[Upd-discuss] The Challenge of Law in the Wave of Ideas

[Andy Oram]

I just wrote up the following--is it a useful metaphor? A
cliche? Helpful or unhelpful?

Andy

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While society is loosening over time in many ways--borders, mores, and
more--in one area there seems to be increasing exertion of control: in
laws regarding ideas. Because ideas clearly add more and more value to
society in a technological and data-driven age, a formal approach to
ideas may be desirable. But the type of formality is important, and
here a analogy to difference between particles and waves in physics
may be helpful.

Since the discovery of atoms, physicists have tended to approach
physical laws through the notion of particles. Particles are tiny,
indivisible pellets that hurtle through space, interacting with other
particles but staying intact and independent. But the attraction of
humans to particles is weakened as physicists realize that particles
can be broken into smaller particles, when placed under suitable
stress. And by now they've gotten down to the point where they can't
find more particles, but instead have to treat reality as an
interaction of properties such as mass, charge, spin, and other even
more bizarre constructs.

Sometimes the model works only by assuming that some construct has
traveled backward through time. When I see this, I begin to feel that
particle physics is not a representation of reality, but a way of
understanding phenomena that emerge from a reality that in itself
can't be understood.

Meanwhile, wave theory also provides a useful way to look at the
world. Instead of particles, trends just happen. And waves can be
described quite formally and give useful information, as in "This is
an E-flat sixth chord, resolving to a G major six-four chord."

Both particle physics and wave physics are valuable, so long as one
recognizes their limitations. Laws, however, tend to regard ideas as
particles, and fail to recognize the limitations of the model.

A particle approach to art assumes a fixed work of art, and offers
copyright for that work. (Some things qualify as these sorts of
particles, and some don't. Reportedly, Duke Ellington couldn't
copyright one of his major compositions because it consisted only of a
chord progression, and the copyright office wouldn't recognize a chord
progression without a melody as a musical work.) This particle then
travels around the cultural sphere, each use attributed to the
original creator.

But lots of works of art tend to be more like waves than particles.
Just about every space epic has roots in the Iliad, and just about
every modern romantic film has roots in Much Ado About Nothing. All
these works are part of great waves of ideas that have traveled
through oral and written history. Many an art professor and literary
critic have built careers on finding additional influences and
precedents for famous works.

Patent law also treats ideas as particles. This is useful for complex
techniques such as turning iron into steel, where we can recognize the
work that went into researching a new process, and where it can be
encapsulated in a journal article and applied directly by other
companies. It is not useful for wave innovation, created on an ad hoc
basis in idea-rich fields with low barriers to entry, such as
software.

Treating waves as particles leads to bad decisions. It would be better
not to regulate waves than to treat them as particles. But regulators
from the World Intellectual Property Organization on down make a
presumption that anything of value should have a law attached.
Whenever they see something new of value, they try to erect laws
around it. And under current regimes, these laws focus on the behavior
of particles. This is particularly ironic when the very delivery of
the ideas uses waves, as in broadcasting.

The intellectual challenge of the century may therefore be how to
develop laws of ideas that accept waves.