[Nettime-bold] James Boyle: A Politics of Intellectual Property: Environmentalism For the Net? [1/3]

[Pit Schultz <pit@klubradio.de>]

[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.


--------------------------------------------------------------------------------



_______________________________________________
Nettime-bold mailing list
Nettime-bold@nettime.org
http://www.nettime.org/cgi-bin/mailman/listinfo/nettime-bold