A copyright infringement argument has sprung up between John McCain and Fox News recently. On a Republican presidential debate hosted by Fox News, John McCain had a sharp criticism of Hillary Clinton’s attempt to give $1 million of taxpayer dollars to a Woodstock museum. McCain had the following to say about Woodstock:

I wasn’t there. I’m sure it was a cultural and pharmaceutical event. I was tied up at the time.

That’s pretty funny, and I laughed when I heard it. McCain quickly took the 25-30 seconds of the debate video and made a presidential ad out of it. In response, Fox News issued a cease-and-desist letter to McCain’s office, telling him that he was not allowed to use Fox’s coverage for his presidential ad. McCain used the clip anyway, and now many groups with wildly different views on politics have come together to denounce Fox for trying to stop McCain from using their clip. Mitt Romney even made it a point to inform Fox News that he’s going to use their footage without their persmission. Most of the criticism leveled against Fox seems to be centered around the idea of “fair use.” Since the video clip shown was so short (30 seconds out of a 90+ minute debate), it was not shown for commercial purposes, and because the clip contains information an issue that is very important to our society, Fox News should not be able to stop McCain from showing the clip.

I agree that McCain has not violated Fox News’ copyright, but I don’t agree with most of the arguments I’ve heard against Fox. This is not easy for me to explain, but I’ll try now.

I believe that Fox News is the rightful owner of the debate video that was broadcast on its network, and Fox is well within its rights to stop any action that prevents it from exercising its control over its intellectual property. The “2007 Republican Presidential Debate hosted by Fox News” (or whatever it is called) is a piece of property created and owned by Fox News, and if you want to use that property you have to get Fox’s permission. So how can I say McCain to use a clip of that video without Fox’s permission? One sentence in Ayn Rand’s Capitalism: The Unknown Ideal completely changed the way I saw intellectual property, and I think it might make this issue easier to understand:

The inheritance of material property represents a dynamic claim on a static amount of wealth; the inheritance of intellectual property represents a static claim on a dynamic process of production.

Since owning material property is to possess control over something that exists, an owner of material property can cut that property up and still claim rights over every piece. For example, if you own a stick of butter and you cut it in half, you now own two half-sticks of butter. Your property right is claim on a specific piece of property, and by splitting it you merely changed the makeup of the object that you already own. Intellectual property cannot be cut up in the same way, however. An owner of a piece of intellectual property cannot necessarily cut up that property and then claim the same ownership rights over the pieces as he or she does on the whole. For example, an author cannot take one sentence out of a copyrighted book and claim to own the right over that sentence based on his copyright over the entire book. Ownership of a piece of intellectual property is the abilty to control the production of that property. Taking small bits out of a copyrighted work, like McCain did when he took the 30 second clip from Fox’s debate, does not harm Fox’s ability to control its property. Fox owns the publication rights of the debate, but it does not own the publication rights over every single word that was uttered on that tape.

This is not a limitation of copyright; it’s the definition of copyright. To own a copyright on a work is to own the copyright on that work, not every word or note that makes up the work. Many people think that the taking the concept of copyright to the “extreme” means that intellectual property owners will be able to stop anyone from seeing, hearing, or even talking about that content without explicit permission from the owner, but that’s not the truth. Copyright covers works created by individuals, and that’s all. Did McCain’s 30-second clip infringe on Fox’s ownership of the 90-minute debate? No.

Or did I, for that matter, violate the copyrights owned by the estate of Ayn Rand when I posted one sentence she wrote. No, I did not. Imagine what blogging would turn into if single sentences could be copyrighted!

I think this type of confusion about copyright comes from the backwards way that people often view copyright. Instead of treating copyright as the way to protect an individual’s creation, people treat it as a set of restrictions on what an individual can do. I think the latter approach lends itself to the idea that there has to be some “fair” balance between complete restrictions and no restrictions. Rights cannot be balanced, though. The only valid question is whether Fox has the right to control that clip.

I see one valid way for Fox to stop presidential candidates from using its video like this. All it has to do is make presidential candidates agree not to use the video in anyway in exchange for a spot on the debate. It wouldn’t stop people like you or me from using clips, but it would have given Fox a valid argument to use against McCain.

There are a lot of things that I want to write about the open-source movement, and the favorite software license of its advocates: the GPL. I don’t have a lot of time to write right now, so I’ll try to sum it up in a few sentences.

There is a movement of people who are against the concept of copyright, patents, and other intellectual property. They believe that the creator of a work does not have the right to tell another individual not to copy his music, writing, software, or any other creation that is not physical property. Their favorite software license is the GPL, which allows users to copy and distribute code freely with only one stipulation: Any works you create that are derived from the GPL’d code must have the same GPL “protections.” What type of protections? Protections from distributing the code in any form that does not allow full copying and editing. Applying the GPL to software essentially protects that software from being owned by any individual. (And when I say “owned,” I mean the ability of an individual to control what is done with that software.)

So why am I bringing this up? Well, there was a recent debate that started on Slashdot between two individuals on the question of whether the GPL depends on copyright in order to oppose copyright. The debate started with with a post arguing that the GPL depends on copyright. Someone wrote a response disagreeing with that position, and the original poster responded to that. The debate is interesting, mostly because it’s one issue that I actually find myself in agreement with the GPL advocate!

He wrote:

The basic argument of copyright abolitionists is that people should be free to share when sharing does not result in any diminution of supply. The GPL simply uses copyright law in a jiujitsu-like manner to enforce this principle, in a legal environment where sharing is prohibited by default and must be explicitly permitted to be legal. All the GPL does is create a space where permission to share is enforced.

I agree that the GPL does not depend on copyright law. Those who don’t believe in copyright think that everybody should be able to copy and distribute other people’s works without permission. Of course, they can’t make anybody do that because it goes contrary to current law. So, in a clever move, they convince people to give up their rights to their intellectual property voluntarily, and then use copyright law to enforce that decision. What’s important to note here is not that they are using copyright law to enforce the GPL, but that they want the government to enforce the GPL. They would be even happier if they could achieve their goals with laws that specifically forbid copyright, but they haven’t gotten the government to go along with that. Yet.

I think that most people tend to dismiss or ignore the ideas behind the GPL and the open-source movement, and the GPL-uses-copyright argument is one of the reasons. They look at the GPL text and say, “Nothing here violates anybody’s rights.” And they’re right, so long as developers have the choice to use the GPL or not. If you look at the ideas behind the GPL, especially on the GNU’s philosophy page, you’ll see that GPL advocates are not fighting for the rights of developers to make that choice. The GPL is not just another software license.