Sweet is the lore which Nature brings;
Our meddling intellect
Mis-shapes the beauteous forms of things:–
We murder to dissect.
Taken from “The Tables Turned, An Evening Scene On The Same Subject”, a poem by William Wordsworth.
In his paper, “Information and Intellectual Property Protection: Evaluating the Claim that Information Should be Free”, Kenneth E. Himma, Ph.D., J.D. from Seattle Pacific University argues that the most charitable interpretation of the claim that information should be free (ISBF) lacks adequate support in mainstream moral views and thus cannot ground a wholesale challenge to the legitimacy of intellectual property rights.
I feel that Dr. Himma does not make his case. He fails to frame the ISBF claim in the context and spirit that it is offered. ISBF is a guiding principle of the hacker ethic which was first described by Steven Levy in his book, “Hackers: Heroes of the Computer Revolution”. This work has been followed by many others that build upon and foster this set of ethical guidelines. I don’t expect that Himma has a responsibility to argue for those who would argue against him. I do believe he does an injustice to his thesis by taking one principle from an entire code of ethics and examining it outside of its contextual framework.
Himma creates a straw man by focusing his argument upon whether the government has a right to enforce and regulate intellectual property. He would have us believe that those who argue for ISBF are only seeking anarchy. According to Levy’s work, the general tenets of the hacker ethic also include:
· Sharing
· Openness
· Decentralization
· Free access to computers
· World improvement
I believe that Levy is advocating for these tenets to begin with the creator and not to even involve government. I do not think that Levy or those who followed him would hold that there is no place for any regulation. The claim is not that information must be free but that it should be free. This leaves open the possibility that there are conditions where information should be free but it is not practical or prudent for it to be free. Privacy is an example of where certain regulations may be reasonable. Himma offers this as an example of where ISBF fails. Again, I think it is a straw man and does not do anything to refute the strong but conditional claim of the hacker ethic that information should be free.
Filed under: Abstract | Tagged: hacker's ethic, Himma, Levy
[...] * Mark – [Kenneth Himma in “Information and Intellectual Property Protection: Evaluating the claim that information should be free” ] Information Should Be Free (ISBF) [...]
Mark,
I’m afraid that Himma doesn’t just fail to frame the ISBF claim in the offered context. He also fails to provide a relevant definition of information. Neither attempt to define information “such as to include some provisional reference to the representations that purport to convey informative content” nor statement that “the term “information” should be construed as including the sentences from which competent speakers can extract informative content by means of the canonical strategies” is not capable of further framing the ISBF claim and grounding a critique of copyright law. It’s just way too broad definition.
When I lived in Vermont, our local hippie hangout organized a weekly “Free the Food” event. Volunteers would dumpster dive not-quite-perfect, slightly blemished food at the co-op. From the produce they scrounged up, they would cook a meal every Tuesday night and distribute the food for free. Some of the people who showed up for Free the Food were indigent, but it also became a community celebration of sharing. At more than one occasion, I heard remarks like “food should be free” or “food just wants to be free, man”.
Of course, if you’d ask, hardly anyone would say farmers shouldn’t get a fair price for the food they grow. What they meant was that everyone has a right to sufficient food. And because there is lots of waste in the food distribution system, it only seems morally right to take some of the food that’s thrown away and feed to people who are hungry.
Kenneth Himma mentions that “general non-contractual rights-claims can be grounded only in interests that rise to a certain level of importance” and he mentions “the right to enough food to survive” as an example. Himma also allows that “some kinds of information seems to rise to the minimal level of importance,” but then focuses his critique on the fact that some information we “merely want” and that such information is not important enough to warrant the ISBF claim.
This is an example of how Himma limits his evaluation of ISBF to “a universal claim that applies to all information.” If you can find only instance in which information shouldn’t be free, he argues, that would dismiss ISBF altogether.
It’s unfortunate that Himma doesn’t allow for the possibility that ISBF in the context it’s used really means Information Should mostly Be Free. Himma’s analysis would have been more interesting if he looked at instances where availability of information is indeed a matter of life and death—the discussion of making HIV drugs globally available comes to mind.
Himma also limits his analysis to ISBF strictly “as a matter of moral principle” and dismisses the other interpretation of should as an indicator of desirable behavior.
As Mark points out, framing the argument in such a narrow way takes the phrase out of the context in which it was used, and limits the usefulness of Himma’s analysis.
Finally, Himma states in his conclusion that “the arguments usually offered are all problematic in serious ways”. Mark eloquently shows how this statement breaks down in the face of the facts; the arguments he mentions above are mostly left out of Himma’s analysis.
I agree that Himma generalizes a bit too much on what ISBF advocates are trying to achieve. All of the other things listed as hacker ethic certainly would not plunge the world into chaos as Himma would have us believe.
“This leaves open the possibility that there are conditions where information should be free but it is not practical or prudent for it to be free.”
I really like how you worded this, it sheds light on how information should be free, however there may be times where this would not be a good idea. It is not a 100% all the time type of rule to live by.
Threatening anarchy as an outcome is a common debate tactic you usually don’t see past high school. As you pointed out Mark if you change the terms of the argument to agree with your point then it does make it easier to “win.” I actually agree with the values that Himma expresses with copyright in terms of protection and incentive for content/information producers, however it seems both sides aren’t necessarily able to look at a larger solution without seeming to (at least in the USA) come from the fringe.
For example, if there was government funding of the arts (or even if you could collect unemployment as an artist) combined with experience events such as movie theaters, concerts, and play-houses, I don’t think Himma would have as much of a case because the artists livelihood isn’t demanding protection outside of accreditation.
On the other hand the “hacker ethic” doesn’t include alternative economic structures wherein creators/producers livelihoods are able to be protected. It’s not that they don’t have a point, in principle I think it is important that money not be the primary barrier to gaining information, but outside of recognizing creators/producers as something to be protected in and of themselves with possible government assistance it doesn’t seem that there is much recourse or alternative offered except to uphold copyright as a means of protection.
I do think that an alternative is needed because as it stands the current mix encourages piracy while seeking to punish it at the same time.
[...] Mark – [Kenneth Himma in “Information and Intellectual Property Protection: Evaluating the claim that information should be free” ] Information Should Be Free (ISBF) [...]
I am very flattered that so many of you choose to discuss my essay. As a gesture of gratitude, I will respond to any arguments you choose to make. But one sentence claims that I overlook some claim or fail to take the hacker ethic as a totality do not count as an argument. The claim I attack has always been advanced as a universal thesis; that thesis is false. As for the claim, I have not adequately defined information: that is also false; the semantic definition is the one that is most commonly accepted and most relevant in this debate. It is true that music doesn’t fall under this definition, but if I recall correctly I construe “information” to include all that content.
The charge that I do not address the claim that information should be mostly free is not much of a failure at all: it concedes the very point I make. Of course, some information should not, and is not, protected. No one is going to dispute that. Tell me the stuff you think should not be protected and we have something to talk about. The general disapproval of the argument I make doesn’t constitute reasoned criticism. Make some reasoned criticism in the form of an argument with a clearly articulated set of premises and conclusion, and I’m happy to respond.
In the meantime, you should take a look at my: The Legitimacy of Intellectual Property: Contemporary Philosophical Disputes, which is available at http://www.ssrn.com. That will answer some of your concerns.
Thanks again for doing me the honor of taking my work seriously. I’ll check back in a couple of days.
Dr. Himma,
Thank you for taking the time to respond. I look forward to learning something from you in the art of argument. I am at the end of my quarter and quite busy but I do intend to take you up on your offer. I will review your article on SSRN.
It will likely be ten days or so before I can get back to this and if I miss an opportunity, my loss. Again, thank you for taking the time to respond.
- Mark
[...] Comments crackerbelly on Information Should Be Free…Kenneth Himma on Information Should Be Free…ivsyd on Review of The Wealth [...]
Dr. Himma –
Thank you for the gift of your time in reading through and replying to the written comments on your article. Please know that it was the centerpiece of a very lively in-class discussion; this online discussion is a continuation of that effort, after additional students had read the article.
Thank you, also, because I can usually count on one author responding each quarter … and you’re that winner!
Kathy
Yo, Mark … is your time set to GMT -8? Cause it’s not the 18th yet! It’s 10.17 PDT, which I think is GMT -9 (wordpress doesn’t “do” DST automagically).
One more thing for Dr. Himma …
There are two more posts dealing with this article: Terry and Ross … although I’d call Mark the ring leader!
[...] Dr. Himma responds on Mark’s blog post [...]