Pit Schultz on 18 Apr 2001 02:12:17 -0000


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<nettime> James Boyle: A Politics of Intellectual Property: Environmentalism For the Net? [1/3]


[who's afraid of long texts? florian cramer was refering to this article
earlier. i post it because some documents are better distributed than
linked. it might become a must-read for those still interested into the
'open source movement' because it is not an artfully theoretic essay but
simply manages stating the obvious, proposing the need for a digital
ecology movement maybe for the first time. the cyberlaw discourse marks a
new stage in net time, after the new economy hype, after the heroic age of
cyberspace, its about implementation, inscription, instituationalisation,
industry interests and party politics. so its important to keep track of
the key re-sources and keep them circulating. my missing link was another
text (in pdf), much longer and elaborated about the relation of cyberlaw
and the space law to be found at http://www.bartonbeebe.com /p]
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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.

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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 System

+------------------+---------------------------+-------------------------------+
| Subject Matter   | Information               | Innovation                    |
+------------------+---------------------------+-------------------------------+
| Economic         | Efficiency                | Incentives                    |
| Perspective      |                           |                               |
+------------------+---------------------------+-------------------------------+
| Paradigmatic     | Transaction Cost          | Public Goods Problems.        |
| Conception of    | Problems. Barriers to     | Inadequate incentives for     |
| Problems         | the free flow of          | future production leads to    |
|                  | information lead to the   | the inhibition of             |
|                  | inhibition of             | innovation/ inadequate        |
|                  | innovation/ inadequate    | circulation of                |
|                  | circulation of            | information                   |
|                  | information               |                               |
+------------------+---------------------------+-------------------------------+
| Reward (if any)  | Effort/Investment/Risk    | Originality/Transformation    |
| for..            |                           |                               |
+------------------+---------------------------+-------------------------------+
| View of the      | Finite Resources for      | Infinite Resources for        |
| Public Domain    | future creators           | future creators               |
+------------------+---------------------------+-------------------------------+
| Vision of the    | Development based on      | Creation ex nihilo.           |
| productive       | existing                  | "Copyright is about           |
| process          | material."Poetry can      | sustaining the conditions of  |
|                  | only be made out of       | creativity that enable an     |
|                  | other poems; novels out   | individual to craft out of    |
|                  | of other novels. All of   | thin air an Appalachian       |
|                  | this was much clearer     | Spring, a Sun Also Rises, a   |
|                  | before the assimilation   | Citizen Kane."(24)            |
|                  | of literature to private  |                               |
|                  | enterprise." (23)         |                               |
+------------------+---------------------------+-------------------------------+
| Normative        | Free speech/Free          | Property rights -- the        |
| Starting Point   | circulation of ideas and  | creator's "natural" right,    |
|                  | information.              | 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.


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