[Nettime-bold] James Boyle : A Politics of Intellectual Property: Environmentalism For the Net?

[Pit Schultz <pit@klubradio.de>]

A Politics of Intellectual Property: Environmentalism For the Net?

James Boyle(1)

Introduction: This Article argues that we need a politics, or perhaps a 
political economy, of intellectual property. Using the controversy over 
copyright on the Net as a case-study and the history of the 
environmental movement as a comparison, it offers a couple of modest 
proposals about what such a politics might look like -- what theoretical 
ideas it might draw upon and what constituencies it might unite.  



I  
"Code is Code" - The Logic of the Information Relation 
Everyone says that we are moving to an information age. Everyone says 
that the ownership and control of information is one of the most 
important forms of power in contemporary society. These ideas are so 
well-accepted, such cliches, that I can get away with saying them in a 
law review article without footnote support. (For those blessedly 
unfamiliar with law reviews, this is a status given to only the most 
staggeringly obvious claims; the theory of evolution,(2) and the orbit 
of the earth around the sun,(3) probably would not qualify.)  
Beyond the claim that the information society exists, however, there is 
surprisingly little theoretical work. Sadly for academics, the best 
social theorists of the information age are still science fiction 
writers and, in particular, cyberpunks -- the originators of the phrase 
"cyberspace" and the premier fantasists of the Net. If one wants to 
understand the information age, this is a good place to start.  
Cyberpunk science fiction succeeded as a genre largely because it 
combined a particular plot aesthetic with a particular conceptual 
insight. The plot aesthetic was simple; the bad boy/film noir world of 
the romantic lowlife. When juxtaposed to the 2-dimensional priggishness 
of the normal science fiction hero, the cigarette smoking, drugged-out 
petty outlaws and mirror-shaded ninja-chicks of cyberpunk seemed 
rebellious, cynical and just, well, cool. The character-type is a 
familiar one; James Dean could easily have played the hero of 
Neuromancer.(4) The conceptual insight is not so familiar. Cyberpunk is 
built on the extrapolation of two principal technologies, computers and 
the Web on the one hand, and genetic engineering on the other. The theme 
of cyberpunk is that the information age means the homologisation of all 
forms of information -- whether genetic, electronic, or demographic. I 
grew up believing that genes had to do with biology, petri dishes and 
cells and that computers had to do with punch cards and magnetic disks. 
It would be hard to imagine two more disparate fields. In contrast 
cyberpunk sees only one issue ~ code ~ expressed in binary digits or the 
C's,G's, A's and T's on a gene map.  






II  
Intellectual Property is the Legal Form of the Information Age 
The cyberpunk writers also offer us a legal insight. The more one moves 
to a world in which the message, rather than the medium, is the focus of 
conceptual, and economic interest, the more central does intellectual 
property become. Intellectual property is the legal form of the 
information age. Like most property regimes, our intellectual property 
regime will be contentious, in distributional, ideological and 
efficiency terms. It will have effects on market power, economic 
concentration and social structure. Yet, right now, we have no politics 
of intellectual property -- in the way that we have a politics of the 
environment or of tax reform. We lack a conceptual map of issues, a 
rough working model of costs and benefits and a functioning 
coalition-politics of groups unified by common interest perceived in 
apparently diverse situations.  
Why don't we have such a politics? One reason is that with a few 
exceptions, the mass media coverage of the information age has been 
focused firmly on "cyberporn" and its potential censorship. This is 
rather like thinking that the most important feature of the industrial 
revolution was that it allowed the mass-production -- and then the 
regulation -- of pornographic magazines. Given the magnitude of the 
changes occurring, and the relatively small differences between 
pornography on-line and pornography anywhere else, a more trivial 
emblematic concern would have been hard to find. It is intellectual 
property, not the regulation of cyber-smut, that provides the key to the 
distribution of wealth, power and access in the information society. The 
intellectual property regime could make -- or break -- the educational, 
political, scientific and cultural promise of the Net. Indeed, even if 
our only concern were censorship, it would be perverse to concentrate 
exclusively on the direct criminalisation of content by governments. The 
digital world gives new salience to private censorship -- the control by 
intellectual property holders of distribution of and access to 
information. The recent Scientology cases are only the most obvious 
manifestation of this tendency.(5) 
The media were not the only ones to miss the boat. Lawyers and legal 
academics largely followed suit. With a few exceptions, lawyers have 
assumed that intellectual property was an esoteric and arcane field, 
something that was only interesting (and comprehensible) to 
practitioners in the field.(6) There is some question whether this 
attitude was ever defensible; it certainly is not now. In terms of 
ideology and rhetorical structure, no less than practical economic 
effect, intellectual property is the legal form of the information age. 
It is the locus of the most important decisions in information policy. 
It profoundly affects the distribution of political and economic power 
in the digital environment. It has impacts on issues ranging from 
education to free speech. The "value" protected(7) by intellectual 
property in the world economy is in the hundreds of billions of dollars 
and growing all the time.  
There are structural reasons why these tendencies will continue. The 
first crucial aspect of the current information economy is the 
increasing homologisation of forms of information. Think of the many 
ways in which it now does not make sense to distinguish between 
electronic and genetic information -- any more than between red books or 
green books. Precisely because we conceive of them as (and have the 
capability to treat them as) information, both present the same issues 
of regulation -- privacy, access, public goods problems, and so on. As a 
result, they have literally begun to overlap -- think of the storing 
(and then the sale?) of the human genome on computer disk, or of the 
private gene databases which add value to information developed through 
publicly funded research and then demand patent options as the 
prerequisite for access by outsiders.(8) Read about the 
mathematical-biological/computer-science discipline of bio-informatics, 
a discipline which is premised on the belief that information is 
information, whether the medium is a double helix or an optical disk.(9) 

We are now used to the idea that Microsoft retains rights over the lines 
of code sitting on computer hard drives around the world. We can even 
produce a utilitarian justification to explain why. It is a lot stranger 
to think that women all over the country may carry in their bodies a 
string of genetic information -- brca1, the so-called breast cancer gene 
-- that has been patented by Myriad Genetics or that the Commerce 
Department tried to patent the genes of a Guyami Indian woman who 
possessed an abnormal resistance to leukemia.(10) From the point of view 
of the information economy, though, the two cases are very similar; in 
each case, strings of code are subject to intellectual property rights 
granted in the belief that they will inspire further innovation and 
discovery. The fact that this can be done in the face of the profound 
shock most people feel at the ownership of human genes is a testament to 
the universalizing logic of the information relation. (Whether it is 
also a good thing is a different question.)  
The process is not simply a legal one and the overlaps go in both 
directions. Scan the science pages and see articles about the 
possibility of using DNA sequences as incredibly powerful parallel 
processing "computers."(11) Think of the software designers who create 
electronic ecologies and then use those strings of computer code which 
have proved themselves as survivors -- harnessing a form of "natural" 
selection that Darwin would have recognised but could never have 
imagined.(12) Put it all together and then compare this "reality" to the 
way that we thought about computers on the one hand and biology on the 
other, just twenty years ago. In the international information economy, 
the medium is not the message. The medium is irrelevant.  
The second crucial aspect of the information economy is a corollary of 
the homologisation of forms of information; the decreasing proportion of 
product cost and intellectual attention devoted to medium (diskettes, 
cell-lines) rather than message (software, decoded DNA sequences). A 
moment's thought will show that both of these aspects will give 
increased importance to intellectual property. Reconceiving new areas of 
science, commerce and research as "information issues" simply gives us 
more fields in which it is likely we will spy the public goods problems 
that intellectual property is supposed to solve. And the diminishing 
portion of product cost devoted to medium rather than message means 
that, within any given area, the public goods problems grow all the more 
salient; (The price of the program rises, at least relative to the 
falling price of the diskette onto which it can be copied.)  
When I say that we lack a politics of intellectual property, I don't 
mean to imply that this is the only type of "information politics" -- 
more like the most neglected. Look at the recent past. From the net 
roots campaign against the Communications Decency Act to the titanic 
industry lobbying over the Telecommunication Bill in which the CDA was 
embedded, there have been many moments of political struggle and 
agitation over digital commerce and communications regulation.(13) There 
have been conferences, both Polyannish and despairing, over the use of 
the Net by non profit groups, and thoughtful warnings of the dangers 
posed by disparate access to information technologies. These are serious 
points; the issue of access in particular. But in most cases, they are 
isolated applications to a new technology of a familiar political 
worldview or calculation of self-interest. Libertarians don't want 
newspapers censored; their attitude to the Net is the same (though the 
interactive quality of the technology, and the proprietary feeling that 
novelty gives first adopters have certainly given more people a stake in 
the protection of the system.) Non-profit groups have to adjust to 
changes in communications technology, just like changes in tax law, or 
the regulation of lobbying. Communications conglomerates have an 
attitude towards bandwidth that seems indistinguishable from most 
commercial entities' attitude towards publicly held real estate; 
rationally enough, they want more, they want it free (ideally, they want 
it subsidised) and they want to be able to exploit it without strings. 
The left sees a resource with new importance -- access to information 
technology -- and makes about it the points that it makes about access 
to health care or education.(14) I don't mean to minimise these 
concerns, and certainly don't want to make the claim that they are 
somehow less fundamental than the ones I describe here. But I do think 
that, precisely because of their comfortable familiarity, they miss some 
of the differences in the politics of the information age, the ideas we 
have not thought about so often or so well.  



III  
The Conceptual Structure of an Intellectual Land-Grab 
Elsewhere, I have argued at unseemly length that there are structural 
tendencies in our patterns of thinking and discourse about intellectual 
property that lead us generally to "over" rather than 
"under-protect".(15) I will summarise, rather than attempt to justify 
those claims here. (A chart that might be helpful is provided in the 
table on page 13.)  
One of the roots of the problem is a conceptual one. The economic 
analysis of information is beset by internal contradiction and 
uncertainty; information is both a component of the perfect market and a 
good that must be produced within that market. Under the former 
characterisation, information is supposed to move towards perfection -- 
a state in which it is costless, instantly available and so on. Under 
the latter characterisation, information must be commodified so as to 
give its producers an incentive to produce. But each property right 
handed out to ensure the production of information is a transaction cost 
when seen from the perspective of market efficiency.(16) 
The most succinct encapsulation of the problem comes from an article 
co-written by the current head of the President's Council of Economic 
Advisors, who in a former life was one of the most distinguished 
scholars of information economics. "There is a fundamental conflict 
between the efficiency with which markets spread information and the 
incentives to acquire information."(17) This problem is often, though 
not always "solved" by ignoring it. A pre-theoretical classification is 
made, conventionally ascribing a certain problem to one or other realm 
and the discussion then continues on that basis. Thus for example, we 
tend to look at the field of intellectual property with a finely honed 
sensitivity to "public goods" problems that might lead to under 
production, while underestimating or failing to mention the efficiency 
costs and other losses generated by the very rights we are granting. 
Some conventional ascriptions visibly switch over time. The contemporary 
proponents of legalising insider trading use the idea of the efficient 
capital market to minimise or defend the practice. The first generation 
of analyses saw the insider trade as the entrepreneur's incentive and 
reward for Faustian recombinations of the factors of production. An 
alternative method for smoothing over the tensions in the policy 
analysis is for the analyst to acknowledge the tension between 
efficiency and incentives, point out that there are some limitations 
imposed on intellectual property rights, to conclude that there are both 
efficiency-promoting and incentive promoting aspects to intellectual 
property law, and then to imply that an optimal balance has been 
struck.(18) (This is rather like saying that because fishermen throw 
some fish back, we can assume over-fishing is not occurring.)  
In general, then, I would claim there is a tendency to think that 
intellectual property is a place to apply our "public goods/incentives 
theory" rather than our "anti-monopoly/free-flow of information" 
theory.(19) All by itself, this might push rhetoric and analysis towards 
more expansive property rights. The tendency is compounded, however, by 
two others.  
First, courts are traditionally much less sensitive to First Amendment, 
free speech and other "free flow of information arguments" when the 
context is seen as private rather than public, property rather than 
censorship. Thus, for example, the Supreme Court will refuse to allow 
the state to ban flag burning, but is quite happy to create a property 
right in a general word such as "Olympic," convey it to a private party 
and then allow the private party selectively to refuse public usage of 
the word. Backed by this state-sponsored "homestead law for the 
language,"(20) the US Olympic Committee has decreed that the handicapped 
may have their "Special Olympics," but that gay activists may not hold a 
"Gay Olympics."(21) This, it seems, is not state censorship but private 
property. (Emboldened, Justice Rehnquist advocated privatizing the 
flag.)(22) 
Second, intellectual property rights are given only for "original" 
creation. But the idea of the original author or inventor implicitly 
devalues the importance of the raw materials with which any creator 
works -- the rhetorical focus on originality leads to a tendency to 
undervalue the public domain. After all, the novelist who, as Paul 
Goldstein puts it, "craft[s] out of thin air" does not need a rich and 
fertile public domain on which to draw. The ironic result is that a 
regime which lauds and proposes to encourage the great creator, may in 
that process actually function to take away the raw materials which 
future creators need to produce their little piece of innovation. One 
interesting thought experiment is to wonder whether Bill Gates could 
have developed the highly derivative program of MS-DOS if, at the time 
that he developed it, the current set of expansive copyright and patent 
protections for software had been in place. My book provides a lengthy 
discussion of this tendency so I will not dwell on it here.  
Tensions In an Intellectual Property System I have arranged these 
tensions in two vertical sets. Each set is not a list of corollaries, 
indeed they are sometimes internally contradictory. Thinking of the 
subject of intellectual property as "information" rather than 
"invention," does not commit oneself to Northrop Frye's views about the 
nature of artistic creation. It certainly does not entail the idea that 
intellectual property should protect investment and labour--in fact, the 
"efficiency" perspective tends to eschew intellectual property rights 
altogether. Let me also acknowledge that any particular portion of 
information regime is likely to mix and match the columns, like a 
restaurant patron picking four from column B and one from column A. 
Nevertheless, the members of each column are most likely to be found in 
popular and scholarly discourse when linked to their vertical 
neighbours. Under the guise of resolving these problems--the effect of 
the author vision is to make the items in the middle column either 
disappear or recede in importance.

  
  Tensions in an Intellectual Property SystemSubject 
      MatterInformationInnovation
    Economic PerspectiveEfficiency Incentives
    Paradigmatic Conception of ProblemsTransaction Cost Problems. 
      Barriers to the free flow of information lead to the inhibition of 
      innovation/ inadequate circulation of information Public Goods 
      Problems. Inadequate incentives for future production leads to the 
      inhibition of innovation/ inadequate circulation of information 
    Reward (if any) 
      for..Effort/Investment/RiskOriginality/Transformation
    View of the Public DomainFinite Resources for future 
      creatorsInfinite Resources for future creators
    Vision of the productive processDevelopment based on existing 
      material."Poetry can only be made out of other poems; novels out 
      of other novels. All of this was much clearer before the 
      assimilation of literature to private enterprise." (23)Creation ex 
      nihilo. "Copyright is about sustaining the conditions of 
      creativity that enable an individual to craft out of thin air an 
      Appalachian Spring, a Sun Also Rises, a Citizen Kane."(24)
    Normative Starting PointFree speech/Free circulation of ideas and 
      information. Property rights -- the creator's "natural" right, the 
      reward for past creation, the incentive to produce again.




So much for the background. Now a brief case study. The difficulty is 
not in finding an example of intellectual property expansion, but in 
knowing which one to pick. The last few years have seen the expansion of 
first copyright and then patent to cover software, the patenting of 
life-forms and human genes, the extension of copyright term limits. 
Speaking not to the level of protection, but to the current conception 
of intellectual property law, it is interesting to note that current 
legislation proposes that the Copyright Office and the Patent Office 
should cease to be part of the government -- being converted instead to 
government corporations or "performance based organisations" which would 
thus be forced to pay greater attention to their "users" and might even 
be funded through user fees.(25) The idea that the rights-holders are 
the true "users" or "clients" of the office is a striking one. On the 
international level we have seen the use of the GATT to turn 
intellectual property violations into trade violations, thus codifying a 
particular vision of intellectual property and sanctifying it with the 
label of "The Market."(26) The example I will pick, however, is the 
Clinton Administration's proposal for copyright on the Net, which is now 
hanging somewhere in legislative limbo.  
  



IV  
A Brief Case-Study: Copyright on The Net 
If the information society has an iconic form (one could hardly say an 
embodiment) it is the Internet. The Net is the anarchic, decentralised 
network of computers that provides the main locus of digital 
interchange. While Vice-President Gore, the Commerce Department and the 
National Telecommunications and Information Administration were planning 
the "information superhighway" the Net was becoming it.  
Accordingly, if the government produced a proposal that laid down the 
ground rules for the information economy, that profoundly altered the 
distribution of property rights over this extremely important resource 
and that threatened to "lock in" the power of current market leaders, 
one would expect a great deal of attention to be paid by lawyers, 
scholars and the media. Nothing could be further from the truth. The 
appearance of the Clinton Administration "White Paper"(27) on 
intellectual property on the National Information Infrastructure 
produced almost no press reaction. The same was true of the introduction 
and eventual stalling of the White Paper's legislative proposals in both 
the House and the Senate.(28) Given the potential ramifications of the 
legislation, this alone, it seems to me, would be strong evidence for 
the proposition that greater scrutiny of our intellectual policy making 
is needed. But the problem lies deeper.  
Elsewhere I, and many others, have written about the problems with the 
White Paper's account of current law, its distressing tendency to 
misstate, minimise or simply ignore contrary cases, policy and 
legislative history, its habit of presenting as settled, that which is 
in fact a matter of profound dispute.(29) There have also been 
thoughtful analyses some of the potential negative effects of the White 
Paper and its implementing legislation, particularly focusing on the 
consequences for libraries, for software innovation and for privacy.(30) 
Defenders of the White Paper have argued that its proposals are 
necessary to protect content on, and encourage fuller use and faster 
growth of, the Net.(31)