Part 24 (1/2)

What are the odds that the costs of new technologies are always greater than their benefits as far as intellectual property rights holders are concerned? This pattern is not a matter of policies carefully crafted around the evidence. It is the fossil record of fifty years of maximalism. If I lean toward the other side of the story it is not because I am a foe of intellectual property. It is because I believe our policies have become fundamentally unbalanced--unbalanced in ways that actually blind us to what is going on in the world of creativity.

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We are living through an existence-proof that there are other methods of generating innovation, expression, and creativity than the proprietary, exclusionary model of sole control. True, these methods existed before. Yet they tended to be local or invisible or both. The Internet has shown conclusively and visibly that--at least in certain sectors--we can have a global flowering of creativity, innovation, and information sharing in which intellectual property rights function in a very different way than under the standard model of proprietary control. In some cases, intellectual property rights were simply irrelevant--much of the information sharing and indexing on the Web falls within this category. In some cases they were used to prevent exclusivity. Think of Creative Commons or the General Public License. In some, they were actually impediments.

Software patents, for example, have a negative effect on open source software development--one that policy makers are only now slowly beginning to acknowledge.

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It is important not to overstate how far the sharing economy can get us. It might help to cut the costs of early-stage drug development, as the Tropical Disease Initiative attempts to do for neglected diseases. It will not generate a Phase III drug trial or bring a drug to market. Sharing methods might be used to generate cult movies such as Star Wreck: In the Pirkinning, which was created using techniques borrowed from open source software and is available under a Creative Commons license. They will not produce a mammoth blockbuster like Ben Hur, or Waterworld for that matter--results that will generate mixed feelings. So there are real limitations to the processes I describe.

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But even acknowledging those limitations, it is fair to say that one of the most striking events to occur during our lifetimes is the transformation wrought by the Web, a transformation that is partly driven by the extraordinary explosion of nonproprietary creativity and sharing across digital networks. The cultural expectation that a web of expression and information will just be there--whatever subject we are discussing--is a fundamental one, the one that in some sense separates us from our children.

With this as a background it is both bizarre and perverse that we choose to concentrate our policy making only on maintaining the business methods of the last century, only on the story line of the Internet Threat, only on the dangers that the technology poses to creativity (and it does pose some) and never on the benefits.

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What would it mean to pay attention to the changes I have described? It would mean a.s.sessing the impact of rules on both proprietary and nonproprietary production. For example, if the introduction of a broad regime of software patents would render open source software development more difficult (because individual contributors cannot afford to do a patent search on every piece of code they contribute), then this should be reflected as a cost of software patents, to be balanced against whatever benefits the system brought. A method for encouraging innovation might, in fact, inhibit one form of it.

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Paying attention to the last ten years means we need to realize that nonproprietary, distributed production is not the poor relation of traditional proprietary, hierarchically organized production. This is no hippy lovefest. It is the business method on which IBM has staked billions of dollars; the method of cultural production that generates much of the information each of us uses every day. It is just as deserving of respect and the solicitude of policy makers as the more familiar methods pursued by the film studios and proprietary software companies. Losses due to sharing that failed because of artificially erected legal barriers are every bit as real as losses that come about because of illicit copying. Yet our attention goes entirely to the latter.

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The main thrust of the argument here is still firmly within the Jeffersonian, Scottish Enlightenment tradition. Jefferson does not wish to give the patent to Oliver Evans because he believes the invention will be (and has been) generated anyway without the granting of an intellectual property right and that there are sufficient information retrieval methods to have practical access to it. In this case, the information retrieval method is not Google. It is a polymath genius combing his library in Monticello for references to Persian irrigation methods. The ”embarra.s.sment” caused by the unnecessary patent is added expense and bureaucracy in agriculture and impediments to further innovators, not the undermining of open source software.

But it is the same principle of cautious minimalism, the same belief that much innovation goes on without proprietary control and that intellectual property rights are the exception, not the rule. When Benjamin Franklin, a man who surely deserved patents under even the most stringent set of tests, chooses to forgo them because he has secured so much benefit from the contributions of others, he expresses s.h.i.+rky's norm nicely.

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Indeed, Jefferson's optimism depends partly on a view of information sharing that captures beautifully the att.i.tudes of the generation that built the Web. The letter that I discussed in Chapter 2 was widely cited for precisely this reason.

Remember these lines?

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That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all s.p.a.ce, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation.

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What could encapsulate better the process by which information spreads on a global network? What could more elegantly state the norms of the ”information wants to be free” generation? (Though those who quoted him conveniently omitted the portions of his a.n.a.lysis where he concedes that there are cases where intellectual property rights may be necessary and desirable.) 77

In some ways, then, the explosion of nonproprietary and, in many cases, noncommercial creativity and information sharing is simply the vindication of Jefferson's comparison of ideas with ”fire . . . expansible over all s.p.a.ce.” The Web makes the simile a reality and puts an exclamation point at the end of the Jefferson Warning. All the more reason to pay attention to it.

But the creative commons I described here goes further. It forces us to reconceptualize a form of life, a method of production, and a means of social organization that we used to relegate to the private world of informal sharing and collaboration. Denied a commons by bad intellectual property rules, we can sometimes build our own--which may in some ways do even more for us than the zone of free trade, free thought, and free action that Jefferson wished to protect.

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Does all this mean that the Jefferson Warning is no longer necessary? Can we mitigate the negative effects of intellectual property expansion through a series of privately constructed commons? The answers to those questions are, respectively, ”no”

and ”sometimes.” Think of the story of retrospectively extended copyright and orphan works. In many cases the problem with our intellectual property rights is that they create barriers to sharing--without producing an incentive in return--in ways that can never be solved through private agreement. Twentieth century culture will largely remain off-limits for digitization, reproduction, adaptation, and translation. No series of private contracts or licenses can fix the problem because the relevant parties are not in the room and might not agree if they were.

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Even when the parties are available and agree to share, the benefits may not flow to all equally. Beset by a mult.i.tude of vague patents of questionable worth and uncertain scope, large information technology firms routinely create patent pools. IBM tosses in thousands of patents, so does Hewlett or Dell. Each agrees not to sue the other. This is great for the established companies; they can proceed without fear of legal action from the landmine patents that litter the technological landscape. As far as the partic.i.p.ants are concerned, the patent pool is almost like the public domain--but a privatized public domain, a park that only residents may enter. But what about the start up company that does not have the thousands of patents necessary for entry? They are not in as happy a situation. The patent pool fixes the problem of poor patent quality and unclear scope--one that Jefferson was worrying about 200 years ago. But it fixes it only for the dominant firms, hurting compet.i.tion in the process.

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Attempts to form a commons may also backfire. The coordination problems are legion. There are difficulties of compatibility in licenses and the process, no matter how easy, still imposes transaction costs. Nevertheless, with all of these qualifications, the idea of the privately created commons is an important addition to the world view that Jefferson provided, a new tool in our attempt to craft a working system of innovation and culture. No one who looks at the Web can doubt the power of distributed, and frequently uncompensated, creativity in constructing remarkable reference works, operating systems, cultural conversations, even libraries of images and music. Some of that innovation happens largely outside of the world of intellectual property. Some of it happens in privately created areas of sharing that use property rights and open, sometimes even machine-readable, licenses to create a commons on which others can build. The world of creativity and its methods is wider than we had thought. That is one of the vital and exciting lessons the Internet teaches us; unfortunately, the only one our policy makers seem to hear is ”cheaper copying means more piracy.”

Chapter 9: An Evidence-Free Zone 1

Perhaps some of the arguments in this book have convinced you.

Perhaps it is a mistake to think of intellectual property in the same way we think of physical property. Perhaps limitations and exceptions to those rights are as important as the rights themselves. Perhaps the public domain has a vital and tragically neglected role to play in innovation and culture. Perhaps relentlessly expanding property rights will not automatically bring us increased innovation in science and culture. Perhaps the second enclosure movement is more troubling than the first.

Perhaps it is unwise to extend copyright again and again, and to do so retrospectively, locking up most of twentieth-century culture in order to protect the tiny fragment of it that is still commercially available. Perhaps technological improvements bring both benefits and costs to existing rights holders--both of which should be considered when setting policy. Perhaps we need a vigorous set of internal limitations and exceptions within copyright, or control over content will inevitably become control over the medium of transmission. Perhaps the Internet should make us think seriously about the power of nonproprietary and distributed production.