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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.

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.

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.