Debate 4/IP Kills Democracy

Argument In Support of the Resolution

"Resolved: The outcome of the digital intellectual property crisis is crucial to whether or not the use of the Internet ultimately has a positive impact in terms of strengthening democracies."

Introduction: Intellectual Property, Democracy, and the Era of "Cut and Paste"

Connecting Cyber-Democracy to Real Space Democracy and Measuring the Impact of the Intellectual Property Crisis:

• "The diffusion of power through local control, thereby encouraging individual participation, is the essence of federalism and the greatest expression of democracy," (Safire via Lessig, Free Culture).

• • "Can the Internet enhance democracy?" This is the question of the course.
    • Yes: Gilmor, Benkler, Trippi, Global Voices, von Hippel, Lessig
    • Yes, but it is under threat: Zittrain, Palfrey, Deibert,
    • It's not looking good: Sunstein, Shirky, Goldsmith & Wu

The Internet appears to hold the potential to be a democratizing force, but clearly the laws, policies, and norms that govern it play a role in determining to what degree.

• Intellectual Property law, a vital yet contested value of democracies in real space, will be a major factor in determining the democratization of Internet space.
  • An important theme of Free Culture is the connection between real space and Internet space.
  • Lessig, Benkler, and von Hippel argue that the Internet's impact is not restricted to cyberspace and that its cultural and economic effects are substantial.

• Lessig: "A free culture supports and protects creators and innovators through intellectual property but it also facilitates freedom through limitations of these rights."
  • If enhancing Internet democracy is in the interest of real space democracies, isn't a re-evaluation of IP law required in the digital era of "cut and paste"?

*The outcome of the intellectual property crisis will establish the degree to which free culture is allowed to exist on the Internet and that outcome will have important effects on our real space democracy.

A Brief History of the Internet

• Development of Intellectual Property
  • U.S. Constitution, Art. I Sec. 8
    • "The Congress shall have Power... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries"
    • Copyright protection "has never accorded the copyright owner complete control over all possible uses of his work." Sony v. Universal Studios, Inc., 464 U.S. 417, 432 (1984).
    • The monopoly given to the intellectual property owner is part of a bargain struck between society and the authors/inventors. Part of the bargain is that the public domain is enriched. For copyright, the public gets fair use rights to quote, comment and critique. For patents, the inventor must disclose the invention and others may improve upon it.
  • Intellectual property is treated differently under the law than real property or chattel because "Information is different" (Boyle, Shamans Software and Spleens, p. 174)
    • Non-excludable: Once you receive information I can't take it back from you.
    • Non-rivalrous: You knowing what I know does not interfere with me still knowing it.
• IP in the Early Internet

Present: The IP Crisis

Copyright

• • Secondary Liability
    • Make Way for Copyright Chaos by Lessig
    • The DMCA and the Supreme Court decision in Grokster have not made clear whether a content host is liable for a business model that relies upon users posting copyrighted material. See the Youtube case, Viacom v. Google.
  • Copyright Abuse as Censorship
    • OPG v. Diebold: Diebold claimed copyrights in leaked emails.
      • While the court ruled that "No reasonable copyright holder could have believed that the portions of the email archive discussing possible technical problems with Diebold's voting machines were proteced by copyright" and that Diebold had misused the DMCA, the decision was preceded by a year of litigation and prior to the decision many ISP providers had taken down lawful materials as a result of cease and desist letters.
      • Diebold demonstrates that unclear IP laws may result in abuses by corporations motivated by a desire to suppress criticism rather than a desire to protect intellectual property. In cases where business practices are related to important public policy issues, such suppression will hinder dissemination of information and citizen organization over the Internet.
    • MoveOn.Org v. Viacom: Viacom allegedly sent a takedown notice to YouTube regarding Stop the Falsiness, a parody video using clips from The Colbert Report.
      • Assuming the claims asserted by EFF and MoveOn.Org are valid, suppression of such clips would likely result in suppression of political commentary, which Stop the Falsiness arguably is (it makes fun of the political organization techniques such as online petitions used by MoveOn).
      • This example demonstrates the chilling effects caused by unclear fair use doctrine.

Patent

• • Patent Office Professionals Organization on Crisis of Patent System
    • Note that copyright is not the only intellectual property currently facing a crisis. "[I]ncreasingly complex patent applications and an ever-expanding body of relevant patent and non-patent literature have reached such a level that, unless serious measures are taken, meaningful protection of intellectual property throughout the world may, itself, become history."
    • If Professor Von Hippel is right that invention is becoming more decentralized, it will become increasingly difficult for patent officers to adequately research the novelty of a patent petition in the prior art. Where once they could look in trade journals and news reports, they must now consider prior art that includes the entire Internet. Will the Internet break the patent system?
  • Business method patents
    • Patents on methods of doing business were recognized by U.S. courts just as commercial enterprises were entering the Internet. The Federal Circuit's State Street decision held patentable any "invention" involving some practical application that "produces a useful, concrete and tangible result."
    • All internet commerce is novel, meaning that every company can become an "inventor" for simply doing business. See Amazon's "1-Click" patent, which prevented BarnesandNoble.com from using an online "express lane" checkout feature. Note that business patents provide state-sanctioned monopoly rent to entreprenuers who may already have adequate financial incentives to innovate. If a method of doing business is "useful" it must either save costs or increase revenues. If the business would create the innovation without the incentive of a patent, the public isn't getting any benefit, and the patent does not "promote the Progress of Science and useful Arts" as per the Constitution.
    • A business method is only useful insofar as it serves the needs of the market or consumers. Those systems are likely to change exogenously more than, say, the human body’s chemical pathways or the laws of physics. Business methods are useful only in a historical moment, dependent on any number of social and market forces. Labeling such an innovation an “invention” and providing patent protection risks creating, rather than curing, market failure. A first-mover can occupy a business method that will be efficient and useful only for a few years, thus forcing competitors to practice less efficient methods and never passing the benefit of the supposed invention into the public domain before its usefulness expires.
  • Ultimately, unclear patent law results in unnecessary unavailability of technologies that would further facilitate collaboration via the Internet.

But won't people engage in these activities anyway?

• The average person doesn't know what the law is and seems to have no reservations about infringing copyright when it comes to downloading music and creating mashups. Why should we believe that unclear laws will prevent people from creating transformative works, engaging in political commentary, etc.?
  • Examples:
    • The Grey Album
    • Diebold
  • The examples given above are extraordinary cases. The day-to-day reality of participatory democracy is not nearly as sexy. Large groups of people may flaunt or overcome unclear IP law given sufficient motivation, but to nurture democracy we must create an environment where collaboration takes place regarding small matters as well as large.
  • While activists will no doubt continue to produce works such as the Grey Album and host materials such as the Diebold emails, participatory democracy depends upon the participation of the many --average people. Activists and risk-takers cannot be counted on to create and disseminate everything.
  • ISP providers fearing liability will continue to remove material after receiving DMCA notices. The average person is beholden to this top-down structure and will likely not go to the extra effort it would take to circumvent such barriers. Even if people will post materials regardless of the state of IP law, such materials are vulnerable because of the interests of the ISP providers, who likely do care about the state of IP law.
  • The measure of the effects of IP law should be the effects on the average citizen and not the effects on activists and the technological elite who will be willing or able to ignore threats by rightsholders and circumvent efforts at encryption, etc.
  • Participatory democracy requires a minimally safe, predictable environment in order for people to freely exchange ideas, assemble, and organize. Piecemeal distribution of materials does not suffice. Clear laws are needed to create a predictable environment.
• Even if the same number of people would create and host materials regardless of the clarity of IP law (doubtful), the current regime results in a great deal of inefficiency which likely hinders further creation and participatoin.
• Litigation or threats of litigation may prevent works from being accessible to the public for a period of time.
  • • Example: Killer of Sheep: A classic American film that almost no one has seen because of thirty years' worth of legal difficulties regarding rights to music used in the film.
    • Even where fair use is eventually determined, in the digital age the time period during which materials are not available may be crucial, especially in a political environment. Valuable ideas and opportunities for collaboration may be lost forever.

But what does my ability to post mash-ups have to do with strengthening democracies?

• Semiotic Democracy
  • Fisher's argument
  • Example: Disney v. Air Pirates
• Connection between participation in civil society and participation in politics
• Threats to the Read-Write Web
  • Unclear IP law and the concomitant threat of liability strengthens the top-down structure of the Internet and moves it much closer to read-only than read-write. Where ISP providers and hosting sites such as YouTube fear liability in unclear cases, they may become moderators and censors rather than landlords.

Future: Police State or Free Culture?

• Terrible Visions
  • Can the Information Commons Be Saved? How Intellectual Property Policies Are Eroding Democratic Culture & Some Strategies for Asserting the Public Interest (2003).
    • The DMCA forbids consumers from circumventing technological locks. This applies even where there is no underlying copyright violation. "By preventing the fair use of a digital product – without even a copyright violation alleged – studios are using the DMCA to raise new barriers to the independent distribution of creative works." (p. 11)
      • "The DMCA is also being used to stifle free speech in an alarming way."
      • "When Simon & Schuster experimented with an online sale of a new Stephen King novella, the book was not available to public libraries under any license, nor was it available to computers that did not run on Windows operating systems. The novella had essentially “gone private,” shedding any responsibilities for providing public access while retaining full copyright protection."
    • Proprietary claims to public facts (p. 12)
      • Pending legislation would privatize and commodify facts that are currently available at low cost or for free from the public domain, and would give data vendors monopoly control over their markets."
    • Shrink-wrap contracts (p. 14)
      • "UCITA would allow proprietary software makers to sabotage free software by inserting secret file formats and protocols into their products. Essentially, the law would be a backdoor way for companies to enlarge their copyright protection via contract law while thwarting competition and innovation."
    • Impoverishing the Public Domain by Extending Copyright Terms (p. 16)
    • Surveillance: The "Copyright Police State" (p. 17)
      • "In order to more tightly control market distribution and use, new software technologies are being devised to allow copyright holders to keep precise track of who accesses what digital works and under what circumstances. Copyright enforcement is only one goal. Digital rights management also enables a company to institute new regimes of discriminatory pricing for different market segments (individuals, companies, libraries, etc.). It can also collect valuable consumer usage data to refine its own marketing strategies, or to re-sell or lease to third-party vendors (advertisers, market research firms, etc.)."
    • Undermining free speech (p. 18)
      • "greater propertization of information is threatening free speech and the diversity of information sources in our society."
  • Trusted Systems (See Lessig, Code 2.0, p. 179)
    • A "privatized alternative to copyright law" (p. 179) that "give the producer maximum control over the uses of copyrighted work" (p. 186). "Code thus displaces the balance that copyright law strikes by displacing the limits the law imposes." (p. 186)
    • Trusted systems "permits a much more fine-grained control over access to and use of protected material than the law permits, and it can do so without the aid of law. What copyright seeks to do using the threat of law and the push of norms, trusted systems do through the code."
    • Unlike copyright law, which is arranged for the public interest, private arrangements of access to digital works will be arranged to maximize profit. Information and culture can be removed entirely from the commons.
    • Trusted systems can be used to remove fair use liberties from information consumers (aka citizens). If fair use were to be eliminated by law, the law might be unconstitutional under the First Amendment. When the same is done by private parties we should be equally concerned.
• Free Culture Movement