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."

Tentative Poll

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

• Growing Up Ownerless
  • From the late 60s to the mid-90s, the development of Internet communications technologies is owed mostly to a disparate group of researchers with University, government, and private sector affiliations.
  • Construction of the Network and the development of the related technologies was funded in large part by the Universities and the Government.
  • As a result, there was little concern for real space property law.

• "Sharing and Cooperation"
  • Even when the private sector was involved, they were working with the researchers in a transparent manner and the IP environment of the time leaned much closer to limitations on property rights than protection.
  • "A key to the rapid growth of the Internet has been the free and open access to the basic documents, especially the specifications of the protocols." - ISOC: Brief History of the Internet
  • Even in this utopian environment, the development of the Internet was a decades long process.
  • Software patents were not fully established until 1999 - State Street Bank Case

It's useful to ask how the enforcement of stricter patent law during the Internet's nascent stages would have impacted this history?

• The Internet Goes Commercial
  • "Recognizing that the Internet has grown up within a culture that thrives on sharing information and research, commercial information providers have approached the network with great caution." - The Digital Dilemma: Intellectual Property in the Information Age
  • Benkler: The Internet and FOSS define the networked economy, which was something definitively new to the commercial sector looking to cash in on the Internet.
  • " the vendors were amazed to find that the inventors were so open about the way things worked (and what still did not work)" - Brief History
  • Information Wants to Be Free: The philosophy that guided Internet development is in many ways at odds with that of the commercial sector. For the early innovators, information was valuable in so far as it contributed to the network's development and could be shared and utilized in that endeavor. For corporations descending onto that network in the 90s, information was valued as long as it could be owned.
  • Early IP Debate: "Today we lack a consistent technical, legal, and business framework for the dissemination of intellectual property over networks." (1995) - Realizing the Information Future: The Internet and Beyond, The National Science Foundation

Does the rise of the Internet, the Networked Economy, and the Democratizing Potential of Both Require a Reevaluation of and Resolution to the Intellectual Property Rights Debate?

• Yes:
  • Cut and Paste Culture: "the problem caused by digital technology as such is one concerning the ease of reproduction." - NSF
  • The implications of code
  • Everyone's A Publisher
  • Lessig: "Technology means you can now do amazing things easily; but you can't easily do them legally."

Present: The IP Crisis

Foundations of Intellectual Property Law

• • 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.

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.

What's Different About the Internet?

• Technology allows controls where previously only permissions were available. (Lessig, Free Culture, Chap. 10).

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.

Okay, but what does my ability to post mash-ups have to do with strengthening democracies?

• A Strong Connection Exists Between Participation in Civil Society and Participation in Politics
  • See, e.g., Copyright and a Democratic Civil Society, Section on Democratic Governance and cited sources
  • Civil Society may be defined as "the sphere of voluntary, nongovernmental association in which individuals determine their shared purposes and norms . . . [This includes] the realm of public communication and discourse." --Id.
  • Participation in the read-write Web is engagement in civil society.
  • Benefits of Participation in Civil Society:
    • Independence:
      • "A democratic order depends upon a domain in which citizens develop the independent spirit, self-direction, social responsibility, discursive skill, political awareness, and mutual recognition. A state whose citizenry has not internalized these skills and values will rule through fiat and obedience, without any sense, so vital to our understanding of democracy, that its laws and social norms originate in the commitments of a self-governing polity." --Id.
    • Communication and Defining Interests:
      • "By participating in intermediate associational and communicative networks, citizens discover, refine, and articulate their interests, enabling them to vote with deliberative judgment and petition government officials with greater effectiveness." --Id.
    • Organization:
      • "They also acquire organizational skill and see the possibility of accomplishing through common undertaking what they could not on their own, encouraging their participation in political association." --Id.
  • Engagement, rather than the actual product, is the key here. Creating and sharing things like mash-ups and fan fiction generates social capital, regardless of the quality of the actual works.
    • See, e.g., Grey Tuesday: Online Cultural Activism and the Mash-Up of Music and Politics
• Democracy: Beyond Voting
  • Granted, "free culture" may not raise voting rates or levels of membership in political parties. Notably, the Swarthmore College students in the Diebold case said in an interview that they did not want to be characterized as "voting nerds." But participation in civil society will increase participation in public discourse and discussion of policy issues --resulting in an engaged citizenry.
• Semiotic Democracy
  • Fisher's argument
  • Example: Disney v. Air Pirates
  • In the world that Valenti's changes would create, a powerful few would exercise powerful control over how our creative culture would develop. --Lessig, Free Culture (p. 118).
• 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.
• Internet as New Public Square
  • As people spend an ever-increasing amount of time online, more activities are shifted into cyberspace. Constricting the ability to collaborate online constricts the ability to collaborate in general.

Future: Police State or Free Culture?

Grave Dangers to Democratic Culture

• Anonymity/Privacy Issues
  • Allowing rightsholders to pursue claims more aggressively would likely entail making it easier to track down those suspected of online IP infringement.
• Controlling Access: The Read-Only Internet
  • Trusted Systems (See Lessig, Code 2.0, p. 179)
    • A "privatized alternative to copyright law" (p. 179), trusted systems "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.
  • Anti-Circumvention Technology
    • Can the Information Commons Be Saved? How Intellectual Property Policies Are Eroding Democratic Culture & Some Strategies for Asserting the Public Interest (2003).
    • The Digital Millenium Copyright Act (DMCA) forbids consumers from circumventing technological locks. This applies even where there is no underlying copyright violation. Consumers can be barred by the originator of the document from engaging in legal cultural remixing (comment, criticism, and collage) by the simple maneuver of placing a cheap lock on the product. Breaking the lock, even to engage in legal fair use, is itself illegal. Rather than courts sorting out the balancing of private versus public interests, of the First Amendment versus the Copyright Clause, the private interests win by fiat.
    • Disempowering independent publishers
      • "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)
    • Stifling free speech (p. 11)
      • "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."

Free Culture Movement

• Free As In Speech, Not Free As In Beer
  • Free Culture has always existed.
    • For much of human history, most culture was free. Culture was created and practiced by amateurs who expected no financial compensation.
    • Even professionals in the "creative class" long engaged in Shakespeare plundered the plots of other authors–-including not just the ancients, but contemporaries like Christopher Marlowe and Robert Greene--without payment of royalties.
    • Even under a copyright system, there is a fine line between allowable creative products and unlawful derivative works of piracy. As Lessig recounts in the first chapter of Free Culture, Walt Disney's breakthrough cartoon Steamboat Willie borrowed technologically from The Jazz Singer and largely borrowed its plot and music from Steamboat Bill, Jr. Was Disney a pirate, or was he reworking public domain material that belonged to all citizens in common?
  • The opposite of Free Culture is a Permission Culture
    • In the 20th century, culture became increasingly professionalized. Yet even today, people sing in the shower, or retell jokes from TV at the water cooler. Copyright holders do not (yet) expect any direct compensation for these uses of their "property." Because these uses do not make a "copy", citizens are free to engage in them without liability.
    • In our new digital world, many more activities involve making "copies" and thus bring average citizens in their everyday lives into the domain of copyright. Culture used to happen largely beyond the purview of the law; increasingly, intellectual property law is extending state regulation into our daily lives (See Lessig, Code 2.0, p. 196).
    • Powerful companies whose business models are dependent on intellectual property are using existing law and lobbying for changes to the law to more completely control the uses of their creations.
    • Not all valuable things are propertized. Yet the “if value, then right” theory of creative property has been embraced by media companies, in disregard of the balance struck by American copyright law.
    • As use of creative works becomes more perfectly regulated, friction occurs every time an amateur creator begins her work--rather than grasping freely at the cultural materials that would make the best raw materials, she must negotiate permissions with rightsholders.
      • If the technology of control is created with the interests of professional/corporate creators in mind, it will emphasize easy blocking of use over simple permission-seeking by users. Moreover, a permission culture allows creators a veto over unflattering or critical uses of their creations.
• The Squeaky Wheel Gets the Grease
  • The IP crisis concerns a balance between private and public welfare.
  • Industries with large copyright portfolios see filesharing, YouTube, mash-ups, and other innovative cultural mechanisms of the Internet Age as threats to their profits. There are few actors in these industries, so they can easily organize. They lobby for and receive protections.
  • Average citizens who listen to music recommended by friends, watch movies on laptops on a plane, or create mix CDs also have an interest in the outcome of the IP crisis. The public's interests are, however, dispersed and difficult to organize in opposition to industry lobbying.

Resources

• General Resource Dump

-Politics of Intellectual Property: Environmentalism for the Net?

-Stop the Falsiness on YouTube

-Podcast of Prof. Benkler at Berkman last year: Excellent stuff, almost too much. It's only a half-hour so please listen so that we can figure out the best ways to parse and deliver these themes in the debate.

-Center For Digital Democracy: Relevant links and resources.

-Disney law suit against 'Spank My Marketer': The "SpankMaker," located at http://www.spankmymarketer.com/, helps users create parodies of a controversial marketing campaign in connection with a Discovery television production. The online tool provides images from the marketing campaign and Discovery's corporate websites, and allows users to modify them with commentary. A lawyer for Discovery has demanded that the website operator remove the template, claiming it infringes Discovery's copyright and is used to defame the company. -EFF

• Digital IP and Digital History

Not only does the future of the Internet depend on the outcome of the IP debate, so does its past. If history, how it is recorded, and who has access to it are issues vital to a thriving democracy, then digital IP and its impact on archiving Internet material is important to the future of democracy.

-Internet archivists face heavy litigation as they struggle to document digital history

-Google Books and Fair Use A Lawrence Lessig video lecture on the Google Books project and the implications of copyright terms and fair use in the company's attempt to make the world's literature searchable.

-IP Laws and the Future of the Library I have only skimmed, from the abstract: "At the same time as we have been discovering the Internet's enormous potential to enhance access to information and revolutionize the ways libraries do business, the Internet's high profile in popular media has made it the focus of a wide spectrum of fears about the future. This paper focuses on pending proposals to amend copyright law to enhance the control copyright owners wield over the appearance of their works on digital networks. These proposals would stifle libraries' use of the Internet. Libraries and their supporters must participate in the copyright debate, and think creatively about new models for copyright."

-Berkman Center videos and podcasts on Free Culture and access to knowledge

• Threats to the Read-Write Web

If Web 2.0, enhanced 2-way communications technologies, and citizen engagement with media and technology are good things for democracy, then fuzzy digital IP laws surely are not. Antiquated IP laws also have a chilling effect on citizen engagement.

-Citizen podcasting is great for democracy - yeah, good luck with that. Can we measure the chilling effect that an over litigious permissions process will have on the Internet's (and more broadly, Web 2.0 media's) impact on democracy? -Creative Commons

-Lawrence Lessig: "We are well on our way to producing a read only Internet." -Financial Times.

-Cease and Desist, insightful AND poetic - movie on the impact of IP litigation and creativity through technology.

-U.S. Copyright Office Summary of the Digital Millennium Copyright Act (DMCA)

• The Need For Truly Digital IP Law

Has the Internet changed the way we create, produce, publish, and disseminate information? We can safely say 'probably.' So, does that mean we need to reevaluate notions of IP to better suit the new environment in which information is exchanged? Much of the debate over Digital IP is really over whether IP law needs to be specialized or wholly restructured when it comes to information on the Internet.

-On Copyright and Youtube Takedowns: Does the fact that companies have so much trouble enforcing copyright in the digital age mean the protection itself, how it is applied, and how all entities address it need to be updated?

-A ton of useful links from the Electronic Frontier Foundation

-Protecting Digital Intellectual Property: Means and Measurements. This book chapter outlines the ways in which we could in fact keep up w/ copyright and patent enforcement in the digital age by utilizing encryption and other enforcement technologies. Essentially, enforcement can keep up, but law can't. The author fears that patent laws in particular are antiquated and the related processes too slow for the digital age. Additionally, there is a sense in which software development is a revolutionary form of production (as opposed to industrial); patent clerks do not know enough about this form of production to effectively govern related patents and the production method itself may depend far too much on looser patent definitions than industrial production did.

-Significance of Globalized IP Regimes and International Harmonization I have only skimmed, but this seems to address the problematics of defining IP in the context of the World Wide Web.

-Why Information Can't Be Owned I haven't read this paper yet, but the abstract makes me think it will be relevant.