A Letter to Kirby Ferguson

This morning I watched Kirby Ferguson’s TED talkand couldn’t help but send him a quick email:

I’m a huge fan of your work, and agree with most everything you’ve posited. However, I was a little disappointed in the way you poked fun at Steve Jobs in your TED talk. I think you missed a very important nuance. Jobs talked about shamelessly stealing “ideas”, but called Android a stolen “product”. That may seem a subtle semantic argument to make, but stealing a product implies that the “thief” didn’t do much in the way of remixing. Picasso’s quip, as quoted by Jobs, was actually lifted from T. S. Elliot. Here’s my take on what it actually means, especially in the context of software: “Great Developers Steal Ideas, Not Products”

I worry that your videos, and especially your TED talk will further the notion that intellectual property should not exist at all. You never say that explicitly, but you do tend to focus on the abuses of IP protection and never really address blatant ripoffs — copying without bothering to transform and combine. At their core, both patent and copyright law were intended to protect from this sort of product theft, but have unfortunately been expanded well beyond that core concept.

Let’s not be so quick to throw the baby out with the bathwater. What we really need is not the abolishment of all intellectual property rights, but rewritten laws and case law that appropriately distinguish between a remix and a ripoff. The good news is that I think we’re already headed the right direction in regard to the application of copyright law to software: “Do Your Own Damn Work”

UPDATE: Kirby’s first response, a few hours after the above email:

Thank you for your thoughtful and well-reasoned letter, I appreciate it.

We have different perspectives. I believe in IP (which I think comes across in the video series) — I take issue with its bloating. Now software patents, I do indeed think should be abolished. I think they are a net harm and I think this is the majority opinion among software developers. So software parents I do think should be thrown but and everything else needs reform, just like you say. Nuance is sacrificed in the TED video and I think that’s the way it goes. My message will be misunderstood and exaggerated and I also think that’s the way it goes. I’m writing a book which I hope will convey these ideas without compromise.

I’m afraid I disagree with your Jobs argument. The Mac was, in my opinion, every bit as much a stolen product as Android. There is ample evidence for this position. I actually love Jobs, just like everyone else, but he seemed as possessive and tantrum-prone as a bratty child.

Thanks again for writing David. I’ll share your posts with my fans.

My response on the 17th:

First, thank you so much for taking the time to respond. I think we agree in principle on IP, but have a different picture of specific incidence, especially the Mac, iPhone, and Android.

In principle, as copyright protection of software seems to be properly interpreted in recent case law, I do think many of the potential benefits of software patents are covered by copyright, and the harm done by allowing software patents far outweighs any and all benefits. So, I agree that software patents should be thrown out, but I do worry that many would interpret it as open season on software IP. I suppose a scourge of clones is much better than stifled innovation, and again, the worst offenders will likely be sued under copyright law anyway.

The thing about your Jobs comment is that you took the time to take a pot shot at him even though that time could have been better used discussing some of the important nuances you left out. Feels a bit like the NY Times and other publications piling on Apple labor abuses in China, but hardly mentioning other tech companies and manufactures with far worse records. We should hold all businesses and ourselves as consumers accountable… but making it about Apple generates more pageviews. Just as taking a pot shot at Jobs will likely generate more buzz for your TED talk. If you were going to personally attack anyone, Nathan Myhrvold would have made a much better target (“A feisty Nathan Myhrvold defends his quest for ‘Global Good’”), though I doubt as many people would recognize the name. Which is unfortunate given the fact that he’s at the center of much of the patent mess.

Also, the Mac isn’t quite the “stolen” product you make it out to be, at least not in the way you describe it. In my research for that response, I came across this article which does a great job describing how the Mac wasn’t a stolen product. I wouldn’t go quite so far in defending Jobs’ personality, but he does raise some good points all around: “In Defense of Steve Jobs”

As you’ve said “everything is a remix”, but even in remixing there is a continuum. Everyone copies, but not everyone spends much time transforming and combining. I don’t think that Android as a whole is a blatant ripoff, and Google has done a lot of transforming and combining, but there is a consistent pattern of the Android OS and Android OEMs unabashedly ripping off Apple’s work without much in the way of remixing.

Compare that to the Mac. The Mac is was what revolutionized the industry. There wasn’t a successful consumer GUI PC that Apple spent years slavishly copying (the Xerox Star was a complete flop). They “stole” (well, bought for $16m in stock actually) lots of ideas from Xerox, then spent YEARS developing the Mac in secret. The Mac is definitely a remix, as is the iPhone, but I’d argue that those two products lie on the opposite end of the “transform and combine” continuum compared to Android and Android OEMs.

I have mixed feelings about the current litigation between Samsung and Apple, but I think Jim Dalrymple nailed in in his recent post: “Apple’s motivation for suing Samsung”. This is about Apple discouraging future ripoffs, not unfairly extorting Samsung via the legal process. And if you’ve been following the legal proceedings at all, the facts of the case and the way the judge is handling things seems destined to set legal precedent against blatant ripoffs, not remixes.

BTW, I’d love to post this discussion to my blog. Would you mind if I post your response? (feel free to edit a bit since you probably didn’t write it with the intent of it being published)

Kirby’s response on the 19th:

David, do you know that Everything is a Remix is more than a TED Talk? http://www.everythingisaremix.info/watch-the-series/

It’s not a potshot at Apple — it’s a criticism and a soundly reasoned one at that. Why do you presume I’m just seeking buzz? I think the Apple case is interesting and demonstrative. My interest is genuine and I tried to communicate the story as best I can. Why do you presume I’m so cynical?

I chose Apple because they’re huge and influential. I think what’s going on in smart phones is more important than trolling. There’ s a lot of ways to tell this story and in 9 minutes you have to stick to the essential elements. That’s my perspective, that’s my storytelling decision. You would have done it differently — that’s fine.

I researched the Mac’s similarity to the Alto/Star in Part 3 of the video series: https://vimeo.com/25380454 It is my opinion that Apple stole most of the great ideas for the Mac from Xerox. That is my opinion and I’ve done the work to be entitled to it. I know how the Xerox Star worked, I know how OS1 worked. It is my opinion and you can have your own opinion.

Sure, post any or all of my emails. Let’s leave this discussion here.

I couldn’t help but send a quick response:

Yes, I know about Everything is a Remix, I’ve watched all the videos several times and love them, even if I don’t agree 100% with everything you said. That’s why I was bummed the TED talk felt like a pot shot. But I’ll admit to being an Apple fanboy, and am probably more biased than I’d ever admit to myself.

That said, I have also done a lot of research, and do just disagree. Apple spent hours at PARC, then spent years remixing those ideas into the Mac. In calling something “stolen” I think it’s important to also clarify where it falls on the continuum of transforming and combining. Ideas may have been “stolen” (though Apple did actually pay for them by selling Xerox pre-IPO stock), but the Mac was not a ripoff.

I’m sorry if my email came across overly cynical. I just really love your work and strongly disagree with the tone and substance that critique.

Painting things in black and white may be justifiable in working to inspire social evolution, but I think it’s important to discuss the shades of grey involved. Everything may in fact be a remix, but remixes lie on a continuum between blatant ripoffs and revolutionary creative work.

This may ultimately seem like a banal semantic argument, but words are important. If we’re going to use the same word — stolen — to describe both the Mac and Samsung’s blatant rippoffs, we need to use other words to clarify their position along the continuum of remixing.

david