No Subject

Some "digital products" require enormous investments of time and energy, are of
lasting value, require no "tied" subsidiary services to make them work and can
be copied for pennies. Others require little investment precisely because of
their digital nature, do not require extensive research and development or can
be protected by denial of access (databases and search engines), by preemptive
release of "demo" or partially disabled shareware versions (DOOM), by being
first to market, by "tying arrangements" such as help lines, technical
assistance or paid advertising (Netscape) and so on. The point is that the
digital environment is complicated; the same technical factors that make
copying easier also yield other ways for producers to recover their
investments, or to encourage further innovation. Rather than take these
complexities seriously, the White Paper simply assumes that, on the Net, a
right-holder needs all the rights available outside the Net, plus some new ones
as well. To the point that there are multiple ways for producers to secure an
adequate return on their investment of time and ingenuity, the White Paper
opines weakly that not everyone will choose to enforce to the full, the rights
the report proposes to give them. This is rather like responding to the
argument that a capital gains tax cut is not necessary to stimulate investment,
with the rejoinder that some investors may decide to give the extra money to
charity. Yes, it may happen, but that doesn't go to the question of whether the
change was necessary in the first place.

More important than the individual positions taken, however, are the logical
fallacies and baseline errors with which the White Paper is loaded.
Intellectual property rights are limited monopolies conferred in order to
produce present and future public benefit -- for the purposes of achieving
those goals, the "limitations" on the right are just as important as the grant
of the right itself. To put it more accurately, since there is no "natural"
absolute intellectual property right, the doctrines which favor consumers and
other users, such as fair use, are just as much a part of the basic right, as
the entitlement of the author to prevent certain kinds of copying. Even the
source of the Congress's authority in intellectual property matters --Article
1, Section 8, clause 8 of the Constitution -- mentions two limitations on
intellectual property rights; one is functional "To promote the Progress of
Science and useful Arts" and the other is temporal "by securing for limited
times to authors and inventors." Thus, intellectual property is a particularly
inappropriate area to talk about property rights as if they were both natural
and absolute. Yet this the White Paper does with a dogged consistency and an
unlikely passion. Observe in the following quotation how the White Paper first
sets up its own inflated idea of intellectual property as the baseline, then
implies that right-holders actually have an absolute property right in the
continuation of that level of protection. Amazingly, the "limitations" that
define intellectual property rights instead become a "tax" on
right-holders.

Some participants have suggested that the United States is being divided into a
nation of information "haves" and "have nots" and that this could be
ameliorated by ensuring that the fair use defense is broadly generous [sic] in
the NII context. The Working Group rejects the notion that copyright owners
should be taxed -- apart from all others -- to facilitate the legitimate goal
of universal access.(32)

Of course, given the goals of copyright law, it would have made just as much
sense if the argument had been reversed, taking the fair use rights of users
and consumers as the baseline. The White Paper wants to give expansive
intellectual property rights because it believes, wrongly in my view, that this
is the best way to encourage private companies to fund the construction of the
information superhighway. In response, a more skeptical Working Group might
have said;

Some reports have suggested that the difficulties of encouraging companies to
develop the National Information Infrastructure could be ameliorated by
ensuring that intellectual property rights are broadly generous and fair use
rights curtailed in the NII context. The Working Group rejects the notion that
consumers, future creators and other holders of fair use rights should be taxed
-- apart from all others -- to facilitate the legitimate goal of encouraging
investment in the information superhighway.

But the White Paper not only illustrates the pervasive power of baseline
fallacies in information economics, it also shows how the "original author"
vision downplays the importance of fair use and thus encourages an absolutist
rather than a functional idea of intellectual property. In a footnote to the
passage quoted above, the Working Group explains further. The laws of economics
and physics protect producers of equipment and tangible supplies to a greater
extent than copyright owners. A university, for example, has little choice but
to pay to acquire photocopy equipment, computer paper and diskettes. . . It
may, however, seek subsidization from copyright owners by arguing that its
copying and distribution of their works should, as a fair use, not be
compensated."(33)

This completes the picture given above. Fair use rights are a "subsidy" sought
by universities. But wait a minute. Even if the only goal of intellectual
property law were to encourage future innovation and information production,
this argument would be fallacious. Future creators need some raw material to
work with, after all. Fair use is one important method of providing that raw
material. It can also be seen as part of the implicit quid pro quo of
intellectual property; we will give you this extremely valuable legal monopoly,
backed with state power and enforced through the courts (and by the FBI.) In
return, we will design the contours of your right so as to encourage a variety
of socially valuable uses. The White Paper wants to give copyright holders the
"quid" while claiming that the "quo" is a tax, or a forced subsidy.

Only the unfamiliarity of intellectual property conceals the ludicrousness of
the argument. Its as if a developer had negotiated a fat package of cash grants
and tax breaks as the price of building a new stadium in Washington D.C., but
then wanted to claim the benefits of the deal while insisting that to making
him fulfil his side of the bargain would be to confer a "subsidy" on the
city.(34)

The press reaction to the White paper was respectful (and a little foggy around
the edges.) Obviously at a loss to know whom to contact, the reporters got
reactions from the Business Software Alliance, the recording industry and the
publishers' lobbyists. Surprisingly enough, all these groups felt this was a
fine document, the result of meticulous analysis and a good basis for the
future. Only later did the press begin to contact those who would be negatively
affected by the proposed changes: libraries, on-line service providers,
teachers and so on. The coverage in the media demonstrated two vital things
about the future of intellectual property.

First, it is still possible to get away with arguments which if made about any
other area of regulation would arouse howls of derision -- or at least
well-informed skepticism. Compare press reactions to proposals for a flat-tax
or arguments that property owners should be compensated for the costs of
complying with environmental regulation. Second, the press and the public
simply have no idea of the likely "sides" or "interests" involved in such a
decision. If a labour law is passed, the Washington Post doesn't only call the
Chamber of Commerce, on environmental issues they don't only call the Sierra
club. Yet on intellectual property issues, they call only the largest property
holders. The idea that startup software developers, academics, librarians,
civil libertarians and so on might have a distinct perspective on these issues,
simply hasn't emerged into popular consciousness.

--------------------------------------------------------------------------------
                                    V

                      The Analogy to Environmentalism

Assume for a moment the need for a politics of intellectual property. Go
further for a moment, and accept the idea that there might be a special need
for a politics to protect the public domain. What might such a politics look
like? Right now, it seems to me that, in a number of respects, we are at the
stage that the American environmental movement was at in the 1950's. There are
people who care about issues we would now identify as "environmental" --
supporters of the park system, hunters, birdwatchers and so on. (In the world
of intellectual property we have start-up software engineers, libraries,
appropriationist artists, parodists, biographers, biotech researchers etc.)
There are flurries of outrage over particular crises -- burning rivers, oil
spills. (In the world of intellectual property, we have disconnected stories
about Microsoft's allegedly anti-competitive practices, the problematic morals
of patenting human genes, the propriety of using copyright to shut down certain
critics of the Church of Scientology.) Lacking, however, is a general
framework, a set of analytical tools with which issues should -- as a first cut
-- be analysed, and as a result a perception of common interest in apparently
disparate situations -- cutting across traditional oppositions. (Hunter vs.
Birdwatcher, for example.)(35) What kinds of tools are we talking about?

Crudely speaking, the environmental movement was deeply influenced by two basic
analytical frameworks. The first was the idea of ecology; the fragile, complex
and unpredictable interconnections between living systems. The second was the
idea of welfare economics -- the ways in which markets can fail to make
activities internalise their full costs. The combination of the 2 ideas yielded
a powerful and disturbing conclusion. Markets would routinely fail to make
activities internalise their own costs, particularly their own environmental
costs. This failure would, routinely, disrupt or destroy fragile ecological
systems, with unpredictable, ugly, dangerous and possible irreparable
consequences. These two types of analysis pointed to a general interest in
environmental protection and thus helped to build a large constituency which
supported governmental efforts to that end. The duck-hunter's preservation of
wetlands as a species habitat turns out to have wider functions in the
prevention of erosion and the maintenance of water quality. The decision to
burn coal rather than gas for power generation may have impacts on everything
from forests to fisheries.

Of course, it would be silly to think that environmental policy was fuelled
only by ideas rather by more immediate desires. As William Ruckelshaus put it,
"With air pollution there was, for example, a desire of the people living in
Denver to see the mountains again. Similarly, the people living in Los Angeles
had a desire to see one another."(36) (Funnily enough, as with intellectual
property, changes in communications technology also played a rôle. "In
our living rooms in the middle sixties, black and white television went out and
color television came in. We have only begun to understand some of the impacts
of television on our lives, but certainly for the environmental movement it was
a bonanza. A yellow outfall flowing into a blue river does not have anywhere
near the impact on black and white television that it has on color television;
neither does brown smog against a blue sky."(37))

Nevertheless, the ideas I mentioned, ecology and welfare economics, were
extremely important for the environmental movement. They helped to provide its
agenda, its rhetoric and the perception of common interest underneath its
coalition politics. Even more interestingly, for my purposes, those ideas --
which began as inaccessible, scientific or economic concepts, far from popular
discourse -- were brought into the mainstream of American politics. This did
not happen easily or automatically. Popularising complicated ideas is hard
work. There were brilliant books like Silent Spring and A Sand County Almanac,
television discussions, documentaries on Love Canal or the California kelp
beds, op-ed pieces in newspapers and pontificating experts on TV. Environmental
groups both shocking and staid played their part, through the dramatic theatre
of a Greenpeace protest, or the tweety respectability of the Audubon society.
Where once the idea of "The Environment" (as opposed to 'my lake', say) was
seen as a mere abstraction, something that couldn't stand against the concrete
benefits brought by a particular piece of development, it came to be an
abstraction with both the force of law and of popular interest behind it.

To me, this suggests a strategy for the future of the politics of intellectual
property. In both areas, we seem to have the same recipe for failure in the
structure of the decision-making process. Decisions in a democracy are made
badly when they are primarily made by and for the benefit of a few
stake-holders (land-owners or content providers). It is a matter of rudimentary
political science analysis or public choice theory to say that democracy works
badly when the gains of a particular action can be captured by a relatively
small and well-identified group while the losses -- even if larger in aggregate
-- are low-level effects spread over a larger, more inchoate group.(38) (This
effect is only intensified when the transaction costs of identifying and
resisting the change are high.) Think of the costs and benefits of acid rain
producing power-generation or -- less serious, but surely similar in form --
the costs and benefits of retrospectively increasing copyright term limits on
works for which the copyright had already expired, pulling them back out of the
public domain. There are obvious benefits to the heirs and assigns of authors
whose copyright has expired, in having the Congress put the fence back up
around this portion of the intellectual commons.(39) There are obviously some
costs -- for example, to education and public debate -- in not having multiple,
competing low cost editions of these works. But these costs are individually
small and have few obvious stake-holders to represent them.

Beyond the failures in the decision-making process, lie failures in the way
that we think about the issues. The environmental movement gained much of its
persuasive power by pointing out that there were structural reasons that we
were likely to make bad environmental decisions; a legal system based on a
particular notion of what "private property" entailed, and an engineering or
scientific system that treated the world as a simple, linearly related set of
causes and effects. In both of these conceptual systems, the environment
actually disappeared; there was no place for it in the analysis. Small surprise
then, that we did not preserve it very well. I have argued that the same is
true about the public domain. The fundamental aporia in economic analysis of
information issues, the source-blindness of an "original author" centered model
or property rights, and the political blindness to the importance of the public
domain as a whole (not "my lake," but "The Environment") all come together to
make the public domain disappear, first in concept and then, increasingly, as a
reality.

I have said all of this in an attempt to show that there is something larger
going on under the realpolitik of land grabs by Disney and campaign
contributions by the Recording Industry of America. But it would be an equal
and opposite mistake to think that this is just about a dysfunctional discourse
of intellectual property. In this part of the analysis, too, the environmental
movement offers some useful practical reminders. The ideas of ecology and
environmental welfare economics were important, but one cannot merely write a
Silent Spring or a Sand County Almanac and hope that the world will change.
Environmentalists piggy-backed on existing sources of conservationist sentiment
-- love of nature, the national parks movement, hikers, campers, birdwatchers.
They built coalitions between those who might be affected by environmental
changes. They even discovered, though very slowly, the reality of environmental
racism.

Some of these aspects, at least, could be replicated in the politics of
intellectual property. The coalitions developed to combat the White Paper and
its implementing legislation, offers some nice examples of the possibilities
and pitfalls. Other strategies also come to mind. For environmental problems,
some of the transaction costs of investigation and political action are
overcome through expert agents, both public and private. I pay my taxes to
support the EPA or my charity dollars to Greenpeace, and hope they do a good
job of tracking environmental problems. (In the latter case, I know at least
that the makers of Zodiac rubber boats will be given a boost.) Right now there
is not a single public or private organisation whose main task is to protect
and preserve the public domain. This should change.

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