Ursula K. Le Guin and the Tragedy of the Copyright Commons

Via TechDirt, Ursula K. Le Guin has resigned from the Authors Guild in protest of their decision to no longer categorically oppose settlement with Google. The Authors Guild was an original plaintiff in the massive class action suit against Google’s book scanning project, and is now negotiating a controversial settlement agreement.

I was sad to see her take such a stance. I was never a die-hard Le Guin fan, but I have very fond memories of checking Wizard of Earthsea out for the first time from my middle school library. Her science fiction is great too, and she is undoubtedly an icon of the genre; I love the fact that, forty years after she invented the ansible, other authors still use the devices in their books, even borrowing the same technological constraints that Le Guin used, as if ansibles were somehow a common heritage of all scifi universes.

That always struck me as a small but delightful example of the benefits provided by a robust intellectual commons — that there can be such spontaneous collaborations between authors, many years apart, and that we can create these common cultural reference points. After all, Sherlock Holmes’ popularity today is not due to the fact that Sir Arthur Conan Doyle was the only one person who ever got to say what happened to him.

But some authors — or their heirs — try to claim that no morsel of their work rightfully belongs to the commons, and that their ideas should die with them. Recently, Philip K. Dick’s daughter threatened to sue Google for naming their phone Nexus One, in a subtle reference to the Nexus-6 replicants, which were a sixth generation model of androids in Do Androids Dream of Electric Sheep. I find it indescribably sad that someone should try to claim a copyright to geek cultural heritage.

As the creator of the ansible, Ursula K. Le Guin could, under her view copyright, prohibit other authors from using ansibles in their works, or else sue those authors who do reference them. I do not think anyone could argue that the world would be better off if authors could exercise such a monopoly over their ideas. But what Le Guin advocates would permit authors to do so.

In her resignation from the Authors Guild, she wrote:

You decided to deal with the devil, as it were, and have presented your arguments for doing so. I wish I could accept them. I can’t. There are principles involved, above all the whole concept of copyright; and these you have seen fit to abandon to a corporation, on their terms, without a struggle.

What “principles” are involved, in Le Guin’s view? The principle that authors are entitled to recoup all the welfare benefits from their work, into perpetuity? Because that principle has never been listed under the heading of “concept of copyright.” (You might be able to find it under “shameless rent-seeking,” though.)

The Authors Guild’s reply to Le Guin’s resignation has a quote that should be underlined, over and over again:

The lessons of recent history are clear: when digital and online technologies meet traditional media, traditional media generally wind up gutted. Constructive engagement — in this case turning Google’s infringement to our advantage — is sometimes the only realistic solution.

Admittedly, for most industries, it seems that “constructive engagement” has meant lobbying the legislature (or in the Google Books case, the judiciary) for restrictive laws that give creators ridiculous rights that copyright was never intended to protect. Even still, engaging in the opportunities that change provides is always a better response than claiming an entitlement to continue living in The World As It Used To Be.

I do have some pretty huge objections to the Google settlement (who doesn’t?), but they are the same objections the DOJ has, i.e., “class action, copyright and antitrust law[.]” (Okay fine, my personal objections include just those last two. Although if I had any modicum interest in class action suits, I’m sure I’d be very concerned about that first one as well.)

Le Guin’s objections to the Google settlement, however, are not about the creation of an unjustified monopoly power, but rather that she is not going to be the beneficiary of one.


The Law of Aliens, Part III.1: Extraterrestrials on the High Seas

Editor’s Note: Yeah, I know I said this was going to be a three part series, but then I got slowed up this week. So the series will still be three parts, it’s just that part III is going to be done in two installments.

What happens if extraterrestrials slip through our solar system undetected, and are only encountered for the first time when they arrive on Earth itself?

Space law would no longer be applicable; rather, the situation would be governed by more traditional and more firmly established notions of international law. Although international/space law has not yet reached an ironclad understanding on where precisely outer space begins, for purposes of domestic laws and aeronautics regulations, the limit is most often set as the lowest point from sea level where an object can orbit the earth, i.e., 62 miles/100 kilometers up. (Objects cannot orbit for long at this altitude, due to air resistance, but they can take a few spins around the block.) Australia, in fact, has been proactive at setting the 100km boundary, and it does seem likely that it is eventually going to become the standard delineation.

So if aliens visit earth and are doing anything other than orbiting the planet, it’s good old fashion international law that’s going to provide any legal framework for the alien visitation. This means that, in practice, law will be a lot more relevant than it would be in the case of an outer space encounter.

A state’s sovereignty over its territory is one of the most fundamental concepts of international law. A state may not take action within another state’s territory absent consent. There are exceptions to every rule, of course. But although many parts of international law are often discarded or ignored, respect for a sovereign state’s territory is taken very seriously indeed.

In contrast, it would be fair to say that, in the not exactly probable event of an alien encounter in space, international law would most likely be given minimum lip service and little more. Space law is an infant body of law, and for obvious reasons, it is overloaded on the opinio juris component as compared to the state practice component. That’s a good indication that, in the event of a dramatic change in circumstances, states will not be reluctant to act in ways inconsistent with space law as it is currently understood, and instead will seek to justify their actions after-the-fact on the basis of previously “undiscovered” interpretations of law.

So, in a nutshell: international law would not survive five minutes past the first alien encounter in space.

On Earth, however, territorial sovereignty has such a deeply established normative and positive force in shaping the relationships between states that even in the event of an extraterrestrial landing, international law would continue to play a predominant role in how the world community reacted.

The exact strictures of international law to be applied, however, will depend in practice upon the location where the aliens choose to land.

Situation #1: Aliens land in the middle of the Atlantic Ocean and hover out over the high seas.

This is actually the worst possible scenario, for the aliens and probably also for earth. A “too many cooks in the kitchen” problem would quickly develop, as the high seas are open to all states. This includes a freedom of navigation, a freedom of overflight, and a freedom of scientific research. Essentially, every state would be free to go to, investigate, or attempt to talk to the alien spaceship — so that if North Korea wanted to start doing some “scientific research” on the ship, it would not be a straight forward matter for any State to justify prohibiting them from doing so.

If it turns out the aliens are friendly, Earth nations would be able to repel any attempts by non-state actors to attack the spaceship, as all States possess universal jurisdiction over pirates on the high seas. It wouldn’t be too much of a stretch to argue that unprovoked violence directed at a spaceship is an act of piracy, entitling other nations to use force to repel any attempts by private parties to act aggressively towards the spaceship.

But attacks on the spaceship by State actors will not be so easily regulated. Under Article 95 of the Convention on the Law of the Sea, “Warships on the high seas have complete immunity from the jurisdiction of any State other than the flag State.” So if it’s North Korea acting aggressively against the aliens, we’ve got a problem.

True, Article 88 of the Law of the Sea Convention does declare that “The high seas shall be reserved for peaceful purposes.” But in the words of Captain Barbossa… this is really more of what you’d call a guideline than an actual rule. It doesn’t actually prohibit military actions, per se. It is international law of war, not the law of the sea, that would be the primary body of law to govern hostilities on the high seas. Although under international law, the threat or use of force is traditionally prohibited, it does not, technically speaking, prohibit the use of force against aliens.

Article 2:4 of the UN Charter declares, “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” An alien spaceship does not obviously possess territorial integrity or political independence as a state, or at least not so clearly that North Korea couldn’t make a facially legitimate claim that Article 2:4 doesn’t apply to them. So the aliens would be fair game.

This doesn’t necessarily mean they’re defenseless, under international law. The right of self-defense is preserved in the UN Charter, and self-defense does extend to defense of others (I’ll assume for now aliens could qualify as part of the “collective” in Article 51) but in the chaos of an international free-for-all on the high seas, this would be of little practical protection. Besides, it’s not exactly settled law, regarding what acts a State can take against an extraterrestrial in the high seas before third party rights of self-defense kick in.

End result? The Law of the Sea isn’t going to be sufficient to protect or regulate any alien encounters on the high seas. If we’re lucky, however, the UN Security Council will be able to reach some kind of agreement and enable collective action to be taken. Under Article 42 of the UN charter, a blockade is one of the actions the Security Council can authorize to restore peace and international order. Although “blockades” are traditionally understood to apply to coastal navigation, it is not a heavy abuse of the language to say Article 42 would permit the Security Council to establish a blockade in the high seas. In this manner, the Security Council could authorize the use of force to protect the alien ship and to impose order on the normally unregulated oceans.

Next up tomorrow: The Law of Aliens, Part III.2: Extraterrestrials in Somalia South Africa and Extraterrestrials in France.

Previously: The Law of Aliens, Part I: The Law of Post-Atmospheric Extraterrestrial Encounters By National or International Organizations, and Part II — The Law of Outer Space Encounters With Extraterrestrials by Sub-State Entities.


The Law of Aliens, Part I: The Law of Post-Atmospheric Extraterrestrial Encounters By National or International Organizations

In keeping with LL2′s long standing tradition of providing you with the hardest hitting and most practical legal exposés, this blog will now present an informative series on the law of alien contact.

To begin with, I should probably instead use the word “extraterrestrial” rather than “alien,” as alien is already a well established legal term of art. So this is not the law of foreigners in a state’s territory, but rather the law of contact with intelligent non-human entities that did not originate from earth.

What if First Contact happened tomorrow? How would humans react, and how would the law apply? Assuming the aliens didn’t immediately blast us out of existence, that is. I think it’s safe to say each state would want to have its own say in how things with the aliens go down, and that states would have their own individual opinions and conflicting agendas regarding the encounter. Which means, inevitably, they would each take whatever actions they deemed appropriate and then afterwords seek to justify those actions on the basis of contorted interpretations of international law. The United Nations would also want to establish a central role for itself in the fray, and because it does possess the institutional mechanisms that states tend to follow when seeking to take multinational action, the UN would likely emerge as the primary vehicle through which multilateral discussions and actions would take place.

So international law would be the natural language for states to use when framing these discussions. In this first post, I am going to examine how international law in its current form would govern an encounter in outer space between extraterrestrials and a national or international body. The next two posts will consider outer space encounters between aliens and private parties, and encounters with aliens on earth.

Read the rest of this entry: What if aliens land on a Canadian space ship? »

“Readers who find Figure II puzzling should recall that a diagram of an imaginary axis must, of course, itself be imaginary.”

I spent a fair chunk of yesterday sitting out on the patio reading Elizabeth Moon’s Trading in Danger. It should surprise no one that I absolutely adored it. A scifi adventure novel premised upon the profit to be gained from interstellar trade, you say? Why yes that does in fact sound like something I’d quite enjoy reading. (And, like many of Moon’s books, it features a strong female protagonist in a universe where gender is irrelevant to your qualifications for any job. I think I’m in love!)

The bad news about the future is that there are still tariffs. Looks like we’re going to develop an FTL drive before we actually achieve free trade. (Sadly, I would consider this to be a rather realistic proposition.) But the book manages to create one of the few scifi universes I’ve encountered where the idea of backwater worlds still using horse-and-plows for agriculture actually made sense. In Serenity, I was never quite able to accept the whole Wild Wild West theme– it was based on planetary cultures deliberately choosing to embrace a cowboy lifestyle rather than the cowboy lifestyle making sense given the resources available. But Trading in Danger depicts an economic and political system for the galaxy where encountering a mix of archaic farming techniques and space-age technology makes perfect sense.

In addition to that, other notable features of the book include: 1) A galactic corporation with a monopoly on the instantaneous communication market — and its relentless rent-seeking behaviors in order to maintain that monopoly serve as the backdrop for the events of the series; 2) A constant evaluation of opportunity costs, struggles of where to allocate cash on hand and when to take on a loan given the prevailing interest rates, and arguments over how credit ratings apply to sub-entities of corporate structures. The characters are traders, after all, and thus their internal struggles over where the best trading opportunities are to be found are prominently featured; and, 3) Constant wrangling over contract law, such as how breach and damages are to be determined when a system civil war breaks, or what indemnity clauses are to be included in the final text of an agreement.

And last, but not least, there is ample quoting from the IUCC. That’s right — the Interstellar Uniform Commercial Code. It made me so nostalgic for Martha Ertman’s Contracts course; I can totally imagine Prof. Ertman chilling out on a starship somewhere waxing rhapsodic about the default contract terms provided for under IUCC Art. 347.2.

So of course the whole time I was reading the book I had Krugman’s essay “A Theory of Interstellar Trade” in mind. (It’s worth reading simply for its groan-inducing jokes and references to science fiction, physics, and academia. Such as setting up his graphs so that his line is named ET.)

“If trading space vessels move at high velocities, we can no longer have an unambiguous measure of the time taken in transit. The time taken by the spacecraft to make a round trip will appear less to an observer on the craft than to one remaining on Earth. Since an interstellar voyage is an investment project which must have a positive present value, there is obviously a problem in deciding which transit time to use in the present value calculation.”

The essay’s not directly applicable to Elizabeth Moon’s universe, as Krugman assumes (slightly more realistically) that FTL travel is not possible, and thus deals with the relativistic effects that approaching-light-speed travel causes. With time distortion + lack of instantaneous communication, can interstellar arbitrage result in equalized interplanetary interest rates? Yes, actually — well, assuming we can stay within the bounds of special relativity. Krugman makes no representations as to how his theory might apply to non-inertial reference frames.

Although Krugman rejects FTL and instantaneous communication, he does assume that even if our technology will not have discovered how to break the light speed barrier, our economic systems will have discovered the near-equivalent: perfect forecasts on the price of goods over indefinite periods of time. In Trading for Danger, nothing close to this exists — which is a good thing, as it’s that very uncertainty over prices that provides a fair share of the drama and obstacles faced by the characters. The traders must make months-long trips between star systems based upon speculation on where the most profitable transactions are to be had, and if you guess wrong, you’re down a whole lot of time and credits. (Yes, they do have FTL — but given acceleration and deceleration times, it’s no quick jaunt to go between stars.)

So I’m going to add a Third Fundamental Theorem of Interstellar Trade to Krugman’s article: for good science fiction, you need to screw around with the laws of physics as the plot demands, but hold your laws of economics constant. Imagining FTL is more fun than imagining perfect futures markets.