The Public Domain Part 28

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It is not that openness is always right. It is not. Often we need strong intellectual property rights, privacy controls, and networks that demand authentication. Rather, it is that we need a balance between open and closed, owned and free, and we are systematically likely to get the balance wrong. (How did you do on the test?) Partly this is because we still don't understand the kind of property that lives on networks; most of our experience is with tangible property. Sandwiches that one hundred people cannot share. Fields that can be overgrazed if outsiders cannot be excluded. For that kind of property, control makes more sense. Like astronauts brought up in gravity, our reflexes are poorly suited for free fall. Jefferson's words were true even of grain elevators and hopper-boys. But in our world, the proportion of intangible to tangible property is much, much higher. The tendency to conflate intellectual and real property is even more dangerous in a networked world. We need his words more than he did.

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Each of the questions I asked is related to the World Wide Web.

Not the Internet, the collective name for the whole phenomenon, including the underlying methods of sending and receiving packets. Some version of the underlying network has been around for much longer, in one form or another. But it only attracted popular attention, only revolutionized the world, when on top of it was built the World Wide Web--the network of protocols and pages and hyperlinks that is so much a part of our lives and which arose only from Tim Berners-Lee's work at CERN in 1991.

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My daughter will graduate from college in the year 2011. (At least, we both hope so.) She is older than the Web. It will not even have had its twentieth birthday on her graduation day. By Christmas of 2012, it will be able to drink legally in the United States. I wrote those sentences, but I find it hard to believe them myself. A life without the Web is easy to remember and yet hard to recapture fully. It seems like such a natural part of our world, too fixed to have been such a recent arrival, as if someone suggested that all the roads and buildings around you had arrived in the last fifteen years.

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Some of you may find these words inexplicable because you live in a happy, Th.o.r.eau-like bliss, free of any contact with computer networks. If so, I take my hat off to you. The world of open sky and virtuous sweat, of books and sport and laughter, is no less dear to me than to you. Having an avatar in a virtual world holds the same interest as elective dental surgery. I care about the Web not because I want to live my life there, but because of what it has allowed us to achieve, what it represents for the potential of open science and culture. That, I think, is something that Th.o.r.eau (and even Emerson for that matter) might have cared about deeply. Yet, as I suggested earlier in this book, I seriously doubt that we would create the Web today--at least if policy makers and market inc.u.mbents understood what the technology might become early enough to stop it.

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I am not postulating some sinister "Breakages, Limited" that stifles technological innovation. I am merely pointing out the imbalance between our intuitive perceptions of the virtues and dangers of open and closed systems, an imbalance I share, quite frankly.

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In place of what we have today, I think we would try, indeed we are trying, to reinvent a tamer, more controlled Web and to change the nature of the underlying network on which it operates. (This is a fear I share with those who have written about it more eloquently than I, particularly Larry Lessig and Yochai Benkler.) We would restrict openness of access, decrease anonymity, and limit the number of actions that a network partic.i.p.ant could perform. The benefits would be undeniable. It would cut down on spam, viruses, and illicit peer-to-peer file sharing. At the same time, it would undercut the iconoclastic technological, cultural, and political potential that the Web offers, the ability of a new technology, a new service to build on open networks and open protocols, without needing approval from regulators or entrenched market players, or even the owners of the Web pages to which you link.

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Imagine, by contrast, an Internet and a World Wide Web that looked like America Online, circa 1996, or Compuserve, or the French state network Minitel. True, your exposure to p.e.n.i.s- enhancement techniques, misspelled stock tips, and the penniless sons of Nigerian oil ministers would be reduced. That sounds pretty attractive. But the idea that the AOL search engine would be replaced by Yahoo and then Google, let alone Google Maps?

That new forms of instant messaging would displace Compuserve's e-mail? That the Chinese dissident would have access to anonymized Internet services, that you might make phone calls worldwide for free from your computer, or that a blog like BoingBoing would end up having more page views than many major newspapers? Forget it. Goodbye to the radical idea that anyone can link to any page on the network without permission. A revised network could have the opposite rule and even impose it by default.

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A tamer network could keep much tighter control over content, particularly copyrighted content. You might still get the video of the gentlemen doing strange things with Mentos and soda bottles, though not its viral method of distribution. But forget about "George Bush Doesn't Care About Black People" and all your favorite mashups. Its controlled network of links and its limited access would never unleash the collective fact-gathering genius the Web has shown. For a fee, you would have Microsoft Encarta and the Encyclopedia Britannica online. What about the "right-click universe" of knowledge about the world gathered by strangers, shared on comparatively open sites worldwide, and ordered by search engines? What about Wikipedia? I think not.

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The counterfactual I offer is not merely a counterfactual. Yes, we got the Web. It spread too fast to think of taming it into the more mature, sedate "National Information Infrastructure"

that the Clinton administration imagined. But as Larry Lessig pointed out years ago, the nature of a network can always be changed. The war over the control and design of the network, and the networked computer, is never-ending. As I write these words, the battles are over "trusted computing" and "Net neutrality."

Trusted computing is a feature built into the operating system which makes it impossible to run processes that have not been approved by some outside body and digitally identified. It would indeed help to safeguard your computer from viruses and other threats and make it harder to copy material the content owners did not want you to copy (perhaps even if you had a right to).

In the process it would help to lock in the power of those who had a dominant position in operating systems and popular programs. (Microsoft is a big supporter.) It would make open source software, which allows users to modify programs, inherently suspect. It would, in fact, as Jonathan Zittrain points out, change the nature of the general-purpose computer, which you can program to do anything, back toward the terminal which tells you what functions are allowed.1 Think of a DVD player.

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The attack on Net neutrality, by contrast, is an attempt by the companies who own the networks to be allowed to discriminate between favored and disfavored content, giving the former preferential access. (One wit a.n.a.logized it to letting the phone company say, "we will delay your call to Pizza Hut for sixty seconds, but if you want to be put through to our featured pizza provider immediately, hit nine now!") Taken together, these proposals would put the control of the computer back in the hands of the owners of the content and the operating system, and control of the network users' choices in the hands of the person who sells them their bandwidth. At the same time, our intellectual property agenda is filled with proposals to create new intellectual property rights or extend old ones. That is the openness aversion in action.

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Now, perhaps to you, the closed alternatives still sound better.

Perhaps you do not care as much about the kind of technological dynamism, or anonymous speech, or cultural ferment that thrills the digerati. Perhaps you care more about the risks posed by the underlying freedom. That is a perfectly reasonable point of view. After all, openness does present real dangers; the same freedom given to the innovator, the artist, and the dissident is given to the predator and the criminal. At each moment in history when we have opened a communications network, or the franchise, or literacy, reasonable people have worried about the consequences that might ensue. Would expanded literacy lead to a general coa.r.s.ening of the literary imagination? (Sometimes, perhaps. But it would and did lead to much more besides, to literature and culture of which we could not have dreamed.) Would an expanded franchise put the control of the state into the hands of the uneducated? (Yes, unless we had free national educational systems. "Now we must educate our masters" was the slogan of the educational reformers after the enlargement of the franchise in Britain in the nineteenth century. Openness sometimes begets openness.) Would translating the Bible from Latin into the vernacular open the door to unorthodox and heretical interpretations, to a congregation straying because they did not need to depend on a priestly intermediary with privileged access to the text? (Oh, yes indeed.) Would TV and radio play into the hands of demagogues? (Yes, and help expose their misdeeds.) 21

Openness is not always right. Far from it. But our prior experience seems to be that we are systematically better at seeing its dangers than its benefits. This book has been an attempt, in the sphere of intellectual property, to help us counteract that bias. Like the pilot in the cloud looking at his instruments, we might learn that we are upside down. But what do we do about it?

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LEARNING FROM ENVIRONMENTALISM 23

I have argued that our policies are distorted not merely by industry capture or the power of inc.u.mbent firms, but by a series of cultural and economic biases or presuppositions: the equation of intellectual property to physical property; the a.s.sumption that whenever value is created, an intellectual property right should follow; the romantic idea of creativity that needs no raw material from which to build; the habit of considering the threats, but not the benefits, of new technologies; the notion that more rights will automatically bring more innovation; the failure to realize that the public domain is a vital contributor to innovation and culture; and a tendency to see the dangers of openness, but not its potential benefits.2 24

One of the most stunning pieces of evidence to our aversion to openness is that, for the last fifty years, whenever there has been a change in the law, it has almost always been to expand intellectual property rights. (Remember, this implies that every significant change in technology, society, or economy required more rights, never less, nor even the same amount.) We have done all this almost entirely in the absence of empirical evidence, and without empirical reconsideration to see if our policies were working. As I pointed out in the last chapter, intellectual property policy is an "evidence-free zone." It runs on faith alone and its faith consists of the cl.u.s.ter of ideas I have outlined in this book. Whether we call this cl.u.s.ter of ideas maximalism, cultural agoraphobia, or the openness aversion, it exercises a profound influence on our intellectual property and communications policy.

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These ideas are not free-floating. They exist within, are influenced by, and in turn influence, a political economy. The political economy matters and it will shape any viable response.

Even if the costs of getting the policies wrong are huge and unnecessary--think of the costs of the copyright extensions that lock up most of twentieth-century culture in order to protect the tiny fraction of it that is still commercially available--they are spread out over the entire population, while the benefits accrue to a small group of commercial ent.i.ties that deeply and sincerely believe in the maximalist creed. This pattern of diffuse but large losses and concentrated gains is, as Mancur Olson taught us, a recipe for political malfunction.3 Yet the problem is even deeper than that--in four ways.

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First, though intellectual property rules will profoundly shape science, culture, and the market in the information age, they just seem obscure, wonkish, hard to get excited about.

Certainly, people can get upset about individual examples--overbroad patents on human genes, copyright lawsuits against whistleblowers who leak e-mails showing corporate misdeeds that threaten the integrity of electronic voting, rules that paralyze doc.u.mentary filmmakers, or require payment for sampling three notes from a prior song, extensions of rights that allow patents on auctions or business methods, make genres such as jazz seem legally problematic, create new rights over facts, or snarl up foundational technologies. But they see each of these as an isolated malfunction, not part of a larger social problem or set of att.i.tudes.

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Second, what holds true for issues, also holds true for communities. What links the person writing open source software, and trying to negotiate a sea of software patents in the process, to the film archivist trying to stir up interest in all the wonderful "orphan films"--still under copyright but with no copyright owner we can find--before they molder away into nitrate dust? When a university collaborates with Google to digitize books in their collection for the purposes of search and retrieval, even if only a tiny portion of the text will be visible for any work still under copyright, does it sense any common interest with the synthetic biologist trying to create the BioBricks Foundation, to keep open the foundational elements of a new scientific field? Both may be sued for their efforts--one connection at least.

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When a developing nation tries to make use of the explicit "flexibilities" built into international trade agreements so as to make available a life-saving drug to its population through a process of compulsory licensing and compensation, it will find itself pilloried as a lawbreaker--though it is not--or punished through bilateral agreements. Will that process form any common interest with the high-technology industries in the United States who chafe at the way that current intellectual property rules enshrine older technologies and business methods and give them the protection of law? There are some links between those two situations. Will the parties see those links, or will the developing world's negotiators think that the current intellectual property rules express some monolithic "Western"

set of interests? Will the high-tech companies think this is just an issue of dumb lawyers failing to understand technology?

Each gap in understanding of common interest is a strike against an effective response.

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Third, an effective political response would actually be easier if our current rules came merely from the relentless pursuit of corporate self-interest. (Here I part company with those who believe that self-interest is simply "there"--not shaped by socially constructed ideas, att.i.tudes, ideologies, or biases.) In fact, the openness aversion sometimes obscures self-interest as well as the public interest. Think of the relentless insistence of the movie companies on making video recorders illegal. Nor does the framework of maximalism help if our goal is to have all the interested economic actors in the room when policy is made. For example, by framing issues of communications policy or Internet regulation as questions of intellectual property, we automatically privilege one set of interested parties--content owners--over others who also have a large economic stake in the matter.

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Fourth, and finally, the biggest problem is that even if one could overcome the problems of political interest, or ideological closed-mindedness, the answers to many of these questions require balance, thought, and empirical evidence--all qualities markedly missing in the debate. If the answer were that intellectual property rights are bad, then forming good policy would be easy. But that is as silly and one-sided an idea as the maximalist one I have been criticizing here. Here are three examples: 31

1. Drug patents do help produce drugs. Jettisoning them is a bad idea--though experimenting with additional and alternative methods of encouraging medical innovation is a very good one.

2. I believe copyrights over literary works should be shorter, and that one should have to renew them after twenty-eight years--something that about 85 percent of authors and publishers will not do, if prior history is anything to go by. I think that would give ample incentives to write and distribute books, and give us a richer, more accessible culture and educational system to boot, a Library of Congress where you truly can "click to get the book" as my son asked me to do years ago now. But that does not mean that I wish to abolish copyright. On the contrary, I think it is an excellent system.

3. All the empirical evidence shows that protecting compilations of facts, as the European Database Directive does, has been a profound failure as a policy, imposing costs on consumers without encouraging new database production. But if the evidence said the opposite, I would support a new database right.

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We need a political debate about intellectual property that recognizes these trade-offs; that does not impose simplistic, one-sided solutions; that looks to evidence. We need to understand the delicate and subtle balance between property and the opposite of property, the role of rights, but also of the public domain and the commons. Building a theory, let alone a movement, around such an issue is hard. Doing so when we lack some of the basic theoretical tools and vocabularies is daunting. We do not even have a robust conception of the public domain. If they think of it as a legal issue at all, people simply think of it as whatever is left over after an endless series of rights have been carved out. Can one build a politics to protect a residue?

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So we have at least four problems: an issue that is perceived as obscure, affecting scattered groups with little knowledge of each other's interest, dominated by an ideology that is genuinely believed by its adherents, in the place of which we have to make careful, balanced, empirically grounded suggestions. a.s.sume for a moment the need for a politics of intellectual property that seeks a solution to these four problems. What might such a politics look like?

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I have argued that in a number of respects, the politics of intellectual property and the public domain is at the stage that the American environmental movement was at in the 1950s. In 1950, there were people who cared strongly about issues we would now identify as "environmental"--supporters of the park system and birdwatchers, but also hunters and those who disdained chemical pesticides in growing their foods. In the world of intellectual property, we have start-up software engineers, libraries, appropriationist artists, parodists, biographers, and biotech researchers. In the 50s and 60s, we had flurries of outrage over particular crises--burning rivers, oil spills, dreadful smog. In the world of intellectual property, we have the kind of stories I have tried to tell here. Lacking, however, is a general framework, a perception of common interest in apparently disparate situations.

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Crudely speaking, the environmental movement was deeply influenced by two basic a.n.a.lytical 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 internalize their full costs.4 The combination of the two ideas yielded a powerful and disturbing conclusion. Markets would routinely fail to make activities internalize their own costs, particularly their own environmental costs. This failure would, routinely, disrupt or destroy fragile ecological systems, with unpredictable, ugly, dangerous, and possibly irreparable consequences. These two types of a.n.a.lysis pointed to a general interest in environmental protection and thus helped to build a large const.i.tuency 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 natural gas for power generation may have impacts on everything from forests to fisheries. The attempt to reduce greenhouse gases and mitigate the damage from global warming cuts across every aspect of the economy.

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Of course, it would be silly to think that environmental policy was fueled only by ideas rather than 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." Funnily enough, as with intellectual property, changes in communications technology also played a role. "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."5 More importantly perhaps, the technologically fueled deluge of information, whether from weather satellites or computer models running on supercomputers, provided some of the evidence that--eventually--started to build a consensus around the seriousness of global warming.

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Despite the importance of these other factors, 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. Popularizing complicated ideas is hard work. There were popular books, television discussions, doc.u.mentaries on Love Ca.n.a.l 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 theater of a Greenpeace protest or the tweedy 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.

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To me, this suggests a strategy for the future of the politics of intellectual property, a way to save our eroding public domain. In both areas, we seem to have the same recipe for failure in the structure of the decision-making process.

Democratic decisions are made badly when they are primarily made by and for the benefit of a few stakeholders, whether industrialists or content providers. 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 a.s.signs of authors whose copyright has expired in having Congress put the fence back up around this portion of the intellectual commons. There are clearly 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 stakeholders to represent them.

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