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Pamela Samuelson
University of California at Berkeley
Friday, 10 May 2002 Plenary
Toward a New Politics of Intellectual Property
Until very recently, copyright has been on the
periphery of law and public policy concerns because it provided highly
technical rules to regulate a specialized industry. The politics of
copyright largely focused on intra-industry bickering. The typical
response of the legislature to such intra-industry struggles has been to
propose that affected parties meet behind closed doors and hammer out
compromise language that would thereafter become enacted into law. It
didn't matter much if the language negotiated in the heat of the night
was incomprehensible (as has so often been the case) because the
affected parties understood it, and that was all that mattered.
Copyright law has, as a consequence, become highly complex and
effectively unreadable.
One reason why a new politics of intellectual property is necessary
is that copyright now affects everyone. Advances in information
technology and digital networks allow everyone to become a publisher.
Under the Clinton Administration's "White Paper" on Intellectual
Property and the National Information Infrastructure, every access to
and use of digital information was a copyright-significant act because
they involve temporary copying of the information in the random access
memory of a computer, which the White Paper said violated the
reproduction right of copyright owners unless authorized by them. While
this interpretation of existing law is highly controversial among
copyright lawyers, there is some caselaw support for it in the U.S. and
the European Union's recent Directive on Copyright for the Information
Society adopts it as the right rule for the future.
Because copyright infringement by individuals is so difficult to
police in a distributed networked environment, copyright owners are
increasingly going after technologies that enable copyright
infringement. One strategy is very expensive litigation, such as the
lawsuits against Napster and other makers of peer-to-peer software.
Another is by support for new legislation such as Senator Hollings'
Consumer Broadband and Digital Television Promotion Act (S. 2048). The
Hollings bill would outlaw the general purpose computer and open source
digital media players. It would require all makers of digital media
devices to install technical protection measures vetted by the Federal
Communications Commission. Those who violated this law could go to jail
for a very long time. European Union officials have expressed sympathy
for mandating technical protection measures as well, although they have
not yet formulated legislation to require this.
The Hollings bill is unlikely to pass during the current legislative
session but it should be taken very seriously. Hollywood won't be
satisfied until and unless general purpose computers have been tamed and
the Internet has been rearchitected to make it safe for their products.
Quite possible in the near term are little "mini-Hollings" bills focused
on specific technologies (e.g., requiring makers of digital televisions
to build sets to respond to broadcast "flags" which would allow or
disallow copying of particular programs). Once several of these bills
have passed, the momentum for more general legislation is likely to
build. To oppose such legislation, it is not enough to say that the
Hollings bill or little mini-Hollings bills are brain-dead or
unenforceable. If you think general purpose computers and open
information environments such as the World Wide Web are valuable, you
are going to have to help build a new politics of intellectual property
that will preserve these devices and infrastructure.
This will not be easy because of two important legacies of the old
politics of intellectual property: First, copyright industry groups
have cultivated relationships with policymakers in the executive and
legislative branches over a long period of time. They have built up
trust with policymakers, and they know how to get their messages across
to this audience very effectively. Second, the public has gotten used
to the idea that copyright doesn't concern them. It is, as a
consequence, virtually impossible to mobilize the public when changes to
copyright law are proposed. Even though changes such as the Hollings
bill will almost certainly have profound impacts on the public's use of
information, it is difficult for most people to realize what's at stake.
Even when some members of the public, such as USACM's public policy
committee, do become engaged in the policy debates about copyright, they
lack the political heft of industry counterparts, not the least because
they are less fruitful sources of campaign contributions.
A new politics of intellectual property is needed to counteract the
content industry's drive toward ever stronger rights. More importantly,
a broader awareness is needed that copyright deeply affects the
information environment for us all. The digital networked environment
has surely changed the economics of production of intellectual property
(e.g., the marginal cost of copying is effectively zero), the economics
of distribution (e.g., the cost of transmission via the Internet is also
effectively zero), and the economics of publication (e.g., posting
information on the web is also radically cheaper than in the print
environment). This means, among other things, that the actions of
individuals can have the same potential market-destructive impact as
those of commercial counterfeiters in the olden days. This helps to
explain why the content industries have been so anxious about computers
and why they favor moving to a pay-per-use or mandated trusted system
policy for all commercially valuable information in digital form.
Without imaginative proposals for more balanced solutions and without a
political movement to support and sustain such proposalsÑin other words,
without a new politics of intellectual propertyÑthere will be little to
stop the current politics from having its high protectionist way.
James Boyle has argued for a new politics of intellectual property in
his essay "Environmentalism for the Net." This essay points out that in
the 1950's there was no concept of the "environment." Logging and
mining companies thought that they alone were affected by legislation
concerning natural resource issues and they lobbied for policies that
sometimes caused erosion and pollution to ruin streams and lakes, scar
the landscape, and kill off of fish and other wildlife. It took a while
for bird-watchers and hunters (as well as society more generally) to
realize they had a common interest in preservation of nature. Together
they invented the concept of the environment, and this concept enabled a
powerful political movement to protect it. What is needed is a similar
movement to protect the intangible interests we all have in an open
information environment, in robust public domain, and in balanced
intellectual property law. It will sound strange perhaps to put it this
way, but our information ecology really will be disrupted if
intellectual property rights get too strong. So far Greenpeace hasn't
taken up the cause, but maybe they should.
Here are some thoughts about who might participate in a new politics
of intellectual property aimed at promoting a balanced information
ecology. Obvious candidates include authors and artists (who need
access to information, a robust public domain, and meaningful fair use
rights), educational institutions, libraries, scholarly societies,
computing professionals, computer manufacturers and other equipment
providers who don't want Hollywood to be in charge of their research and
development divisions, telecommunications companies and Internet service
and access providers (who want to serve their customers and not become a
new branch of the police), consumer groups, civil liberties
organizations, and digital media companies who may have some radical
business models that just might work if not shut down through litigation
by established copyright industry groups who want to protect preferred
business models.
The agenda of a new politics of intellectual property obviously
needs to be about more than just opposing the high protectionist
initiatives of copyright industry groups. It should, of course, oppose
legislation such as the Hollings bill, but the new politics needs to
have a set of affirmative policy objectives of its own. The new
politics might, for example, propose legislation to protect consumer
rights, such as fair use, under copyright law. Digitalconsumer.org has
made a good start on such a project by formulating a users' "bill of
rights." A new politics might also support legislation to require
digital rights management systems to protect the right of consumers to
read and listen anonymously. It might also support changes to the
Digital Millennium Copyright Act anti-circumvention rules so that
researchers like Edward Felten and his colleagues don't need to worry
about getting sued when they do scientific research and publish the
results. And it should also take an international perspective because
as we all know, the Internet and the World Wide Web are inherently
international in character. It is necessary to care about the
intellectual property rules of every nation because overly strict rules
in one jurisdiction can mean that no one will be safe posting
information on the Web without fear of liability. Recall that Dmitri
Sklyarov was arrested in Las Vegas, Nevada, for having written a program
in Russia that was available on the Web because Adobe persuaded the
Justice Department it violated the DMCA anti-circumvention rules.
Articulating the societal benefits of an open information
environment, such as the World Wide Web, is probably the single most
important thing that the new politics of intellectual property might do.
This is an activity that participants in this conference are eminently
capable of doing. The robustness and efficiency of the Internet and the
Web as a global communications medium is a product of its present
end-to-end, open, nondiscriminatory architecture. Computers are not
only more valuable to people because they can so quickly and easily copy
information from disk to disk, but the ease of copying enables many
beneficial new uses of information which copyright owners neither need
to nor ought to be able to control. Innovation and competition would be
stifled if mandated trusted systems became the law. Moreover, the
market for digital information products may well be vastly smaller if
every piece of information must be tightly locked up at all times.
Branko Geravac once recommended that publishers "protect revenues, not
bits." Maybe a new politics of intellectual property could help
copyright industries get re-focused on providing content that a wide
array of the public might want to enjoy instead of putting so much
effort into suppressing innovation and competition in the information
technology industry and the digital networked environment through
lawsuits and unsound legislative initiatives.
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