor of FM radio. His creation was extremely well received by the public, however his that time employer RCA, who was the main provider of AM radio in the US saw him as a threat. Lessig proceeds to provide a very telltale quote by the director of RCA:

"I thought Armstrong would invent some kind of a filter to remove static from our AM radio. I didn't think he'd start a revolution - start up a whole damn new industry to compete with RCA"

As it usually happens, the sole inventor was no match for the patent empire. Being defeated and bankrupt, he committed suicide in 1954.

A powerful, if unexpected comparison is made by Richard Stallman, regarding the copy protection measures which increasingly turn into a human rights issue: "The U.S. though is not the first country to make a priority of this. The Soviet Union treated it as very important. There this unauthorized copying and re-distribution was known as Samizdat and to stamp it out, they developed a series of methods: First, guards watching every piece of copying equipment to check what people were copying to prevent forbidden copying. Second, harsh punishments for anyone caught doing forbidden copying. You could sent to Siberia. Third, soliciting informers, asking everyone to rat on their neighbors and co-workers to the information police. Fourth, collective responsibility - You! You're going to watch that group! If I catch any of them doing forbidden copying, you are going to prison. So watch them hard. And, fifth, propaganda, starting in childhood to convince everyone that only a horrible enemy of the people would ever do this forbidden copying.".

For outsiders, this may sound a bit exaggerated. However, Stallman goes on to point out similarities between the USSR and current U.S. policies in all the five points:

  • guarding of copying equipment - this is done by including DMCA-warranted copy protection mechanisms to software (including many very widely used applications).
  • harsh punishments - Stallman cites the current U.S. prosecution mechanisms for copyright violators which can include real imprisonment.
  • eavesdropping - the "nail the pirate"-type campaigns which encourage informing BSA or other similar organisation of fellow people infringing copyright (while these campaigns have been toned down recently, a good example is still visible here).
  • propaganda - using the same word for IP offenders and notorious pillagers, murderers and robbers. Stallman also notes that "pirate" used to be a term for publishers who did not pay to authors - nowadays they have effectively reversed the term.

This is indeed something to think about. Stallman has often been labelled "Communist" by the big media - looks as if someone else needs a mirror here...

The Mindquake of IP[edit]

In Chapter 13, we learned about the term "mindquake", coined by Robert Theobald for situations where one realises that his/her previous knowledge which applied to certain situations does not work any more. We also looked at the situation of "Those who know, do not talk. Those who talk do not know." One of the biggest negative impacts of IP comes from issuing too broad patents and other forms of protection. This is mostly due to patent officials being unable to fully grasp technical details of proposed invention. This is especially true concerning patents on software - even if the evaluator is qualified (which have been not the case in many times - finding a person being simultaneously and equally expert in legal details of patent law and finesses of computer programming is quite improbable), software as a phenomenon is far too complicated to identify if the novelty clause has been satisfied.

Another problem with the current system of IP when applied on software and other objects of new media, is the duration of protective measures. If the 20 years of patent protection might have been appropriate for Watt's steam engine, it is a hopelessly too long time for many today's new creations. Perhaps the best example of this would be imagine if sir Timothy Berners-Lee had patented his newly-created Hypertext Transfer Protocol and other crucial components of the World Wide Web in 1991. We would perhaps have some well-controlled applications, but definitely not the ubiquity of today (a good example is provided by Ted Nelson's Xanadu project which started already in the 60s, featured many similar ideas to the Web, but failed to materialise - being proprietary by nature was possibly not the smallest reason for this). No Internet banking, no web media, no blogs or web forums - not until 2011.

As we have seen, the current approach to the IP has been running wild for some time. The problem may well be not limited to insufficient or overtly harsh legal regulations - a new kind of ethical approach could be necessary.

The business of science[edit]

For a final example, the Open Access movement was started by an American billionaire, activist and philantrophist George Soros in 2001 as the [L] Budapest Open Access Initiative. Its main aim is to provide alternative publishing models to the increasingly commercialised academic publishing which provided huge profits to publishers but effectively blocked access to scientific materials for those who could not afford the expensive journals, thus extending the global digital divide. Despite initial hesitation and some criticism from academic community (who apparently faced another mindquake) the process gradually emerged to become a viable way of publishing. In December 2008, the [L] Directory of Open Access Journals lists more than 3700 scholarly journals with about 240 000 articles.

A good quote to illustrate the shift of thinking among academics comes from a professor of economic analysis (sic!) R. Preston McAfee, stating the reason why he published his [L] "Introduction to Economic Analysis" on the Web using a CC license and making some interesting points:

"Why open source? Academics do an enormous amount of work editing journals and writing articles and now publishers have broken an implicit contract with academics, in which we gave our time and they weren't too greedy. Sometimes articles cost $20 to download, and principles books regularly sell for over $100. They issue new editions frequently to kill off the used book market, and the rapidity of new editions contributes to errors and bloat. Moreover, textbooks have gotten dumb and dumber as publishers seek to satisfy the student who prefers to learn nothing. Many have gotten so dumb ("simplified") so as to be simply incorrect. And they want $100 for this schlock? Where is the attempt to show the students what economics is actually about, and how it actually works? Why aren't we trying to teach the students more, rather than less?"


Food for Thought[edit]

  • Malaquias and a number of other authors (Barnes, Benkler, Himanen, Lessig, Martin etc) suggest that information behaves radically differently as a major resource, compared to e.g. land or money. What do you think?

To Do[edit]

  • Find a good example of the "science business" described above and analyse it as a potential factor in the Digital Divide discussed earlier. Is the proposed connection likely or not? Blog your opinion.