The genes in our bodies can be traced back over three-and-a-half billion years to a single organism, Luca, the Last Universal Common Ancestor. As Luca reproduced, its genes copied and copied and copied and copied, sometimes with mistakes — they transformed. Over time this produced every one of the billions of species of life on earth. Some of these adopted sexual reproduction, combining the genes of individuals, and altogether, the best-adapted life forms prospered.
This is evolution. Copy, transform and combine.
And culture evolves in a similar way, but the elements aren’t genes, they’re memes — ideas, behaviors, skills. Memes are copied, transformed, and combined. And the dominant ideas of our time are the memes that spread the most.
This is social evolution.
Copy, transform and combine. It's who we are, it’s how we live, and of course, it's how we create. Our new ideas evolve from the old ones.
But our system of law doesn't acknowledge the derivative nature of creativity. Instead, ideas are regarded as property, as unique and original lots with distinct boundaries.
But ideas aren't so tidy. They're layered, they’re interwoven, they're tangled. And when the system conflicts with the reality... the system starts to fail.
For almost our entire history ideas were free. The works of Shakespeare, Gutenberg, and Rembrandt could be openly copied and built upon. But the growing dominance of the market economy, where the products of our intellectual labors are bought and sold, produced an unfortunate side-effect.
Let’s say a guy invents a better light bulb. His price needs to cover not just the manufacturing cost, but also the cost of inventing the thing in the first place.
Now let's say a competitor starts manufacturing a copy of the invention. The competitor doesn't need to cover those development costs so his version can be cheaper.
The bottom line: original creations can’t compete with the price of copies.
In the United States the introduction of copyrights and patents was intended to address this imbalance. Copyrights covered media; patents covered inventions. Both aimed to encourage the creation and proliferation of new ideas by providing a brief and limited period of exclusivity, a period where no one else could copy your work. This gave creators a window in which to cover their investment and earn a profit. After that their work entered the public domain, where it could spread far and wide and be freely built upon.
And it was this that was the goal: a robust public domain, an affordable body of ideas, products, arts and entertainment available to all. The core belief was in the common good, what would benefit everyone.
But over time, the power of the market transformed this principle beyond recognition. Influential thinkers proposed that ideas are a form of property, and this conviction would eventually yield a new term… intellectual property.
This was a meme that would multiply wildly, thanks in part to a quirk of human psychology known as Loss Aversion.
Simply put, we hate losing what we've got. People tend to place a much higher value on losses than on gains. So the gains we get from copying the work of others don’t make a big impression, but when it’s our ideas being copied, we perceive this as a loss and we get territorial.
For instance, Disney made extensive use of the public domain. Stories like Snow White, Pinnochio and Alice in Wonderland were all taken from the public domain. But when it came time for the copyright of Disney’s early films to expire, they lobbied to have the term of copyright extended.
Artist Shepard Fairey has frequently used existing art in his work. This practice came to head when he was sued by the Associated Press for basing his famous Obama Hope poster on their photo. Nonetheless, when it was his imagery used in a piece by Baxter Orr, Fairey threatened to sue.
And lastly, Steve Jobs was sometimes boastful about Apple's history of copying.
But he harbored deep grudges against those who dared to copy Apple.
I'm going to destroy Android, because it's a stolen product. I'm willing to go thermonuclear war on this.
When we copy we justify it. When others copy we vilify it. Most of us have no problem with copying... as long as we're the ones doing it.
So with a blind eye toward our own mimicry, and propelled by faith in markets and ownership, intellectual property swelled beyond its original scope with broader interpretations of existing laws, new legislation, new realms of coverage and alluring rewards.
In 1981 George Harrison lost a 1.5 million dollar case for “subconsciously” copying the doo-wop hit “He’s So Fine” in his ballad “My Sweet Lord.”
Prior to this plenty of songs sounded much more like other songs without ending up in court. Ray Charles created the prototype for soul music when he based "I Got a Woman" on the gospel song "It Must be Jesus."
Starting in the late nineties, a series of new copyright laws and regulations began to be introduced...
NET Act, 1997
The Enforcement of Intellectual Property Rights Act of 2008
...and many more are in the works.
Innovative Design Protection and Piracy Prevention Act
Stop Online Piracy Act (SOPA)
"Six Strikes Plan"
The most ambitious in scope are trade agreements. Because these are treaties, not laws, they can be negotiated in secret, with no public input and no congressional approval. In 2011 ACTA was signed by President Obama, and the Trans-Pacific Partnership Agreement, currently being written in secret, aims to spread even stronger US-style protections around the world.
Signed by Canada, Australia, Japan, Morocco, New Zealand, Singapore, and South Korea. the EU.
Trans-Pacific Partnership Agreement
To be signed by:
Australia, New Zealand, and the rest of North America, Russia and Asia
Of course, when the United States itself was a developing economy, it refused to sign treaties and had no protection for foreign authors. Charles Dickens famously complained about America's bustling book piracy market, calling it "a horrible thing that scoundrel-booksellers should grow rich."
Patent coverage made the leap from physical inventions to virtual ones, most notably, software.
But this is not a natural transition. A patent is a blueprint for how to make an invention. Software patents are more like a loose description of what something would be like if it was actually invented.
And software patents are written in the broadest possible language to get the broadest possible protection. The vagueness of these terms sometimes can reach absurd levels. For example, "information manufacturing machine," which covers anything computer-like, or "material object," which covers pretty much anything.
The fuzziness of software patents' boundaries has turned the smartphone industry into one giant turf war.
62 percent of all patent lawsuits are now over software. The estimated wealth lost is half a trillion dollars.
The expanding reach of intellectual property has introduced more and more possibilities for opportunistic litigation -- suing to make a buck. Two new corporate species evolved whose entire business model is lawsuits: sample trolls and patent trolls.
These are corporations that don't actually produce anything. They acquire a library of intellectual property rights, then litigate to earn profits. And because legal defense is hundreds of thousands of dollars in copyright cases and millions in patents, their targets are usually highly motivated to settle out of court.
The most famous sample troll is Bridgeport Music, which has filed hundreds of suits. In 2005 they scored an influential court decision over this two-second sample.
Funkadelic "Get Off Your Ass and Jam"
That's it. And not only was the sample short, it was virtually unrecognizable.
NWA's "A 100 Miles and Runnin'"
This verdict essentially rendered any kind of sampling, no matter how small, infringing. The sample-heavy musical collages of hip-hop's golden age are now impossibly expensive to create.
Now patent trolls are most common back in that troubled realm of software.
And perhaps the most inexplicable case is that of Paul Allen. He's one of the founders of Microsoft, he's a billionaire, he's an esteemed philanthropist who's pledged to give away much of his fortune. And he claims basic web page features like related links, alerts and recommendations were invented by his long-defunct company. So the self-proclaimed "idea man" sued pretty much all of Silicon Valley in 2010. And he did this despite no lack of fame or fortune.
So to recap, the full picture looks like this.
We believe that ideas are property and we're excessively territorial when we feel that property belongs to us. Our laws then indulge this bias with ever-broadening protections and massive rewards. Meanwhile huge legal fees encourge defendants to pay-up and settle out of court.
It's a discouraging scenario, and it begs the question: what now?
The belief in intellectual property has grown so dominant it's pushed the original intent of copyrights and patents out of the public consciousness. But that original purpose is still right there in plain sight. The copyright act of 1790 is entitled "an Act for the encouragement of learning". The Patent Act is "to promote the progress of useful Arts."
The exclusive rights these acts introduced were a compromise for a greater purpose. The intent was to better the lives of everyone by incentivizing creativity and producing a rich public domain, a shared pool of knowledge, open to all.
But exclusive rights themselves came to be considered the point, so they were strengthened and expanded. And the result hasn't been more progress or more learning, it's been more squabbling and more abuse.
We live in an age with daunting problems. We need the best ideas possible, we need them now, we need them to spread fast. The common good is a meme that was overwhelmed by intellectual property. It needs to spread again. If the meme prospers, our laws, our norms, our society, they all transform.
That's social evolution and it's not up to governments or corporations or lawyers… it's up to us.