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<nettime> James Boyle: A Politics of Intellectual Property: Environmentalism For the Net? [3/3] |
Conclusion I have argued that the idea of an information age is indeed a useful and productive concept, that there is a homologizing tendency for all "information issues" to collapse into each other as information technology and the idea of "information" move forward in reciprocal relationship. The range of information issues expands and the value of the "message" increases, at least in comparison to the diminishing marginal cost of the medium. This, in turn, gives greater and greater importance to intellectual property. Yet despite its astounding economic importance and its impact on everything from public education to the ownership of one's own genetic information, intellectual property has no corresponding place in popular debate or political understanding; The belief seems to be that information age politics means fighting censorship on the Web too. Apart from the normal presumption in favour of informed democratic participation in the formation of entire property regimes, I argued that there are particular reasons why this comparative political vacuum is particularly unfortunate. Drawing on some prior work, I claimed that our intellectual property discourse has structural tendencies towards over-protection, rather than under protection. To combat that tendency, as well as to prevent the formation and rigidification of a set of rules crafted by and for the largest stakeholders, I argued that we need a politics of intellectual property. Using the environmental movement as an analogy, I pointed out that a successful political movement needed both a set of (popularisable) analytical tools and coalition built around the more general interests those tools revealed. Welfare economics and the idea of ecology showed that "the environment" literally disappeared as a concept in the analytical structure of private property claims, simplistic "cause and effect" science, and markets that do not force the internalisation of negative externalities. Similarly, I claimed the "public domain" is disappearing, both conceptually and literally, in an IP system built around the interests of the current stakeholders and the notion of the original author, around an over-deterministic practice of economic analysis and around a "free speech" community that is under-sensitized to the dangers of private censorship. In one very real sense, the environmental movement invented the environment so that farmers, consumers, hunters and birdwatchers could all discover themselves as environmentalists. Perhaps we need to invent the public domain in order to call into being the coalition that might protect it.(40) Is the environmental analogy of only rhetorical or strategic value, then? For my part, though I would be happy to acknowledge its imperfections, I would say that it also shows us some of the dangers inherent in the kind of strategies I have described. Right now, even under a purely instrumental economic analysis it is hard to argue that intellectual property is set at the appropriate level. Just as the idea of "activities internalising their full costs" galvanised and then began to dominate environmental discourse, the economic inadequacy of current intellectual property discourse has been emphasised by skeptics.(41) But the attraction of the economic analysis conceals a danger. The problems of efficiency, of market oligopoly and of future innovation are certainly important ones, but they are not the only problems we face. Aldo Leopold expressed the point powerfully and presciently nearly fifty years ago in a passage entitled "Substitutes for a Land Ethic." One basic weakness in a conservation system based wholly on economic motives is that most members of the land community have no economic value... When one of these non-economic categories is threatened, and if we happen to love it, we invent subterfuges to give it economic importance... It is painful to read those circumlocutions today.(42) I believe that there are powerful arguments why a Pay-as-you-read architecture on the Net would be economically inefficient even with minimal transaction costs. I can make arguments that point out the economic problems with our current treatments of "sources" of genetic information, or what have you. I can even say with complete truthfulness that I believe my arguments to be better than those on the "other side." But under Leopold's gentle chiding I am reminded of the dangers of embracing too closely a language that can express only some of the things that you care about. Let me conclude by dealing with two particular objections to my thesis here. First, that my whole premise is simply wrong; intellectual property is not out of balance, the public domain is not systematically threatened, economic analysis is both determinate and clear in supporting the current regime, the general tendency both internationally and domestically has not been towards the kind of intellectual land-grab I describe, or -- if it has -- the tendency exists for some very good reasons. Elsewhere I have tried to refute those claims but to some extent the point is moot. Even if I was wrong, the basic idea of democratic accountability over public disposal of extremely valuable rights would seem to demand a vastly more informed politics of intellectual property in the information age. If such accountability is to exist, the public domain should be more systematically discussed and defended than has heretofore been the case. The second objection is more fundamental. How can I compare the politics of intellectual property to the politics of the environment? For some, the difference in seriousness of the two problems robs the analogy of its force. After all, environmental problems could actually destroy the biosphere and this is just.., well, intellectual property. My response to this is partly that this is an analogy. I am comparing the form of the problems rather than their seriousness. Still, I have to say I believe that part of this reaction has to do with a failure to adjust to the importance that intellectual property has and is going to have in an information society. Again and again, one meets a belief that this is a technical issue with no serious human, political or distributional consequences. Yet a "bad" intellectual property regime of the kind that I am talking about could: * Lead to extraordinary monopoly and concentration in the software industry, as copyright and patent trump antitrust policy. Right now the effects are mainly those that would concern the actual drafters of the antitrust laws, who worried about the effects that concentration of wealth and economic power had on the republic, rather than their more modern "consumer-welfare" oriented exegetes. There is some reason, however, to believe that there could be costs even a Chicago-school antitrust analysis would find distasteful. * Extend intellectual property rights even further over living organisms, including the human genome, transgenic species and the like. This clearly has some ethical, medical and religious ramifications, while the spectre of a First world-dominated land grab over the human genome would surely be enough to shock those who believed that the deep sea bed was the common heritage of mankind. * "Privatise" words, or aspects of images or texts that are currently in the public domain, to the detriment of public debate, education, equal access to information and the like. * Impose a pay-as-you-read architecture on the Net without considering some of the costs resulting from that decision. And so on, and so on. The list could be extended. Some of these things have not yet come to pass, and not all of them will. There are court and regulatory decisions that cut against the protectionist tendency I have described. Recent organising efforts around Net, cultural property, pharmaceutical and fair use issues have improved the discourse markedly. Nevertheless, I think that the current situation is enough to warrant what one might call precautionary alarmism. It would be a shame for the fundamental property regime of the information economy to be constructed behind our backs. We need a politics -- a political economy -- of intellectual property and we need it now. -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- Endnotes 1. (c) James Boyle 1997. This article draws on ideas first developed in my book, Shamans, Software and Spleens: Law and The Construction of the Information Society (1996). Those who study intellectual property will realize how extensive a debt this article owes to David Lange's classic piece "Recognizing the Public Domain," 44 Law and Contemporary Problems 147 (1981) Thanks are also due to to Keith Aoki, John Perry Barlow, Robert Gordon, Jessica Litman, Peter Jaszi, Bruce Sterling and to the Yale and Columbia Legal Theory Workshop Series. Please don't quote or cite 'til I get the bugs out. 2. See Charles Darwin, On the Origin of Species by Means of Natural Selection (1859) but see Genesis 1:1-29 contra. 3. See Nicolaus Copernicus, Concerning the Revolutions of the Celestial Spheres (1543) but see Claudius Ptolemaeus, Almagest (c. 170 A.D) contra. 4. See generally William Gibson, Neuromancer (1984). 5. Church of Scientology Int'l v. Fishman, 35 F.3d 570 (9th Cir. 1994); Religious Technology Center v. Netcom On-Line Communications Servs., 907 F. Supp. 1361, 1377-1378 (D.Cal. 1995). Religious Technology Center v. Arnaldo Pagliarina Lerma, 908 F. Supp. 1362, 1368 (E.D. Va. 1995) ("Although the RTC brought the complaint under traditional secular concepts of copyright and trade secret law, it has become clear that a much broader motivation prevailed--the stifling of criticism and dissent of the religious practices of Scientology and the destruction of its opponents"). The documents filed in the case have excited considerable comment on the Web. Declan McCullagh, Scientology, critics collide in Internet copyright case FOCUS, vol. 25, no. 1, October 1995, page 4. 6. This attitude is in marked contrast to lawyers' assumptions about, say, the jurisprudence of the First Amendment, or the Education Department's rulings on race-conscious scholarships. Though these are also complicated areas of law or regulation, many lawyers and laypeople feel that a basic understanding of them is a sine qua non of political consciousness. In many cases, in fact, the language of liberal legalism defines the central issues of public debate -- a fact that presents its own problems. 7. And, in an important sense, created. 8. See, e.g., Karen Riley, Rockville Biotech Firm takes Next Step in Genetics Journey, Wash. Times., June 9, 1995, at B7. 9. For an introduction to the biological applications of information theory, see Biological Information Theory and Chowder Society FAQ, and the archives of the Usenet newsgroup bionet.info-theory. 10. "In the forests of Panama lives a Guyami Indian woman who is unusually resistant to a virus that causes leukaemia. She was discovered by scientific "gene hunters", engaged in seeking out native peoples whose lives and cultures are threatened with extinction. Though they provided basic medical care, the hunters did not set out to preserve the people, only their genes - which can be kept in cultures of "immortalised" cells grown in the laboratory. In 1993, the US Department of Commerce tried to patent the Guyami woman's genes - and only abandoned the attempt in the face of furious protest from representatives of indigenous peoples." Tom Wilkie, Whose gene is it anyway?, Indep., Nov. 19, 1995, at 75. 11. See, e.g., Frank Guarnieri et al., Making DNA Add, Science, July 12, 1996, at 220. 12. See, e.g., Julian Dibbell, The Race to Build Intelligent Machines, Time, Mar.25, 1996, at 56. 13. See Communications Decency Act of 1996, Pub. L. No. 104-104, 110 Stat. 133 (codified at various sections of 47 U.S.C and 18 U.S.C); see also generally ALA-led Coalition Challenges CDA, Am. Libr., Apr. 1996, at 13. 14. Given the fate of these arguments in the contemporary political arena, maybe I should reiterate them; Distribution of this good (education, health care, wired-ness) through a market system is going to have a lot of serious negative effects on those who cannot pay, effects that will track and actually intensify existing inequalities of class, race and gender. Given the importance of the resource in question, its relevance to the citizens' status qua citizen, and the corrosive effects of such inequalities on the well-being of the polity, something should be done to mitigate or eliminate the problem of access. All of this seems profoundly true, but it is hardly a new argument. In fact, subject matter aside, it would have been completely familiar to the authors of the Federalist Papers. 15. For the arguments behind this claim, see James Boyle, Shamans, Software and Spleens: Law and the Construction of the Information Society (1996). There are specific areas in which the situation might be reversed, such as "unoriginal" databases. These, however, are the exception rather than the rule 16. In the book, I explore the reasons that this problem is not "solved" when one moves to the reality of imperfect markets. The abstract idea of "trade-offs" also proves insufficient to generate the determinacy of result which most analysts claim for their work. 17. Sanford J. Grossman & Joseph E. Stiglitz, On the Impossibility of Informationally Efficient Markets, 70 Am. Econ. Rev. 393, 405 (1980). I cannot here go into the full joys of this debate, but those who talk confidently about the economic efficiency of the fine details of intellectual property doctrine would do well to look at the absolutely basic disputes between information economists. For example, Kenneth Arrow argues that, without intellectual property rights, too little information will be produced because producers of information will not be able to capture its true value. (Even with intellectual property rights he believes that certain kind of information generation may need direct government subsidy on a 'cost-plus' basis.) Kenneth Arrow, Economic Welfare and the Allocation of Resources for Invention, in Rate and Direction of Inventive Activity: Economic and Social Factors, 609, 617 (National Bureau of Economic Research ed., 1962). Fama and Laffer, on the other hand, argue that, without intellectual property rights, too much information will be generated, because some information will be produced only in order to gain some temporary advantage in trading, thus redistributing wealth but not achieving greater allocative efficiency. Eugene F. Fama & Arthur B. Laffer, Information and Capital Markets, 44 J. Bus. 289 (1971). In other words, in the absence of information property rights, there may be an inefficiently high investment of social resources in information-gathering activities, activities that merely slice the pie up differently, rather than making it bigger. Hirshleifer gives a similar analysis of patent law, ending up with the conclusion that patent law may be either a necessary incentive for the production of inventions or an unnecessary legal monopoly in information that overcompensates an inventor who has already had the opportunity to trade on the information implied by his or her discovery. Jack Hirshleifer, The Private and Social Value of Information and the Reward to Inventive Activity, 61 Am. Econ. Rev. 561 (1971). The difficulty of yielding definite results is compounded by the fact that some professional economists seem to have a naive, pre-realist understanding of law. They often talk as though there was a natural suite of property rights which automatically accompanied a free market. They make strong and unexplained assumptions that certain types of activities (for example, trading on a superior information-position) would "naturally" be allowed and involve no "harm" to others, but that certain others (for example, trading on coercion through superior physical strength) will not be. There is a fascinating study to be done on these remnants of classical economics still present in a supposedly neo-classical analysis. The same kind of error also creeps into the work of some lawyer-economists. See, e.g., Saul Levmore, Securities and Secrets: Insider Trading and the Law of Contracts, 68 Va. L. Rev. 117 (1982). 18. Some are more sophisticated. "In principle, there is a level of copyright protection that balances these two competing interests optimally...We shall see...that various doctrines of copyright law, such as the distinction between idea and expression and the fair use doctrine, can be understood as attempts to promote economic efficiency..." William M. Landes & Richard A. Posner, An Economic Analysis of Copyright Law, 18 J. Legal Stud. 325, 333 (1989) (emphasis added). Despite the qualifying phrases one leaves the article with the sense that the copyright law has hit the appropriate balance between efficiency and incentives. This level of comfort with the current regime is to be compared with the open skepticism displayed by an economist such as Hirshleifer. See Jack Hirshleifer, The Private and Social Value of Information and the Reward to Inventive Activity, 61 Am. Econ. Rev. 561, 572 (1971) (because of the possibility of speculation on prior knowledge of invention and the uncertainties of "irrelevant" risks, patent protection may or may not be necessary in order to produce an appropriate incentive to invention). It will be interesting to watch the Supreme Court's attitude towards these issues over the next few years, given the identity of one of the original skeptics. See Stephen Breyer, The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies, and Computer Programs, 84 Harv. Law Rev. 281 (1970). 19. In one sense, the current configuration of Federal bureaucracies mirrors the tensions I have been describing in this article; the FTC and the Justice Department tend to view information issues from within an efficiency perspective, accepting the need for economic incentives but more skeptical of the monopoly effects of extensive intellectual property rights. The Commerce Department -- and the administration, on the other hand -- take a strong incentive-focused approach to most issues. As a result, the battle to regulate the information economy is a fascinating fusion of organizational persona, economic theory and political turf war. See, e.g., Federal Trade Commissioner Christine A. Varney, Antitrust in the Information Age, Remarks before the Charles River Associates Conference on Economics, in Legal & Reg. Proc., May 4, 1995. 20. Felix Cohen's phrase. Transcendental Nonsense and the Functional Approach, 25 Colum. L. Rev. 809 (1935), reprinted in The Legal Conscience: Selected Papers of Felix S. Cohen (Lucy K. Cohen ed., 1970), at 33, 42. 21. San Francisco Arts & Athletics, Inc., et al. v. United States Olympic Committee, 483 U.S. 522. 22. "Only two terms ago in San Francisco Arts and Athletics, Inc. v. United States Olympic Committee, the Court held that Congress could grant exclusive use of the word "Olympic" to the United States Olympic Committee... As the Court stated 'when a word [or symbol] acquires 'value as the result of organization and the expenditure of labor, skill and money' by an entity, that entity constitutionally may obtain a limited property right in the word [or symbol].' Surely Congress or the States may recognize a similar interest in the flag." Texas v. Johnson, 491 U.S. 397, 429-30 (1989). 23. Northrop Frye, Anatomy Of Criticism: Four Essays, 96-97 (1957). 24. Paul Goldstein, Copyright, 38 J. Copyright Soc'y of the U.S.A. 109, 110 (1991) (emphasis added.) 25. Omnibus Patent Act of 1996, S. 1961, 104th Cong.; Morehead-Schroeder Patent Reform Act, H.R. 3460, 104th Cong. (1996). 26. Employing child labour or violating environmental regulations will give a nation's industry what might seem to be an unfair competitive advantage, but will not trigger trade sanctions. See, e.g., Robert Howse and Michael J. Trebilcock, The Fair Trade-Free Trade Debate: Trade, Labor, and the Environment, 16 Int'l Rev. L. & Econ. 61 (discussing the absence from the GATT/World Trade Organization framework of provisions for sanctions in response to other nations'environmental and labor practices); but see North American Agreement on LaborCooperation, Sept. 13, 1993, Can.-Mex.-U.S., ann. 1, 32 I.L.M. 1499 (1993). Refusing to accept and enforce our vision of intellectual property law, however, is cause for international action. See generally J. H. Reichman, Compliance with the TRIPS Agreement: Introduction to a Scholarly Debate, 29 Vand. J. Transnat'l L. 363 (1996). 27. Information Infrastructure Task Force, Intellectual Property and the National Information Infrastructure: The Report of the Working Group on Intellectual Property Rights (1995) [hereinafter White Paper]. See also James Boyle, Sold Out, N.Y. Times, Mar. 31, 1996; Is Congress Turning the Internet into an Information Toll Road?, Insight, Jan. 15, 1996, at 24. This section of the Article is a revised version of the analysis provided in Shamans and in those articles. 28. The relevant Bills are HR 2441 and S. 1284. Work on them will resume in January. 29. This tendency is to be contrasted unfavourably with the most thoughtful defense of the White Paper -- which argued that its protections would be necessary to put "cars on the Information superhighway" but was careful to acknowledge that some of the White Paper's legal theories were controversial, and then to defend them on their own terms rather than to offer them as propositions so obvious they needed no defense. Jane C. Ginsburg, Putting Cars on the "Information Superhighway": Authors, Exploiters and Copyright in Cyberspace, 95 Colum. L. Rev. 1466, 1476 (1995) [e.g. defending White Paper's embrace of the RAM copy theory but pointing that this approach has been "questioned or even strongly criticized"]; See also Jessica Litman, The Exclusive Right to Read, 13 Cardozo Arts & Ent. L. J. 29 (1994). 30. See David Post, New Wine, Old Bottles: The Case of the Evanescent Copy, Am. Lawyer, May 1995; Niva Elkin-Koren, Copyright Law and Social Dialogue on the Information Superhighway: Pamela Samuelson, Legally Speaking: The NII Intellectual Property Report, Communications of the ACM, December 1994, at 21. The Case Against Copyright Liability of Bulletin Board Operators, 13 Cardozo Arts & Ent. L.J. 345 (1995). Evan St. Lifer and Michael Rogers, NII White Paper Has Librarians Concerned About Copyright, Library Journal News, Oct. 1, 1995. Vic Sussman, Copyright Wrong, U.S. News & World Report, Sept. 18, 1995; Andrea Lunsford & Susan West Schantz, Who Should Own Cyberspace, Columbus Dispatch, Mar. 26, 1996; Many of these points were also made in testimony. Intellectual Property and the National Information Infrastructure: Public Hearing Before the White House Information Infrastructure Task Force, Sept. 22, 1994 (testimony of Jessica Litman, Professor of Law, Wayne State Univ.). Comments of Professor Mary Brandt Jensen, August 26th 1994. Comments of Professor Neil Netanel and Professor Mark Lemley, University of Texas School of Law, September 2, 1994. 31. Jane C. Ginsburg, Putting Cars on the "Information Superhighway": Authors, Exploiters and Copyright in Cyberspace, 95 Colum. L. Rev. 1466 (1995). 32. White Paper at 84. 33. Id at n. 266. 34. Generally such arguments turns on disagreements over the current law baseline from which "subsidies" or "taxes" are calculated. The remarkable thing about occasional passages such as this in the White Paper is that they suggest that any fair use rights would be a subsidy to users. Not all of the White Paper's discussion is this extreme, however. Some of the debate still turns on differences of opinion about the meaning of fair use jurisprudence. Elsewhere I have given my account of the deficiencies in the White Paper's account of current law. See The Debate on the White Paper 35. Although this may be an oversimplification, it does not seem to be a controversial oversimplification. "First, the basic analytical approach and policy values underlying environmental law came from a fundamental paradigm shift born of Rachel Carson in 1961, perhaps assisted unwittingly by Ronald Coase, redefining the scope of how societal governance decisions should be made. What we might call the Rachel Carson Paradigm declared that, although humans naturally try to maximize their own accumulation of benefits and ignore negative effects of their actions, a society that wishes to survive and prosper must identify and take comprehensive account of the real interacting consequences of individual decisions, negative as well as positive, whether the marketplace accounts for them or not. Attempts to achieve such expanded accountings, as much as anything, have been the common thread linking the remarkable range of issues that we call environmental law." Zygmunt J.B. Plater, From the Beginning, a Fundamental Shift of Paradigms: a Theory and Short History Of Environmental Law 27 Loy. L.A. L. Rev. 981-2 (1994). See also Rachel Carson, Silent Spring (1961) I would replace Coase by Pigou, and mention Leopold as well as Carson, but otherwise agree. Focusing on Leopold also has another beneficial effect. It emphasises the extent to which environmentalism was driven in addition by a belief that the economic valuation, and "commodification," of environmental resources was not only incomplete but actually wrong. See A. Leopold, A Sand County Almanac (1949). 36. William D. Ruckelshaus, Environmental Protection: A Brief History of the Environmental Movement in America and the Implications Abroad, 15 Envtl. L. J. 455, 456 (1985). 37. Id. 38. There are other, more context-specific, problems. Both environmental disputes and intellectual property issues are seen as "technical," which tends to inhibit popular participation. In both areas, opposition to expansionist versions of stake-holders' rights can be off-puttingly portrayed as a stand "against private property." This is a frequent claim in intellectual property disputes, where defenders of the public domain are portrayed as "info-commies" or enemies of "the free market." (The latter is a nicely ironic argument to make in favour of a state licensed monopoly.) Indeed, the resurgence of a non-positivist, property owners takings jurisprudence in the Supreme Court seems to indicate that this idea still has great force even in the environmental area. 39. Although it is beyond me how retrospective, and even post-mortem, copyright term extension is to be squared with the idea that intellectual property rights should be given only when they will stimulate the production of new work; barring the idea of sooth-saying or other worldly communication, the incentive effects would seem to be small. 40. For a path-breaking formulation see David Lange, Recognizing the Public Domain, 44 Law and Contemp. Probs. 147 (1981). I have also been influenced by Jessica Litman's work on the subject. 41. This economic skepticism links works otherwise very different in tone. Compare Stephen Breyer, The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies, and Computer Programs, 84 Harv. L. Rev. 281 (1970); Pamela Samuelson, The Copyright Grab WIRED 4.01 (1996); Boyle, Shamans supra. 42. Aldo Leopold, A Sand County Almanac 210-211 (1949). ------------------------------------------------------------------------------- source: http://www.law.duke.edu/boylesite/intprop.htm more info: http://dmoz.org/Society/Issues/Intellectual_Property/ http://www.law.nyu.edu/ili/conferences/freeinfo2000/abstracts/index.html http://technetcast.ddj.com/tnc_play_stream.html?stream_id=517 (l.lessig at p2pconf) http://www.mikro.org/wos (wizards of os conference 99, berlin) # distributed via <nettime>: no commercial use without permission # <nettime> is a moderated mailing list for net criticism, # collaborative text filtering and cultural politics of the nets # more info: majordomo@bbs.thing.net and "info nettime-l" in the msg body # archive: http://www.nettime.org contact: nettime@bbs.thing.net