Pit Schultz on 18 Apr 2001 01:59:44 -0000 |
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<nettime> James Boyle: A Politics of Intellectual Property: Environmentalism For the Net? [2/3] |
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. -------------------------------------------------------------------------------- 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. ---------------------------------------------------------------------------------- # 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