Saturday, 23 June 2012

IPR Creep And Why We Must Stop It

The ACTA boat is sinking. Conservatives from the British and pan-European contingents, along with the big business lobbyists, are frantically bailing it out but the Polish conservatives have already jumped overboard. EU Trade Commissioner Karel de Gucht took time out from taking flack for his tax fraud scandal to drum up a bit of support for the treaty in a last-ditch attempt to keep it afloat, but the good guys won the day at yesterday's INTA vote by 19:12. Why is this happening?

The driver behind all this is the USTR, the international trade representative of the United States. They've been pushing for increased penalties for infringements, real and imaginary, of investment interests in products produced by the major corporations and their representative bodies, e.g. RIAA and MPAA, which represent the music and film industries respectively. They refer to these investment interests as "intellectual property rights" (IPR) in order to attach emotional weight to the proprietary claims they make to their ideas, their products, and the way they are perceived, presented, and distributed.

Getting other people to see things from their point of view gives them the leverage they need to protect the profits from their failing business models to the detriment of our democratic processes. Until recently, this has worked like a charm for them but as of last night, it seems the USTR has been at the undertakers picking out a coffin for ACTA, because we the people reminded our representatives that the European Union is a democracy and we will fight for it to stay that way. That reference to "reconciling differences" over IPR is really a resignation to the fact that pressure works.

Why it matters

Public participation in the legislation process has never been so strong, and that's a good thing. I've been over the arguments against ACTA often enough, but the underlying problem isn't that there are laws and treaties floating about, it's that people want to protect their clunky old business models, whatever the cost to democracy and personal freedom.  Up till January this year they've had it all their own way but ever since the SOPA protests, I've not been the only one to get involved in digital rights activism.

Even if we boot ACTA into oblivion on July 3rd when our MEPs have the final plenary vote, there are other mountains to climb. USTR is not the enemy, Ron Kirk is only doing what he thinks is best for the American economy. Unfortunately the only people he listens to are the industry lobbyists and they're not telling him the truth. And although he has accepted that attempting to foist tighter IPR laws on us via our own governments' "voluntary" legislation, I can't see the MPAA and RIAA giving up their stranglehold on culture and the distribution thereof any time soon.

The control freaks won't stop trying to own their ideas

There's a saying that goes, "Good fences make good neighbours." That's true when your neighbour agrees to stay behind his fence and leave it where it is. Here's the problem: the IPR maximalists keep on moving theirs — and trying to grab more land and fence that, too. Eventually, we get characterised as squatters just for living where we are.

The trouble with referring to their investment interest in their content as "property" is that it's so emotionally loaded it's hard to debate the issues fairly. Moreover, as soon as you accept their perception and the terminology they use, you end up being funnelled into seeing their way as if there are no other options. Think about it; if ideas and knowledge are property, is it reasonable that they lose their proprietary rights after the term set by the law has expired?

It's like real estate. Over here in the UK we have freehold and leasehold on land. On freehold land if you buy the land you own it until it is sold. Therefore the same family can own and control the land for many hundreds of years, in theory. On leasehold land when the lease is up you have to renew it or it lapses to the original owner. IPR maximalists ideally want the freehold on their ideas, knowledge, and the way they are perceived, not the leasehold that our current laws provide.

Why this can't be permitted

Permitting the freehold on IPR would be disastrous. No company or corporation operates for any other reason than to make as much money as it can. For that reason, many of the older items of our musical, film, and digital culture are being lost to history because the curation thereof is not profitable to be worthwhile. To even browse them requires special access and a license, due to their complicated copyright status.

It's not just culture that suffers. Karel de Gucht, EU Trade Commissioner and would-be trampler on democracy, had this to say in his statement to the INTA (European Union International Trade Committee):

ACTA is not an attack on our liberties, it is a defence of our livelihoods... We are in an economic crisis. If Europe wants to have a successful economy it needs firms that can compete for the tasks that add the highest value to a product. And the way they make money and create jobs from those ideas is by turning them into intellectual property, protecting them under the law and ensuring the law is enforced.

So as you come to make your choice about how to vote tomorrow, I believe you also need to consider the signal you will be sending to the rest of the world.

Let's take a closer look at this statement. He thinks that the way to add the highest value to a product is to turn the ideas of the product into a way of collecting license rents from distribution. He also says that the way for Europe to have a successful economy is for firms to compete to turn ideas into intellectual property, protect them under the law, and ensure the law is enforced; the EXACT thing I've been saying would be the only growth areas under ACTA: registration, surveillance, and enforcement.

The thing I've been telling my MEP is that it would have a devastating effect on our economy because criminalising civil offences and getting the state to put all of us under surveillance would drain our countries' coffers to the benefit of foreign contractors for no good reason. It wouldn't even stop the file-sharing, etc., so it's just a huge white elephant. He then says we need to consider the signal we will be sending to the rest of the world. We did, it's "We're not falling for this scam, you shill."

He's committed to pursuing this no matter what because he's in love with his opinion. He's not interested in pesky old facts or inconvenient evidence. I've no idea why but his arrogance is just embarrassing. It's not the only thing to watch, though. There are other threats we need to keep an eye on.

Patents on software

Remember my posts on Oracle V Google and Yahoo V Facebook? Now imagine that over here. No. Flippin'. Way. It doesn't matter that Yahoo and Facebook are working on a plan in which they effectively kiss and make up, this stuff is damaging. As a commenter on Groklaw once said,

Patents and software need to get a divorce before somebody gets hurt. Imagine if Oracle had gone after someone less willing to stand up to patent bullying. The damage from software patents is astounding, and the IP is so puny. There is an imbalance in the legal universe, and it needs fixing. Software is algorithms, and that is mathematics, and it's wrong, totally wrong, to let math be patented. These patents should never have issued.

And that's the problem. Are the big corporations and their political minions willing to see it that way? Erm, no. Something wicked this way comes, according to a post on the European Patent Office's website. The EPO is constantly embroiled in debates about whether or not to permit patents on software. Sane voices have prevailed thus far, though if you have a completely radical new idea for software you can patent it. Naturally, this leads to cries of "We've got no protection!" probably from Microsoft, so they've been debating it ever since.

The result is clarified patent laws, and thankfully none of this has resulted in letting the software patent cat out of the bag. They haven't even harmonized the patenting practice in the EU.

Can US patent laws be reformed?

The last thing we want is the mess they've got in the USA at the moment. That's what ACTA was about: exporting that nonsense to us+. They've been selling snake oil as imaginary property but what's waiting for us is a broken system that's hard to reform because the big data companies are unwilling to let go of their license cash cows. EFF has come up with a partial solution in a bid to wean them off IPR, but critics say it doesn't go far enough and because of the constant ratcheting I can't see the proposed five year term staying at that length.

What about copyright?

The trouble with copyright is that it assumes that the copyrighted work is the unique product of someone's brain. It's not. A story in a book will have one or more of the basic plots outlined on IPL2's page on the subject. There are, at most, 36 of them. Hold that thought. What about the words and the way they're used? A case can be made for a particular style but it's not the style that is copyrighted, it's the whole document as it is. So what I'm saying is, the thing that's being copyrighted is derivative of what is essentially prior art. That's why we don't have patents on books. What amuses me is that a three minute pop song is accorded the same status as a Pulitzer prize-winning book. It's the same with films.


The other problem with it is the term and the way it keeps getting increased. There's no need for it and the argument that it protects jobs or that it benefits the artist is ludicrous. What copyrights and patents represent is the ability to control the presentation and distribution of copies of the works in question. The monopolies our governments have granted them permit them to exert the most outrageous controls at our expense. Infringement is now a criminal offence in many cases and it's getting ridiculous.

Disadvantages to them

The disadvantage of the monopoly isn't wholly on us; people with copyright monopolies are unwilling to adapt to the digital age and instead of taking advantage of the free advertising they seek to squeeze revenue out of any and all attempts to share items or parts of items we like and are interested in. Then, like squalling brats having a tantrum in a shop, they kick and scream blue murder till they get what they want: our governments to fight their battles for them. It's not even doing them any good. The real money to be made is in engaging with the fans, not treating them as potential criminals. And as I said before, using public money to shore up their failing business models during a recession is not going to benefit anyone, even them. They'll just alienate their fans even more and blame the pirates for the fact that a lot of us are boycotting them.

It's got to stop; we need to change our IPR laws

Ron Kirk's statement in the interim report I linked above is a clue to the fact that he's finally paying attention to the fact that we're not buying the snake oil. The Vietnamese Chief Negotiator's comment,

We all know who the largest recipient of FDI (foreign direct investment) is, and it’s not Singapore.

said it all. The largest recipient is actually China, the most egregious infringer. So much for "The Yanks'll be bustin' down our doors to do business with us, man!" No, they'll troll us into oblivion, that's why we have to stop IPR creep from getting any worse, and it's pretty damn bad at the moment. That's why, when we've finally buried ACTA and put a stake through its cold, black heart, we need to go take the next logical step and reform the IPR laws we have now to reverse the ill effects that all these pointless restrictions have on European businesses.

The changes and their benefits

By decriminalising infringement we can free up our law enforcement agencies to go after the real baddies. By halting the surveillance legislation and telling the MAFIAA (derogatory term for RIAA and MPAA) to go jump off a cliff, we can save the public purse a king's ransom. Then we'll have to wean the IPR-dependent industries off collecting licence fees for a living and empower them to earn from making use of the rampant online copying culture and making deals with the bit torrent and streaming sites, etc. When they've learned and accepted that they don't need to oppress the serfs like the lords of the manor they presume to be, they'll be less of a threat to our freedom and we can stop thinking of them as the enemy.

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