joegratz.net

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.