[Nettime-bold] James Boyle: A Politics of Intellectual Property: Environmentalism For the Net? [3/3]

[Pit Schultz <pit@klubradio.de>]

                                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. Return
to "Recent Papers" Return to the Law in the Information Society Homepage
--------------------------------------------------------------------------------
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                                    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)



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