joegratz.net

March 25, 2006

Pro Bono Counsel Leaps to Parody Blogger’s Aid

Exodus Ministries is an organization committed to providing “freedom from homosexuality” for gay Christians. The techniques they use to attempt to turn gays straight have been the subject of widespread criticism. To advertise their services, Exodus erected a billboard:

Justin Watt, a blogger who disagrees with the premises undergirding the “conversion” of gays to heterosexuality, created a parody, which he posted on his website:

Exodus sent nasty letters to Watt and to Mike Airhart, who reposted the parody on his blog. Watt’s image is an obvious parody, and Exodus is an unpopular organization, so it is unsurprising that both Watt and Airhart were able to garner pro bono representation.

Watt was represented by Ann Brick of the ACLU (one of the smartest internet free speech lawyers in the country) and Laurence Pulgram of Fenwick and West (one of the smartest copyright and trademark litigators in the country). Pulgram’s letter to Exodus is devastating — it’s written like a short brief, citing authorities that clearly show Watt’s use to be privileged.

Airhart was represented by Robert Klieger of Irell & Manella. Klieger’s letter to Exodus is just as devastating as Pulgram’s, but it has fewer case citations and more zingers. For example, in response to Liberty Counsel’s criticism of Watt’s link to Wikipedia’s “Fair Use” article, Klieger writes:

This is not a close case. Just as the ex-gay movement often uses weak science in support of its agenda, so Exodus is attempting to use weak law to curtail Mr. Airhart’s freedom of speech. It is unfortunate that many of Exodus’s targets have no choice but to turn to “Wikipedia” to resist Exodus’s bullying tactics. Yet, this is one instance in which “Wikipedia” appears to have a better understanding of First Amendment principles than Exodus’s own counsel.

My favorite of Klieger’s remarks is really just an internet-geek in-joke. Exodus Ministries’ site is found at “www.exodus.to” — presumably a reference to “exodus to heterosexuality” or some such concept. But “.to”, like all two-letter domain suffixes, is really the geographical domain for a country — in this case, Tonga. Klieger writes:

Notwithstanding Exodus’s selection of a Tonga domain extension for its website, we understand from your letter that Exodus has erected its billboard not in Tonga, but instead “Across America and online.” [In footnote:] Exodus’s selection of the “.to” domain is nonetheless oddly appropriate given that, in Tonga, sexual activity among two consenting adult males is a crime punishable by imprisonment of up to ten years.

Burn.

Gay.com has so far remained quiet, despite having erected billboards of their own.

March 14, 2006

Rebecca Tushnet on the Cultural Environmentalism Conference

Rebecca Tushnet, one of the presenters at last weekend’s Cultural Environmentalism at Ten conference, has blogged her notes on the proceedings: Introduction, Madhavi Sunder, Susan Crawford, Molly van Houweling, Closing Remarks.

I agree with her closing remark. It was a great conference, and I’m grateful to all of the speakers and to the conference organizers for providing such excellent food for thought.

March 12, 2006

Cultural Environmentalism at Ten: Closing Remarks

First, Larry Lessig:

Thanks to the contributors. This has been a great success.

Thanks, too, to Jamie. Since the book, Jamie has worked with a bunch of us in this weird life as an academic activist. He helped with CC, science commons, etc. He has motivated us.  This is a difficult balance, and a difficult dual life. Every moment, though, is a moment of regret — you’re not quite as good at both as you are at either alone. Encouraging this kind of scholar-activism is important for us all to do.

We all share this value. We have a bigger duty than just finding truth. We must also make that connect. Where issues are as important as this, it will only be that we make progress when Jamie’s practice becomes more common.

Next, Jamie Boyle.

This is like being hit by a nice truck.  I’m still waiting for the big joke to be revealed. It’s a stunning honor.

This will be conceptual housekeeping. I still think that we have a whole bunch of projects going on under a common umbrella. When we understand the hopes and fears that gave rise to each project, we will know which tools to use. More conceptual clarity will help.

I commit to finish my new book by the end of the summer.

Having admitted this problem, I want to suggest that the series of hopes and fears structures our discussion.

We fear dead-weight loss, blocked innovation, costs. Jamie Love says that in drug pricing, dead-weight loss is also known as dead people.

We fear single-entity control as an instrument of power. We fear censorship. We fear the destruction of libraries.

We fear cripppling the new social spaces that technology enables through technological rules. Telecom and trusted computing are the biggest problems.

We fear imposing a one-size-fits-all system on developing economies. We ear a world in which covert judgments embedded in the IP system conceal distributional results that are indefensible when stated openly.

We fear a world in which innovation is stultified. We have vested interests against groups that have not yet arisen.

There is a hearkening back to the authors of the antitrust laws. We know concentrations of power can be efficient, but there’s a fear beyond the economic fear. I don’t want just one super-media-entity, even if it’s economically provable that it’ll provide me with the necessary variation.

A different commons is implied by each fear, and a different set of tools. For some, free as in beer; for some, free as in speech. For some, access; for some, control over choke points in innovation.

There isn’t a single notion of property, or a single set of tools. This leads to the hopes.

One hope is that rational IP policy based on evidence with a presumption against restraints on trade would be awfully nice. I aspire to be banal.

We hope for a technolgical vibrancy and openness. Not just because it’s innovation, but because it’s changed our lives and we want to see it change the world.

We get to play with stuff and create stuff and it’s amazingly fulfilling. We want everyone to be homo ludens. We don’t know how far these methods scale. Maybe they don’t go beyond the world of the virtual, but I think they do.

If I’m right about this, I think it pushes me in Siva’s direction. We don’t need a big theory, but a bunch of little ideas that work. Maybe out of them, there turns out to be a set of things that take off in unexpected ways. that’s the way to enable our hopes and resist our fears.

Cultural Environmentalism at Ten: Molly van Houweling

The final paper presenter at the conference is Molly van Houweling.

Both environmentalists and cultural environmentalists have complex relationships with property. We assume these relationships are adversarial, but they don’t have to be. Why aren’t the hills along 280 alive with the sound of condominia? Partly because property allows civic-minded organizations to buy rights in property and preserve it. Increasingly, environmentalists are using property rights to protect open space. There’s a property turn, then, in environmentalism.

The same thing is happening in cultural environmentalism — first with Free Software, now with Creative Commons and others. The conservation easement — tool of environmentalists — separates the right to possess from the right to develop. The sticks in the bundle are divided in a way designed to preserve the undeveloped nature of the land.

The FSF and CC use a similar technique — a “cultural conservation easement”. The GPL, for example, gives the right to copy and adapt the software, but separates that stick from the right to control downatream copying and derivative works.

Both of these moves have been important, and have been rightly praised for their voluntary nature. The GPL-like technique is being proposed for all sorts of IP-related problems. Given that, let’s make sure we’re not doing unintended harm.

My main project is to identify two big concerns coming out of the literature on conservation easements. First, background on conservation easements in real property.

They’re a species of servitude — a non-possessory right running with the land. The conservation easement violates several common law rules intended to limit servitudes, like the “touch and concern” requirement. That’s not a problem today, since every state has gotten rid of the common law rules for this purpose. It’s still worth asking about the purpose of those common-law rules.

What concerns animate the common law rules?

First, notice and information costs. The rules are around to make sure buyers know what they’re getting. Idiosyncratic servitudes can surprose people and can muck up the property system with unexpected and weird conditions. Maybe we should have a numerus clausus principle, since recognizing too many forms creates information costs. Why don’t we worry about this in the conservation easement context? We don’t need them, since we have a system of land recording (which didn’t exist when the English common law rules arose). In the context of cultural conservation easements, we don’t have this recording system. We don’t know what the background rules are and what all the variations are.
Second, the problem of the future. Serviitudes impose too much control on future generations. We don’t want the living to be limited by the wishes of the dead, and we don’t think that dead people will always make efficient land-use decisions. She quotes Mahoney.] The sticks are divided up in a way that makes them hard to put back together on policy grounds in the future.

Do these problems plague cultural conservation easements as well? I think they’re serious worries, but the problems are for the most part not caused by the manipulation of the IP rights but by the nature of the underlying copyright system.

First, applying the notice problem to GPL and CC. Typically, the terms are embedded in the code or the work is somehow marked. The little CC logo doesn’t communicate everything about the license. But the notice here is better than the background notice that copyright provides. The baseline rule is use prohibition with no notice, so imperfect notice of allowed uses is OK, since it doesn’t upset any assumptions.

Second, the problem of the future applied to the GPL and CC. It’s less of a problem than it would otherwise be. In the absence of the GPL, commercializing software still requires negotiation with the author. The lessons we can extract from the conservation easement movement are useful for improving our cultural conservation easements.

Cultural conservation easements can be complicated and can confound our future endeavors. We need to continue to learn lessons from the environmental experience to tell when to use them.

Comments by Peggy Radin:

This is a property teacher’s dream project. Three ideas. First, the relevance of the public-private distinction and democracy. Second, the problem of abstract versus situated freedom (or freedom now versus freedom later). Third, standardization versus customization.

Public and private. Today’s scholarship ignores the distinction, but that’s because it’s been deconstructed by legal realism. The distinction has to exist pragmatically anyway. TPMs, for example, are self-help and raise this concern. The copyright act is supposedly democratically imposed. Copyright might be like a servitude — non-bashing runs with the ownership of a baseball bat, and is thus a servitude too, in that sense.

Placing a renewal burden on the owner is better than making a servitude run with the digital object.

Freedom now and freedom later. Utility is utility, now or later. Clean slates don’t help much.

Molly’s Response:

Two tidbits. First, a potshot at Richard Epstein. The only dead hand control he doesn’t like is the GPL. Second, the reason it’s hard to apply public/private is that legal realism proved too much. If everything’s public, where do we go? What do we do now? Do we throw up our hands? We tend to think of things as more public and less public — the more public they are, the move checks they require. This sliding scale describes the ways we’ve treated property versus contract. Once contracts are ubiquitous and subject to market difficulties, they have more of the public characteristics of property and less of the private excuses of contract. They need more democratic control for that reason.

Comments by Yochai Benkler:

We can be potimistic that we’re getting toward more democratic control over the imposition of these property regimes.

You make your job too easy by comparing directly to copyright. It’s obviously better than copyright, but we need to look at the broader menu of possible property systems.

The problem of the future is easy with BSD, harder with the GPL, and harder still with CC because of the choices available to the author.

I don’t have a real guess as to whether it’s better to have more choice and a broader movement or less choice and a smaller movement. You can imagine a CC that’s all SA, or all NC.

The fact that we have this conference now is not for resting on laurels, but understanding the trajectory of a provisional success and a calll to arms. Constantly measure the intellectual work against real-world approaches. Measuring scholarly work by its political feasibility is hard and painful. The same is true in reverse.

There’s much work to be done for all of us. Our freedom rests on our ability to succeed both intellectually and as a movement; our culture depends on it; and our capacity to promote human flourishing depends on it.

Molly’s response:

Part of the problem is compatability between the easements over adjacent parcels. Adjacent parcels, one protecting ducks and the other protecting foxes. Combining GPL and CC is the same way, for example. More flavors lead to more problems.

The problems could be worse int he cultural realm because there are only so many real parcels that can be physically near each other. In the cultural context, millions of works can all be next to each other.

Siva Vaidhyanathan’s comments are posted on his blog. He didn’t get to all of them in his allotted time, but I encourage you to read the whole post.
Molly’s response:

This has broad implications, not just for culture. Property talk is deployed in strange ways, in dense ways, but it’s really a simple and natural set of rules about freedoms.

Questions:

Larry Lessig: What? No notice in the public domain?

van Houweling: That’s right. No notice means copyrighted, not PD, because of the current copyright rules. So therefore we need the Eldred Act.

Lemley: Minor comment — it’s worth noting, vis-a-vis the notice problem, whose job it is to trace the licensing in OSS packages and tell people how they are constrained. Notice problem can be solved where there’s a market incnetive. Heretical comment — property-based conservation has a checkered past in the environemntal movement, since it plays into the hands of the property system itself. It masks the problem and avoids government regulation. Does Free Software and CC playing the role of the nature conservancy in the good sense but also the bad sense, providing cover for the property system?

Siva: One of the problems wiht conservancies is that they may be preservationist but not ecological.

van Houweling: I don’t know the answer — it’s partially an empirical question. Elkin-Koren thinks the same as you. The response is that nobodyt experienced the propertization before, and this helps them experience it. I don’t know that the benefits are worth those collateral problems. We shouldn’t have to rely on uncertain freedoms to build our culture.

Benkler: Collaborative production serves as an object lesson in proving the inefficiency of the property right. We are showing that it can happen without copyright.

Oren Bracha: The projects are second-best projects. The best thing would be to change the copyright system. We know it won’t happen any time soon. What do you do in the mean time? Go for second best. Use the system against the grain of the system. Part of what you’re hoping to do is create cultural practices — things that people actually do. Practices create ideology and political support for the first-best solution.

van Houweling: It’s hard to get out of that difficulty. We go forward recognizing these possible incompatible goals.

Peggy Radin: We’re in a non-ideal state. How do we get to a better place? Implement the first-best or go with the second-best? There arises a dilemma. Are we going to create support for the status quo?

Jamie Boyle: Is the GPL just another reason for enclosure? Will the need for a commons lead to greater property rights?

van Houweling: We need to think about other models for making a commons other than building it out of property rights.

Cultural Environmentalism at Ten: Rebecca Tushnet

I’m at day 2 of the Cultural Environmentalism at Ten conference. The first speaker this morning is Rebecca Tushnet. My not-for-attribution notes follow.

I found fandom in 1987. I also invented it in 1980 in my room. Every fan invents fandom, just like everyone falls in love for the first time. How do we reconcile this with an IP system that cares whether you’re the first or the second person to recite a poem? Let’s look at patterns and processes of creativity as they’re actually experienced (by wealthy, white internet users). Let’s look at their practices to see how people understand the nature of authorship.

Example to structure the discussion: Razzle Dazzle (from Chicago), but a music video made of old Star Trek clips.

What did they do? The thing that made you laugh was the selection and arrangement of elements the videomakers didn’t create. Within the fandom community, people like this shed new light on preexisting texts. It’s a non-transformative use of the song, though. This is a slightly different way of looking at authorship (the credits at the beginning credited Richard Gere and the videomakers). The romantic author conquers virgin territory, makes something from nothing — male. The romance author is elaborating, embroidering — female. It’s a binary, and that’s troublesome. Romance authorship is about the execution, like any genre work. “Originality” means executing in a new way.

Media fandom has aesthetics — several competing aesthetics — that accept an author function that doesn’t require any concept of conventional ownership of the resulting product. Fans attribute, fans don’t reuse each other’s products, distinguishing between “within” and “without”. What about reusing somebody else’s Mary Sue? The norm is seeking permission. For video (“vidding”), it’s even stronger — don’t reuse someone else’s editing at all.

Why treat inward differently from outward? First, simple selfishness.

Why is this OK? Experiences reach out and grab us. We connect to media and they become part of us, and they’re designed to do so. Thus, it’s fair to engage with a public text in this way. Second, “it’s noncommercial”. This is problematic, since it cements a lower status. But this status helps form community, with a common enemy. Also, it establishes norms.

What are the obligations? Not permission from outside. No reuse inside. The other one is attribution. It can be necessarily implied, as with a Star Trek vid. There are attribution norms in lots of places where control doesn’t happen — here, but also academia. They can be quite context-sensitive, too, and there are formal guidelines for certain fields (e.g. AHA guidelines for history). Also, french chefs.

And importantly, the Copyright Office orphan works proposal. It requires reasonable search and attribution. How did this get in there, with almost no comments? The CO proposed it at the roundtables and met with general agreement. But it cuts both ways, especially with orphan works. But what if you don’t know, or don’t know for sure? “This might be a Picasso sketch.” Attribution is not just credit, but responsibility. It differs in this way from moral rights. This came up in the Gone With The Wind case. Also, the Cat Not in the Hat. The process is one of literary criticism — can we connect this up with the original text? If you can, it’s fair use; if you can’t, you don’t. In some way, the original author is responsible, partly, for the interpretation that the second comer placed on the original.

There are authors who are offended by this. “I didn’t mean that” is hard to argue with. There’s a second fear — the author may fear that the audience can’t distinguish betwene the original and the derivative. This is the problem with Gilliam — heavy editing of Monty Python that makes it less funny. In fandom, we can tell because of production values and general cultural knowledge.

Although it’s a different form of control, attirbution is an exercise of authority over the original Author as well as disclaiming one’s own Romantic authorship. Not that attribution’s bad — it’s a workable norm.

We can learn from fandom that there are ways to have authorship without having total control. They are complicated and messy and hard for the law to recognize, but they exist and they work.

Comments by Jessica Litman:

Boyle has written that there’s a balance between controlled and uncontrolled uses. None of the policies of copyright would be undermined if fan creations were uncontrolled and legally uncontrollable. Fans made Star Trek survive as a franchise. Same with Star Wars. Without the fans, and without the fic, these wouldn’t have survived.

But “No Harry-Draco slash” sounds pretty reasonable, coming from JK Rowling. But these works are not completely original — they are influenced by the fans, and moreover the fans’ experiences of the works influence other fans’ experiences of the works.

We’ve all been undervaluing the reader, and their place as a creator in the copyright skein. To read anything at all, someone needs to experience the work. We haven’t been paying enough attention to readers and listeners, at a theoretical level. Author incentive theories relegate readers to the ghetto of fair use. And fair use just isn’t capacious enough.

there are other tools to properly treat fannish creativity — implicitly authorized derivatives, for example. If they want to vary the terms, let them do so by contract. As a normative matter, it’s an ominous sign that we’d need an implied license theory to make this work.

We’ve allowed two large non-statutory expansions. We’ve promoted an expansive literal reading of copyright, in which everything’s licensed, privileged, or infringing. the reading is broader than the language of the statute requires. Second, we’ve failed to prevent the expansion of each of the rights in the copyright bundle, and they’ve coalesced into a general use right. Copyright owners have persuaded courts that “looking at” is an exclusive right, and that “distribution” includes making available. This is a huge expansion, and implied license won’t make much of a dent.

To resist this, we need to push back with something. Recalling that readers, listeners, and viewers have a central place in the copyright system is one way to push back. Rebecca’s fan communities may seem utterly exceptional, but they’re not. They interact with the works. This is something that copyright should encorage, and traditionally did. Only expansion shows the problem, and we need to reexamine it.

Comments by Mark Lemley:

Yesterday, we talked about the need for ethnographies. This is one. Since it’s about fanfic, it seems appropriate that I repurpose her idea in an unintended way. Here goes.

Let’s use this as a way of thinking about fair use. One important lesson is that there’s a relationship between fair use and scale. Fanfic works primarily because it’s small-scale. You can only have Harry-Draco slash in a small community — if it took over from the real thing, the original would be changed, and the normative baseline would move. If we fork the genre, we can’t comment on it anymore.

There are a number of cases like this, where scale matters. An identical large-scale use is problematic where a small-scale use isn’t. Photocopying is one example. P2P file sharing is another example. When it’s friends, it’s less of a problem than when it’s with the whole internet. The fair use doctrine deals with this by implying that the scale will always be large — “If this use becomes widespread, will it interfere with incentives?” This might be the wrong question. It creates problems where they don’t exist. Marginalization is probably a cost of not seeking permission.

Second, flying below the radar — not producing fanfic that’s illegal under fair use but which never gets caught — may still be an important freedom. Does the practice onthe ground, even if nominally illegal, give us the freedoom to tinker? Feinstein was bemused, at the “post-Grokster” hearing, that P2P still existed. The answer is that the world is not dictated by law, and that interaction may be a freedom we enjoy without being legal.

Third, should we protect copyright owners from themselves? Things copyright owners fail to prevent turn out to inure to their benefit over and over and over. But I think it’s important to separate compensation from control. One of the problems with fair use is that it denies both compensation and control, where one or the other may very well be appropriate. Its lack of granularity limits the scope of the doctrine.

We ought to get rid of the injunctive right where the use is unfair ONLY because there’s a market for licensing those uses. These are rightly derided as circular. your right ought to extend only to payment in such a case, not to an injunction. Copyright law would have to change to make this work. We’d need a non-punitive damages regime (no statutory damages, for example).

In the last two pages, the attirbution norm come up. Which instinct’s at work? How do we work this out?

Comments by Paul Goldstein:

I liked this paper’s window on a culture I’m not familiar with. Having opened the window, it sheds light on the interplay of two copyright themes — fair use and moral right. I’d like to nudge open the window a bit wider with regard to the “fair dealing” attribution requirement in other countries. That captures both fair use and moral rights in a single strain.

The norms implicit in the practices of other countries underpin Berne. We’re contrained by Berne, so let’s keep in tin mind.

First, fair use is a vessel capturing a variety of impulses. There are four versions of fair use in US practice — Betamax private copying (he thinks acceptable under Berne), parody (even more robust elsewhere — even in France), transformative use other than parody (problematic under Art. 12 of Berne, since it’s an adaptation), and abuse of right. Using copyright for non-copyright purposes, like the Howard Hughes case where it was used to protect privacy. Another case is Sega v. Accolade, where copyright was leveraging control over uncopyrightable operating system elements. I’d love to see more of this in American copyright doctrine.

Next, moral right. She rightly underscored the attribution right. The right of integrity, in the US, is viewed as central. In fact it’s not. The central right is that of attribution. There’s a powerful norm at work here. Moral right gets a bad rap here. Motion picture studios don’t want it. In the Dietz report, he shows that moral right can be as utilitiarian and as flexible as American fair use. Let’s pay attention to developments abroad.

Tushnet’s response:

We must be wary of the sense of authorial genius in fandom.

Authorship owny showed up at the end of Lemley’s comments, with attribution as a substitute for compensation. But it actually shows up at the beginning, before the corporate form takes over. I’m hesitant about the “small-potatoes” argument. Let’s point to Batman. Batman is corporately owned, and has been for quite a while. There are many different canonical Batmans. To say that copyright is a way of guaranteeing control seems odd when there’s no individual owner. Corporate ownership may change the works substantially. People can tolerate forking of stories in ways they can’t tolerate forking of code. You can maintain an image of the canonical Harry alongside the Harry-Draco slash Harry.

With respect to the international points. Japanese practices are particularly interesting. There are fan populations all over the world, and a lot of Western European vidding.

Questions:

Larry Lessig: What’s the pushback given the clear logic of describing the problems in the copyright system? Fandom has always been around, independent of copyright. The expansion of the mechanics of copyright is sweeping in things that never implicated copyright before. How do we draw the line between the domain of copyright and the rest of the world, keeping it from sweeping too much with its reach?

Litman: In 1994, fighting off the DMCA, we were busy saying that copyright was so big that it was big enough. Maybe we shouldn’t have said it was so big. We focused on RAM copies, not paying attention to the expansion of copyright into a general use right. In 1976, nobody would have said there was this general use right. Ray Patterson was right — we need to see copyright as a narrow set of exceptions to the general rule of freedom, rather than a “damage to bottom line therefore prima facie infringement” view.

Tushnet: Larry’s move — this has always happened — can always be countered with Mark’s move — scale matters. But people didn’t always make vids. To say that this has always been going on is in some respects wrong. Things like this have been going on, filling the same social purpose. But vids are new. This makes Mark’s move more attractive.

Neil Netanel: You say one reason copyright should not extend to prohibit fanfic is that fans as consumers give value to the work. I wonder about that — generally in property law, the value of consumers for a product is not a reason to limit rights in property. Value does not imply a weaker right, does it?

Tushnet: I think that’s implicit in the piece, but I’m worried about embracing it in those terms.l The value is emergent in the interaction. Belinging to one side or the other doesn’t fully describe the situation. Think back to Econ 101 — consumer surplus. Who should get it? (Not “who created it?”) We face a policy choice about who gets the most benefit from this undefined, emergent value. That’s why we should allocate it to lots of different people.

March 11, 2006

Cultural Environmentalism at Ten: Susan Crawford

I’m at the Cultural Environmentalism at Ten conference. The next speaker is Susan Crawford. These are my impressionistic, not-for-attribution notes. (Professor Crawford has since posted her remarks on her blog.)

When Boyle thought about IP on the net, telecom was at the margins. Everything was running along just fine from a telecom point of view. The concerns have been that Hollywood would take away all unregulated uses of IP, and that if we got this wrong it could break the net.

As it turns out, IP was just a proxy for the larger problems. Communcations law is critically important right now. We’re engaged in a titanic battle for the future of the internet. A forest of incumbents — government and law enforcement, telephone and cable companies — want to introduce friction into the network. Nothing would be possible without permission.

The telecom companies have very strong arguments on their side. “We built the internet, and we should be able to control it.” The vertical propertization of the internet currently proposed would be a bad idea. The new laws and institutions sought by these incumbents should be resisted. We all need to be experts in communications law, but we can do it. We need a politics of interactive networks. We’ve never had telecom like this before — it’s really new and different, and we need a more thoughtful way of approaching it. This is the background for that approach.

What’s the problem? Telephone companies are running out of time. Voice services are going to be free, uncontrolled by the telecom companies. So they’re giving us triple-play packages. “Your world. Delivered” — you’re passive, and we’re bringing bits to you like a pizza. They want to prioritize their packets and those of their
partners. Many other network providers have this kind of control (broadcast, telephone, newspapers, etc.).

To the telecom companies, the internet is infrastructure. Hardware and software are one. Services and networks are one. Telcos have the “romantic builder” — we rolled this cable across the land, and we built it, and we own it, and it’s ours. They’re trying to reattatch the medium to the message.

To the fathers of the internet, the internet is standards. They can separate hardware, software, services, and networks.

To users, the internet is relationships. Standards and infrastructure are irrelevant. The internet is fundamentally a social world. It’s a constantly revising ecology, this internet-above-the-substrate. (She wants a better term.) It’s a complex, adaptive system, different from everything else. It’s generating value mostly through gift. Out human endeavors are reflected there. It’s more than language — it’s an ecology.

It’s like the ocean — a resource that’s essential for human flourishing. Like the ocean, we are ignorant of most of the things underwater. We can’t predict it.

Telco companies have strong economic arguments. “Unless you incentivize us, no broadband.” Also, “We should be able to internalize all benefits of our network. Trust us, we can exploit the network in the best possible way.”

To get this, they’re seeking: New laws. Blessing two-tiered internet. New institutions. The new FCC. New asymmetries. We don’t actually know what’s going on on these broadband networks — we just have to trust them. But they might be doing this even now.

Many similarities between IP and telecom problems coming up. Indigenous content. Just as the 1995 White Paper sought to make the internet safe for Disney, these laws seek to make the internet safe for CLECs. Make the internet safe for Disney, if Disney pays.

There are great risks to our shared future if this telco vision is upheld. If the feedback loops that internet evolution are tampered with, we’ll never know what we’ve missed.

I worry about unborn applications. This is a right to life for innovation. [This was partially tongue-in-cheek. HHOS.]

We’re missing the most important part — the value to humans of the internet.

Two steps. First, conceptually separate the substrate — wires, ether, whatever — and bits on the other. Bits are not conserved. The CD is not the song.

Second, recognize the network providers’ values but decide that those property values are overcome by the value of the internet to humans.

These values are incommensurable. Worry about the internet.

If the internet is the ocean, the network providers have beach-front property. There needs to be a public way. But how? More work to be done. We need to talk about where the public interest lies. We don’t have a broad enough cultural commitment for this kind of movement. We need government intervention of some kind. Don’t give up.

The first commentator is Pam Samuelson.

Susan’s paper evoked painful memories of reading the Clinton administrations’ Green Paper and White Paper. The vision of infrastructure there is similar to that described in Susan’s paper. The stories you tell in response are very similar.

Will the Internet be consigned to second-tier status? We need to build a social theory of the information society. We need to work together to do it. The basic intuition — that the internet is a social phenomenon — is very sound. I felt mobilized.

It’s premature to celebrate the victory of the internet over the White Paper view. Powerful forces may align to close the network. We need to get used to a whole new body of law. Telecom is a steep learning curve.

I thank Susan for the paper. There’s an implicit romanticism in this paper, too, though — the romantic little guys.

Neil Netanel’s comments:

I’m part of the alter-kockracy. A new role.

The metaphors are strong, and if we want to counter them, we have to come up withour own metaphors. Boyle calls on us to help us fill our metaphors with meaning.

This discussion is a move from scholar to scholar-activist. Blackstonian property obscures and misleads. They do not describe reality, but are social constructs. It’s not enough to pick apart the metaphors of enclosure, but to meet force with force and make our ideas resonate with a broad public.

The metaphors we deploy, though, also fail to fully describe reality. E2E, net neutrality, and innovation are great for energizing silicon valley, but they do not fully encapsule what is at stake and do not respond to the incumbents’ metaphors.

The internet, for Susan, is us. A being capable of self-reflection. It has a liberty interest.

This is a dramatic call-to-arms. I welcome this call to action and her insistence that telecom is important, but I part ways. We are not all the internet.

Can we call on the language of free speech?

Julie Cohen’s comments:

In 1962, Rachel Carson named the natural environment. In 1996, Jamie Boyle named the cultural environment. Cultural resources must be considered as well. Cultural harm is hard to demonstrate. The normative theory has to do more lifting.

This is indisputably right — we need to recognize the cultural environment as an entity. What makes the entity good? It’s us, but it’s also separate from us.

If the network is us, then it isn’t a separate entity, something reified at all. Then it’s something social. To say it’s its own being is to say that there is a natural social order. The network she wants to preserve is the social one. The battle being fought is because some powerful interests want to reinforce old path dependencies and orders.

Simply to say that the network is us doesn’t say anything us about why it’s good. Wouldn’t the network of private internets still be “us”?

We need richly detailed ethnographies of the experiences the network enables, and show what’s worth preserving. What’s threatened?

[She's going very fast, probably due to a draconian timekeeper. It's thrilling, but hard to record. I'm missing large chunks.]

How much enablement is required? How much constriction is a threat? How would we know, and why would we care? Here, we need stories.

We’re too tied to our legal theories and legal reasoning to tell these stories effectively, at least so far.

There’s a middle space between the playground and chaos.

“Get your rules off my mind.”

We need to focus not only on regualtory modalities but the other things that structure the user’s experience of the internet.

Crawford responds:

Ethnographies are always going to be retroactive, so they don’t really solve the forward-looking problem. We’ll be locked in.

Questions:

Peggy Radin: We should remember past victories. In addition to galvanizing, the paper does undeveloped things. First, should we cope with this as an issue of property; Second, larger social theories. Maybe write the property bit like a brief. We (consumers) paid for it; we can regulate it. Second, people are carping because you’re being evocative, not philosophical with the “collective mind” / “ocean” thing. There are whole literatures about human flourishing, and about the ways humans are enabled by technology.

Mark Lemley: This identifies a really bad problem. Why is the conclusion, “Therefore, we need a new social theory.” We need arguments and allies with clout. As to the arguments, you say they’re just gonna have to take one for the team. And the citizens are the powerful allies. I listen to this and I think, “Oh shit. We’re going to lose.” This means we’re not phrasing it right. The right rhetoric is freedom versus control. Alternatively, the environmental alternative. Look to the precautionary principle. We’re not tapping our real alies — they want content providers to pay the money. Talk to Google. Talk to Yahoo. Talk to Amazon.com.

Susan Crawford: The freedom argument gets a big blowback when you go there too soon. “Freedom to spam? Freedom to conspire?” For allies, there’s a big risk of deals. Our big allies might just capitulate and pay. Amazon has been noisy, but Google might strike a deal soon. Relying on the polity to rise up probably isn’t the best idea.

Jamie Boyle: They way to do it is to take people back in time and to show them that something 10 years ago would have screwed things up. They would have designed Minitel.

“What would be your assumptions about what would be needed to build an encyclopedia?” you need examples that upset people.

On the question of deals — you need to get to them with “the deal you make protects only the business you currently have.” Think about four years ago and what’s heppened since then. You can’t predict what you’re going to be doing.

Oscar Swartz: I founded an ISP. I sold it, but then it was raided for copyright infringement. Broadband penetration is not a content provider priority. The telcos are making money from the users, and are thus on the side of the users. The factor that’s driving the telcos into the arms of the content providers is IP law.

Susan Crawford: The big players don’t get open networks. They see advantages in making friends with the studios. It would be hard to drive in a wedge. Verizon didn’t like subpoenas, but they’ll like prioritization. I’d hope for the wedge, but it’s not happening.

Juie Cohen: The telcos and content are increasingly buddy-buddy.

Larry Lessig: Question for Neil. “You’re not dealing with hunger” is always true. We need to start rallying around the importance of this. The internet will reorder social power, and that’s important. Citizen media is one way this happens. Why didn’t you mention it?

Neil Netanel: “The internet is a tool for social action” is different from “the internet is us”.

Molly van Houweling: In other contexts, you’re optimistic about tme market but hopeless about the FCC. Here, it’s reversed. Why won’t the market deal with these problems?

Susan Crawford: Let’s not jump to the ramparts just yet. Because of the information asymmetries, we just don’t know yet. I’d love to see research about what’s actually happening on these networks. Act once there’s real degradation on the networks. Also, there’s no competition right now for unfettered internet experiences. Maybe BPL, but who knows. What if some small town decided on Muni WiFi but no porn? No realistic chance it’s going to appear.

Larry: VCs aren’t going to fund companies that require special network privileges. No bad behavior, but a chilling effect.

Susan: The investment flow will slow first. But it’s so serious a step to essentiall nationalize someone’s business that I would want to see hard evidence.

Graham Freeman: Creating an internet services coop. Network neutrality is necessary. What about the cooperative model? The major hurdle there is individual education.

Susan Crawford: I love the model. I used to represent .coop. Try to do it, but you’re going to have to get an upstream connection somewhere. Go do it! It’s a great idea!

Rebecca Tushnet: You need to know not only the regulatory story bout also what people are doing with it. How do we tell the stories? Well, maybe some people aren’t lost, but are just in France or Japan. How do you get the info? No idea. But that might be a natural experiment.

Cultural Environmentalism at Ten: Madhavi Sunder

I’m at the Cultural Environmentalism at Ten conference. The next speaker is Madhavi Sunder. These are my impressionistic, not-for-attribution notes.

In late December 2004, I traveled to India. The developing world was about to be covered by TRIPS. The story I thought I was going to witness — the connection between IP and the Indian poor — didn’t appear. People were sincerely beginning to ask whether IP could work for them. There were ecstatic stories about farmers and artisans signing up for geographical indication protection. This was inserted into TRIPS at the behest of French wine makers, but rural Indian farmers and artisans saw it as a way to differentiate their goods and maintain their traditional ways of life.

There is a connection between this IP turn in India and cultural invironmentalism, but not the connection I was expecting. Cultural environmentalism helped to buttress the protection of traditional knowledge. At the same time, cultural environmentalism is a stumbling block to recognizing poor people’s knowledge as IP.

We must be wary of this modern effect of the metaphor — but first, we must turn back the clock by ten years. IP had just entered the world trade sanctions regime, but there were no riots in the streets. Boyle’s 1996 book spurred the establishment of a movement. The “invention” of the public domain laid a foundation for the “invention” of traditional knowledge. [She tells the shaman / rosy periwinkle story from the book.] Problems with the cultural environment led to problems in the real environment. The public domain saves lives. A2K makes the poor the wardens of knowledge.

Second, the metaphor is obscuring the role of the poor as cultivators of new knowledge. This is because of the IP/public domain binary. Poor people’s knowledge is understood as public domain, and is resisted for that reason. It’s also resisted because new rights for the poor are seen as further incursions into the public domain. But the benefits of an open-access commons go to the richest and the strongest. Concerns from efficiency alone obscure the disparate effects of the commons on the poor. We must stay attuned to the distributive effects, and that may lead to propertization of traditional knowledge. There are more than two sides to this coin.

Tradition is cultivated, not discovered. Nobody’s life is entirely traditional or entirely modern. Traditional knowledge is dynamic — it has existed for millenia, but it is not static. The capabilitty for knowledge creation by the poor is frequently overlooked. The poor must learn how to be IP owners — how to work in the market, how to satisfy demand, etc. This is what NGOs are trying to do with their traditional knowledge programs. Geographical indications are particularly well-suited to this goal.

Many questions are raised, but this is one more way in which the poor are learning the secrets of Madison Avenue. [Describes the Superflex artists from Denmark.]

While politically effective, reifying the public domain makes things seem stable that are really not binary, not fixed, not separate.

Comments by Terry Fisher:

Two reactions.

First. In the 17th and 18th centuries, Native Americans were depicted as noble savages. To leave the land in their hands would be to leave it a wilderness. This justified their displacement.

Until recently, the main line of criticism of this vision showed a combined devaluation of the Indians’ non-acquisitiveness with unjust conquest. But another criticism is that the view has the facts wrong. The land had been cultivated and modified by the Indians.

It was not the displacement of passive people — conservationists — by rapacious people, but the displacement of a civilization resting on one form of cultivation with another.

The same is true of Madhavi’s paper. Traditional knowledge is not the opposite of industrial knowledge, but a type of it.

Second. Recognition of Sunder’s insights suggests that we should look for a two-tiered system. A local system can be given teeth with IP law. A truly global IP system.

Comments by Arti Rai:

The big claim is that we should move beyond utilitiarianism in our IP scholarship. The smaller claim is that equating traditional knowledge with conservation suggests that it is static.

The big claim. Utilitiarianism comes into the sphere as a response to maximalism. But should we caricaturize law and economics? It doesn’t focus on wealth maximization. There’s a crude Posnerian style that focuses on Kaldor-Hicks efficiency, but there’s more to economics. It can take into account distributional considerations. One has to make interpersional comparisons of utility, and that’s controversial, but I’m willing to.

Shavell and Kaplow (“Posner 2.0″) adopt distributional concerns. But it’s hard not to just follow the money. We need a Human Development Index for IP.

Assertions of rights over traditional knowledge, some claim, is creating an anticommons. We can no longer live without incompletely theorized agreements, and we must look directly at social welfare.

The small claim. Traditional peoples are not conservators. This is clearly right. It has inventiveness, but it’s not written down. Unwritten foreign knowledge is not prior art. This is sort of like copyright’s fixation requirement. We should get rid of this discrimination, allowing unwritten foreign knowledge. This has not been terribly controversial.

This is similar to the general problems with collective knowledge. We have a tendency to want to centralize rights in a single person. This lowers transaction costs (see Coase). We need to modify our IP system to allow collective ownership, since much of this goes on in the West too.

Questions.

Mark Lemley: I’m nervous about your major premise — that the old traditional knowledge is deserving of IP protection. It requires going beyond the incentive theory of IP. Maybe it comes from cultural theory, but right now it comes from an absolutist vision of property. The traditional knowledge argument provides a wedge for the “value therefore property” maximalist argument.

Sunder: I grew up in the utilitiarian tradition. I appreciate that utilitarianism could limit IP. But it’s often not working,a nd the evidence is increasingly apparent. The Supreme Court opinions aren’t turning on economics. Economics doesn’t explain how we’re doing IP. The incentive theory is beginning to fall apart through OSS. We need to be honest about the fact that IP is growing, but is it all a mistake? Are there other ways of explaining it that might not be wrong? We have blinded ourselves to seeing IP as a cultural regulation. We need to see that.

Yochai Benkler: This is a direct assault on A2K and on the public domain. You say IP is good for poor people if it’s designed for their kind of innovation. IP extracts money from the people at a cost to their social welfare. Saying that “reclaiming” IP for geographical indications will help poor people more than weaving together the global IP rollback coalition is a very strong claim. It’s an empirical claim. What’s the justification?

Sunder: I’m not making an instrumentalist argument for recrafting the IP system to protect poor people because we like poor people. I’m just saying we need to think about the lack of reward for intellectual creations on welfare. There are real social effects to the existing system, nd we need to think about them. Is this an attack on A2K? No. I was just at an A2K conference with Jamie Love, and he didn’t take offense. We can’t be so afriad of new IP rights. That’s falling into the IP-versus-PD binary.

Molly van Houweling: What about the spleen?

Sunder: The lesson I get out of it is that the innovative traditional knowledge is not the passive spleen. That knowledge is frequently seen as the same as the spleen. It’s not about the spleen.

Jamie Boyle: There are two schools of thought about traditional knowledge in WIPO. In one, it’s about showing the narrowness and blindness of IP conceptions. In the other, A2K is a threat to WIPO, and traditional knowledge is a bone thrown to them. Once one dips one’s toe outside the academic, it becomes less clear. The way it’s being made may not live up to my our your intentions.

Sunder: The primary aim is to engage with A2K. It’s important to get the products of western intellectual creation to the world’s poor. How do we get them to be able to derive wealth from IP, just like the rest of the world? That’s my intervention. It’s pragmatic and timely. Cultural analysis is scary now, like deconstruction used to be.

Maggie Chon: She’s bringing stories to us from poor women who want the incentivizing effects of IP, however broadly defined. We need to listen to that. These poor women need protection from Chinese competiton. We need to be nuanced in our reactions.

Sunder: Thanks. This approach helps us understand fanfic and DJ Danger Mouse, too. We ned to realize that there’s more going on than our narrow lens has recognized.

Cultural Environmentalism at Ten: James Boyle

I’m liveblogging from Stanford Law School’s Cultural Environmentalism at Ten conference.

The first speaker is James Boyle. My impressionistic, not-for-attribution notes follow.

I suffered a sense, 12 or 13 years ago, of immense frustration that immense decisions were being made without the proper deliberation thought or theorization. Things were going to happen to mess up the network, break the American system of scientific innovation, put a spoke int he wheel of computer software, biotechnology, etc. This was not a live issue at the time. There were no dirty pictures (cf. the CDA).

What would we need to get it on the radar? A lot of scholarly work had already been done. The key notion was that “the environment” as a term made visible the invisible, bringing together problems previously thought disparate. It linked seemingly unrelated concerns under a single umbrella and showed that they were deeply interrelated. It made previously obscure concepts, like externalities and ecology, household words. This was helped by tactical decisions, like a “big tent” approach accompnaied by smaller pressure groups at the edges.

One of the key problems was the sense of “more rights is better,” leading to the invisibility of the public domain, and fragmentation of stakeholders. With Eldred, we went from being an unknown to being a noble lost cause :) .

Now, we have litigation, we have political groups, and best of all, a healthy internal debate. I’m going to focus on the scholarly side.

First, we need to understand how we got here. The environmental movement was good at turning back to its own history, and honoring it. We had our Jeffersons, and they said (better) what we say today. How did we lose that? We need a retrospective history, and a lot of that has been done. My particular interest is in comparisons to the enclosure movement, and how

Second, we need to respond not just to the attacks of the past but also the dangers of the future. Terry Fisher sees dangers in the language of price discrimination. Total control allows perfect price discrimination, which makes monopolies efficient, eliminating dead weight loss. No problem! Just create a surveillance society!

Third, this metaphor is both useful and quite dangerous. The idea that IP scholars must constantly say “no” to legislators has produced an incredible narrowness. We’re so used to fighting off covert “sweat of the brow” claims that we’re less interesting and broad than we’d otherwise be. We ought to reflect on the costs to our scholarship by constantly trying to fight off maximalism with Chicago School efficiency arguments.

Fourth, it’s difficult to describe the opposite of property. You go to law school and get a complex language about property. We have no equivalent yet for the public domain.

Finally, three possible tactical thoughts. First, the danger of the “true believers.” Second, the Slashdot effect — the intensity of preference of the geeks leads us to focus on certain things because we get such a big rise out of the geeks when we talk about them. Third, fracturing coalitions. Some tech companies and libraries don’t care about the Broadcasting Treaty, for example.

Disclaimer Haiku:
West wind seems to say,
"This is not legal advice;
I'm not your lawyer."

(And if you're a client with whom I have a preexisting attorney-client relationship, this still isn't legal advice.)

In case you're wondering, this blog is also not intended as advertising, as a representation of anything but my personal opinion, or as an offer of representation.

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