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] -------------------------------------------------------------------------------- A Politics of Intellectual Property: Environmentalism For the Net? James Boyle(1) Introduction: This Article argues that we need a politics, or perhaps a political economy, of intellectual property. Using the controversy over copyright on the Net as a case-study and the history of the environmental movement as a comparison, it offers a couple of modest proposals about what such a politics might look like -- what theoretical ideas it might draw upon and what constituencies it might unite. I "Code is Code" - The Logic of the Information Relation Everyone says that we are moving to an information age. Everyone says that the ownership and control of information is one of the most important forms of power in contemporary society. These ideas are so well-accepted, such cliches, that I can get away with saying them in a law review article without footnote support. (For those blessedly unfamiliar with law reviews, this is a status given to only the most staggeringly obvious claims; the theory of evolution,(2) and the orbit of the earth around the sun,(3) probably would not qualify.) Beyond the claim that the information society exists, however, there is surprisingly little theoretical work. Sadly for academics, the best social theorists of the information age are still science fiction writers and, in particular, cyberpunks -- the originators of the phrase "cyberspace" and the premier fantasists of the Net. If one wants to understand the information age, this is a good place to start. Cyberpunk science fiction succeeded as a genre largely because it combined a particular plot aesthetic with a particular conceptual insight. The plot aesthetic was simple; the bad boy/film noir world of the romantic lowlife. When juxtaposed to the 2-dimensional priggishness of the normal science fiction hero, the cigarette smoking, drugged-out petty outlaws and mirror-shaded ninja-chicks of cyberpunk seemed rebellious, cynical and just, well, cool. The character-type is a familiar one; James Dean could easily have played the hero of Neuromancer.(4) The conceptual insight is not so familiar. Cyberpunk is built on the extrapolation of two principal technologies, computers and the Web on the one hand, and genetic engineering on the other. The theme of cyberpunk is that the information age means the homologisation of all forms of information -- whether genetic, electronic, or demographic. I grew up believing that genes had to do with biology, petri dishes and cells and that computers had to do with punch cards and magnetic disks. It would be hard to imagine two more disparate fields. In contrast cyberpunk sees only one issue ~ code ~ expressed in binary digits or the C's,G's, A's and T's on a gene map. -------------------------------------------------------------------------------- II Intellectual Property is the Legal Form of the Information Age The cyberpunk writers also offer us a legal insight. The more one moves to a world in which the message, rather than the medium, is the focus of conceptual, and economic interest, the more central does intellectual property become. Intellectual property is the legal form of the information age. Like most property regimes, our intellectual property regime will be contentious, in distributional, ideological and efficiency terms. It will have effects on market power, economic concentration and social structure. Yet, right now, we have no politics of intellectual property -- in the way that we have a politics of the environment or of tax reform. We lack a conceptual map of issues, a rough working model of costs and benefits and a functioning coalition-politics of groups unified by common interest perceived in apparently diverse situations. Why don't we have such a politics? One reason is that with a few exceptions, the mass media coverage of the information age has been focused firmly on "cyberporn" and its potential censorship. This is rather like thinking that the most important feature of the industrial revolution was that it allowed the mass-production -- and then the regulation -- of pornographic magazines. Given the magnitude of the changes occurring, and the relatively small differences between pornography on-line and pornography anywhere else, a more trivial emblematic concern would have been hard to find. It is intellectual property, not the regulation of cyber-smut, that provides the key to the distribution of wealth, power and access in the information society. The intellectual property regime could make -- or break -- the educational, political, scientific and cultural promise of the Net. Indeed, even if our only concern were censorship, it would be perverse to concentrate exclusively on the direct criminalisation of content by governments. The digital world gives new salience to private censorship -- the control by intellectual property holders of distribution of and access to information. The recent Scientology cases are only the most obvious manifestation of this tendency.(5) The media were not the only ones to miss the boat. Lawyers and legal academics largely followed suit. With a few exceptions, lawyers have assumed that intellectual property was an esoteric and arcane field, something that was only interesting (and comprehensible) to practitioners in the field.(6) There is some question whether this attitude was ever defensible; it certainly is not now. In terms of ideology and rhetorical structure, no less than practical economic effect, intellectual property is the legal form of the information age. It is the locus of the most important decisions in information policy. It profoundly affects the distribution of political and economic power in the digital environment. It has impacts on issues ranging from education to free speech. The "value" protected(7) by intellectual property in the world economy is in the hundreds of billions of dollars and growing all the time. There are structural reasons why these tendencies will continue. The first crucial aspect of the current information economy is the increasing homologisation of forms of information. Think of the many ways in which it now does not make sense to distinguish between electronic and genetic information -- any more than between red books or green books. Precisely because we conceive of them as (and have the capability to treat them as) information, both present the same issues of regulation -- privacy, access, public goods problems, and so on. As a result, they have literally begun to overlap -- think of the storing (and then the sale?) of the human genome on computer disk, or of the private gene databases which add value to information developed through publicly funded research and then demand patent options as the prerequisite for access by outsiders.(8) Read about the mathematical-biological/computer-science discipline of bio-informatics, a discipline which is premised on the belief that information is information, whether the medium is a double helix or an optical disk.(9) We are now used to the idea that Microsoft retains rights over the lines of code sitting on computer hard drives around the world. We can even produce a utilitarian justification to explain why. It is a lot stranger to think that women all over the country may carry in their bodies a string of genetic information -- brca1, the so-called breast cancer gene -- that has been patented by Myriad Genetics or that the Commerce Department tried to patent the genes of a Guyami Indian woman who possessed an abnormal resistance to leukemia.(10) From the point of view of the information economy, though, the two cases are very similar; in each case, strings of code are subject to intellectual property rights granted in the belief that they will inspire further innovation and discovery. The fact that this can be done in the face of the profound shock most people feel at the ownership of human genes is a testament to the universalizing logic of the information relation. (Whether it is also a good thing is a different question.) The process is not simply a legal one and the overlaps go in both directions. Scan the science pages and see articles about the possibility of using DNA sequences as incredibly powerful parallel processing "computers."(11) Think of the software designers who create electronic ecologies and then use those strings of computer code which have proved themselves as survivors -- harnessing a form of "natural" selection that Darwin would have recognised but could never have imagined.(12) Put it all together and then compare this "reality" to the way that we thought about computers on the one hand and biology on the other, just twenty years ago. In the international information economy, the medium is not the message. The medium is irrelevant. The second crucial aspect of the information economy is a corollary of the homologisation of forms of information; the decreasing proportion of product cost and intellectual attention devoted to medium (diskettes, cell-lines) rather than message (software, decoded DNA sequences). A moment's thought will show that both of these aspects will give increased importance to intellectual property. Reconceiving new areas of science, commerce and research as "information issues" simply gives us more fields in which it is likely we will spy the public goods problems that intellectual property is supposed to solve. And the diminishing portion of product cost devoted to medium rather than message means that, within any given area, the public goods problems grow all the more salient; (The price of the program rises, at least relative to the falling price of the diskette onto which it can be copied.) When I say that we lack a politics of intellectual property, I don't mean to imply that this is the only type of "information politics" -- more like the most neglected. Look at the recent past. From the net roots campaign against the Communications Decency Act to the titanic industry lobbying over the Telecommunication Bill in which the CDA was embedded, there have been many moments of political struggle and agitation over digital commerce and communications regulation.(13) There have been conferences, both Polyannish and despairing, over the use of the Net by non profit groups, and thoughtful warnings of the dangers posed by disparate access to information technologies. These are serious points; the issue of access in particular. But in most cases, they are isolated applications to a new technology of a familiar political worldview or calculation of self-interest. Libertarians don't want newspapers censored; their attitude to the Net is the same (though the interactive quality of the technology, and the proprietary feeling that novelty gives first adopters have certainly given more people a stake in the protection of the system.) Non-profit groups have to adjust to changes in communications technology, just like changes in tax law, or the regulation of lobbying. Communications conglomerates have an attitude towards bandwidth that seems indistinguishable from most commercial entities' attitude towards publicly held real estate; rationally enough, they want more, they want it free (ideally, they want it subsidised) and they want to be able to exploit it without strings. The left sees a resource with new importance -- access to information technology -- and makes about it the points that it makes about access to health care or education.(14) I don't mean to minimise these concerns, and certainly don't want to make the claim that they are somehow less fundamental than the ones I describe here. But I do think that, precisely because of their comfortable familiarity, they miss some of the differences in the politics of the information age, the ideas we have not thought about so often or so well. -------------------------------------------------------------------------------- III The Conceptual Structure of an Intellectual Land-Grab Elsewhere, I have argued at unseemly length that there are structural tendencies in our patterns of thinking and discourse about intellectual property that lead us generally to "over" rather than "under-protect".(15) I will summarise, rather than attempt to justify those claims here. (A chart that might be helpful is provided in the table on page 13.) One of the roots of the problem is a conceptual one. The economic analysis of information is beset by internal contradiction and uncertainty; information is both a component of the perfect market and a good that must be produced within that market. Under the former characterisation, information is supposed to move towards perfection -- a state in which it is costless, instantly available and so on. Under the latter characterisation, information must be commodified so as to give its producers an incentive to produce. But each property right handed out to ensure the production of information is a transaction cost when seen from the perspective of market efficiency.(16) The most succinct encapsulation of the problem comes from an article co-written by the current head of the President's Council of Economic Advisors, who in a former life was one of the most distinguished scholars of information economics. "There is a fundamental conflict between the efficiency with which markets spread information and the incentives to acquire information."(17) This problem is often, though not always "solved" by ignoring it. A pre-theoretical classification is made, conventionally ascribing a certain problem to one or other realm and the discussion then continues on that basis. Thus for example, we tend to look at the field of intellectual property with a finely honed sensitivity to "public goods" problems that might lead to under production, while underestimating or failing to mention the efficiency costs and other losses generated by the very rights we are granting. Some conventional ascriptions visibly switch over time. The contemporary proponents of legalising insider trading use the idea of the efficient capital market to minimise or defend the practice. The first generation of analyses saw the insider trade as the entrepreneur's incentive and reward for Faustian recombinations of the factors of production. An alternative method for smoothing over the tensions in the policy analysis is for the analyst to acknowledge the tension between efficiency and incentives, point out that there are some limitations imposed on intellectual property rights, to conclude that there are both efficiency-promoting and incentive promoting aspects to intellectual property law, and then to imply that an optimal balance has been struck.(18) (This is rather like saying that because fishermen throw some fish back, we can assume over-fishing is not occurring.) In general, then, I would claim there is a tendency to think that intellectual property is a place to apply our "public goods/incentives theory" rather than our "anti-monopoly/free-flow of information" theory.(19) All by itself, this might push rhetoric and analysis towards more expansive property rights. The tendency is compounded, however, by two others. First, courts are traditionally much less sensitive to First Amendment, free speech and other "free flow of information arguments" when the context is seen as private rather than public, property rather than censorship. Thus, for example, the Supreme Court will refuse to allow the state to ban flag burning, but is quite happy to create a property right in a general word such as "Olympic," convey it to a private party and then allow the private party selectively to refuse public usage of the word. Backed by this state-sponsored "homestead law for the language,"(20) the US Olympic Committee has decreed that the handicapped may have their "Special Olympics," but that gay activists may not hold a "Gay Olympics."(21) This, it seems, is not state censorship but private property. (Emboldened, Justice Rehnquist advocated privatizing the flag.)(22) Second, intellectual property rights are given only for "original" creation. But the idea of the original author or inventor implicitly devalues the importance of the raw materials with which any creator works -- the rhetorical focus on originality leads to a tendency to undervalue the public domain. After all, the novelist who, as Paul Goldstein puts it, "craft[s] out of thin air" does not need a rich and fertile public domain on which to draw. The ironic result is that a regime which lauds and proposes to encourage the great creator, may in that process actually function to take away the raw materials which future creators need to produce their little piece of innovation. One interesting thought experiment is to wonder whether Bill Gates could have developed the highly derivative program of MS-DOS if, at the time that he developed it, the current set of expansive copyright and patent protections for software had been in place. My book provides a lengthy discussion of this tendency so I will not dwell on it here. Tensions In an Intellectual Property System I have arranged these tensions in two vertical sets. Each set is not a list of corollaries, indeed they are sometimes internally contradictory. Thinking of the subject of intellectual property as "information" rather than "invention," does not commit oneself to Northrop Frye's views about the nature of artistic creation. It certainly does not entail the idea that intellectual property should protect investment and labour--in fact, the "efficiency" perspective tends to eschew intellectual property rights altogether. Let me also acknowledge that any particular portion of information regime is likely to mix and match the columns, like a restaurant patron picking four from column B and one from column A. Nevertheless, the members of each column are most likely to be found in popular and scholarly discourse when linked to their vertical neighbours. Under the guise of resolving these problems--the effect of the author vision is to make the items in the middle column either disappear or recede in importance. Tensions in an Intellectual Property 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. -------------------------------------------------------------------------------- # 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