Transcription of "The system of ownership of ideas".
By Eben Moglen, Professor of law and history of law at Columbia University. (transcription by Dave Crossland, some small corrections by Sergio Queiroz)
Given at the ITC-ILO in Turin, during the closure conference of the Master on Intellectual Property. (2004)
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The revolution is rising, you know. And that's why I'm today inside the wire. It's become impossible not to hear the noise of the intellectual property system destroying itself. You can hear the sound of the gears beginning to break and the machinery falling apart; you can hear it inside the largest information technology firms on earth; you can hear it inside the governments beginning to get nervous about the possibility that people will begin to understand. You can hear it even in the international civil service agencies which try as hard as possible not to hear anything.
So, all revolutions begin with a question. Usually the question is "why?". Sometimes the question is "who?". The question here is Bertolds Brecht's question, "Who built the pyramids of Thebes?". Or maybe he stole that question from someone else. If I have seen any further into that question, I saw it by standing on the shoulders of giants. But I stole that from Isaac Newton, who stole that from Luis Steothis, who stole that from Bernard Chartres . Which we know because the American sociologist of science, Robert Merton, taught us that, who stole it from an anonymous author of a note in a British journal, in 1934, who stole it who-knows-where. This of course is the beginning of the revolution. That is, the application of the word "theft" to what previously had been known as "learning."
So, we are now learning something in this room, and in these agencies, and in our various places around the world: We are learning that there is a connection between the fundamental human rights and the re-appropriation of what belongs to us, that was taken from us, by people who turned knowledge into commodities. An inevitable, temporary, regrettable step in the process of getting back to freedom.
Lord Macaulay, writing about the English glorious revolution of 1688, from his position in the middle of the 19th century, found himself with a question: Here were all the great politicians of Whig England, having successfully dislodged a bitterly and evilly disposed despot, aware of enourmous numbers of legal reforms that needed to be made, busy reshaping the English constitution in the winter of 1688/89. And he shows how one after another of the great reforms of the 18th century were proposed, and he said to himself, "How strange, nobody said lets repeal the censorship of the press." Which anybody now knows, Lord Macaulay says, was the single most important reform because the freedom of public discussion is the guarantor of all other rights. From the perspective of 1850, 1688 seemed rather backward in this recognition.
In the middle 1960s, the then dominant American scholar of copyright, Mel Nimmer, wrote an article asking a revolutionary question: "Why is copyright consistent with the first amendment guarantee of freedom of speech?" And he wrestled with it for a little while, and came to some comparatively unsatisfying answers, which satisfied him, mostly. And then the field of copyright law went to sleep on those answers for another twenty years. By the time they found themselves hearing the question again, it was asked rather loudly by a few of us, and the answers that seemed barely satisfactory in 1967, seemed entirely useless altogether. Now, mind you, the United States Supreme Court hadn't quite figured that out yet. Thanks to a very skilled and daring investigator, my colleague Larry Lessig, we were able to demonstrate that the Supreme Court didn't understand that problem at all, and we are unfortunately living with the consequences of their continuing -- but I assure you, temporary -- ignorance.
The question, "What is the fundamental consistency, if any, between the freedom of speech and copyright law in the United States?" now has as its grand international rhyme here today: "What is the consistency between the fundamental garantee of the right of human beings to self determination and liberty with the system of the ownership of ideas?". That's a revolutionary question and it has a simple answer, as revolutionary questions do: There is no consistency between the guarantee of fundamental human rights and a system of ownership of ideas.
So those of us who know the answer to the question are beginning to implement the necessary step. We are making it impossible to continue with the system of the ownership of ideas. We will be finished with that work within our lifetimes, and the system of ownership of ideas will have been relegated to that very important, but almost forgotten location, the dust heap of history.
How do we go about this work? Well, we make things and we give them away. "Here, we made this, would you like it? Take some. It's free". Free as in freedom, we say, because we wish to point out that the act of creation is the act of creating freedom. The act of un-creating freedom, through ownership, is the act of un-creation. It was said, a few minutes ago, fully reflective of the appropriately received wisdom that is now dying the death that it deserves, that the law of Intellectual Property was about the rights of producers. It was not. The law of Intellectual Property was the law of the rights of distributors, who oppressed producers by the alienation of the production from those who made and used it. We reverse that process and eliminate the law of Intellectual Property by eliminating distributors. We eliminate distributors, because the technology of human society at the beginning of the twenty first century makes distribution child's play. And therefore, we ask children to be the distributors. And they succeed very well. And not, of course, just children. Also teachers, students, scientists, musicians, poets, right? We succeed very well in distributing our own. The distributors are upset:
-- "What?! We have been running the world for 125 years on the basis of Thomas Edison's inventions for making the distributor more important than the producer. Quiet please, we are running the world. Leave us alone."
-- "No," we say, "We made this. Would you like some? Take it. It's free."
-- "No," they say, "There must be something wrong here. Surely you are infringing our patent on, what, the novel, and unobvious process of alienating the creator's work in order to create incentives for profitable distribution, our invention."
-- "Well," we say, "That has expired."
-- "No," they say, "Haven't you read the new statute that says it never expires? We extend its term, bit by bit by bit. Every time you get a little close to the expiration of the lifetime of the distributor as chief, we extend the lifetime of the distributor as chief."
-- "Haven't you heard," we say, "The era of presidency for life is over. We are holding elections, here. Here, we made this, it's called democracy. Would you like some? Take it, it's free."
So that's what we're about, you understand. Let's be serious about this. This is serious business. We have a world to take back. In order to take it back, we need four things: Free software, free hardware, free culture, and free spectrum. And we are getting them, all. Bit, by bit, by bit.
Free software is the beginning of this story, because the system of distribution of the twenty first century economy -- the system of distribution which makes the revolution happen -- is a revolution in digital transportation.
We live in a world which consists now of pipes and switches. Pipes that move things from place to place, frictionlessly, at the speed of light. And switches that determine who gets which things, when, how, under what control, and at what price. Switches are general purpose digital computers, and the rules that they use to determine who gets what, where, when, how, and at what price, are computer programs. Those who control computer programs, control who gets everything. We say, computer programs, then, must be made by everybody, for everybody, in the interests of everybody. That's government for the people, of the people, by the people. That's the free software movement. "Here, we made this, would you like some? Take it. It's free." What that does it to turn the network into a distribution system which behaves according to populist principles. At the moment that we do this work, the network, as a system for the control of everybody, collapses.
That was not a statement in the future tense. That was not a statement in the present tense. That's a statement of existing fact generated in the past. We have done that work. Everywhere in the world where there are two copper wires connected to a telephone network, you can get, for nothing, not just the function of free switching, but all the knowledge neccessary to do anything that computers can be made to do, and you can get it at no cost in a form that you can understand. We did that. Done. Check.
Free hardware is the process of taking that free software and ensuring that the network within which it exists remains under the control of the people who own and use the hardware itself. This seems very simple. But it is not very simple because hardware is now the ground of contestation by the counterrevolution. The distributors of everything, those people who are sorry to hear that the expiration date on their legal regime has arrived, have a proposal. A proposal predicted by my colleague Larry Lessig, in the book "Code". A prediction which we now see in the layer of silicon, because the layer of software - where Larry thought where it would be - we finished destroying their control of, before they understood what the problems were that they had to face. And so now we find ourselves in a world which Mister Eisner-Berlusconi-AT&T-Jones -- you know, him, the owner of everything, that one -- Mr Berlusconi-Gates-Eisner-Jones-Murdoch thinks that what he needs to do is to have all the physical hardware under his control. So that it will obey not the wishes of the people who own it and install it in their homes and schools and offices and business, but that it will obey only the instructions of the bitstreams that pass through it. You understand, the leading technical manager of the world, in the view of Mr Berlusconi-Eisner-Murdoch-Gates, should be the movie, moving through your VCR, your DVD player, your television screen. The screen should refuse to let you look at it, unless you have permission. If you attempt to take a picture of what is on the screen, the screen should turn itself off. If you attempt to use an ordinary hard drive to store forbidden bits, the hard drive should refuse to work. You understand that they make and learn only from their own proprietary culture. They are like the man that Will Rogers was making fun of when he said that he only knew what he read in the newspapers and he only read what he wrote himself. So they wrote this script for the future according to Mr Eisner-Murdoch-Berlusconi-Gates. The script was called "Poltergeist." Your house takes over and you can't live there anymore, because your house is not safe for human beings, it is only safe for intellectual property. Left to their own devices, they would soon be back in charge of everything. But they are not going to be left to their own devices. We have their devices, and we're going to make those devices work the way that we want them to make. That's free hardware.
"But you were supposed to be talking about fundamental human rights?" Well, I am talking about fundamental human rights, you see, because otherwise we live in a world made like a Skinner Box and you press and you get either a banana pellet or a shock, depending upon whether if you are pushing the right button or the wrong button, as seen by the guy who built the box.
Twenty first century digital society is a very binary place, as befits its digital nature. Freedom is either zero or one. And they think zero, and we think one. And so we play a certain game through the net. They lock things up. We make things free. They lock them up. We make them free. And we go on about this business, bit by bit by bit, and sooner or later, the game is over.
I won't say a word a bout free culture because I know that it's in safe hands.
But I will say something about bandwidth and about the spectrum, because this is the fundamental next terrain of the struggle for human rights.
We made free software. We can distribute over a network, only using stuff we made ourselves according to rules that ensure freedom.
We can protect the freedom of hardware.
We can use all of that to make ignorance and aesthetic deprivation preventable diseases.
But we can only do so if human beings' equal right to communicate is not merely a promise against government intervention in the 18th century English speaking style - "Congress shall make no law abridging freedom of the press." In the 21st century, we must make the equal right to communicate an engineered fact. Not a promise merely against government interference. The engineered fact of the equal right to communicate was fortunately produced when the universe was created, and the photon came into existence.
The electromagnetic spectrum is difficult to misappropriate. It is difficult to make photons behave unequally, depending upon who issued them. Work has been done for this purpose, since 1927, around the world, and it was done in the following way: "Yes," every government said, "We concede that the electromagnetic spectrum is the common property of all human kind, and therefore we will manage it for you."
Some of them therefore meant, "We will exclusively determine who talks to whom, where when and how," and some of them meant, "We will decide among our friends who will exclusively determine, using licenses, who may talk to whom, where, when and how."
At the end of the 20th century, a local example of this problem, Silvio Berlusconi, discovered that you could recombine the two forms of previous discussion into one, known as "media takes state, state becomes media, fuerza italia!" Very good: It is always helpful when the fellow on the other side does your work for you.
Is there anyone on earth who no longer understands the danger of the proposition of privately owned media any more? Not within reach of that crew's singer and his megaphone, I assure you.
So now we know what the future contestation about freedom is over: We're capturing the photons, making them free again. This is not hard to do. In fact, we have technically the work we need to do. We have the hardware, and the software. Here, however, we do not have the legal infrastructure, yet, because the lawyers are still busy pursuing the belief that the producers should be captive to the distributors in order to encourage more production. This, in truth, is the real interface between the law of international work and the law of international information. The belief that you get more by enslaving - or merely salarying - the producer, and appropriating what is left over by way of social value as a thing called profit, has a long, dirty, disgraceful history. Who built the pyramids of Thebes? Who mined the silver in San Luis et Porta Sui?
But we don't have to worry just at the moment about the stones, the silver, the bananas and the dirt. Let us worry at the moment just about the bits, the things of use and beauty that everybody may have without excluding anybody else. The electromagnetic spectrum is the domain in which we assure the practical ability to say, not just to those locally around us, not just those who look like us or speak like us, but those all over the world: "Here, we made this. Would you like some? Take it. It's free."
The Intellectual Property system is dying the death that it deserves. I made a little organisation in the United States, about 18 months ago. Its called the Public Patent Foundation. It isn't waiting for a convention that says that the the public order should be respected in the patent law. It is making the public order respected in the patent law, by a simple, easy, but infrequently employed process, known as destroying patents.
Two weeks ago, the United States patent and trademark office agreed with us that we had succeeded in demonstrating a 'prima facia' case for the invalidity of the patent on the single most profitable pharmaceutical on earth: Lipitor. From which, Pfizer gains, at present, 10 billion - with a b - dollars a year. Its patent on Lipitor, which is facially invalid, for simple reasons you can explain to a child, has 17 years to run. I mean to take 170 billion dollars away from Pfizer. So far, the US-PTO agrees with me. I have spent, on that activity, $3,000 total. At the end I shall have spent approximately $6,000 total, and Pfizer, whose stock has dropped 3.4%, will have lost 170 billion dollars - which sick people will have gained back.
You cannot argue, I believe, that this revolution is incapable of attaining efficiency. "Ah, capitalism is efficient! Revolution? Never!" We shall do the arithmetic at the end of the day and see who pays the cheque.
So, where are we in the relationship between fundamental human rights and intellectual property? Intellectual property has all the chips. We have all the good cards. We are about to sit down and play out the last game. You know how it goes:
"Here, we made this. Would you like some? It's free."
So it's a long struggle, you know. The struggle to maintain freedom of thought has been going on a long time. And its been pretty, pretty brutal, from time to time. No. The producers didn't benefit. Most musicians in the world drive taxicabs, sweep floors. Most poets wait on tables. Because, when you have an oligopoly of distribution, they reduce output to raise price. The great welfare loss of the twentieth century was the creators deprived of the opportunity to create, by the oligopolistic need to reduce output to raise price. Is there anyone who disagrees with me that the twenty first century will see no such thing as the unpublished poet? Every poet has a way to reach the web. The twentieth century saw damn near no such thing as the published poet, because publishers didn't make any money from poetry, and poets swept floors. That was the triumph of the intellectual property system's support for incentives for producers. A joke, if ever there was a sad sorry joke in the history of the world. A joke.
But we're not laughing any more. We know what we mean to do, and we are doing it.
We are very fortunate generations, standing here on the shoulders of giants. People have been fighting for freedom of thought in the Western world for a thousand years, and we're very grateful to them, because they kept it alive in very dirty times. We're doing it again. And the difference is, this time, we win.
