The Hague Declaration: Not Only No...

It's not often that Creative Commons posts something on Facebook to which I take exception, then I saw an infographic from The Hague Declaration:

It's called "Big Data Can Reshape The World and Save Lives". I'm linking rather than embedding the infographic because 1. it's bloody long, and 2. I don't agree with it, just as I don't agree with the Declaration itself. Now, that may seem odd coming from me, as I'm a big proponent of Creative Commons, Free Software, and produce free software and music myself. And it may seem incomprehensible that I could oppose something with such an awesome title and has such bodacious benefits. After all, it heals lepers, calms the sea, and raises the dead. Nevertheless, this Declaration is one of the most thoughtless bits of sloppy thinking I've seen since the Occupy Wall Street crowd published their "Silly Demands".

Let's start by taking a look at the Principles of the Hague Declaration:

1. INTELLECTUAL PROPERTY WAS NOT DESIGNED TO REGULATE THE FREE FLOW OF FACTS, DATA AND IDEAS, BUT HAS AS A KEY OBJECTIVE THE PROMOTION OF RESEARCH ACTIVITY

Oh, dear, they're in trouble already. This is factually incomplete. As explained in the U.S. Constitution, copyrights and patents exist "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

One aspect of science is research. But IP doesn't exist for that one aspect, nor for science alone. Rather, it is to promote science and the useful arts, aka engineering and manufacturing. Furthermore, the mechanism by which this is accomplished is, in fact, the regulation of the free flow of facts, data and ideas. In the case of patents, this regulation is intended to accomplish several things. Among them:

1. to allow inventors to realize an uncontested profit for a limited time, so as to encourage invention.
2. to prompt inventors to make speedy progress by limiting the time period in which this monopoly is available to them.
3. to prompt inventors to give up the details of their inventions to the public through patent registration. In exchange for these details, the limited monopoly is granted.
4. to take advantage of the work of others, in that the work of expired patents may be freely adapted and used by engineers, manufacturers, and other inventors. Once a patent expires the work belongs to the public. Therefore a patent is merely a delayed grant to the Public in its entirety, fully explained; in exchange for which the Public grants the inventor a time-limited opportunity to capitalize his invention.

The benefits of copyright are similar, and while copyright law is perverted and extended far past reasonable limits, the solution to that is not to throw out the good with the bad. Copyright law needs reform, but this document doesn't address it.

The Hague Declaration simply gets it wrong and the very first point. This doesn't bode well.

2. PEOPLE SHOULD HAVE THE FREEDOM TO ANALYSE AND PURSUE INTELLECTUAL CURIOSITY WITHOUT FEAR OF MONITORING OR REPERCUSSIONS

This, as we will see, is supremely ironic. Also, one-sided.

While the authors want freedom from interference from "any body", citing privacy concerns, with no regard to the privacy concerns of those who originated the data. In vernacular, they would like access to all of your stuff, and don't you dare ask what they're looking at.

The statement, "The use of facts, data and ideas must not prejudice the legitimate rights of individuals to privacy and a private life," is mere platitude, as the rest of the Declaration renders it meaningless, as we'll see.

3. LICENSES AND CONTRACT TERMS SHOULD NOT RESTRICT INDIVIDUALS FROM USING FACTS, DATA AND IDEAS

I'm calling BS on this one as well... ironically on the grounds of Natural Rights. And in this discussion, the word "speech" is a shorthand stand-in for any exchange of information.

1. A right to free speech is not simply the freedom to speak. It is necessarily accompanied by a right to decide for yourself when and where you will speak, how your communication will be phrased, and to whom it will be directed. Unless you have every single one of these freedoms, you do not have free speech.
2. Your freedom of assembly and speech require that you be allowed to decide for yourself the parties with whom you will associate. You have the right to keep your mouth shut unless you deem the conditions suitable for speech.
3. You have the right to enter into collective agreements with like-minded individuals. If you can't agree as to contract terms, you don't enter into the contract. You walk away, and do without, or get what you need elsewhere.
4. If you're not a party to a contract, it's none of your business.

I promote Free Software. This is routinely accompanied by contract terms that restrict individuals from using facts, data, and ideas in certain ways. These terms are there for the benefit of society in general, as they restrict the user from employing the software selfishly. As with any contract it is either freely accepted or rejected... if you don't like it, don't use it.

4. ETHICS AROUND THE USE OF CONTENT MINING TECHNIQUES WILL NEED TO CONTINUE TO EVOLVE IN RESPONSE TO CHANGING TECHNOLOGY

Ethics is far too fuzzy a term to be useful here. That said, the fuzzier the term, the fuzzier the rules need to be to be broadly applicable. You will find that "take only what others freely give to you" is applicable to any technology.

5. INNOVATION AND COMMERCIAL RESEARCH BASED ON THE USE OF FACTS, DATA, AND IDEAS SHOULD NOT BE RESTRICTED BY INTELLECTUAL PROPERTY LAW

This is in direct conflict with the purposes of Copyright and Patent law as authorized by the Constitution. ALL research is based on "facts and data", so these terms are totally meaningless here. However patents are ideas... and it should be immediately obvious to you that a patent is preceded by research and experimentation that is governed under the principle of "trade secret" until such time as a patent can be expressed and filed. As we've discussed, patents are granted exclusivity for a purpose, and for a limited time. So wait with patience, or find another line of work.

There are a number of waffle terms though this Declaration that render it meaningless or self-contradictory, such as "content which as been obtained legally". You might agree to every term of this Declaration, and this clause would nullify it all were it not nullified itself by other terms.

It's My House

This document is written for researchers and deals with the focused area of data mining. The take-home message of it is that the authors believe that anything that can be read (by humans) should be capable of being mined (by automation). I highlight this distinction between humans and automation because the distinction is necessary, as there is exactly no impediment whatsoever to the mining of data by humans of that information they can already read. Without the distinction the Declaration has zero impact.

I view a free society as one in which Libertarian principles prevail. So you may use what you given, but this does not grant you license to take by force. And there are legitimate privacy concerns among individuals and the providers of communications and social networking platforms. These privacy concerns are addressed by Terms of Service, Usage, and Privacy contracts intended to both protect the individual and improve the profitability and sustainability of the social platform. This is a perfectly reasonable application of both contracts and intellectual property, melded with the natural rights of speech and free association in a digital society. So if an individual or group of individuals wish to withhold data from you... tough. They're acting within their own bounds of free speech, including the freedom not to speak and to choose their audience. You are free to choose more accessible sources of information.

This may cause research journals that are not machine-readable to lose their authoritative standing. Wonderful, those journals deserve it. It doesn't take a law.  

It may mean that certain tools that are restrictive are preferentially discarded by those who publish research. Marvelous, the publishers should have given you what you needed. It doesn't take a law.  

It may mean that researchers stampede toward new, open journals that will take the place of calcified stalwarts of academia. Fine, it's time for a change. It doesn't take a law.

The Hague Declaration doesn't just throw out the baby with the bathwater. It has collateral effects that are not of any concern whatsoever to the authors. In effect The Hague Declaration demands a law saying that it's legal for Peeping Toms ("researchers") to take home movies through the windows of your house because your house has windows ("human readable"), and because interesting stuff ("undiscovered data") may be going on in there. Furthermore, it demands that the law declare that such Peeping-Tomery is explicitly excluded from other laws because they wants it. Furthermore, it demands that it is illegal for the landlord to install curtains ("DRM", etc.) to prevent such Peeping-Tomery. And oh, by the way, the Peeping Toms will totally respect your privacy.

Answer: Fuck off.

You're not entitled to what someone else has just because you want it or because it will be useful to you. If you don't like the game as it's played, start a new game. Will that solve the problem? Well, ask yourself how many people play Rounders now that we have Baseball.