No Subject

V  
The Analogy to Environmentalism 
Assume for a moment the need for a politics of intellectual property. Go 
further for a moment, and accept the idea that there might be a special 
need for a politics to protect the public domain. What might such a 
politics look like? Right now, it seems to me that, in a number of 
respects, we are at the stage that the American environmental movement 
was at in the 1950's. There are people who care about issues we would 
now identify as "environmental" -- supporters of the park system, 
hunters, birdwatchers and so on. (In the world of intellectual property 
we have start-up software engineers, libraries, appropriationist 
artists, parodists, biographers, biotech researchers etc.) There are 
flurries of outrage over particular crises -- burning rivers, oil 
spills. (In the world of intellectual property, we have disconnected 
stories about Microsoft's allegedly anti-competitive practices, the 
problematic morals of patenting human genes, the propriety of using 
copyright to shut down certain critics of the Church of Scientology.) 
Lacking, however, is a general framework, a set of analytical tools with 
which issues should -- as a first cut -- be analysed, and as a result a 
perception of common interest in apparently disparate situations -- 
cutting across traditional oppositions. (Hunter vs. Birdwatcher, for 
example.)(35) What kinds of tools are we talking about?  
Crudely speaking, the environmental movement was deeply influenced by 
two basic analytical frameworks. The first was the idea of ecology; the 
fragile, complex and unpredictable interconnections between living 
systems. The second was the idea of welfare economics -- the ways in 
which markets can fail to make activities internalise their full costs. 
The combination of the 2 ideas yielded a powerful and disturbing 
conclusion. Markets would routinely fail to make activities internalise 
their own costs, particularly their own environmental costs. This 
failure would, routinely, disrupt or destroy fragile ecological systems, 
with unpredictable, ugly, dangerous and possible irreparable 
consequences. These two types of analysis pointed to a general interest 
in environmental protection and thus helped to build a large 
constituency which supported governmental efforts to that end. The 
duck-hunter's preservation of wetlands as a species habitat turns out to 
have wider functions in the prevention of erosion and the maintenance of 
water quality. The decision to burn coal rather than gas for power 
generation may have impacts on everything from forests to fisheries.  
Of course, it would be silly to think that environmental policy was 
fuelled only by ideas rather by more immediate desires. As William 
Ruckelshaus put it, "With air pollution there was, for example, a desire 
of the people living in Denver to see the mountains again. Similarly, 
the people living in Los Angeles had a desire to see one another."(36) 
(Funnily enough, as with intellectual property, changes in 
communications technology also played a rôle. "In our living rooms in 
the middle sixties, black and white television went out and color 
television came in. We have only begun to understand some of the impacts 
of television on our lives, but certainly for the environmental movement 
it was a bonanza. A yellow outfall flowing into a blue river does not 
have anywhere near the impact on black and white television that it has 
on color television; neither does brown smog against a blue sky."(37))  
Nevertheless, the ideas I mentioned, ecology and welfare economics, were 
extremely important for the environmental movement. They helped to 
provide its agenda, its rhetoric and the perception of common interest 
underneath its coalition politics. Even more interestingly, for my 
purposes, those ideas -- which began as inaccessible, scientific or 
economic concepts, far from popular discourse -- were brought into the 
mainstream of American politics. This did not happen easily or 
automatically. Popularising complicated ideas is hard work. There were 
brilliant books like Silent Spring and A Sand County Almanac, television 
discussions, documentaries on Love Canal or the California kelp beds, 
op-ed pieces in newspapers and pontificating experts on TV. 
Environmental groups both shocking and staid played their part, through 
the dramatic theatre of a Greenpeace protest, or the tweety 
respectability of the Audubon society. Where once the idea of "The 
Environment" (as opposed to 'my lake', say) was seen as a mere 
abstraction, something that couldn't stand against the concrete benefits 
brought by a particular piece of development, it came to be an 
abstraction with both the force of law and of popular interest behind 
it.  
To me, this suggests a strategy for the future of the politics of 
intellectual property. In both areas, we seem to have the same recipe 
for failure in the structure of the decision-making process. Decisions 
in a democracy are made badly when they are primarily made by and for 
the benefit of a few stake-holders (land-owners or content providers). 
It is a matter of rudimentary political science analysis or public 
choice theory to say that democracy works badly when the gains of a 
particular action can be captured by a relatively small and 
well-identified group while the losses -- even if larger in aggregate -- 
are low-level effects spread over a larger, more inchoate group.(38) 
(This effect is only intensified when the transaction costs of 
identifying and resisting the change are high.) Think of the costs and 
benefits of acid rain producing power-generation or -- less serious, but 
surely similar in form -- the costs and benefits of retrospectively 
increasing copyright term limits on works for which the copyright had 
already expired, pulling them back out of the public domain. There are 
obvious benefits to the heirs and assigns of authors whose copyright has 
expired, in having the Congress put the fence back up around this 
portion of the intellectual commons.(39) There are obviously some costs 
-- for example, to education and public debate -- in not having 
multiple, competing low cost editions of these works. But these costs 
are individually small and have few obvious stake-holders to represent 
them.  
Beyond the failures in the decision-making process, lie failures in the 
way that we think about the issues. The environmental movement gained 
much of its persuasive power by pointing out that there were structural 
reasons that we were likely to make bad environmental decisions; a legal 
system based on a particular notion of what "private property" entailed, 
and an engineering or scientific system that treated the world as a 
simple, linearly related set of causes and effects. In both of these 
conceptual systems, the environment actually disappeared; there was no 
place for it in the analysis. Small surprise then, that we did not 
preserve it very well. I have argued that the same is true about the 
public domain. The fundamental aporia in economic analysis of 
information issues, the source-blindness of an "original author" 
centered model or property rights, and the political blindness to the 
importance of the public domain as a whole (not "my lake," but "The 
Environment") all come together to make the public domain disappear, 
first in concept and then, increasingly, as a reality.  
I have said all of this in an attempt to show that there is something 
larger going on under the realpolitik of land grabs by Disney and 
campaign contributions by the Recording Industry of America. But it 
would be an equal and opposite mistake to think that this is just about 
a dysfunctional discourse of intellectual property. In this part of the 
analysis, too, the environmental movement offers some useful practical 
reminders. The ideas of ecology and environmental welfare economics were 
important, but one cannot merely write a Silent Spring or a Sand County 
Almanac and hope that the world will change. Environmentalists 
piggy-backed on existing sources of conservationist sentiment -- love of 
nature, the national parks movement, hikers, campers, birdwatchers. They 
built coalitions between those who might be affected by environmental 
changes. They even discovered, though very slowly, the reality of 
environmental racism.  
Some of these aspects, at least, could be replicated in the politics of 
intellectual property. The coalitions developed to combat the White 
Paper and its implementing legislation, offers some nice examples of the 
possibilities and pitfalls. Other strategies also come to mind. For 
environmental problems, some of the transaction costs of investigation 
and political action are overcome through expert agents, both public and 
private. I pay my taxes to support the EPA or my charity dollars to 
Greenpeace, and hope they do a good job of tracking environmental 
problems. (In the latter case, I know at least that the makers of Zodiac 
rubber boats will be given a boost.) Right now there is not a single 
public or private organisation whose main task is to protect and 
preserve the public domain. This should change.  



Conclusion 
I have argued that the idea of an information age is indeed a useful and 
productive concept, that there is a homologizing tendency for all 
"information issues" to collapse into each other as information 
technology and the idea of "information" move forward in reciprocal 
relationship. The range of information issues expands and the value of 
the "message" increases, at least in comparison to the diminishing 
marginal cost of the medium. This, in turn, gives greater and greater 
importance to intellectual property. Yet despite its astounding economic 
importance and its impact on everything from public education to the 
ownership of one's own genetic information, intellectual property has no 
corresponding place in popular debate or political understanding; The 
belief seems to be that information age politics means fighting 
censorship on the Web too. 
Apart from the normal presumption in favour of informed democratic 
participation in the formation of entire property regimes, I argued that 
there are particular reasons why this comparative political vacuum is 
particularly unfortunate. Drawing on some prior work, I claimed that our 
intellectual property discourse has structural tendencies towards 
over-protection, rather than under protection. To combat that tendency, 
as well as to prevent the formation and rigidification of a set of rules 
crafted by and for the largest stakeholders, I argued that we need a 
politics of intellectual property. Using the environmental movement as 
an analogy, I pointed out that a successful political movement needed 
both a set of (popularisable) analytical tools and coalition built 
around the more general interests those tools revealed. Welfare 
economics and the idea of ecology showed that "the environment" 
literally disappeared as a concept in the analytical structure of 
private property claims, simplistic "cause and effect" science, and 
markets that do not force the internalisation of negative externalities. 
Similarly, I claimed the "public domain" is disappearing, both 
conceptually and literally, in an IP system built around the interests 
of the current stakeholders and the notion of the original author, 
around an over-deterministic practice of economic analysis and around a 
"free speech" community that is under-sensitized to the dangers of 
private censorship. In one very real sense, the environmental movement 
invented the environment so that farmers, consumers, hunters and 
birdwatchers could all discover themselves as environmentalists. Perhaps 
we need to invent the public domain in order to call into being the 
coalition that might protect it.(40) 
Is the environmental analogy of only rhetorical or strategic value, 
then? For my part, though I would be happy to acknowledge its 
imperfections, I would say that it also shows us some of the dangers 
inherent in the kind of strategies I have described. Right now, even 
under a purely instrumental economic analysis it is hard to argue that 
intellectual property is set at the appropriate level. Just as the idea 
of "activities internalising their full costs" galvanised and then began 
to dominate environmental discourse, the economic inadequacy of current 
intellectual property discourse has been emphasised by skeptics.(41) But 
the attraction of the economic analysis conceals a danger. The problems 
of efficiency, of market oligopoly and of future innovation are 
certainly important ones, but they are not the only problems we face. 
Aldo Leopold expressed the point powerfully and presciently nearly fifty 
years ago in a passage entitled "Substitutes for a Land Ethic."  
One basic weakness in a conservation system based wholly on economic 
motives is that most members of the land community have no economic 
value... When one of these non-economic categories is threatened, and if 
we happen to love it, we invent subterfuges to give it economic 
importance... It is painful to read those circumlocutions today.(42) 
  
I believe that there are powerful arguments why a Pay-as-you-read 
architecture on the Net would be economically inefficient even with 
minimal transaction costs. I can make arguments that point out the 
economic problems with our current treatments of "sources" of genetic 
information, or what have you. I can even say with complete truthfulness 
that I believe my arguments to be better than those on the "other side." 
But under Leopold's gentle chiding I am reminded of the dangers of 
embracing too closely a language that can express only some of the 
things that you care about.  
  
Let me conclude by dealing with two particular objections to my thesis 
here. First, that my whole premise is simply wrong; intellectual 
property is not out of balance, the public domain is not systematically 
threatened, economic analysis is both determinate and clear in 
supporting the current regime, the general tendency both internationally 
and domestically has not been towards the kind of intellectual land-grab 
I describe, or -- if it has -- the tendency exists for some very good 
reasons. Elsewhere I have tried to refute those claims but to some 
extent the point is moot. Even if I was wrong, the basic idea of 
democratic accountability over public disposal of extremely valuable 
rights would seem to demand a vastly more informed politics of 
intellectual property in the information age. If such accountability is 
to exist, the public domain should be more systematically discussed and 
defended than has heretofore been the case.  
The second objection is more fundamental. How can I compare the politics 
of intellectual property to the politics of the environment? For some, 
the difference in seriousness of the two problems robs the analogy of 
its force. After all, environmental problems could actually destroy the 
biosphere and this is just.., well, intellectual property. My response 
to this is partly that this is an analogy. I am comparing the form of 
the problems rather than their seriousness. Still, I have to say I 
believe that part of this reaction has to do with a failure to adjust to 
the importance that intellectual property has and is going to have in an 
information society. Again and again, one meets a belief that this is a 
technical issue with no serious human, political or distributional 
consequences. Yet a "bad" intellectual property regime of the kind that 
I am talking about could:  
  Lead to extraordinary monopoly and concentration in the software 
  industry, as copyright and patent trump antitrust policy. Right now 
  the effects are mainly those that would concern the actual drafters of 
  the antitrust laws, who worried about the effects that concentration 
  of wealth and economic power had on the republic, rather than their 
  more modern "consumer-welfare" oriented exegetes. There is some 
  reason, however, to believe that there could be costs even a 
  Chicago-school antitrust analysis would find distasteful.  
  Extend intellectual property rights even further over living 
  organisms, including the human genome, transgenic species and the 
  like. This clearly has some ethical, medical and religious 
  ramifications, while the spectre of a First world-dominated land grab 
  over the human genome would surely be enough to shock those who 
  believed that the deep sea bed was the common heritage of mankind.  
  "Privatise" words, or aspects of images or texts that are currently in 
  the public domain, to the detriment of public debate, education, equal 
  access to information and the like.  
  Impose a pay-as-you-read architecture on the Net without considering 
  some of the costs resulting from that decision.  

  And so on, and so on. The list could be extended. Some of these things 
  have not yet come to pass, and not all of them will. There are court 
  and regulatory decisions that cut against the protectionist tendency I 
  have described. Recent organising efforts around Net, cultural 
  property, pharmaceutical and fair use issues have improved the 
  discourse markedly. Nevertheless, I think that the current situation 
  is enough to warrant what one might call precautionary alarmism. It 
  would be a shame for the fundamental property regime of the 
  information economy to be constructed behind our backs. We need a 
  politics -- a political economy -- of intellectual property and we 
  need it now.  
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  Endnotes
1. © James Boyle 1997. This article draws on ideas first developed in my 
book, Shamans, Software and Spleens: Law and The Construction of the 
Information Society (1996). Those who study intellectual property will 
realize how extensive a debt this article owes to David Lange's classic 
piece "Recognizing the Public Domain," 44 Law and Contemporary Problems 
147 (1981) Thanks are also due to to Keith Aoki, John Perry Barlow, 
Robert Gordon, Jessica Litman, Peter Jaszi, Bruce Sterling and to the 
Yale and Columbia Legal Theory Workshop Series. Please don't quote or 
cite 'til I get the bugs out.  
2. See Charles Darwin, On the Origin of Species by Means of Natural 
Selection (1859) but see Genesis 1:1-29 contra.  
3. See Nicolaus Copernicus, Concerning the Revolutions of the Celestial 
Spheres (1543) but see Claudius Ptolemaeus, Almagest (c. 170 A.D) 
contra.  
4. See generally William Gibson, Neuromancer (1984).  
5. Church of Scientology Int'l v. Fishman, 35 F.3d 570 (9th Cir. 1994); 
Religious Technology Center v. Netcom On-Line Communications Servs., 907 
F. Supp. 1361, 1377-1378 (D.Cal. 1995). Religious Technology Center v. 
Arnaldo Pagliarina Lerma, 908 F. Supp. 1362, 1368 (E.D. Va. 1995) 
("Although the RTC brought the complaint under traditional secular 
concepts of copyright and trade secret law, it has become clear that a 
much broader motivation prevailed--the stifling of criticism and dissent 
of the religious practices of Scientology and the destruction of its 
opponents"). The documents filed in the case have excited considerable 
comment on the Web. Declan McCullagh, Scientology, critics collide in 
Internet copyright case FOCUS, vol. 25, no. 1, October 1995, page 4. 
6. This attitude is in marked contrast to lawyers' assumptions about, 
say, the jurisprudence of the First Amendment, or the Education 
Department's rulings on race-conscious scholarships. Though these are 
also complicated areas of law or regulation, many lawyers and laypeople 
feel that a basic understanding of them is a sine qua non of political 
consciousness. In many cases, in fact, the language of liberal legalism 
defines the central issues of public debate -- a fact that presents its 
own problems.  
7. And, in an important sense, created.  
8. See, e.g., Karen Riley, Rockville Biotech Firm takes Next Step in 
Genetics Journey, Wash. Times., June 9, 1995, at B7.  
9. For an introduction to the biological applications of information 
theory, see Biological Information Theory and Chowder Society FAQ, and 
the archives of the Usenet newsgroup bionet.info-theory.  
10. "In the forests of Panama lives a Guyami Indian woman who is 
unusually resistant to a virus that causes leukaemia. She was discovered 
by scientific "gene hunters", engaged in seeking out native peoples 
whose lives and cultures are threatened with extinction. Though they 
provided basic medical care, the hunters did not set out to preserve the 
people, only their genes - which can be kept in cultures of 
"immortalised" cells grown in the laboratory. In 1993, the US Department 
of Commerce tried to patent the Guyami woman's genes - and only 
abandoned the attempt in the face of furious protest from 
representatives of indigenous peoples." Tom Wilkie, Whose gene is it 
anyway?, Indep., Nov. 19, 1995, at 75.  
11. See, e.g., Frank Guarnieri et al., Making DNA Add, Science, July 12, 
1996, at 220.  
12. See, e.g., Julian Dibbell, The Race to Build Intelligent Machines, 
Time, Mar.25, 1996, at 56.  
13. See Communications Decency Act of 1996, Pub. L. No. 104-104, 110 
Stat. 133 (codified at various sections of 47 U.S.C and 18 U.S.C); see 
also generally ALA-led Coalition Challenges CDA, Am. Libr., Apr. 1996, 
at 13.  
14. Given the fate of these arguments in the contemporary political 
arena, maybe I should reiterate them; Distribution of this good 
(education, health care, wired-ness) through a market system is going to 
have a lot of serious negative effects on those who cannot pay, effects 
that will track and actually intensify existing inequalities of class, 
race and gender. Given the importance of the resource in question, its 
relevance to the citizens' status qua citizen, and the corrosive effects 
of such inequalities on the well-being of the polity, something should 
be done to mitigate or eliminate the problem of access. All of this 
seems profoundly true, but it is hardly a new argument. In fact, subject 
matter aside, it would have been completely familiar to the authors of 
the Federalist Papers.  
15. For the arguments behind this claim, see James Boyle, Shamans, 
Software and Spleens: Law and the Construction of the Information 
Society (1996). There are specific areas in which the situation might be 
reversed, such as "unoriginal" databases. These, however, are the 
exception rather than the rule  
16. In the book, I explore the reasons that this problem is not "solved" 
when one moves to the reality of imperfect markets. The abstract idea of 
"trade-offs" also proves insufficient to generate the determinacy of 
result which most analysts claim for their work.  
17. Sanford J. Grossman & Joseph E. Stiglitz, On the Impossibility of 
Informationally Efficient Markets, 70 Am. Econ. Rev. 393, 405 (1980). I 
cannot here go into the full joys of this debate, but those who talk 
confidently about the economic efficiency of the fine details of 
intellectual property doctrine would do well to look at the absolutely 
basic disputes between information economists. For example, Kenneth 
Arrow argues that, without intellectual property rights, too little 
information will be produced because producers of information will not 
be able to capture its true value. (Even with intellectual property 
rights he believes that certain kind of information generation may need 
direct government subsidy on a 'cost-plus' basis.) Kenneth Arrow, 
Economic Welfare and the Allocation of Resources for Invention, in Rate 
and Direction of Inventive Activity: Economic and Social Factors, 609, 
617 (National Bureau of Economic Research ed., 1962). Fama and Laffer, 
on the other hand, argue that, without intellectual property rights, too 
much information will be generated, because some information will be 
produced only in order to gain some temporary advantage in trading, thus 
redistributing wealth but not achieving greater allocative efficiency. 
Eugene F. Fama & Arthur B. Laffer, Information and Capital Markets, 44 
J. Bus. 289 (1971). In other words, in the absence of information 
property rights, there may be an inefficiently high investment of social 
resources in information-gathering activities, activities that merely 
slice the pie up differently, rather than making it bigger. Hirshleifer 
gives a similar analysis of patent law, ending up with the conclusion 
that patent law may be either a necessary incentive for the production 
of inventions or an unnecessary legal monopoly in information that 
overcompensates an inventor who has already had the opportunity to trade 
on the information implied by his or her discovery. Jack Hirshleifer, 
The Private and Social Value of Information and the Reward to Inventive 
Activity, 61 Am. Econ. Rev. 561 (1971). The difficulty of yielding 
definite results is compounded by the fact that some professional 
economists seem to have a naive, pre-realist understanding of law. They 
often talk as though there was a natural suite of property rights which 
automatically accompanied a free market. They make strong and 
unexplained assumptions that certain types of activities (for example, 
trading on a superior information-position) would "naturally" be allowed 
and involve no "harm" to others, but that certain others (for example, 
trading on coercion through superior physical strength) will not be. 
There is a fascinating study to be done on these remnants of classical 
economics still present in a supposedly neo-classical analysis. The same 
kind of error also creeps into the work of some lawyer-economists. See, 
e.g., Saul Levmore, Securities and Secrets: Insider Trading and the Law 
of Contracts, 68 Va. L. Rev. 117 (1982).  
18. Some are more sophisticated. "In principle, there is a level of 
copyright protection that balances these two competing interests 
optimally...We shall see...that various doctrines of copyright law, such 
as the distinction between idea and expression and the fair use 
doctrine, can be understood as attempts to promote economic 
efficiency..." William M. Landes & Richard A. Posner, An Economic 
Analysis of Copyright Law, 18 J. Legal Stud. 325, 333 (1989) (emphasis 
added). Despite the qualifying phrases one leaves the article with the 
sense that the copyright law has hit the appropriate balance between 
efficiency and incentives. This level of comfort with the current regime 
is to be compared with the open skepticism displayed by an economist 
such as Hirshleifer. See Jack Hirshleifer, The Private and Social Value 
of Information and the Reward to Inventive Activity, 61 Am. Econ. Rev. 
561, 572 (1971) (because of the possibility of speculation on prior 
knowledge of invention and the uncertainties of "irrelevant" risks, 
patent protection may or may not be necessary in order to produce an 
appropriate incentive to invention). It will be interesting to watch the 
Supreme Court's attitude towards these issues over the next few years, 
given the identity of one of the original skeptics. See Stephen Breyer, 
The Uneasy Case for Copyright: A Study of Copyright in Books, 
Photocopies, and Computer Programs, 84 Harv. Law Rev. 281 (1970).  
19. In one sense, the current configuration of Federal bureaucracies 
mirrors the tensions I have been describing in this article; the FTC and 
the Justice Department tend to view information issues from within an 
efficiency perspective, accepting the need for economic incentives but 
more skeptical of the monopoly effects of extensive intellectual 
property rights. The Commerce Department -- and the administration, on 
the other hand -- take a strong incentive-focused approach to most 
issues. As a result, the battle to regulate the information economy is a 
fascinating fusion of organizational persona, economic theory and 
political turf war. See, e.g., Federal Trade Commissioner Christine A. 
Varney, Antitrust in the Information Age, Remarks before the Charles 
River Associates Conference on Economics, in Legal & Reg. Proc., May 4, 
1995.  
20. Felix Cohen's phrase. Transcendental Nonsense and the Functional 
Approach, 25 Colum. L. Rev. 809 (1935), reprinted in The Legal 
Conscience: Selected Papers of Felix S. Cohen (Lucy K. Cohen ed., 1970), 
at 33, 42.  
21. San Francisco Arts & Athletics, Inc., et al. v. United States 
Olympic Committee, 483 U.S. 522.  
22. "Only two terms ago in San Francisco Arts and Athletics, Inc. v. 
United States Olympic Committee, the Court held that Congress could 
grant exclusive use of the word "Olympic" to the United States Olympic 
Committee... As the Court stated 'when a word [or symbol] acquires 
'value as the result of organization and the expenditure of labor, skill 
and money' by an entity, that entity constitutionally may obtain a 
limited property right in the word [or symbol].' Surely Congress or the 
States may recognize a similar interest in the flag." Texas v. Johnson, 
491 U.S. 397, 429-30 (1989).  
23. Northrop Frye, Anatomy Of Criticism: Four Essays, 96-97 (1957).  
24. Paul Goldstein, Copyright, 38 J. Copyright Soc'y of the U.S.A. 109, 
110 (1991) (emphasis added.)  
25. Omnibus Patent Act of 1996, S. 1961, 104th Cong.; Morehead-Schroeder 
Patent Reform Act, H.R. 3460, 104th Cong. (1996).  
26. Employing child labour or violating environmental regulations will 
give a nation's industry what might seem to be an unfair competitive 
advantage, but will not trigger trade sanctions. See, e.g., Robert Howse 
and Michael J. Trebilcock, The Fair Trade-Free Trade Debate: Trade, 
Labor, and the Environment, 16 Int'l Rev. L. & Econ. 61 (discussing the 
absence from the GATT/World Trade Organization framework of provisions 
for sanctions in response to other nations'environmental and labor 
practices); but see North American Agreement on LaborCooperation, Sept. 
13, 1993, Can.-Mex.-U.S., ann. 1, 32 I.L.M. 1499 (1993). Refusing to 
accept and enforce our vision of intellectual property law, however, is 
cause for international action. See generally J. H. Reichman, Compliance 
with the TRIPS Agreement: Introduction to a Scholarly Debate, 29 Vand. 
J. Transnat'l L. 363 (1996).  
27. Information Infrastructure Task Force, Intellectual Property and the 
National Information Infrastructure: The Report of the Working Group on 
Intellectual Property Rights (1995) [hereinafter White Paper]. See also 
James Boyle, Sold Out, N.Y. Times, Mar. 31, 1996; Is Congress Turning 
the Internet into an Information Toll Road?, Insight, Jan. 15, 1996, at 
24. This section of the Article is a revised version of the analysis 
provided in Shamans and in those articles.  
28. The relevant Bills are HR 2441 and S. 1284. Work on them will resume 
in January.  
29. This tendency is to be contrasted unfavourably with the most 
thoughtful defense of the White Paper -- which argued that its 
protections would be necessary to put "cars on the Information 
superhighway" but was careful to acknowledge that some of the White 
Paper's legal theories were controversial, and then to defend them on 
their own terms rather than to offer them as propositions so obvious 
they needed no defense. Jane C. Ginsburg, Putting Cars on the 
"Information Superhighway": Authors, Exploiters and Copyright in 
Cyberspace, 95 Colum. L. Rev. 1466, 1476 (1995) [e.g. defending White 
Paper's embrace of the RAM copy theory but pointing that this approach 
has been "questioned or even strongly criticized"]; See also Jessica 
Litman, The Exclusive Right to Read, 13 Cardozo Arts & Ent. L. J. 29 
(1994).  
30. See David Post, New Wine, Old Bottles: The Case of the Evanescent 
Copy, Am. Lawyer, May 1995; Niva Elkin-Koren, Copyright Law and Social 
Dialogue on the Information Superhighway: Pamela Samuelson, Legally 
Speaking: The NII Intellectual Property Report, Communications of the 
ACM, December 1994, at 21. The Case Against Copyright Liability of 
Bulletin Board Operators, 13 Cardozo Arts & Ent. L.J. 345 (1995). Evan 
St. Lifer and Michael Rogers, NII White Paper Has Librarians Concerned 
About Copyright, Library Journal News, Oct. 1, 1995. Vic Sussman, 
Copyright Wrong, U.S. News & World Report, Sept. 18, 1995; Andrea 
Lunsford & Susan West Schantz, Who Should Own Cyberspace, Columbus 
Dispatch, Mar. 26, 1996; Many of these points were also made in 
testimony. Intellectual Property and the National Information 
Infrastructure: Public Hearing Before the White House Information 
Infrastructure Task Force, Sept. 22, 1994 (testimony of Jessica Litman, 
Professor of Law, Wayne State Univ.). Comments of Professor Mary Brandt 
Jensen, August 26th 1994. Comments of Professor Neil Netanel and 
Professor Mark Lemley, University of Texas School of Law, September 2, 
1994.  
31. Jane C. Ginsburg, Putting Cars on the "Information Superhighway": 
Authors, Exploiters and Copyright in Cyberspace, 95 Colum. L. Rev. 1466 
(1995).  
32. White Paper at 84.  
33. Id at n. 266.  
34. Generally such arguments turns on disagreements over the current law 
baseline from which "subsidies" or "taxes" are calculated. The 
remarkable thing about occasional passages such as this in the White 
Paper is that they suggest that any fair use rights would be a subsidy 
to users. Not all of the White Paper's discussion is this extreme, 
however. Some of the debate still turns on differences of opinion about 
the meaning of fair use jurisprudence. Elsewhere I have given my account 
of the deficiencies in the White Paper's account of current law. See The 
Debate on the White Paper  
35. Although this may be an oversimplification, it does not seem to be a 
controversial oversimplification. "First, the basic analytical approach 
and policy values underlying environmental law came from a fundamental 
paradigm shift born of Rachel Carson in 1961, perhaps assisted 
unwittingly by Ronald Coase, redefining the scope of how societal 
governance decisions should be made. What we might call the Rachel 
Carson Paradigm declared that, although humans naturally try to maximize 
their own accumulation of benefits and ignore negative effects of their 
actions, a society that wishes to survive and prosper must identify and 
take comprehensive account of the real interacting consequences of 
individual decisions, negative as well as positive, whether the 
marketplace accounts for them or not. Attempts to achieve such expanded 
accountings, as much as anything, have been the common thread linking 
the remarkable range of issues that we call environmental law." Zygmunt 
J.B. Plater, From the Beginning, a Fundamental Shift of Paradigms: a 
Theory and Short History Of Environmental Law 27 Loy. L.A. L. Rev. 981-2 
(1994). See also Rachel Carson, Silent Spring (1961) I would replace 
Coase by Pigou, and mention Leopold as well as Carson, but otherwise 
agree. Focusing on Leopold also has another beneficial effect. It 
emphasises the extent to which environmentalism was driven in addition 
by a belief that the economic valuation, and "commodification," of 
environmental resources was not only incomplete but actually wrong. See 
A. Leopold, A Sand County Almanac (1949).  
36. William D. Ruckelshaus, Environmental Protection: A Brief History of 
the Environmental Movement in America and the Implications Abroad, 15 
Envtl. L. J. 455, 456 (1985).  
37. Id.  
38. There are other, more context-specific, problems. Both environmental 
disputes and intellectual property issues are seen as "technical," which 
tends to inhibit popular participation. In both areas, opposition to 
expansionist versions of stake-holders' rights can be off-puttingly 
portrayed as a stand "against private property." This is a frequent 
claim in intellectual property disputes, where defenders of the public 
domain are portrayed as "info-commies" or enemies of "the free market." 
(The latter is a nicely ironic argument to make in favour of a state 
licensed monopoly.) Indeed, the resurgence of a non-positivist, property 
owners takings jurisprudence in the Supreme Court seems to indicate that 
this idea still has great force even in the environmental area.  
39. Although it is beyond me how retrospective, and even post-mortem, 
copyright term extension is to be squared with the idea that 
intellectual property rights should be given only when they will 
stimulate the production of new work; barring the idea of sooth-saying 
or other worldly communication, the incentive effects would seem to be 
small.  
40. For a path-breaking formulation see David Lange, Recognizing the 
Public Domain, 44 Law and Contemp. Probs. 147 (1981). I have also been 
influenced by Jessica Litman's work on the subject.  
41. This economic skepticism links works otherwise very different in 
tone. Compare Stephen Breyer, The Uneasy Case for Copyright: A Study of 
Copyright in Books, Photocopies, and Computer Programs, 84 Harv. L. Rev. 
281 (1970); Pamela Samuelson, The Copyright Grab WIRED 4.01 (1996); 
Boyle, Shamans supra. 
42. Aldo Leopold, A Sand County Almanac 210-211 (1949). 

source:
A Politics of Intellectual Property: Environmentalism For the Net?
James Boyle(1)
Introduction: This Article argues that we need a politics, or perhaps a 
political economy, of intellectual property. Using the controversy over 
copyright on the Net as a case-study and the history of the 
environmental movement as a comparison, it offers a couple of modest 
proposals about what such a politics might look like -- what theoretical 
ideas it might draw upon and what constituencies it might unite.  



I  
"Code is Code" - The Logic of the Information Relation 
Everyone says that we are moving to an information age. Everyone says 
that the ownership and control of information is one of the most 
important forms of power in contemporary society. These ideas are so 
well-accepted, such cliches, that I can get away with saying them in a 
law review article without footnote support. (For those blessedly 
unfamiliar with law reviews, this is a status given to only the most 
staggeringly obvious claims; the theory of evolution,(2) and the orbit 
of the earth around the sun,(3) probably would not qualify.)  
Beyond the claim that the information society exists, however, there is 
surprisingly little theoretical work. Sadly for academics, the best 
social theorists of the information age are still science fiction 
writers and, in particular, cyberpunks -- the originators of the phrase 
"cyberspace" and the premier fantasists of the Net. If one wants to 
understand the information age, this is a good place to start.  
Cyberpunk science fiction succeeded as a genre largely because it 
combined a particular plot aesthetic with a particular conceptual 
insight. The plot aesthetic was simple; the bad boy/film noir world of 
the romantic lowlife. When juxtaposed to the 2-dimensional priggishness 
of the normal science fiction hero, the cigarette smoking, drugged-out 
petty outlaws and mirror-shaded ninja-chicks of cyberpunk seemed 
rebellious, cynical and just, well, cool. The character-type is a 
familiar one; James Dean could easily have played the hero of 
Neuromancer.(4) The conceptual insight is not so familiar. Cyberpunk is 
built on the extrapolation of two principal technologies, computers and 
the Web on the one hand, and genetic engineering on the other. The theme 
of cyberpunk is that the information age means the homologisation of all 
forms of information -- whether genetic, electronic, or demographic. I 
grew up believing that genes had to do with biology, petri dishes and 
cells and that computers had to do with punch cards and magnetic disks. 
It would be hard to imagine two more disparate fields. In contrast 
cyberpunk sees only one issue ~ code ~ expressed in binary digits or the 
C's,G's, A's and T's on a gene map.  






II  
Intellectual Property is the Legal Form of the Information Age 
The cyberpunk writers also offer us a legal insight. The more one moves 
to a world in which the message, rather than the medium, is the focus of 
conceptual, and economic interest, the more central does intellectual 
property become. Intellectual property is the legal form of the 
information age. Like most property regimes, our intellectual property 
regime will be contentious, in distributional, ideological and 
efficiency terms. It will have effects on market power, economic 
concentration and social structure. Yet, right now, we have no politics 
of intellectual property -- in the way that we have a politics of the 
environment or of tax reform. We lack a conceptual map of issues, a 
rough working model of costs and benefits and a functioning 
coalition-politics of groups unified by common interest perceived in 
apparently diverse situations.  
Why don't we have such a politics? One reason is that with a few 
exceptions, the mass media coverage of the information age has been 
focused firmly on "cyberporn" and its potential censorship. This is 
rather like thinking that the most important feature of the industrial 
revolution was that it allowed the mass-production -- and then the 
regulation -- of pornographic magazines. Given the magnitude of the 
changes occurring, and the relatively small differences between 
pornography on-line and pornography anywhere else, a more trivial 
emblematic concern would have been hard to find. It is intellectual 
property, not the regulation of cyber-smut, that provides the key to the 
distribution of wealth, power and access in the information society. The 
intellectual property regime could make -- or break -- the educational, 
political, scientific and cultural promise of the Net. Indeed, even if 
our only concern were censorship, it would be perverse to concentrate 
exclusively on the direct criminalisation of content by governments. The 
digital world gives new salience to private censorship -- the control by 
intellectual property holders of distribution of and access to 
information. The recent Scientology cases are only the most obvious 
manifestation of this tendency.(5) 
The media were not the only ones to miss the boat. Lawyers and legal 
academics largely followed suit. With a few exceptions, lawyers have 
assumed that intellectual property was an esoteric and arcane field, 
something that was only interesting (and comprehensible) to 
practitioners in the field.(6) There is some question whether this 
attitude was ever defensible; it certainly is not now. In terms of 
ideology and rhetorical structure, no less than practical economic 
effect, intellectual property is the legal form of the information age. 
It is the locus of the most important decisions in information policy. 
It profoundly affects the distribution of political and economic power 
in the digital environment. It has impacts on issues ranging from 
education to free speech. The "value" protected(7) by intellectual 
property in the world economy is in the hundreds of billions of dollars 
and growing all the time.  
There are structural reasons why these tendencies will continue. The 
first crucial aspect of the current information economy is the 
increasing homologisation of forms of information. Think of the many 
ways in which it now does not make sense to distinguish between 
electronic and genetic information -- any more than between red books or 
green books. Precisely because we conceive of them as (and have the 
capability to treat them as) information, both present the same issues 
of regulation -- privacy, access, public goods problems, and so on. As a 
result, they have literally begun to overlap -- think of the storing 
(and then the sale?) of the human genome on computer disk, or of the 
private gene databases which add value to information developed through 
publicly funded research and then demand patent options as the 
prerequisite for access by outsiders.(8) Read about the 
mathematical-biological/computer-science discipline of bio-informatics, 
a discipline which is premised on the belief that information is 
information, whether the medium is a double helix or an optical disk.(9) 

We are now used to the idea that Microsoft retains rights over the lines 
of code sitting on computer hard drives around the world. We can even 
produce a utilitarian justification to explain why. It is a lot stranger 
to think that women all over the country may carry in their bodies a 
string of genetic information -- brca1, the so-called breast cancer gene 
-- that has been patented by Myriad Genetics or that the Commerce 
Department tried to patent the genes of a Guyami Indian woman who 
possessed an abnormal resistance to leukemia.(10) From the point of view 
of the information economy, though, the two cases are very similar; in 
each case, strings of code are subject to intellectual property rights 
granted in the belief that they will inspire further innovation and 
discovery. The fact that this can be done in the face of the profound 
shock most people feel at the ownership of human genes is a testament to 
the universalizing logic of the information relation. (Whether it is 
also a good thing is a different question.)  
The process is not simply a legal one and the overlaps go in both 
directions. Scan the science pages and see articles about the 
possibility of using DNA sequences as incredibly powerful parallel 
processing "computers."(11) Think of the software designers who create 
electronic ecologies and then use those strings of computer code which 
have proved themselves as survivors -- harnessing a form of "natural" 
selection that Darwin would have recognised but could never have 
imagined.(12) Put it all together and then compare this "reality" to the 
way that we thought about computers on the one hand and biology on the 
other, just twenty years ago. In the international information economy, 
the medium is not the message. The medium is irrelevant.  
The second crucial aspect of the information economy is a corollary of 
the homologisation of forms of information; the decreasing proportion of 
product cost and intellectual attention devoted to medium (diskettes, 
cell-lines) rather than message (software, decoded DNA sequences). A 
moment's thought will show that both of these aspects will give 
increased importance to intellectual property. Reconceiving new areas of 
science, commerce and research as "information issues" simply gives us 
more fields in which it is likely we will spy the public goods problems 
that intellectual property is supposed to solve. And the diminishing 
portion of product cost devoted to medium rather than message means 
that, within any given area, the public goods problems grow all the more 
salient; (The price of the program rises, at least relative to the 
falling price of the diskette onto which it can be copied.)  
When I say that we lack a politics of intellectual property, I don't 
mean to imply that this is the only type of "information politics" -- 
more like the most neglected. Look at the recent past. From the net 
roots campaign against the Communications Decency Act to the titanic 
industry lobbying over the Telecommunication Bill in which the CDA was 
embedded, there have been many moments of political struggle and 
agitation over digital commerce and communications regulation.(13) There 
have been conferences, both Polyannish and despairing, over the use of 
the Net by non profit groups, and thoughtful warnings of the dangers 
posed by disparate access to information technologies. These are serious 
points; the issue of access in particular. But in most cases, they are 
isolated applications to a new technology of a familiar political 
worldview or calculation of self-interest. Libertarians don't want 
newspapers censored; their attitude to the Net is the same (though the 
interactive quality of the technology, and the proprietary feeling that 
novelty gives first adopters have certainly given more people a stake in 
the protection of the system.) Non-profit groups have to adjust to 
changes in communications technology, just like changes in tax law, or 
the regulation of lobbying. Communications conglomerates have an 
attitude towards bandwidth that seems indistinguishable from most 
commercial entities' attitude towards publicly held real estate; 
rationally enough, they want more, they want it free (ideally, they want 
it subsidised) and they want to be able to exploit it without strings. 
The left sees a resource with new importance -- access to information 
technology -- and makes about it the points that it makes about access 
to health care or education.(14) I don't mean to minimise these 
concerns, and certainly don't want to make the claim that they are 
somehow less fundamental than the ones I describe here. But I do think 
that, precisely because of their comfortable familiarity, they miss some 
of the differences in the politics of the information age, the ideas we 
have not thought about so often or so well.  



III  
The Conceptual Structure of an Intellectual Land-Grab 
Elsewhere, I have argued at unseemly length that there are structural 
tendencies in our patterns of thinking and discourse about intellectual 
property that lead us generally to "over" rather than 
"under-protect".(15) I will summarise, rather than attempt to justify 
those claims here. (A chart that might be helpful is provided in the 
table on page 13.)  
One of the roots of the problem is a conceptual one. The economic 
analysis of information is beset by internal contradiction and 
uncertainty; information is both a component of the perfect market and a 
good that must be produced within that market. Under the former 
characterisation, information is supposed to move towards perfection -- 
a state in which it is costless, instantly available and so on. Under 
the latter characterisation, information must be commodified so as to 
give its producers an incentive to produce. But each property right 
handed out to ensure the production of information is a transaction cost 
when seen from the perspective of market efficiency.(16) 
The most succinct encapsulation of the problem comes from an article 
co-written by the current head of the President's Council of Economic 
Advisors, who in a former life was one of the most distinguished 
scholars of information economics. "There is a fundamental conflict 
between the efficiency with which markets spread information and the 
incentives to acquire information."(17) This problem is often, though 
not always "solved" by ignoring it. A pre-theoretical classification is 
made, conventionally ascribing a certain problem to one or other realm 
and the discussion then continues on that basis. Thus for example, we 
tend to look at the field of intellectual property with a finely honed 
sensitivity to "public goods" problems that might lead to under 
production, while underestimating or failing to mention the efficiency 
costs and other losses generated by the very rights we are granting. 
Some conventional ascriptions visibly switch over time. The contemporary 
proponents of legalising insider trading use the idea of the efficient 
capital market to minimise or defend the practice. The first generation 
of analyses saw the insider trade as the entrepreneur's incentive and 
reward for Faustian recombinations of the factors of production. An 
alternative method for smoothing over the tensions in the policy 
analysis is for the analyst to acknowledge the tension between 
efficiency and incentives, point out that there are some limitations 
imposed on intellectual property rights, to conclude that there are both 
efficiency-promoting and incentive promoting aspects to intellectual 
property law, and then to imply that an optimal balance has been 
struck.(18) (This is rather like saying that because fishermen throw 
some fish back, we can assume over-fishing is not occurring.)  
In general, then, I would claim there is a tendency to think that 
intellectual property is a place to apply our "public goods/incentives 
theory" rather than our "anti-monopoly/free-flow of information" 
theory.(19) All by itself, this might push rhetoric and analysis towards 
more expansive property rights. The tendency is compounded, however, by 
two others.  
First, courts are traditionally much less sensitive to First Amendment, 
free speech and other "free flow of information arguments" when the 
context is seen as private rather than public, property rather than 
censorship. Thus, for example, the Supreme Court will refuse to allow 
the state to ban flag burning, but is quite happy to create a property 
right in a general word such as "Olympic," convey it to a private party 
and then allow the private party selectively to refuse public usage of 
the word. Backed by this state-sponsored "homestead law for the 
language,"(20) the US Olympic Committee has decreed that the handicapped 
may have their "Special Olympics," but that gay activists may not hold a 
"Gay Olympics."(21) This, it seems, is not state censorship but private 
property. (Emboldened, Justice Rehnquist advocated privatizing the 
flag.)(22) 
Second, intellectual property rights are given only for "original" 
creation. But the idea of the original author or inventor implicitly 
devalues the importance of the raw materials with which any creator 
works -- the rhetorical focus on originality leads to a tendency to 
undervalue the public domain. After all, the novelist who, as Paul 
Goldstein puts it, "craft[s] out of thin air" does not need a rich and 
fertile public domain on which to draw. The ironic result is that a 
regime which lauds and proposes to encourage the great creator, may in 
that process actually function to take away the raw materials which 
future creators need to produce their little piece of innovation. One 
interesting thought experiment is to wonder whether Bill Gates could 
have developed the highly derivative program of MS-DOS if, at the time 
that he developed it, the current set of expansive copyright and patent 
protections for software had been in place. My book provides a lengthy 
discussion of this tendency so I will not dwell on it here.  
Tensions In an Intellectual Property System I have arranged these 
tensions in two vertical sets. Each set is not a list of corollaries, 
indeed they are sometimes internally contradictory. Thinking of the 
subject of intellectual property as "information" rather than 
"invention," does not commit oneself to Northrop Frye's views about the 
nature of artistic creation. It certainly does not entail the idea that 
intellectual property should protect investment and labour--in fact, the 
"efficiency" perspective tends to eschew intellectual property rights 
altogether. Let me also acknowledge that any particular portion of 
information regime is likely to mix and match the columns, like a 
restaurant patron picking four from column B and one from column A. 
Nevertheless, the members of each column are most likely to be found in 
popular and scholarly discourse when linked to their vertical 
neighbours. Under the guise of resolving these problems--the effect of 
the author vision is to make the items in the middle column either 
disappear or recede in importance.

  
  Tensions in an Intellectual Property SystemSubject 
      MatterInformationInnovation
    Economic PerspectiveEfficiency Incentives
    Paradigmatic Conception of ProblemsTransaction Cost Problems. 
      Barriers to the free flow of information lead to the inhibition of 
      innovation/ inadequate circulation of information Public Goods 
      Problems. Inadequate incentives for future production leads to the 
      inhibition of innovation/ inadequate circulation of information 
    Reward (if any) 
      for..Effort/Investment/RiskOriginality/Transformation
    View of the Public DomainFinite Resources for future 
      creatorsInfinite Resources for future creators
    Vision of the productive processDevelopment based on existing 
      material."Poetry can only be made out of other poems; novels out 
      of other novels. All of this was much clearer before the 
      assimilation of literature to private enterprise." (23)Creation ex 
      nihilo. "Copyright is about sustaining the conditions of 
      creativity that enable an individual to craft out of thin air an 
      Appalachian Spring, a Sun Also Rises, a Citizen Kane."(24)
    Normative Starting PointFree speech/Free circulation of ideas and 
      information. Property rights -- the creator's "natural" right, the 
      reward for past creation, the incentive to produce again.




So much for the background. Now a brief case study. The difficulty is 
not in finding an example of intellectual property expansion, but in 
knowing which one to pick. The last few years have seen the expansion of 
first copyright and then patent to cover software, the patenting of 
life-forms and human genes, the extension of copyright term limits. 
Speaking not to the level of protection, but to the current conception 
of intellectual property law, it is interesting to note that current 
legislation proposes that the Copyright Office and the Patent Office 
should cease to be part of the government -- being converted instead to 
government corporations or "performance based organisations" which would 
thus be forced to pay greater attention to their "users" and might even 
be funded through user fees.(25) The idea that the rights-holders are 
the true "users" or "clients" of the office is a striking one. On the 
international level we have seen the use of the GATT to turn 
intellectual property violations into trade violations, thus codifying a 
particular vision of intellectual property and sanctifying it with the 
label of "The Market."(26) The example I will pick, however, is the 
Clinton Administration's proposal for copyright on the Net, which is now 
hanging somewhere in legislative limbo.  
  



IV  
A Brief Case-Study: Copyright on The Net 
If the information society has an iconic form (one could hardly say an 
embodiment) it is the Internet. The Net is the anarchic, decentralised 
network of computers that provides the main locus of digital 
interchange. While Vice-President Gore, the Commerce Department and the 
National Telecommunications and Information Administration were planning 
the "information superhighway" the Net was becoming it.  
Accordingly, if the government produced a proposal that laid down the 
ground rules for the information economy, that profoundly altered the 
distribution of property rights over this extremely important resource 
and that threatened to "lock in" the power of current market leaders, 
one would expect a great deal of attention to be paid by lawyers, 
scholars and the media. Nothing could be further from the truth. The 
appearance of the Clinton Administration "White Paper"(27) on 
intellectual property on the National Information Infrastructure 
produced almost no press reaction. The same was true of the introduction 
and eventual stalling of the White Paper's legislative proposals in both 
the House and the Senate.(28) Given the potential ramifications of the 
legislation, this alone, it seems to me, would be strong evidence for 
the proposition that greater scrutiny of our intellectual policy making 
is needed. But the problem lies deeper.  
Elsewhere I, and many others, have written about the problems with the 
White Paper's account of current law, its distressing tendency to 
misstate, minimise or simply ignore contrary cases, policy and 
legislative history, its habit of presenting as settled, that which is 
in fact a matter of profound dispute.(29) There have also been 
thoughtful analyses some of the potential negative effects of the White 
Paper and its implementing legislation, particularly focusing on the 
consequences for libraries, for software innovation and for privacy.(30) 
Defenders of the White Paper have argued that its proposals are 
necessary to protect content on, and encourage fuller use and faster 
growth of, the Net.(31)