Imagine you were as rich as Bill Gates. What would be the first thing you'd do? If you're male you'd probably buy that slick car you've admired so many times. Just think of it. You pay the money and just drive away in an awesome, brand-new car. May be you're still living in a state where 55 is the speed limit. Gee, that's too bad. Now when you've finally got all that horse power at your disposal you realize there is nothing you can do with it.Or can you? Even if the fine is a few thousand dollars, you've got billions. Hey, if I were you I wouldn't even take the trouble to stop for a police car. Even if they'd fine you every second it would take them months before you saw a slight dent in your fortune!
OK, time for a reality check. Of course it doesn't work that way. In real life you probably never even have to pay a fine, because you can hire the best lawyers available. You can make it so expensive that even the state will give up wasting tax dollars. Probably you won't even make it to court. When you're that rich you can probably convince Congress that it is vital for the national automobile industry to pass the "Transportation Safety Act", which allows cars to drive as fast as they possibly can. Well, you can in Germany, you know..
OK, time for a reality check. You're not that rich and neither am I. All we can do is write programs and update our blogs. And even that is in jeopardy. If you happen to live in Europe, that is. In the United States the battle is already lost where patents are concerned. The DCMA has already poisoned jurisdiction all around the world.
Patents are a strange thing. They were created to protect inventors, just like copyright was created to protect artists. The idea was that nobody would write books or invest in research if ideas could be taken and duplicated without restriction. Both had clearly defined time limits to prevent the creation of monopolies. Some inventors invested their life savings in order to make their dream come true, taking immense financial risks. Writers lived for years in poverty to create their masterpiece. But all that has changed.
In order to create a computer program you need a few hundred bucks. In order to create a patent you need a pencil, the back of a cigar box and tens of thousands of dollars. You don't even have to be creative, you just have to describe something you've found on the Internet and thought it was a neat idea. Needless to say "rich and the clueless" love patents.
But it is even worse. Most of these patents don't even make it into products. Patents have become the legal equivalent of ballistic nuclear missiles. They are silently stored in their drawers until they are deployed in order to prevent the creation of innovative products or simply to retaliate.
I doubt very much that this was the intension of those who wrote "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries", since they were also the men that wrote "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness."
Note that the world in the late 18th century was quite different. There were no large corporations. The demise of the biggest (and arguably the only) corporation at the time, the Dutch VOC, was imminent. There were very few republics, most countries were monarchies. Religious prosecution was still very common.
The Constitution was drafted to address those problems, not transnational, corporate monopolies that were at least 100 years away. The trouble is we have failed to correct this omission in the 230 years after the first signature was set and we're paying dearly now. Corporations have accumulated so much power that it is very hard to stop them. At least as hard as Bill Gates in a Mercedes SLR McLaren.
You'd expect that big companies really respect "intellectual property". Au contraire, mon cher ami. The Danish company KiSS, now Cisco, simply "used" MPlayer's GPLed code. Without honoring the license, that is. Their comment: "but it is clear that as a commercial company living off selling its product, can not and will not release its proprietary code" and "there is no place in the world that I know of where the GPL has been tested in court, so from a business perspective I would say that the license is relatively weak".
Simply an incident? I don't think so. It is well known that corporations don't have any respect for privacy nor the integrity of my computer. Microsoft can deny me the access to my own documents, which is unheard of, even if I didn't pay them a penny for any of their products. A lock smith better not try similar practices if he wants to collect a bill. "XP phone home" is a complaint I hear only too often, but it doesn't stop there, unfortunately.
German company "Kino-welt" installs drivers on your computer making it unstable and disabling optical devices. Sure, you clicked a license agreement, like you did a million times before. You would have clicked that darn button even if it said the whole European division had the right to sexually abuse your dog. Who reads those silly things! Imagine you had to read and sign five pages of legal stuff every time you bought your groceries or lit a cigarette! I can't think of anyone but a lawyer falling for that trick. So let's discard that argument here and now. Let's get really serious.
Everybody has heard about the recent scandal around Sony's copy protection. This one was much more serious than "Kino-welt", because Sony hid the components it had installed and left the computer vulnerable to attack. Less known is the fact that it stole GPLed components, again without honoring the license.
But why should this amaze us all? Microsoft has done this for years and years. After conducting what was termed "original marketing research," Microsoft dubbed its new product the Palm PC. Palm Computing Inc., a division of the 3Com Corporation, quickly filed a trademark infringement suit in Europe, complaining that Microsoft was deliberately attempting to confuse consumers by borrowing the first five letters of their product's name. And the list goes on an on, Stac Electronics, Eolas Technologies, Forgent Networks and InterTrust, that has a massive 143 patent violation claims registered against the software giant. "Cultures that value ingenuity, creativity and progress, have good reason to value intellectual property". Obviously, Microsoft doesn't, because it isn't.
The Business Software Alliance is ostensibly a trade association that tracks down pirated software on behalf of its members in the software industry. It has absolutely nothing to do with intellectual property, but corporate profit. The BSA files suits against offending organizations, but quickly drops them when they agree to sign deals to purchase Microsoft software exclusively.
The RIAA tries to make us believe that "Each sale by a pirate represents a lost legitimate sale, thereby depriving not only the record company of profits, but also the artist, producer, songwriter, publisher, retailer, … and the list goes on". In reality, Courtney Love says that "recording artists have essentially been giving their music away for free [to the record companies] under the old system" and Don Henley, thinks that "the recording industry is a dirty business. Always has been, probably always will be. I don't think you could find a recording artist who has made more than two albums that would say anything good about his or her record company. [..] Most artists don't see a penny of profit until their third or fourth album because of the way the business is structured. The record company gets all of its investment back before the artist gets a penny, you know. It is not a shared risk at all".
Downloaders of the world, think of it like this: when you're copying a $20 disk, you're ripping off the artist for a measly $2 (and sometimes even less) and the record companies for $18. And that is alright since they already owned me for all the IP I've paid double and triple. Although they claim I got a license and not a good, why can't I sent in a broken CD and get a new one? Or an old vinyl record and get a CD? Or download all the iTunes I already got for free?
It is even worse in the Netherlands: most of the DVD's I buy are not only copy-protected, it is also unlawful to copy them. Still, I have to pay an extra tax on empty DVD-R's "to compensate the artists", which leads to the inevitable conclusion that the government considers most of their citizens to be criminals.
Can it get any worse? Yes, it can. German media report that the film industry's German lobby group "Gesellschaft zur Verfolgung von Urheberrechtsverletzungen" is actively involved in illegally distributing copyrighted material online. The privately-run GVU has been paying for illegal FTP servers frequented by film piracy groups. When authorities struck out at European copyright pirates with an orchestrated multi-national crackdown on January 24th, police also conducted a surprise search of the GVU's Hamburg offices. The targets included two popular FTP servers allegedly paid for by the GVU. Evidence found strongly suggests that over the course of their hunt for online piracy, the GVU has overstepped boundaries of legality.
It seems that the lawlessness we find outselves in has no limits. The large corporations rule our lives, instead of the governments we've elected. "Imagine if anything you thought, made, or distributed could be legally reproduced and freely given away by others. What incentive would there be to continue your hard work?" I know it now. And it motivates me even more to do it. Freedom. Not like a beer. Not like speech. Like not in a prison.