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


                                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.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------

                                    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).


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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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