Let’s take a look at this situation for a moment. To start with, we should remember that Friendster was sold just last year for $37 million dollars, three million less than the patents alone have now sold for. We should also recognize that these patents are themselves little particles of nonsense. They are government granted monopolies on people making friends because, for instance, they have a friend in common. Friendster patented that. Essentially they took someone’s notebook from an Intro to Sociology class, scribbled “with a computer” in the margins next to each main idea, and sent it to the patent office as 18 different “inventions”.

Most importantly, we need to realize what $40 million is worth. Friendster was in independent operation from 2002 to 2009. That means the patents ended up generating almost $6 million dollars a year, more than then the entire company’s revenue for 2005 (other year’s numbers are harder to find but I’d welcome any pointers in the comments).

Given these facts, what was the economically rational thing for Friendster to do: run a large internet company providing services to 1.5+ million users, with all the server farms, bandwidth deals, administrators, marketers, executives, and developers entailed in running such an operation, or pay people to sit around all day and figure out how to add “with a computer” to novel ideas like “making friends”? One of those activities is generally considered economically productive, but it is the other, the nonsense factory model that ended up making more money.

If patents had never existed, Friendster would still have run their business, had their successes and failures, and passed on their techniques to the next generation of social network companies. Facebook, as one of those more successful companies, would still have $40 million dollars available for doing actual work like paying engineers to improve the features and capabilities of today’s social networking technologies, rather than having to pay their profits backwards in time to avoid being sued over nonsense. I don’t think it is nonsense to say that, in that world, we’d all be better off.

In Re Soul Stealing

We seem to be talking at cross purposes here and I think some of that stems from different beliefs about control.

In your original post you talk about the difference between a “work” and the “copies” of that work. The overall thesis seems to be that the author retains control over the idealized “work” as a basic human right and that they make money as authors by selling little bits of that control as permission, permission to print a hardbound edition to one person, permission for a movie adaptation
to another, etc.

There are a couple of complications with this “author as gatekeeper” picture of copyright. There are other rights to consider, like the right we all have to share in the cultural life of the community, a right mentioned in the very first clause of that UN declaration article to which you refer. Even focusing only on the rights of the author, it is not as simple as saying that authors’ interests should be acknowledged and concluding that the particular set of copyright policies we currently have are either the most appropriate or effective means of securing those interests. The EU vs. US dispute about Moral rights is one longstanding example of such a disagreement, and Cory Doctorow is not the only example that giving away things in a digital world is a more effective way to make money than attempting to control each use.

The free software movement, and the creative commons licenses offer a different view of what control might mean to an author. I find it particularly interesting that the most basic requirement of all creative commons licenses, the requirement to acknowledge the author in all uses of a work, is also one of the Moral rights enshrined in European legal tradition. If you write a play, there seems to be wide public agreement that you should be credited as the author of that play. Whether you get to charge someone money to perform your play, or control how much they charge for tickets, who gets to see it, etc, those are not things we all agree about, and they never have been.

We have always had a more nuanced set of rules for how copyright works than the simple gatekeeper model describes. The VCR, Tivo, tape deck, and CD ripper are all examples of common consumer devices whose entire purpose is making copies without asking for particular license to do so. Scale and purpose do matter. That is why we have legislation like the Audio Home Recording Act and court cases explaining that recording TV shows to watch them later is an acceptable use of new technology. Under a simple gatekeeper theory, all of these uses are tantamount to theft and each one is a violation of a recognized human right. Judging by the widespread adoption of these technologies over the last 40 years, that is not a position for which we can assume universal support.

As to the BookLiberator in particular, we can discuss whether people digitizing their own books for purely personal use is a problem under our existing copyright. I offered a number of points for that discussion: most works that I care about are not available digitally, digital versions of my faded works are easier to read, digital versions are also more portable and accessible. I would also like to point out an essay on DRM in the eBook market and how the technological restrictions that publishers place on “licensed” eBooks take away many of the rights we have historically enjoyed with the physical books that we purchase.

The rules for format shifting books are going to be an important topic of discussion over the next few years, whether we come to that discussion because we are talking about digitizing print books or because we need to convert eBooks from our old e-Reader format to something our cell phones can understand. This is a discussion we need to have, but it is not as simple as the gatekeeper model makes it out to be and the human rights you refer to for support are not so one sided as you make them seem, nor are they wedded to the particular copyright statutes that will inform our discussion. As always, copyright is a balancing act.

Update on 2010-08-25: Consumer digitization appears to be coming first to Japan.

Things have been a little too quite around here recently. Ever since applying to the Drumbeat grant program back in June it has felt like all of my non-grant focused project work has been on hold, including writing here. As that grant process continues on, weeks after initial plans, things in my like have returned to a more or less normal state.

There are a number of things I’ve meant to put up here that were part of the general pausing of my activity. Now that things are back to normal, I plan to have them up over the next few days. Thanks for your patience.

The basic materials of language instruction are things that anyone can make. If you think our Introductory English lesson would be more effective with pictures from London, or if you think it would work better for you if it used pictures of the people and activities in your personal surroundings, you can change them. That is true whether you are a professional web designer and photographer or a kid with a camera phone. Point. Shoot. Teach. It is that simple and it is the only way our lessons get built.

If you want to turn our Chinese lesson into a Mandarin or Cantonese one, you don’t need any special training or programming expertise, all you need are a dozen sentences of recorded audio. If you don’t speak either of those dialects, there are more than a billion people who could record them for you. Our goal is to make that kind of sharing as simple as possible so that not only can some of the Mandarin speakers in the community record audio for you, but you can easily record some English sentences for them in thanks.

The raw material of language instruction is easy to make, but before the open web, there was no easy way to gather enough of it together in one place to create a universal language resource, just as there was no way to build a universal encyclopedia. The open web is the only way to make communication and collaborative creation easy enough to build either of these projects. That is the lesson that millions have learned from Wikipedia and it is why using Wikipedia as an example will let you start a conversation about the open web with almost anyone, regardless of their level of technological expertise. If we succeed in empowering people to teach each other language, there will be millions more who understand this lesson and how see the “open web”, not as an abstract concept about free technological infrastructures but rather as a vital structure supporting the activities of their daily lives.

Crossposted with drumbeat.