Abstract: Information and Intellectual Property Protection: Evaluating the Claim that Information Should Be Free

(Apologies for the non-abstract length – it got away from me.)

Kenneth Himma’s essay assesses the validity of the now popular platitude, Information Should Be Free, a variation of the inspired original line attributed to Steward Brand, Information Wants to Be Free, from his comments at the first Hacker’s Conference in 1984:

“On the one hand information wants to be expensive, because it’s so valuable. The right information in the right place just changes your life. On the other hand, information wants to be free, because the cost of getting it out is getting lower and lower all the time. So you have these two fighting against each other.”

I’m not sure what technology was lowering the “cost of getting it out” in 1984. Xerox copiers were standard office equipment by then. 1984 also happened to be the year when HP introduced the first LaserJet printer — for only $3,495, which in today’s dollars would be $7,360. Obviously, neither of these content-reproduction machines were household items at the time. It was also the year of Apple’s iconic “1984” Super Bowl commercial which depicted the Macintosh as liberating us from the shackles of IBM PCs and Microsoft. Freedom was in the air.

The variation, Information Should Be Free, that Himma tackles in this essay is credited to Richard Stallman, a software developer and information liberationist who started the Free Software Foundation. In 1990, Stallman said:

“I believe that all generally useful information should be free. By ‘free’ I am not referring to price, but rather to the freedom to copy the information and to adapt it to one’s own uses… When information is generally useful, redistributing it makes humanity wealthier no matter who is distributing and no matter who is receiving.”

Himma opens by saying that his critique of the reasoning behind Information Should Be Free (ISBF) is not meant to suggest that current intellectual property law is not problematic; only that ISBF is a wobbly pulpit from which to attack intellectual property rights.

Himma’s focus is:

“…not whether there are moral rights to intellectual property, but
whether it is morally permissible for the state to use its police power to enforce intellectual property rights.”

For the purposes of his argument, Himma defines “information” as “propositional content … that is capable of being either true of false.” Copyright law protects the expressions of ideas — e.g., Himma’s essay, not the ideas themselves, e.g., that ISBF is no basis for criticism of copyright law. This is a problematic definition; Himma acknowledges that this does not adequately address works of art, yet he later goes on to use artistic works as examples in his arguments.

Great idea, bad interpretation
For me, the poetry of Brand’s original Information Wants to Be Free was that it expressed a truism of our relationship with information. It seems to be our nature to let information lose, an impulse that itches in everyone from the office gossip to the sociopathic hetman in the interrogation room.

Unfortunately, otherwise sensible people like John Perry Barlow, a founder of the Electronic Frontier Foundation and lyricist for the Grateful Dead, used the line to impute liberationist desire to information, as if it were a caged bird chirping the jailhouse blues and just waiting for us to leave the door unlocked.

Himma sums up the Barlow position as holding that “living information objects” have interests and desires and deserve to be liberated. He devotes a whole page to explaining why we should hold this silliness to be self-evident, when a sentence would have sufficed.

Barlow may be where the notion of Free as in no cost entered the dialog. If information wants to be free, I shouldn’t have to pay for liberating it. In fact, I’m doing information a big favor — it should pay me.

Himma takes less time to dismiss the next two common arguments for ISBF:

• Information objects are unlimited and can simultaneously consumed without reducing supply; and

• Humans beings have an interest in information.

According to Himma, It does not follow from either of those true statements that we have a right to anything we have an interest in — happiness, money, sex or Grateful Dead CDs. The non-rivalrous nature of digital information does not make it an exception.

• The price of information should reflect the cost of making it available to users.

This is a popular argument because the cost of making digital information available is virtually nil. Himma correctly counters that while pricing in the free market reflects the marginal costs of the sellers, a “fair price” is ultimately negotiated between buyers and sellers who are “at moral liberty to decide what the object is worth to them.” Also, things like Batman movies cost a lot to produce and distribute and this must be factored into the cost of “making them available.” I would add that while a digital product may infinitely harvestable, it was manufactured from scarce or expensive resources, such as the creator’s time, talent and training, and all are real production costs.

• Thou shalt not restrict the peoples’ access to the Information Commons

Himma says that the above arguments are frequently bundled into the case for the Information Commons — that information should be regarded as a morally protected resource for all to use. Requiring a fee effectively removes it from the Commons, effectively depleting it. Himma says that this argument fails to consider the significant difference between traditional, physical commons resources such as land, water and air, and intellectual ones, such as Fermat’s Last Theorem and A Tale of Two Cities, which did not reside in the Information Commons until someone went to a lot of trouble to put them there.

I suggest that we think of it rather as an Information Pool, which began as a hole that had to be dug, surfaced, plumbed, filled, chlorinated and filtered. So stop whining about there being a cost of admission and, please, shower before entering.

Himma points out the obvious fairness in the idea that the creator of an information property has invested resources in the production of it and is entitled to compensation and some measure of control over it. Any assessment of intellectual property protections must consider “everyone’s interest in a particular piece of content — and that includes the interest of the author in controlling access to it.”

Finally, Information Should be Free as rant against state restrictions on the free flow of information simply defies common sense. As Himma puts it, “ISBF is inconsistent with ordinary intuitiions about information privacy.”

The way I put it to ISBF advocates is, “You’ve convinced me, and I’d like to demonstrate my conversion to ISBF by posting your medical records on my website.”

Is Benkler advocating ISBF?

I haven’t finished The Wealth of Networks yet, but I do not see evidence of Benkler taking his stand on the ISBF positions that Himma very effectively refutes. In framing the battle between the industrial information economy (IIE) and the networked information economy (NIE), Benkler aggressively advocates that Information Should Be Free-er. The IIE has authored current intellectual property law to help the rich get richer at the expense of Information Commons. What we are entitled to, Benkler seems to advocate, is a more reasonable balance between market and social interests, that would both incentivize the creators of information properties and those who provide the distribution infrastructure, and provide ready access to information and resources that will enable society to self-actualize its collaborative information networking potential for the benefit of mankind.

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4 Responses to Abstract: Information and Intellectual Property Protection: Evaluating the Claim that Information Should Be Free

  1. […] Terry – [Kenneth Himma in “Information and Intellectual Property Protection: Evaluating the claim that information should be fr…” […]

  2. Sidnee says:

    Terry,
    You are forgiven in advance for getting carried away here. Aside from being a well-considered, thorough discussion of Dr. Himma’s article on ISBF, your abstract was completely interesting and fun to read.

    Reading Himma’s ISBF discussion had me worried for awhile–that he might actually be a supporter of a half-baked self-serving hacker mentality. Imagine my relief that reading all those pages had a values-clarification reward at the end.

    My own thought is that to buy into ISBF long enough to read the arguments, one needs to operate under a ‘willing suspension of disbelief’–even though it’s fiction, it must ‘seem’ real because the author has made a logical argument; even fiction must pass the ‘believability’ test. But for ISBFers to argue that information is like a ‘life form,’ and all life forms ‘want’ to be free – should be free – is laughable.

    Those of us in the public information field pay very close attention to intellectual property rights, especially as detailed in copyright law. Most of us see copyright as a legally mandated gesture of respect and acknowledgement of ownership; copyright protects the rights of content creators—whether that content is an instructor’s syllabus, a student’s creative essay, or an original photograph—whether or not the creator receives monetary compensation. If it’s copyrighted material, it doesn’t get copied or distributed without permission from the author. Period.

    Unless…

    And here’s where it gets sticky. Copyright is really quite complex, with it’s own arcane definitions, wildly arbitrary time limits, and deeply disturbing legal implications.
    It’s not that copyright laws should be abolished. They serve a vital function, well beyond ensuring monetary compensation for the creator. Responsible bloggers respect even implied copyright over information property. Careful and accurate attribution and source linking are hallmarks of a responsible networked community.

    Copyright law just needs a good spring cleaning.

  3. Terry Short says:

    Thanks, Sidnee, especially for categorizing the lunatic fringe of the ISFBers as a “half-baked, self-serving hacker mentality.” The kookiest ones tend to fall into two categories: professor/tech gurus with comfortable tenure, publishing contracts and/or speaking circuits; and bloggers who have no hope of ever getting paid to write anything.

  4. […] – [Kenneth Himma in “Information and Intellectual Property Protection: Evaluating the claim that information should be fr…” […]

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