Monday, 11 June 2012

Reclaim Stolen Words: Five Strategies To Counter Semantic Shenanigans

As the term "intellectual property rights" takes a firmer hold on our society, it's time to sit back and consider what it all means, why it's so important and what we can do about the way it impacts on us as internet users. We need to start with the loaded language they use to persuade us that it's a valid concept in the first place.

The big multinational corporations have insinuated the term "intellectual property rights" into governmental thinking by persuading them that there is such a thing, that it underpins our economies, that it's in our national interests to defend it with governmental agencies, and that it needs to expand. They have succeeded beyond their wildest dreams by using words and phrases that add weight and meaning to their assertions. I'm going to start with the terms they use, tell you what they really mean, then how to counter them in order to help you argue the case against IPR on the basis that the whole premise is bogus.

1. Challenge proprietary notions and the words used to express them

In England, patents in the modern sense originated in section 6 of the 1623 Statute on Monopolies, which both described patents as "monopolies" and exempted them from the general ban on royal grants of such rights. But the currency of the term also derived partly from -- and helped to reinforce -- a substantive position: like other "monopolies," patents and copyrights were dangerous devices that should be deployed only when absolutely necessary to advance some clear public interest. Thomas Jefferson was the most prominent adherent of this view, but many others shared his attitude to varying degrees. Gradually over the course of American history, this discourse was supplanted by one centered on the notion that rights to control the use and dissemination of information are forms of "property." - The Growth of Intellectual Property: A History of the Ownership of Ideas in the United States - William W. Fisher III

According to Fisher, this is because of shifts in culture, politics, and law. Since 1999, when this article was written, there has been a massive shift, powered by the fear of losing control of their creations, towards increased IPR protection with little or no concern for the public good. It's all about greed and control. The idea of assigning proprietary notions to ideas, information, and cultural items is so new they have to attach familiar notions such as "intellectual," "property," and "rights" to what is essentially a protection racket based on "pay the license fee I've set or go to prison." See? I can use loaded language, too. And mine is more popular because there are more fed-up netizens than corporate bigwigs. That's why we'll win this. Oh, look, I did it again. Let's take a closer look at the actual words, their true meaning, and the way they are abused to make us subservient to the interests (read, "profit margins") of the few.


a : of or relating to the intellect or its use b : developed or chiefly guided by the intellect rather than by emotion or experience : rational c : requiring use of the intellect <intellectual games> 2 a : given to study, reflection, and speculation b : engaged in activity requiring the creative use of the intellect <intellectual playwrights> - Merriam Webster dictionary

Okay, does The Birdie Song qualify as creative use of the intellect? Go on, infringe it. I dare you! How about Denise LaSalle's classic, Don't Mess With My Toot Toot? Dare I mention the abomination that is Agadoo, by Black Lace? Dig that one up yourselves, I've done enough to music in this post. The point is, any old tat can be labelled "creative use of the intellect" but come on, be reasonable. I've just given you three examples of "utter crap that you could be fined for unauthorised dissemination" but when the RIAA or equivalent thereof issues that DMCA because you shared it on YouTube, they will announce with completely straight faces that these three blots on the landscape of music are in fact "intellectual property."

The point is, not everything we call "music" is creative or use of the intellect. I went for ridiculous examples of music but there are ridiculous examples of film, books, and other items. If you're going to call it "intellectual," at least let it have some cultural or artistic value. These examples don't.


1 a : a quality or trait belonging and especially peculiar to an inidual or thing b : an effect that an object has on another object or on the senses c : virtue d : an attribute common to all members of a class

2 a : something owned or possessed; specifically : a piece of real estate b : the exclusive right to possess, enjoy, and dispose of a thing : ownership c : something to which a person or business has a legal title d : one (as a performer) who is under contract and whose work is especially valuable e : a book or script purchased for publication or production

3 : an article or object used in a play or motion picture except painted scenery and costumes - Merriam Webster

To my vast amusement, there is nothing there for "intellectual property." You can, of course, make a claim for, "something to which a person or business has a legal title," but that's a lawyer-stretched definition. Property is usually considered to be a tangible item and we're now in a situation where the value attached to intangibles is so great that the rights to them are being sold for billions of dollars. All they actually mean is the right to charge other people license fees for using them. When whole industries are built around the right to charge license fees, you have what amounts to a protection racket to keep the money flowing in.


1: qualities (as adherence to duty or obedience to lawful authority) that together constitute the ideal of moral propriety or merit moral approval </>

2: something to which one has a just claim: as a : the power or privilege to which one is justly entitled <voting rights> <his right to decide> b (1) : the interest that one has in a piece of property —often used in plural <mineral rights> (2) plural : the property interest possessed under law or custom and agreement in an intangible thing especially of a literary and artistic nature <film rights of the novel>

3: something that one may properly claim as due <knowing the truth is her right>

4: the cause of truth or justice

5 a : right hand 1a; also : a blow struck with this hand <gave him a hard right on the jaw> b : the location or direction of the right side <woods on his right> c : the part on the right side d : right field e : a turn to the right <take a right at the stop sign>

6 a: the true account or correct interpretation b : the quality or state of being factually corret

7 often capitalized a : the part of a legislative chamber located to the right of the presiding officer b : the members of a continental European legislative body occupying the right as a result of holding more conservative political views than other members

8 a: often capitalized : iniduals professing support of the established order and favoring traditional attitudes and practices and conservative governmental policies b often capitalized : a conservative position

9 a: a privilege given stockholders to subscribe pro rata to a new issue of securities generally below market price b: the negotiable certificate evidencing such privilege —usually used in plural

right·most adjective by rights also by all rights: with reason or justice : properly in one's own right: by virtue of one's own qualifications or propertiesof right

1: as an absolute right: legally or morally exactableto rights: into proper order - Merriam Webster

It's "the property interest possessed under law or custom and agreement in an intangible thing especially of a literary and artistic nature" that has the currency here. Properly and fairly applied, I have no problem with people asserting their interest in something they've created or contributed to, whether it be a pop song of questionable value or a literary work. It's when they extend their interest beyond their bounds and assert perpetual ownership for the legal duration so they can keep on charging us for the enjoyment of an item we have bought and paid for that I get annoyed. The maximalists refuse to accept limits on their proprietary notions. The monopoly privilege granted by our governments has made them so dependent on licensing fees that they're unwilling to seek out new business models. Instead, they have elected to extend their interest to the point of intrusion and lock-in and are always looking for more ways to extend it further.

New term

We need to reclaim the words "intellectual," "property," and "rights;" words that have connotations of endeavour, value, and entitlement and the baggage that goes with them, and replace the term "intellectual property rights" with "investment interest." Work with me here: even Black Lace invested time and effort into making the kind of joke tune that is the staple of weddings and school discos. The interest they have is in collecting money from those who enjoy it from channels where they can add value to it with information, a remix, or something like that, which have adverts on to give them revenue from the clicks. The concept of an idea belonging to someone who can claim license fees from users in perpetua seems wrong to me. It's lazy. So can I have some takers for "investment interest," please? If not that, can we come up with another term that isn't dripping with connotations of entitlement that demand our sympathy, respect, and compliance?

2. Redefine the way we describe experience (again)

I'm breaking out the dictionary again, people. The mental gymnastics and denial system you need to accept the redefinition of words with emotional connotations is ridiculous.

1: to do away with completely : destroy <fire consumed several buildings>

2 a: to spend wastefully : squander b : use up <writing consumed much of his time>

3 a: to eat or drink especially in great quantity <consumed several bags of pretzels> b: to enjoy avidly : devour <mysteries, which she consumes for fun — E. R. Lipson>

4: to engage fully : engross <consumed with curiosity>

5: to utilize as a customer <consume goods and services>

intransitive verb

1: to waste or burn away : perish

2: to utilize economic goods - Merrriam Webster

The meaning of the word "consume" has been distorted to accommodate the content providers. What it actually means is to use up so that when you're finished consuming, it's gone. If you watch Ice Age, the DVD is still there and undiminished when the film is over. If I eat a chocolate bar, I chew it and enzymes interact with it as I swallow it. Peristalsis and my digestive juices turn it into something else. You can't use a chocolate bar the same way a second time because it's not chocolate any more, is it? Lawyers can jerk their thumbs at the dictionary and say, "But Merriam Webster says it means 'Utilize.'" Yes, it does mean "utilize," but the connotation is that the act of consumption transforms it so it's not the same thing afterwards. In other words, he's suggesting that the act of watching a film diminishes it to the point where it's not the same thing afterwards. Look, I'm trying to be polite here, but you get the idea, don't you?

The reason the word "consume" is so popular among the maximalists is that their business model runs on an artificial shortage. The idea is that they limit who can or can't see their content by using release windows to protect theatres and cable services. There's typically a four year release lag between a Hollywood movie getting a theatrical release and ending up on television here in the UK. That's because the distributors want to give it a few weeks' run in cinema theatres, then issue DVDs, then licence it to cable television providers, then release it to television companies. The advent of services like Netflix has complicated matters since they now have to be taken into account.

This business model is so established that any attempt to circumvent it is characterised as piracy and you can go to prison or have your internet access cut off for linking to copyright material available on unauthorised channels or for filesharing. Once you have purchased your DVD of Star Wars, you don't own it so you can't copy it or share it online. You can only lend it to your neighbour because catching you at it and charging you for it isn't yet possible.

It's hard to justify this ridiculous situation and they can't so they change the way we see it by assigning new meanings to the words we use to describe what we're doing when we put that DVD in the player: they imply with the word "consume" that we've basically eaten and digested it and all that remains when we've finished is sludge that can't be used for the same purpose again. Let's have no more of the semantic gymnastics. We don't "consume" a film, we experience it. We enjoy it. We watch it. And it's still the same thing afterwards and can still be used in the same way over and over and over again. Even poo can only be used once for any purpose. Use the correct term: "watch," "enjoy" or "experience." Never use "consume." It's dishonest.

3. Define infringement and theft

Does anyone remember that scene in Lord of the Rings: The Two Towers where Gollum creeps up on the sleeping Hobbits?

"They're thieves, they're thieves! They're filthy little thieves! Where is it? Where is it? They ssstole it from us... my precioussss. Curse them! We hates them! It's ours, it is, and we wants it!"

Every time I think of IPR maximalism I see that. They feel like that about everyone who fails to pay a license fee for their content they experience in any way, shape, or form. They try to convince us that they're upset about the content being shared online. What they're actually upset about is the loss of control they have over the content and the loss of licensing revenues from unauthorised sharing.

It's the control that I have the problem with. I believe a person owns a thing after they have paid for it and therefore proprietary rights pass to them but the legacy content industries are having none of it and rather than trying to find new ways of earning revenue by engaging with their fans, they seek to have unauthorised sharing criminalised. To back this up, they characterise infringement as "thievery," which, by defininition, it's not. "Theft" implies that an item has been removed and is now in the possession of another but you can't possess an intangible. If I was to make a copy of any of my DVDs and post them online (I wouldn't), the original would still be there. If someone else then comes along and copies the MP4 file and posts it elsewhere, the copy I made will remain where it is until it is removed. If it is removed, I've still got the DVD.

"Ah," says the maximalist, "not so fast, missus. You're stealing the money I could have made from my share of the license fee that I would have got if the people who watched it courtesy of your infringing self had bought the DVD. AND you've taken away the control I had over how, where, and when that film could be consumed."

"What, you mean chewed, swallowed, digested, and..."

"What do you want to call it, then, smart alec?"


You get the idea. He's assuming that the DVD would have been bought if it hadn't been put online for others to enjoy, but sometimes people want to try before they buy or simply take what's free because it's there. He's also refusing to meet the punters where they're at, insisting instead that they "respect" his "rights" as the "owner." He's not obliged to, though, when he can get Plod to kick your door down to enforce his monopoly. His position still makes no sense. We've established that he's lost no money and the potential money wasn't guaranteed. All he's lost is control, and that's too petty to quibble over. It's "infringement," okay? Not "theft."

4. Own the narrative

There are two sides to every story, and investment IPR has a huge gulf between the maximalist position and ours. Theirs is that evil thieving pirates are driving them out of business by copying and sharing "their" content, then "consuming" it in denial of their proprietary rights, leaving them virtually bankrupt, poor things.

Ours is that they don't know the difference between "mine" and "yours" and that their failure to adapt to the digital environment ain't our problem and doesn't require a state-sponsored monopoly with progressively draconian enforcement.

We the people own the narrative of what the legacy content industries are doing as far as our peers are concerned, but we need to make those people who can do something about it — our representatives — accept our version of the story. Ownership is a matter of perpective where the narrative of IPR is concerned and at the moment our representatives believe that the IPR maximalists own the narrative of what their business is and how it works. That's why they give them what they want every time. Three strikes and internet access is cut off? No problemo. Hasta la vista, infringer.

Engaging in political discourse with each other give us the opportunity to seize a little piece of the narrative territory, if you will. Eventually, we'll own enough of it to build an indestructable castle of civil and digital rights on but until then we've got to fight for it. Engaging with our representatives gives them a chance to see that we're decent, right-thinking people and the other side have got it wrong. They won't come to that conclusion by themselves, we have to nudge them there by constantly reminding them via email, phone calls, letters, and social media posts to their accounts that the IPR maximalists have duped them into betraying us by taking our rights in the name of corporate profits. Eventually, if we keep on pushing the message, it'll compete with the maximalists' version of the story until ours wins. It's not easy and it'll take a lot of work but we've got to do it.

5. Provide Solutions

The biggest hurdle to overcome to win the semantic wars is the notion that the only solution to piracy is enhanced enforcement. No it's not. Increased penalties aren't effective but they're being advanced because IPR is an ecosystem in and of itself and expansion has created a new set of industries that feed off it. Enforcement is one of them. Maximalists reject new business models and the registration, surveillance and enforcement industries stand with them because if sensible legislation was brought in for the benefit of the public, they'd have to look for new ways of making money. The system as it is keeps them rolling in dosh.

As long as the maximalists can furtively stuff the dollar bills down the back of the sofa and inside cushions, then affect aggrieved expressions, they can claim that there's only one way for them to continue to provide content and make money, and that's via expanded proprietary rights. By unmasking their greed and exposing their hypocrisy, then proferring solutions of our own, we can compete with their assertions and win.

First of all, YouTube and the other streaming services are not a threat. The control freakery that goes with the proprietary attitudes the maximalists have to the content they produce is stopping them from finding ways to make money from the streaming services without having the cops raid their homes and drag them off to prison like they did with Kim Dotcom. The smart thing to do would have been to let MegaUpload IPO, buy a large chunk of shares in it, then provide it with high quality content to give the service a dominant position in the market. As it is the case may never go to trial because the US exceeded its authority and botched the proceedings from A to Z.

Secondly, competing with free is easy. You have only to be better. Value added downloads on a reputable website that is funded by ads and has a paid ad-free subscription service would get them more money than blocking the Pirate Bay.

Thirdly, making a deal with rival sites to link to your own or to share revenues from ads is a lot more effective than seizing the domains and playing whack-a-mole. The trouble is, there's so much money to be made from chasing and lawsuits, etc., that getting the maximalists to listed is an uphill task. Thankfully, we can get through to our politicians. They're the ones we need to convince. We can do it if we work at it continually and don't give up, and it starts by using the correct words to describe what's going on.

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