You can’t be both a healer and a thief.

Submitted by Robert Felt on May 1, 2008 - 4:06pm.

This is a talk about “piracy,” the unauthorized use of intellectual property. What brought this about is an incident where someone used the field's discussion lists to promote a web site that copied large portions several authors’ works without permission to draw attention to the services of the site owner and associates. I am not naming names because I don’t want the personal hassle of making a public accusation and it is the root problem, not the particular incident, that I want to talk about.

What is intellectual property and how is it financed and produced?

"Intellectual property"is a legal and economic label for someone’s work. A person or persons researched, created, translated or developed knowledge about, in our case, Chinese medicine. Someone worked, often without any sure financial reward, to make a contribution to knowledge. In most cases someone also financed production and distribution. Whether distribution is via an on-line resource, or a physical medium such as a book, a CD or DVD, the publisher invests time and money in production, publication and distribution. Intellectual property is simply information made available through human effort and investment.

I know books best so my examples tend to be about books but software, a CD or a DVD are practically no different, there are just some different investment proportions. Regardless of the media, the process is like building a house, all the know-how, materials and labor that go into its development are owned (or owed) before it can be used. Unlike a house, it cannot be rented but must be sold like a head of lettuce based on size, color, etc. Like a head of lettuce, the inputs (the knowledge, the labor, and the investment) have no value other than what a market determines. If it sells, the effort and money have value. If it does not sell, they are lost. Unlike a head of lettuce, a book is bought only once no matter how often it is used. Intellectual property is created by the investment of human and financial capital but its value is determined by its marketability. It is these financial dynamics that have made the publishing trades dependent on bestsellers to finance all publications.

The problem is not complex: the more that intellectual property is stolen the less returns to those who created the knowledge and the less incentive they have to produce more. Each site owner who gathers attention to them self by using other peoples’ work costs those authors some part of their royalties. The site that “inspired” this post might have taken a few thousand dollars from the writers the site owner chose to copy. This is very ironic because the act of pirate publishing these materials was an explicit recognition of their utility, while the failure to license them asserted that they had no economic value.

The aggregate of all infringement losses may be substantial but because each individual loss is typically smaller than the costs of suing, civil law suits are rarer than rare. Since criminal prosecutors are basically uninterested in small cases, typically for reasons of cost, the perpetrators escape, Thus, the field comes to accept copyright violations as more or less normal. We have essentially institutionalized information theft as part of the field’s culture. Consider, for example, that the individual who promoted the site is still posting at the listservices that carried that post and that the site owner has suffered no professional censure. Would the response have been different had the site offered stolen credit card numbers? What is the essential difference?

Even the most casual observer should be aware that the larger piracy of almost two years ago reduced availability, retarded new publication and lead to price increases that may not be over yet. So, the theft of intellectual property is like shoplifting or truck hijacking, the costs and losses are pushed back on the honest buyers. While you may not personally regret the project that didn’t start, the new projects that did not come to print, or were otherwise delayed, the field as a whole is weaker for it. Copyright infringement is by no means without repercussions but those repercussions disappear from the field’s view because they are diffuse and impersonal.

This is not much of a mystery, people who use intellectual property without contributing to its costs by buying or licensing that work, and that includes so-called “student works,” degrade the field’s potential for investments in information. When someone takes the work of others and compiles and repackages it for sale, it is not a “student work,” for they are not behaving as students but as below-the-radar entrepreneurs. We could praise the compilation effort, which is a valid approach to learning when the materials are as discursive as they often are, but the conversion of that effort towards making money for one’s self is an ultimate disrespect. We tolerate the “student work” euphemism, just as we tolerate the abuse, but at the expense of the very people who make the learning possible. Again, the irony is intense. Some people seeking a career they have chosen as valuable see no problem in picking the pockets of those whose work helps them achieve that career.

But, I’m only making information available!

If you can read the preceding sub-head in a whiny, hurt tone that suggests that I am chastising a noble effort to spread knowledge, you get a sense for what I hear when I must talk or correspond with copyright abusers. Whining aside, this is nuts.

Someone who widely promotes a web site that contains copies of published works can only be negligent, or careless. Either they know that the site has used published works or they don’t. If they don’t, they’ve done a disservice by promoting something they have not reasonably investigated. If they do, they are approving the abuse and extending the damage it does. Perhaps there are shades of grey between negligence and carelessness but there is no excuse that justifies the behavior.

Someone who unfairly uses the works of others to promote their own teaching, practice or reputation, is not making information available. They could have published their own work, written reviews, encouraged people to visit the sites of the creators, or even (as some really do) bought the books and donated them to libraries or their clients and colleagues. So, the idea that the site owner who slaps a label or reference on copied text is spreading knowledge is pretty much the same as saying car thieves spread wealth.

The essential fact is that these behaviors take money out of the pockets of people who support our field. They will respond by giving-up, charging the honest buyers for the losses in rising prices, or – as is increasingly apparent – locking the information behind the firewalls of subscription services. If e-books could earn their authors something for the effort, without falling victim to wholesale copying, I personally know of dozens and dozens of projects that would be available now. As it is, everyone knows they must be copy-protected and digital rights management is too expensive for a small market. It is exceedingly clear that the extent to which we tolerate copyright abuse is costing the field access to information.

You’re just a greedy publisher who wants the money!

Yes, I want the money. I like to write royalty checks to authors and pay publisher bills because I know this contributes something to the health and sustainability of our field. Do I take a share? Yes, I do. I like that too and feel good that we’ve been able to keep a sustainable balance between what we give and what we take via the investments we make. There is nothing essentially inferior, or more greedy, about selling information than about selling food, acupuncture needles or tractor parts.

You can’t be both a Healer and a Thief.

By being a bit colloquial I’m hoping you are not reading this as some nasty, pissed-off screed. What I hope to have accomplished is to show that copyright violations are not harmless, victim less crimes. I hope to convince you that it is worth your effort to confront these incidences when they occur, that a field that tolerated less would know more. I also want to say that I would never work with or be treated by someone who copied other people’s work for their own benefit or even someone who carelessly promoted such an abuse. Part of my feeling is that I don’t want to support anyone who sees their personal interest as superior to that of their profession. Another part of that feeling is that I just can’t trust them. In a qi-based art, individual integrity cannot be isolated from individual skill or perception. I find it impossible to believe that someone who disrespects those who create the information they use isn’t perceptually clouded. This is a little hard to express but if you can stand to benefit from work you have in essence stolen, how can I believe that you respect the art itself?


Submitted by Robert Felt on May 8, 2008 - 3:30pm.
Thank you Ken and Z'ev for your comments. I approached the piracy matter from the limited perspective of what tolerance for copyright infringement costs the field in terms of prices and investment. I don't know enough about the publishing economics of pre-modern China to say whether compilation-comment practices effected how people looked at information investments (or for that matter, whether the notion of an "investment" even applies). Ken is right of course that these were evident trends and, as well, that an essential lack of respect for the conceptual language shows in how we treat the transmission of those concepts. Z'ev, I also see it as an ethical matter but have more or less surrendered working that meme in favor of the practical self-interest of availability and cost. Bob
Submitted by Zev Rosenberg on May 5, 2008 - 10:31am.
Z'ev Rosenberg
Bob, Ken, This attitude of 'steal this information' pervades our profession, and has almost assumed Napster proportions. I propose one small answer. Ken, you said in your post that stealing has been a part of Chinese medical culture for millenia. However, medical ethics have been also a part of the culture from the beginning. Sun Si-miao's books covers this topic in some detail. Paul Unschuld wrote a small book on Chinese medical ethics in the '80's, sadly now out of print. He translated a lot of Dr. Sun's material in it. I think we need to teach more medical ethics in our colleges, and give seminars to our colleagues. Blue Poppy has a seminar on medical ethics available on its website. The proper respect and compensation for information must be a central part of this. Z'ev Rosenberg
Submitted by Ken Rose on May 2, 2008 - 8:20pm.
What appears as ironic in your commentary is, I would argue, actually quite organic in character. What I mean is that the urge to misappropriate knowledge emerges from the roots and soil of the subject. This is to say that identifying someone else's knowledge (status, degree, school, lineage, etc.) as one's own and then claiming its respective economic (as well as other forms of) advantage is about as traditional Chinese medicine as it comes. The authors of classics for millennia (as well as the authors of commentaries that eventually come to be incorporated in the corpus receptus of such classics) have been expropriating the names of myths, sages, ancients, and other worthies and using these names and honorifics as their own calling cards. It's as Chinese medicine as apple pie. That the Americans and others have learned how to lie, cheat and steal their way to wealth and fame in the field of Chinese medicine is somehow comforting from the point of view of the scholar looking for continuity from the ancient past through the present...and, no doubt, well into the future. Patients lie. Doctors lie. Publishers lie. Hell, even writers lie. Lie. Cheat. Steal. Human beings, one and all. There should be a book to wash away all past and future sins and crimes associated with knowledge (its acquitsition...rightfully or otherwise...and use...appropriate, inappropriate and downright illegal) in Chinese medicine. I declare an amnesty. On the part of the entire known and certain segments of the unknown universe, I forgive everyone for all this theivery. You are all, no doubt, only trying to do the best you know how to do. Go and steal someone else's knowledge. Hopefully, you can find a saint or a sage whose knowledge of right and wrong you can steal and sell to the masses. Someone should steal the entire www. Unfortunately, there really is nothing at all ironinc about the appearance of such standards of conduct in our unfortunate little community. First people denigrate language and words. Then they steal it and use it as they will, for it has no value...having been denegrated. Who first spoke disrespectfully of the nomenclature of Chinese medicine. There is your criminal. Name or no. Irony. Thanks, Bob. Ken