Oct 14, 2007
Originally posted on Half an Hour, October 14, 2007.
Responding to David Wiley, Misunderstanding Stephen (and a chance to use a McLuhan title as a post title).
1. Mixing Licenses
David writes, "When a group of learners who are in no way affiliated with a company or any other for-profit organization are prevented from remixing OERs by the copyleft provisions in the GFDL and the CC-By-SA or the CC-By-NC-SA, how is it that this is only a problem for commercial exploiters of open content?"
Leaving aside all the presumption packed implicitly into this statement with phrases like 'group of learners'... Here is my counterexample: http://halfanhour.blogspot.com/2007/10/mixing-content.html
"Are you saying it’s ok for these learners to violate the license terms, because no one will care since they’re not making any money?"
Yes. Because there is no reasonable interpretation of those terms that would see them applied against individual students creating their own learning content for their own personal (and sometimes shared) use.
Now note, that this is *very* different from the corporate learning we see, eg., on a university campus. If the 'group of students' has enrolled in a class, and paid their thousands of dollars of tuition, and is being required to perform such actions, all bets are off. One of the license holders *might* sue the university.
And let me put this point even more forcefully: has there *ever* been a lawsuit over remixing GFDL materials with any CC materials licensed with the SA clause? Has there ever been such a lawsuit that did *not* involve a commercial entity? Should such a lawsuit ever be filed, can you see it not involving a commercial entity?
One (just one) of the places we find ourselves in disagreement is with what appears to be the presumption that you have accepted, that the prohibitions that govern corporate and commercial conduct also apply, and apply with equal force and sanction, to private and noncommercial behaviour. This is a doctrine copyright holders have worked very hard to gt pundits to accept, and they have done so by repeating it over and over for decades. But it remains not true - but I am, it appears, the only voice in your world that says otherwise, which renders the point not merely controversial but quite literally incomprehensible to you.
OK, new post, because I don't want to get the separate points confused with each other...
2. The Principle of Use
Next issue: "And, while I’m asking Stephen to explain things to me, why is it that he seems to think 'open' should really mean 'closed?' In other words, why is it that “open†should mean 'open to everyone except for some people' - specifically, companies? Why should we exclude anyone from what we’re trying to do?"
First, some preliminaries, to lay out some important groundwork.
(a) Companies are not people. I know that there is a legal fiction, the 'corporate person', but it nonetheless remains the fact that, if I bar a corporation from using something, it does not follow that I have barred any person from doing something.
(b) The prohibition of s certain type of use is not the prohibition of any use. The statement being made is the non-commercial clause *excludes* people from using the content. This is flat-out false. People - even people in corporations - can use the content. They do so all the time - they read wikipedia, they cut and paste CC photos, the works. What is prohibited is not 'use' but rather, a certain type of use.
(Now the usual dodge here is to throw out some pseudo-jurisprudence here ('pseudo' because I don't think it has ever been tested in court) to the effect that 'corporate use' prohibits, not a certain typ of use (specifically, 'commercial use') but use by a certain typ of entity, specifically, a corporation - but even so, this does not prohibit use by pople who work for a corporation, it prohibits only use while thy are performing their corporate duties - which is, again, a prohibition of a type of use).
So I am saying that 'NC' prohibits a certain type of use. And we ask, well, what type of use is that?
And my answer is very simple and very obvious:
It is the type of use that consists completely and solely of blocking other people from using the same thing.
EVERY thing a corporation does with content is consistent with non-commercial use up to the point where they block access to it and start charging money for it. The ONLY thing that differentiates commercial and noncommercial use is that commercial use consists of blocking people from using things.
What this means is that, except with respect to commercial use, GFDL and the CC-By-SA or the CC-By-NC-SA are logically identical. They are both statements to the effect that 'you shall not block anyone from using this content'.
To take this even a step further, strictly speaking, open licenses that allow commercial use embody a contradiction. They are saying "'you shall not block anyone from using this content' and 'you may block some people from using this content'". Anything follows from a contradiction, which is why it is so easy to make it look like GFDL and CC-BY-SA are inconsistent.
The presumption behind a license like GFDL is that the blocking use (ie., charging money for access) will not eliminate the (contradictory) open use. They can charge a fee for the content, but the people can always find the content for free and use it that way. You can charge people for a Linux distro, but people can always use it for free.
Except... except...
It never works out that way. The commercial publishers always find a way to make sure that the *only* way you can get access to the free content is by paying for it. The only original is in a museum, which charges admision, and prohibits photos. The only access is through an online repository, that carries commercial copies of things only. The material is part of a university course, for which you must py tuition to attend. Unrelated laws exist, that require payment for free content (patents on the statement saying 'this content is free' for example). The list goes on.
Dave continues, "Of course, this hasn't been the case for RedHat and Linux, and it won’t be the case for open content and commercial publishers who get involved in it."
I think this is a very interesting test case to watch. We've seen a number of companies now try to create a business model by creating exclusivity around open source content. Red hat. Suse. Ubuntu. My projection is that as these companies consolidate, it will become harder and harder to find free versions of the software. You will (for example) be able to download the software, but only if you agree to pay for a 'service agreement'. Or you will always have to pay for media, such as the plastic CD (or the magazine to which it has been attached). And of course, stores will offer the boxed version for $49.95 - but will never be giving out the free version.
OK, onto the next post...
3. Essentialism and Pragmatacism
Next bit...
"These statements are probably both very true. But neither of these lobbying activities will increase or decrease in correlation to commercial companies’ abilities to distribute open content, and so these are completely irrelevant."
The point, of course, is not that lobbying will increase or decrease, but rather, that even though they could use all of the BBC's content for free themselves, what they *really* want is to block access to content. Because their business model depends on blocking access.
But this points (very indirectly, so don't worry about the connection) to a fundamental distinction between David Wiley and myself.
Specifically (to use really bad lables): Wiley is an essentialist while I am a pragmatacist (NOT a pragmatist).
What does that mean? I can illustrate the distinction by talking about how we determine the meanings of words.
An essentialist will say that the meaning of the word is in the word itself; that the word is, fully and completely, its own meaning. That the truth of a sentence containing the word will be determined in one and only one way, with a fixed result. An example of essentialist thinking is Tarski's theory of truth: "The sentence 'snow is white' is true if and only if snow is white." An example of an essentialist theory of naming is Saul Kripke's "Naming and Necessity".
A pragmatacist, on the other hand, believes that meaning varies with, and is determined by, use. In other words, the meaning of the word isn't in the word at all, but is rather determined soley by how we use it. How do we know, for example, what the word 'safe' means? A person says 'the ice is safe' and then proceeds to walk on the ice across the lake. Wittgenstein's work, especially Philosophical Investigations, describes the theory of meaning as use. (And you may want to look at Kripke's "Wittgenstein on Rules and Private Language").
Now, I am not saying that David is an essentialist with respect to the meaning of words. He is a very sophisticated thinker, and is well aware of the way meanings can vary and fluctuate over time. He will have, at a minimum, an account that explains this fluctuation, even if he does not believe that it is the basis of meaning.
But he is an essentialist in other areas. I will name two. Now of course only Wiley can explain Wiley, so I am subject to correction here. But this is what I am seeing at the moment.
1. Where is the 'learning' in learning objects? An essentialist will argue, that in order for something to be a learning object, it must contain certain specific features. What these features amount to vary dependingv on the person talking, but they will say (for example) that the learning object must contain learning objectives, it must embody pedagogical theory, it must contain assessment... whatever.
But I respond, what makes a learning object a 'learning' object is not the nature of an object, but rather, how it is used. On my view, anything can be a learning object - even (to cite a famous example) a scrap of tissue paper. But as soon as it is ued in a learning context, it *acquires* the property of being a learning object.
That's a core distinction between an essentialist and a pragmatacist theory. To the essentialist, a thing is what it is. But to a pragmatacist, a thing can change what it is over time, even if it never changes internally or physically.
There is a core consequence to the two approaches as well. Essentialists often believe that categorization and segmentation are fundamental. An essentialist will believe, for example, that we should have 'learning object repositories' and not just 'object repositories'. That there should be 'learning games' or 'serious games' as opposed to 'games we play for fun'.
The creation of taxonomies is a common tool for the essentialist. Taxonomies - categorizations - reveal (it is presumed) something underlying about the nature of the things being studied - whether it is resources, processes, or people.
2. Where is the 'legal' in law? An essentialist will argue that the word of the law is what defines 'legal' and 'illegal'. He will agree that this can be clarified and contextualized by jurisprudence and common law, but not that actions can be variously legal or illegal under a single extant statement of law (ie., under a single text of the law, plus text of interpretations and decisions).
A pragmatacist will argue, however, that what makes something legal or not legal has much more to do with conditions and circumstances than it has to do with the text of the law. For one thing, the text underdetermines possible resolutions, which is why we need to go with intangibles like 'intent'. And for another, a law is composed of two major components: the text of the law, and the enforcement (or th 'use') of the law.
Nowhere is this more evident than in Biblical law. As has been often pointed out by pundits (including my own post, 'The 57 Commandments' http://www.downes.ca/post/113 ) the law, as stated in the Bible, contains constraints that are not enforced today, not even by the most devout. People are no longer put to death for cursing their father. We no longer have slavery and bride-prices. law - even Biblical law - is interpreted. It varies. It depends on context, even though the words remain the same. And is is, it is intended, not to be followed, but to be used.
Now - again - the only person who can say David Wiley is an essentialist is David Wiley. But from where I sit, this is where our divisions lie. When we talk about how learning ought to be organized, how open educational resources ought to be conceived, and developed, and delivered, how licenses ought to be understood and interpreted, Wiley will fall on the side of the nature of the thing itself, while I will fall on the side of use and consequences. Such, at least, is my take on the situation (which contains enormous room for error).
4. Trademarks
Fourth comment...
On trademarks, David (interestingly) takes the 'use' position. So it appears: "(Trademarking) only prevents you and I from using them on the cover of our own technology books, which we would likely do to try to confuse the public about the origin of the books."
Quite so. But we would then be mistaken, wouldn't we, if we depicted this as an issue about the content. Because there are two ways to look at a violation of trademark law:
1. As the use of a certain type of content in a certain situation ('on the cover of a textbook, as David represented it).
2. As an intent to fraudulently represent yourself as someone else (usually for the purpose of commerce).
We can see quite clearly that what is prohibited in the second case has nothing to do with the actual content of the name or symbol, but rather to the criminal use to which it is put.
But it is pretty easy, even in this light, to see the sense of the first interpretation. Because when one of the O'Reilly diagrams is placed on a technology textbook, it is not really reasonable to interpret such use as anything other than fraudulent.
Why would I make such a fine-grained distinction?
Because of the interpretation. In the first case, O'Reilly *owns* a certain right, specifically, the use of certain content in certain circumstances. It has become O'Reilly's property. But in the second, O'Reilly doesn't come to own anything. The enforcement of the law has nothing to do with O'Reilly - it has everything to do with the fraudulent intent of the other party.
All of that said, let me dispense with some of the argumentation on trademarks:
David writes, "O'Reilly puts a lot of brain power and resources into their marketing. Why should I be able to come along and both (a) confuse the consumer and (b) ruin their reputation with a shoddy book that looks like they produced it?"
I certainly agree that one person (or company, for that matter) should not be able to fraudulently misrepresent itself as another.
But - and David should know this - the amount of work and resources they put into their marketing have nothing to do with this. A person could put an equal amount of resources and brainpower into misrepresenting themselves as someone else, but this investment doesn't somehow buy them immunity from fraud laws.
I have put very little effort into creating my own 'brand' - absolutely no marketing dollars, for example. The same is true of most people. But it is still illegal to fraudulently represent yourself as me, or as anyone else.
David mentions the incentives argument in this context. I have nothing against incentives. People should be paid for work (the BIG question, in my mind, is whether people should work to be paid - is our society based on extortion, in which you MUST work, or else you die, or is it based on freedom, where each person has a right to a certain share of the wealth - but that's WAY of topic).
I also have nothing against ownership over something you create. I built a set of bookshelves in my dining room - those are mine, you can't simply walk in and take them. I wrote this paragraph. It is not only mine, in the sense that you can't claim ownership over it, but it is mine, in th sense that you cannot represent yourself as having written it.
But I make a strong distinction between claiming ownership over what you have created, and claiming ownership over what you have not created. And MOST of the paragraph above is not my own creation. None of the words were created by me. The grammar and syntax I use wasn't created by me. Numerous turns of phrases are not original to me. The ideas have been expressed by others as well. According to Google, the sentence "I wrote this paragraph" has been written 11,500 times previously - what gall to claim that it is mine!
When we look at what was created, in any given creation, such a minute portion of it was actually created by the originator, that the assertion of ownership over it, ought to be thought of as the exception, rather than the rule. And - again - our understanding of copyright ought to be not the *ownership* by one over some content or property, but rather, the intent and USE of the other, to fraudulently misrepresent themselves.
The 'ownership' of a copyright has nothing to do with the content. It has everything to do with the USE of the content by others. That's why we can avoid questions of what part of the content is actually original, what part is 'essentially' owned, and focus instead on how other people use that content. If the other person is attempting to fraudulently misrepresent themselves, then copyright has been violated.
We used to have pretty clear understanding of this. We used to understand that, while a company couldn't copy songs and sell them in stores, it was perfectly OK for you and your friends to share songs taped from the radio among yourselves. Somewhere along the line, 'commercial use' and 'personal use' got confused, as though they were the same thing, because the focus shifted from use to 'content' and 'law'. And that's when they started suing grandmothers and infants and college students.
This statement of options simply misrepresents the situation:
"There are three possible choices when it comes to using a public domain work as a symbol for your product - whether for-profit or otherwise (let’s keep in mind that not-for-profits trademark slogans and artwork and other things as well). One - no one should ever be allowed to do so, regardless of what benefit might be realized. Two - first person to do so should receive some protection against masqueraders. Three - there should be no restrictions at all with regard to this specific use of public domain works, regardless of what harm may occur."
This statement of options treats the symbol as something that can be something that can come to be owned. But in fact, what we ought to be saying is that anyone can USE any symbol, but that no person (or corporation) can MISREPRESENT themselves as another person (or corporation).
This raises another point where we have disagreed in the past (and it's related to the essentialist pragmaticist distinction I drew above). On Wiley's view, there is some set of rules that we can draft that governs behaviour (and what is legal) in a certain domain. But on my view, the distinction between 'allowed' and 'not allowed' cannot be expressed as a set of rules (and that, indeed, drafting more rules makes it MORE likely, not less likely, that the intent of our rules will be subverted).
David concludes this bit, "Stephen will likely disagree, but I believe situation Two (which happens to be the current situation) is the most reasonable."
In fact I actually go along with situation two, but my reading of it is completely different. There is no sense in which being the 'first' to use a symbol confers some sort of right or ownership over that symbol (if this were true, many of the brand names, images and slogans we know today would be illegal - there is NO WAY these companies were the first to use these o market themselves - the world didn't begin twenty years ago).
The second option is the one that is preferred because it is the one that comes closest to making the statement that "You should not misrepresent yourself as someone else." But this statement is contrary to the intent of Wiley's three-part distinction. He is talking about how we ought to allocate property. I am talking about what constitutes illegal conduct.
Two very very different worlds. No wonder he finds me incomprehensible.
- I'm tired -
- more to come -
Responding to David Wiley, Misunderstanding Stephen (and a chance to use a McLuhan title as a post title).
1. Mixing Licenses
David writes, "When a group of learners who are in no way affiliated with a company or any other for-profit organization are prevented from remixing OERs by the copyleft provisions in the GFDL and the CC-By-SA or the CC-By-NC-SA, how is it that this is only a problem for commercial exploiters of open content?"
Leaving aside all the presumption packed implicitly into this statement with phrases like 'group of learners'... Here is my counterexample: http://halfanhour.blogspot.com/2007/10/mixing-content.html
"Are you saying it’s ok for these learners to violate the license terms, because no one will care since they’re not making any money?"
Yes. Because there is no reasonable interpretation of those terms that would see them applied against individual students creating their own learning content for their own personal (and sometimes shared) use.
Now note, that this is *very* different from the corporate learning we see, eg., on a university campus. If the 'group of students' has enrolled in a class, and paid their thousands of dollars of tuition, and is being required to perform such actions, all bets are off. One of the license holders *might* sue the university.
And let me put this point even more forcefully: has there *ever* been a lawsuit over remixing GFDL materials with any CC materials licensed with the SA clause? Has there ever been such a lawsuit that did *not* involve a commercial entity? Should such a lawsuit ever be filed, can you see it not involving a commercial entity?
One (just one) of the places we find ourselves in disagreement is with what appears to be the presumption that you have accepted, that the prohibitions that govern corporate and commercial conduct also apply, and apply with equal force and sanction, to private and noncommercial behaviour. This is a doctrine copyright holders have worked very hard to gt pundits to accept, and they have done so by repeating it over and over for decades. But it remains not true - but I am, it appears, the only voice in your world that says otherwise, which renders the point not merely controversial but quite literally incomprehensible to you.
OK, new post, because I don't want to get the separate points confused with each other...
2. The Principle of Use
Next issue: "And, while I’m asking Stephen to explain things to me, why is it that he seems to think 'open' should really mean 'closed?' In other words, why is it that “open†should mean 'open to everyone except for some people' - specifically, companies? Why should we exclude anyone from what we’re trying to do?"
First, some preliminaries, to lay out some important groundwork.
(a) Companies are not people. I know that there is a legal fiction, the 'corporate person', but it nonetheless remains the fact that, if I bar a corporation from using something, it does not follow that I have barred any person from doing something.
(b) The prohibition of s certain type of use is not the prohibition of any use. The statement being made is the non-commercial clause *excludes* people from using the content. This is flat-out false. People - even people in corporations - can use the content. They do so all the time - they read wikipedia, they cut and paste CC photos, the works. What is prohibited is not 'use' but rather, a certain type of use.
(Now the usual dodge here is to throw out some pseudo-jurisprudence here ('pseudo' because I don't think it has ever been tested in court) to the effect that 'corporate use' prohibits, not a certain typ of use (specifically, 'commercial use') but use by a certain typ of entity, specifically, a corporation - but even so, this does not prohibit use by pople who work for a corporation, it prohibits only use while thy are performing their corporate duties - which is, again, a prohibition of a type of use).
So I am saying that 'NC' prohibits a certain type of use. And we ask, well, what type of use is that?
And my answer is very simple and very obvious:
It is the type of use that consists completely and solely of blocking other people from using the same thing.
EVERY thing a corporation does with content is consistent with non-commercial use up to the point where they block access to it and start charging money for it. The ONLY thing that differentiates commercial and noncommercial use is that commercial use consists of blocking people from using things.
What this means is that, except with respect to commercial use, GFDL and the CC-By-SA or the CC-By-NC-SA are logically identical. They are both statements to the effect that 'you shall not block anyone from using this content'.
To take this even a step further, strictly speaking, open licenses that allow commercial use embody a contradiction. They are saying "'you shall not block anyone from using this content' and 'you may block some people from using this content'". Anything follows from a contradiction, which is why it is so easy to make it look like GFDL and CC-BY-SA are inconsistent.
The presumption behind a license like GFDL is that the blocking use (ie., charging money for access) will not eliminate the (contradictory) open use. They can charge a fee for the content, but the people can always find the content for free and use it that way. You can charge people for a Linux distro, but people can always use it for free.
Except... except...
It never works out that way. The commercial publishers always find a way to make sure that the *only* way you can get access to the free content is by paying for it. The only original is in a museum, which charges admision, and prohibits photos. The only access is through an online repository, that carries commercial copies of things only. The material is part of a university course, for which you must py tuition to attend. Unrelated laws exist, that require payment for free content (patents on the statement saying 'this content is free' for example). The list goes on.
Dave continues, "Of course, this hasn't been the case for RedHat and Linux, and it won’t be the case for open content and commercial publishers who get involved in it."
I think this is a very interesting test case to watch. We've seen a number of companies now try to create a business model by creating exclusivity around open source content. Red hat. Suse. Ubuntu. My projection is that as these companies consolidate, it will become harder and harder to find free versions of the software. You will (for example) be able to download the software, but only if you agree to pay for a 'service agreement'. Or you will always have to pay for media, such as the plastic CD (or the magazine to which it has been attached). And of course, stores will offer the boxed version for $49.95 - but will never be giving out the free version.
OK, onto the next post...
3. Essentialism and Pragmatacism
Next bit...
"These statements are probably both very true. But neither of these lobbying activities will increase or decrease in correlation to commercial companies’ abilities to distribute open content, and so these are completely irrelevant."
The point, of course, is not that lobbying will increase or decrease, but rather, that even though they could use all of the BBC's content for free themselves, what they *really* want is to block access to content. Because their business model depends on blocking access.
But this points (very indirectly, so don't worry about the connection) to a fundamental distinction between David Wiley and myself.
Specifically (to use really bad lables): Wiley is an essentialist while I am a pragmatacist (NOT a pragmatist).
What does that mean? I can illustrate the distinction by talking about how we determine the meanings of words.
An essentialist will say that the meaning of the word is in the word itself; that the word is, fully and completely, its own meaning. That the truth of a sentence containing the word will be determined in one and only one way, with a fixed result. An example of essentialist thinking is Tarski's theory of truth: "The sentence 'snow is white' is true if and only if snow is white." An example of an essentialist theory of naming is Saul Kripke's "Naming and Necessity".
A pragmatacist, on the other hand, believes that meaning varies with, and is determined by, use. In other words, the meaning of the word isn't in the word at all, but is rather determined soley by how we use it. How do we know, for example, what the word 'safe' means? A person says 'the ice is safe' and then proceeds to walk on the ice across the lake. Wittgenstein's work, especially Philosophical Investigations, describes the theory of meaning as use. (And you may want to look at Kripke's "Wittgenstein on Rules and Private Language").
Now, I am not saying that David is an essentialist with respect to the meaning of words. He is a very sophisticated thinker, and is well aware of the way meanings can vary and fluctuate over time. He will have, at a minimum, an account that explains this fluctuation, even if he does not believe that it is the basis of meaning.
But he is an essentialist in other areas. I will name two. Now of course only Wiley can explain Wiley, so I am subject to correction here. But this is what I am seeing at the moment.
1. Where is the 'learning' in learning objects? An essentialist will argue, that in order for something to be a learning object, it must contain certain specific features. What these features amount to vary dependingv on the person talking, but they will say (for example) that the learning object must contain learning objectives, it must embody pedagogical theory, it must contain assessment... whatever.
But I respond, what makes a learning object a 'learning' object is not the nature of an object, but rather, how it is used. On my view, anything can be a learning object - even (to cite a famous example) a scrap of tissue paper. But as soon as it is ued in a learning context, it *acquires* the property of being a learning object.
That's a core distinction between an essentialist and a pragmatacist theory. To the essentialist, a thing is what it is. But to a pragmatacist, a thing can change what it is over time, even if it never changes internally or physically.
There is a core consequence to the two approaches as well. Essentialists often believe that categorization and segmentation are fundamental. An essentialist will believe, for example, that we should have 'learning object repositories' and not just 'object repositories'. That there should be 'learning games' or 'serious games' as opposed to 'games we play for fun'.
The creation of taxonomies is a common tool for the essentialist. Taxonomies - categorizations - reveal (it is presumed) something underlying about the nature of the things being studied - whether it is resources, processes, or people.
2. Where is the 'legal' in law? An essentialist will argue that the word of the law is what defines 'legal' and 'illegal'. He will agree that this can be clarified and contextualized by jurisprudence and common law, but not that actions can be variously legal or illegal under a single extant statement of law (ie., under a single text of the law, plus text of interpretations and decisions).
A pragmatacist will argue, however, that what makes something legal or not legal has much more to do with conditions and circumstances than it has to do with the text of the law. For one thing, the text underdetermines possible resolutions, which is why we need to go with intangibles like 'intent'. And for another, a law is composed of two major components: the text of the law, and the enforcement (or th 'use') of the law.
Nowhere is this more evident than in Biblical law. As has been often pointed out by pundits (including my own post, 'The 57 Commandments' http://www.downes.ca/post/113 ) the law, as stated in the Bible, contains constraints that are not enforced today, not even by the most devout. People are no longer put to death for cursing their father. We no longer have slavery and bride-prices. law - even Biblical law - is interpreted. It varies. It depends on context, even though the words remain the same. And is is, it is intended, not to be followed, but to be used.
Now - again - the only person who can say David Wiley is an essentialist is David Wiley. But from where I sit, this is where our divisions lie. When we talk about how learning ought to be organized, how open educational resources ought to be conceived, and developed, and delivered, how licenses ought to be understood and interpreted, Wiley will fall on the side of the nature of the thing itself, while I will fall on the side of use and consequences. Such, at least, is my take on the situation (which contains enormous room for error).
4. Trademarks
Fourth comment...
On trademarks, David (interestingly) takes the 'use' position. So it appears: "(Trademarking) only prevents you and I from using them on the cover of our own technology books, which we would likely do to try to confuse the public about the origin of the books."
Quite so. But we would then be mistaken, wouldn't we, if we depicted this as an issue about the content. Because there are two ways to look at a violation of trademark law:
1. As the use of a certain type of content in a certain situation ('on the cover of a textbook, as David represented it).
2. As an intent to fraudulently represent yourself as someone else (usually for the purpose of commerce).
We can see quite clearly that what is prohibited in the second case has nothing to do with the actual content of the name or symbol, but rather to the criminal use to which it is put.
But it is pretty easy, even in this light, to see the sense of the first interpretation. Because when one of the O'Reilly diagrams is placed on a technology textbook, it is not really reasonable to interpret such use as anything other than fraudulent.
Why would I make such a fine-grained distinction?
Because of the interpretation. In the first case, O'Reilly *owns* a certain right, specifically, the use of certain content in certain circumstances. It has become O'Reilly's property. But in the second, O'Reilly doesn't come to own anything. The enforcement of the law has nothing to do with O'Reilly - it has everything to do with the fraudulent intent of the other party.
All of that said, let me dispense with some of the argumentation on trademarks:
David writes, "O'Reilly puts a lot of brain power and resources into their marketing. Why should I be able to come along and both (a) confuse the consumer and (b) ruin their reputation with a shoddy book that looks like they produced it?"
I certainly agree that one person (or company, for that matter) should not be able to fraudulently misrepresent itself as another.
But - and David should know this - the amount of work and resources they put into their marketing have nothing to do with this. A person could put an equal amount of resources and brainpower into misrepresenting themselves as someone else, but this investment doesn't somehow buy them immunity from fraud laws.
I have put very little effort into creating my own 'brand' - absolutely no marketing dollars, for example. The same is true of most people. But it is still illegal to fraudulently represent yourself as me, or as anyone else.
David mentions the incentives argument in this context. I have nothing against incentives. People should be paid for work (the BIG question, in my mind, is whether people should work to be paid - is our society based on extortion, in which you MUST work, or else you die, or is it based on freedom, where each person has a right to a certain share of the wealth - but that's WAY of topic).
I also have nothing against ownership over something you create. I built a set of bookshelves in my dining room - those are mine, you can't simply walk in and take them. I wrote this paragraph. It is not only mine, in the sense that you can't claim ownership over it, but it is mine, in th sense that you cannot represent yourself as having written it.
But I make a strong distinction between claiming ownership over what you have created, and claiming ownership over what you have not created. And MOST of the paragraph above is not my own creation. None of the words were created by me. The grammar and syntax I use wasn't created by me. Numerous turns of phrases are not original to me. The ideas have been expressed by others as well. According to Google, the sentence "I wrote this paragraph" has been written 11,500 times previously - what gall to claim that it is mine!
When we look at what was created, in any given creation, such a minute portion of it was actually created by the originator, that the assertion of ownership over it, ought to be thought of as the exception, rather than the rule. And - again - our understanding of copyright ought to be not the *ownership* by one over some content or property, but rather, the intent and USE of the other, to fraudulently misrepresent themselves.
The 'ownership' of a copyright has nothing to do with the content. It has everything to do with the USE of the content by others. That's why we can avoid questions of what part of the content is actually original, what part is 'essentially' owned, and focus instead on how other people use that content. If the other person is attempting to fraudulently misrepresent themselves, then copyright has been violated.
We used to have pretty clear understanding of this. We used to understand that, while a company couldn't copy songs and sell them in stores, it was perfectly OK for you and your friends to share songs taped from the radio among yourselves. Somewhere along the line, 'commercial use' and 'personal use' got confused, as though they were the same thing, because the focus shifted from use to 'content' and 'law'. And that's when they started suing grandmothers and infants and college students.
This statement of options simply misrepresents the situation:
"There are three possible choices when it comes to using a public domain work as a symbol for your product - whether for-profit or otherwise (let’s keep in mind that not-for-profits trademark slogans and artwork and other things as well). One - no one should ever be allowed to do so, regardless of what benefit might be realized. Two - first person to do so should receive some protection against masqueraders. Three - there should be no restrictions at all with regard to this specific use of public domain works, regardless of what harm may occur."
This statement of options treats the symbol as something that can be something that can come to be owned. But in fact, what we ought to be saying is that anyone can USE any symbol, but that no person (or corporation) can MISREPRESENT themselves as another person (or corporation).
This raises another point where we have disagreed in the past (and it's related to the essentialist pragmaticist distinction I drew above). On Wiley's view, there is some set of rules that we can draft that governs behaviour (and what is legal) in a certain domain. But on my view, the distinction between 'allowed' and 'not allowed' cannot be expressed as a set of rules (and that, indeed, drafting more rules makes it MORE likely, not less likely, that the intent of our rules will be subverted).
David concludes this bit, "Stephen will likely disagree, but I believe situation Two (which happens to be the current situation) is the most reasonable."
In fact I actually go along with situation two, but my reading of it is completely different. There is no sense in which being the 'first' to use a symbol confers some sort of right or ownership over that symbol (if this were true, many of the brand names, images and slogans we know today would be illegal - there is NO WAY these companies were the first to use these o market themselves - the world didn't begin twenty years ago).
The second option is the one that is preferred because it is the one that comes closest to making the statement that "You should not misrepresent yourself as someone else." But this statement is contrary to the intent of Wiley's three-part distinction. He is talking about how we ought to allocate property. I am talking about what constitutes illegal conduct.
Two very very different worlds. No wonder he finds me incomprehensible.
- I'm tired -
- more to come -
