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As of Summer 2024, my article "What Colour are your bits?" has been online 20 years, and people are still linking to it as a benchmark. It's clear that people still care about intellectual property in general and copyright in particular, and the difference, if any, between identical copies of things is still important; but the most salient issues today are not directly related to the verbatim copying that was a big deal in 2004 and was the main topic of "What Colour." I've written other articles about today's issues, and I wish my more recent articles would get the attention that the 20-year-old one still commands; they are more relevant now.
In particular, people in 2024 care a lot about how intellectual property issues and "creator's rights" relate to material that is not actually created by humans - like the output of so-called "generative AI." I talk about that in some detail in my article on training and copyright on the Eleven Freedoms site. I don't think the copyright issues associated with generative models are actually so new after all, and they are best understood using the existing concept of fair use. Copyright holders worry about how to exercise control over the use of "their" creative material for training models; but that begs the question of whether copyright holders ever had, or should have, a right to any such control. If a human can read a book and learn from it, and then write their own books, why shouldn't a computer?
Another of my recent articles, possibly my most important one ever, discusses two conflicting points of view somewhat like the views of "computer scientists" and "lawyers" below, but in the realm of institutional hiring and promotion. That is my 2021 piece on Scarcity, abundance, and lost careers. The difference between "lawyers" and "computer scientists" might be said to reflect a difference between abundance and scarcity: recognizing that a work can be copied at effectively zero cost makes works plentiful, whereas extending ownership of the original to ownership of all copies greatly reduces the supply of works, and then either view has important consequences. Similarly, institutions that see promotion candidates as being abundant or scarce will operate differently from each other and will have difficulty comprehending each others' points of views. The tension between scarcity and abundance leads to dysfunctional situations like the "elite overproduction" currently eating up some North American cultures; I think there's a way to understand that and several other current issues in a consistent framework.
Now, the historical article on Colour.
There's a classic adventure game called Paranoia which is set in an extremely repressive Utopian futuristic world run by The Computer, who is Your Friend. Looking at a recent LawMeme posting and related discussion, it occurred to me that the concept of colour-coded security clearances in Paranoia provides a good metaphor for a lot of copyright and intellectual freedom issues, and it may illuminate why we sometimes have difficulty communicating and understanding the ideologies in these areas.
An article based on this one and its follow-ups, by me, Brett Bonfield, and Mary Fran Torpey, appeared in the 15 February 2008 issue of LJ, Library Journal.
In Paranoia, everything has a colour-coded security level (from Infrared up to Ultraviolet) and everybody has a clearance on the same scale. You are not allowed to touch, or have any dealings with, anything that exceeds your clearance. If you're a Red Troubleshooter, you're not allowed to walk through an Orange door. Formally, you're not really supposed to even know about the existence of anything above your clearance. Anyone who breaks the rules is a Commie Mutant Traitor, subject to the death penalty.
Much of the game revolves around the consequences of the security levels. For instance, Friend Computer might assign a team of Red Troubleshooters to re-paint a hallway that ought to be Orange but was painted Yellow by mistake the Commie Mutant Traitors. It's quite likely in such a case that the Troubleshooters will all end up shooting each other for treason against Friend Computer, since none of them are allowed to touch the paint, go near the hallway, or talk about their mission, and they're all charged with enforcing the rules on one another.
In intellectual property and some other fields we're very interested in information, data, artistic works, a whole lot of things that I'll summarize with the term "bits". Bits are all the things you can (at least in principle) represent with binary ones and zeroes. And very much of intellectual property law comes down to rules regarding intangible attributes of bits - Who created the bits? Where did they come from? Where are they going? Are they copies of other bits? Those questions are perhaps answerable by "metadata", but metadata suggests to me additional bits attached to the bits in question, and I'd like to emphasize that I'm talking here about something that is not properly captured by bits at all and actually cannot be, ever. Let's call it "Colour", because it turns out to behave a lot like the colour-coded security clearances of the Paranoia universe.
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