Intellectual property just doesn’t work anymore

Hey everyone; @lemony-cricket here, and intellectual property is possibly one of the hardest pre-Information-age concepts to kill. But it’s dying, as we speak… and that’s a good thing.

Adapted from image by Bo Peterson. CC-BY-SA 3.0

The title is a lie.

What do you mean “Anymore?” Intellectual property never worked. It was never a thing, at all. It was a silly idea that gained traction by accident due to a lack of technological advancement at the time.

“Copyright” as we know it first arrived in the form of the English Parliament’s Licensing of the Press Act 1662, which came about when people decided something needed to be done about “unlicensed copies” of books made possible by the printing press. For the first time in history, it had become possible to separate two concepts which had never been separated before: data and media. Writing had existed in several forms for thousands of years, and yet up until that point nobody had really thought about the concept of owning information. It wasn’t necessary; owning the medium was enough, because copying the data to a new medium was a difficult problem. In order to copy a book, for example,  you’d have to sit down and write out the whole thing. Ain’t nobody got time for that.

Unfortunately, the damage had been done by years and years of authors owning what was often the sole copy their books, which meant that they had effective ownership of the content as well. Of course, they collectively decided they liked things that way, thank-you-very-much. So, in the typical reactionary fashion in which governments of the world operate, this new legal concept of “copyright” was legislated into existence: that no author, having written a book and released it into the world, shall suffer the pain of having its work copied without its consent.

Bloody horrible idea, that one.

It was the wrong way to handle the problem. Instead of allowing a business model to change; to adapt to new technological advances, the government chose to prop up an artificial concept by rule of law. If this sounds familiar, well, that’s because governments do this all the time. They didn’t stop, either. Provided below, for the reader’s enjoyment, is a particularly disgraceful educational video from the early 90s:

Don’t do it; we know you can, but please don’t. Pretty please? You see, back then, software companies (who had obviously grown comfortable with copyright law’s expansion into software) were experiencing one of the first general failures of the intellectual property concept. The prolific spread of writable media as well as the explosive adoption of home computers should have meant the end of copyright forever. Unfortunately, that’s not exactly how it worked out.

Instead, they propped it up again.

Software producers invented new ways to attempt to enforce their copyright. Some included a quiz that could only be answered by examining the game’s packaging or manual. If you couldn’t look up the correct information, it meant you didn’t have the manual for the game, so you obviously didn’t buy it. Don’t lose the manual, I guess.

Other approaches became common too. Everyone old enough to remember pre-Steam gaming remembers the old “licence key” approach to digital restrictions management (DRM). The disc came with a key, generated by a “proprietary” algorithm, which the game could check to see if it was legitimate. Of course, software pirates were always one step ahead; it was never long before these keys were leaked or a key generator utility was released.

In 1998, the United States infamously brought us the Digital Millenium Copyright Act, which is the most widely-known law to criminalise the “breaking of digital locks.” While it is true that there are some (very narrow) exceptions, they are temporary and at the whim of the Librarian of Congress. That’s probably the most ridiculously bureaucratic thing I’ve ever heard. Plus it never worked anyway. Nothing changed. Scene crackers still patched games and wrote keygens. Enforcement of the DMCA and similar laws worldwide has been, largely, a colossal failure.

We can do better than this.

The sense of pride and ownership that an artist, writer, coder, or musician feels as it looks upon a completed work will probably never go away, and for good reason. It is one thing to say something is your work and that people should not use it without your permission. It is even fine to encourage a community to boycott, downvote, or otherwise discourage unauthorised use of your work. It’s a completely different thing, however, to expect the state to act as an enforcer on your behalf. That is already gone for the little guys and has been for some time;  pretty soon it will be gone for the big guys too.

Intellectual property law does not work, because governments are slowly but surely losing the power to control the dissemination of information. It will only continue to get worse for those stuck in their ways, as information technology grows more and more decentralised.  Artists, musicians, writers, and content producers in general should not, and can not, continue to rely upon a centralised government entity to protect them from copyright infringement.

Instead of propping up outdated business models which fall apart under information-theoretic attack, we should focus on creating new business models that actually work without relying on the ownership of data, like Steem and Patreon. On both of these platforms, creators are paid for their content as they produce it, and as they acquire a following they gather more and more consistent support.

A brighter future is ahead.

In the long term, society will come together to support a continuous stream of content from their favourite creators. They won’t pay for “rights” to the finished content; they’ll actually be paying the artist to work. Once content creators start to be paid a fair rate for their effort, they may start to loosen their grip on the insistence that they legally own exclusive use of their content.

Change is coming whether we like it or not. Government is rapidly losing the battle against the freedom of information, as it should be. Information will only flow more freely tomorrow than it will today. It doesn’t do us any good to keep trying to prop up a concept so unnatural, so information-theoretically unsound, as intellectual property. Instead, we should focus on creating new, sustainable models for rewarding our society’s content creators… and I think Steem is a really great start. 🍋