<nettime> James Boyle: A Politics of Intellectual Property: Environmentalism For the Net? [2/3]

[Pit Schultz <pit@klubradio.de>]

                                     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)

>From my point of view, however, the really depressing thing about the
report is that it fails to accomplish its stated goal; to examine what
level of intellectual property rights would be necessary in cyberspace. It
fails in a way that is both revealing and disturbing. The problem isn't
simply the tendency to give a pro-author account of the existing law. Even
if the White Paper's summary of intellectual property law were accurate,
there might well be reasons why a different level of protection might be
appropriate in the digital environment. For example, the global reach and
ease of access that the Net offers clearly facilitate illegitimate
copying. But they also cut down enormously on advertising and on the costs
of distribution, potentially yielding a higher percentage return for a
lower level of investment. Thus, with some products more intellectual
property protection might be required while with others a lower level of
protection would still produce an adequate return to encourage future
production.

Some "digital products" require enormous investments of time and energy,
are of lasting value, require no "tied" subsidiary services to make them
work and can be copied for pennies. Others require little investment
precisely because of their digital nature, do not require extensive
research and development or can be protected by denial of access
(databases and search engines), by preemptive release of "demo" or
partially disabled shareware versions (DOOM), by being first to market, by
"tying arrangements" such as help lines, technical assistance or paid
advertising (Netscape) and so on. The point is that the digital
environment is complicated; the same technical factors that make copying
easier also yield other ways for producers to recover their investments,
or to encourage further innovation. Rather than take these complexities
seriously, the White Paper simply assumes that, on the Net, a right-holder
needs all the rights available outside the Net, plus some new ones as
well. To the point that there are multiple ways for producers to secure an
adequate return on their investment of time and ingenuity, the White Paper
opines weakly that not everyone will choose to enforce to the full, the
rights the report proposes to give them. This is rather like responding to
the argument that a capital gains tax cut is not necessary to stimulate
investment, with the rejoinder that some investors may decide to give the
extra money to charity. Yes, it may happen, but that doesn't go to the
question of whether the change was necessary in the first place.

More important than the individual positions taken, however, are the
logical fallacies and baseline errors with which the White Paper is
loaded. Intellectual property rights are limited monopolies conferred in
order to produce present and future public benefit -- for the purposes of
achieving those goals, the "limitations" on the right are just as
important as the grant of the right itself. To put it more accurately,
since there is no "natural" absolute intellectual property right, the
doctrines which favor consumers and other users, such as fair use, are
just as much a part of the basic right, as the entitlement of the author
to prevent certain kinds of copying. Even the source of the Congress's
authority in intellectual property matters --Article 1, Section 8, clause
8 of the Constitution -- mentions two limitations on intellectual property
rights; one is functional "To promote the Progress of Science and useful
Arts" and the other is temporal "by securing for limited times to authors
and inventors." Thus, intellectual property is a particularly
inappropriate area to talk about property rights as if they were both
natural and absolute. Yet this the White Paper does with a dogged
consistency and an unlikely passion. Observe in the following quotation
how the White Paper first sets up its own inflated idea of intellectual
property as the baseline, then implies that right-holders actually have an
absolute property right in the continuation of that level of protection.
Amazingly, the "limitations" that define intellectual property rights
instead become a "tax" on right-holders.

Some participants have suggested that the United States is being divided
into a nation of information "haves" and "have nots" and that this could
be ameliorated by ensuring that the fair use defense is broadly generous
[sic] in the NII context. The Working Group rejects the notion that
copyright owners should be taxed -- apart from all others -- to facilitate
the legitimate goal of universal access.(32)

Of course, given the goals of copyright law, it would have made just as
much sense if the argument had been reversed, taking the fair use rights
of users and consumers as the baseline. The White Paper wants to give
expansive intellectual property rights because it believes, wrongly in my
view, that this is the best way to encourage private companies to fund the
construction of the information superhighway. In response, a more
skeptical Working Group might have said;

Some reports have suggested that the difficulties of encouraging companies
to develop the National Information Infrastructure could be ameliorated by
ensuring that intellectual property rights are broadly generous and fair
use rights curtailed in the NII context. The Working Group rejects the
notion that consumers, future creators and other holders of fair use
rights should be taxed -- apart from all others -- to facilitate the
legitimate goal of encouraging investment in the information superhighway.

But the White Paper not only illustrates the pervasive power of baseline
fallacies in information economics, it also shows how the "original
author" vision downplays the importance of fair use and thus encourages an
absolutist rather than a functional idea of intellectual property. In a
footnote to the passage quoted above, the Working Group explains further.
The laws of economics and physics protect producers of equipment and
tangible supplies to a greater extent than copyright owners. A university,
for example, has little choice but to pay to acquire photocopy equipment,
computer paper and diskettes. . . It may, however, seek subsidization from
copyright owners by arguing that its copying and distribution of their
works should, as a fair use, not be compensated."(33)

This completes the picture given above. Fair use rights are a "subsidy"
sought by universities. But wait a minute. Even if the only goal of
intellectual property law were to encourage future innovation and
information production, this argument would be fallacious. Future creators
need some raw material to work with, after all. Fair use is one important
method of providing that raw material. It can also be seen as part of the
implicit quid pro quo of intellectual property; we will give you this
extremely valuable legal monopoly, backed with state power and enforced
through the courts (and by the FBI.) In return, we will design the
contours of your right so as to encourage a variety of socially valuable
uses. The White Paper wants to give copyright holders the "quid" while
claiming that the "quo" is a tax, or a forced subsidy.

Only the unfamiliarity of intellectual property conceals the ludicrousness
of the argument. Its as if a developer had negotiated a fat package of
cash grants and tax breaks as the price of building a new stadium in
Washington D.C., but then wanted to claim the benefits of the deal while
insisting that to making him fulfil his side of the bargain would be to
confer a "subsidy" on the city.(34)

The press reaction to the White paper was respectful (and a little foggy
around the edges.) Obviously at a loss to know whom to contact, the
reporters got reactions from the Business Software Alliance, the recording
industry and the publishers' lobbyists. Surprisingly enough, all these
groups felt this was a fine document, the result of meticulous analysis
and a good basis for the future. Only later did the press begin to contact
those who would be negatively affected by the proposed changes: libraries,
on-line service providers, teachers and so on. The coverage in the media
demonstrated two vital things about the future of intellectual property.

First, it is still possible to get away with arguments which if made about
any other area of regulation would arouse howls of derision -- or at least
well-informed skepticism. Compare press reactions to proposals for a
flat-tax or arguments that property owners should be compensated for the
costs of complying with environmental regulation. Second, the press and
the public simply have no idea of the likely "sides" or "interests"
involved in such a decision. If a labour law is passed, the Washington
Post doesn't only call the Chamber of Commerce, on environmental issues
they don't only call the Sierra club. Yet on intellectual property issues,
they call only the largest property holders. The idea that startup
software developers, academics, librarians, civil libertarians and so on
might have a distinct perspective on these issues, simply hasn't emerged
into popular consciousness.

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                                    V

                      The Analogy to Environmentalism

Assume for a moment the need for a politics of intellectual property. Go
further for a moment, and accept the idea that there might be a special
need for a politics to protect the public domain. What might such a
politics look like? Right now, it seems to me that, in a number of
respects, we are at the stage that the American environmental movement was
at in the 1950's. There are people who care about issues we would now
identify as "environmental" -- supporters of the park system, hunters,
birdwatchers and so on. (In the world of intellectual property we have
start-up software engineers, libraries, appropriationist artists,
parodists, biographers, biotech researchers etc.) There are flurries of
outrage over particular crises -- burning rivers, oil spills. (In the
world of intellectual property, we have disconnected stories about
Microsoft's allegedly anti-competitive practices, the problematic morals
of patenting human genes, the propriety of using copyright to shut down
certain critics of the Church of Scientology.) Lacking, however, is a
general framework, a set of analytical tools with which issues should --
as a first cut -- be analysed, and as a result a perception of common
interest in apparently disparate situations -- cutting across traditional
oppositions. (Hunter vs. Birdwatcher, for example.)(35) What kinds of
tools are we talking about?

Crudely speaking, the environmental movement was deeply influenced by two
basic analytical frameworks. The first was the idea of ecology; the
fragile, complex and unpredictable interconnections between living
systems. The second was the idea of welfare economics -- the ways in which
markets can fail to make activities internalise their full costs. The
combination of the 2 ideas yielded a powerful and disturbing conclusion.
Markets would routinely fail to make activities internalise their own
costs, particularly their own environmental costs. This failure would,
routinely, disrupt or destroy fragile ecological systems, with
unpredictable, ugly, dangerous and possible irreparable consequences.
These two types of analysis pointed to a general interest in environmental
protection and thus helped to build a large constituency which supported
governmental efforts to that end. The duck-hunter's preservation of
wetlands as a species habitat turns out to have wider functions in the
prevention of erosion and the maintenance of water quality. The decision
to burn coal rather than gas for power generation may have impacts on
everything from forests to fisheries.

Of course, it would be silly to think that environmental policy was
fuelled only by ideas rather by more immediate desires. As William
Ruckelshaus put it, "With air pollution there was, for example, a desire
of the people living in Denver to see the mountains again. Similarly, the
people living in Los Angeles had a desire to see one another."(36)
(Funnily enough, as with intellectual property, changes in communications
technology also played a rôle. "In our living rooms in the middle
sixties, black and white television went out and color television came in.
We have only begun to understand some of the impacts of television on our
lives, but certainly for the environmental movement it was a bonanza. A
yellow outfall flowing into a blue river does not have anywhere near the
impact on black and white television that it has on color television;
neither does brown smog against a blue sky."(37))

Nevertheless, the ideas I mentioned, ecology and welfare economics, were
extremely important for the environmental movement. They helped to provide
its agenda, its rhetoric and the perception of common interest underneath
its coalition politics. Even more interestingly, for my purposes, those
ideas -- which began as inaccessible, scientific or economic concepts, far
from popular discourse -- were brought into the mainstream of American
politics. This did not happen easily or automatically. Popularising
complicated ideas is hard work. There were brilliant books like Silent
Spring and A Sand County Almanac, television discussions, documentaries on
Love Canal or the California kelp beds, op-ed pieces in newspapers and
pontificating experts on TV. Environmental groups both shocking and staid
played their part, through the dramatic theatre of a Greenpeace protest,
or the tweety respectability of the Audubon society. Where once the idea
of "The Environment" (as opposed to 'my lake', say) was seen as a mere
abstraction, something that couldn't stand against the concrete benefits
brought by a particular piece of development, it came to be an abstraction
with both the force of law and of popular interest behind it.

To me, this suggests a strategy for the future of the politics of
intellectual property. In both areas, we seem to have the same recipe for
failure in the structure of the decision-making process. Decisions in a
democracy are made badly when they are primarily made by and for the
benefit of a few stake-holders (land-owners or content providers). It is a
matter of rudimentary political science analysis or public choice theory
to say that democracy works badly when the gains of a particular action
can be captured by a relatively small and well-identified group while the
losses -- even if larger in aggregate -- are low-level effects spread over
a larger, more inchoate group.(38) (This effect is only intensified when
the transaction costs of identifying and resisting the change are high.)
Think of the costs and benefits of acid rain producing power-generation or
-- less serious, but surely similar in form -- the costs and benefits of
retrospectively increasing copyright term limits on works for which the
copyright had already expired, pulling them back out of the public domain.
There are obvious benefits to the heirs and assigns of authors whose
copyright has expired, in having the Congress put the fence back up around
this portion of the intellectual commons.(39) There are obviously some
costs -- for example, to education and public debate -- in not having
multiple, competing low cost editions of these works. But these costs are
individually small and have few obvious stake-holders to represent them.

Beyond the failures in the decision-making process, lie failures in the
way that we think about the issues. The environmental movement gained much
of its persuasive power by pointing out that there were structural reasons
that we were likely to make bad environmental decisions; a legal system
based on a particular notion of what "private property" entailed, and an
engineering or scientific system that treated the world as a simple,
linearly related set of causes and effects. In both of these conceptual
systems, the environment actually disappeared; there was no place for it
in the analysis. Small surprise then, that we did not preserve it very
well. I have argued that the same is true about the public domain. The
fundamental aporia in economic analysis of information issues, the
source-blindness of an "original author" centered model or property
rights, and the political blindness to the importance of the public domain
as a whole (not "my lake," but "The Environment") all come together to
make the public domain disappear, first in concept and then, increasingly,
as a reality.

I have said all of this in an attempt to show that there is something
larger going on under the realpolitik of land grabs by Disney and campaign
contributions by the Recording Industry of America. But it would be an
equal and opposite mistake to think that this is just about a
dysfunctional discourse of intellectual property. In this part of the
analysis, too, the environmental movement offers some useful practical
reminders. The ideas of ecology and environmental welfare economics were
important, but one cannot merely write a Silent Spring or a Sand County
Almanac and hope that the world will change. Environmentalists
piggy-backed on existing sources of conservationist sentiment -- love of
nature, the national parks movement, hikers, campers, birdwatchers. They
built coalitions between those who might be affected by environmental
changes. They even discovered, though very slowly, the reality of
environmental racism.

Some of these aspects, at least, could be replicated in the politics of
intellectual property. The coalitions developed to combat the White Paper
and its implementing legislation, offers some nice examples of the
possibilities and pitfalls. Other strategies also come to mind. For
environmental problems, some of the transaction costs of investigation and
political action are overcome through expert agents, both public and
private. I pay my taxes to support the EPA or my charity dollars to
Greenpeace, and hope they do a good job of tracking environmental
problems. (In the latter case, I know at least that the makers of Zodiac
rubber boats will be given a boost.) Right now there is not a single
public or private organisation whose main task is to protect and preserve
the public domain. This should change.


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