Related link: http://blogs.law.harvard.edu/2003/11/17#a651
In a widely circulated weblog, software designer Dave Winer has called
on major Democratic presidential candidates to issue statements about
current intellectual property battles. Winer is backed up by another
by noted law professor Lawrence Lessig. Their goal, which I and most
other people in high-tech support, is to to “keep the Internet free of
interference from the entertainment industry,” as reflected in the
DMCA and its harsh application, the anti-KaZaa lawsuits by the RIAA,
the recent broadcast flag required by the FCC on digital reception and
playback equipment, and so forth.
I would go further and say it’s time for a broad-based but officially
sanctioned summit on information transmission involving Congress,
relevant agencies such as the FCC, technology leaders, and content
providers. These would not be the stacked hearings and closed-door
negotiations that usually drive policy in these areas, but a frank
examination of what technological change is doing to our data. It
would not be restricted to the field known as intellectual
property. (The term is not really appropriate, of course, and
technological change is making that more and more obvious as time goes
Don’t think that current IP battles are just large entertainment firms
defending turf. We will all eventually be towed in by the deep
currents that the content providers are struggling with now.
The plummeting cost and increasing ease of transmitting material
changes everything about information. But policy got off on a bad
footing back around 1995 in the first serious government examination
of the issues, the notorious document “Intellectual Property and the
National Information Infrastructure: The Report of the Working Group
on Intellectual Property Rights,” by Bruce Lehman and the Information
Infrastructure Task Force. This report founded the original sin of
digital policy, defining the movement of bits within a computer as a
“copy” of a work and therefore as a copyright-infringing act.
Lehman’s report essentially declared that the government’s approach to
protecting copyright holders’ interests would be business as usual.
The Clinton administration hereby set itself inexorably against the
technological tide and committed itself to a philosophy totally out of
touch with reality, a course that led to the dismal results we see
today. And yet the doctrine of the infringing computer copy has
spread throughout the world and is being urged by copyright holders on
Similar defenses of business as usual have distorted policy in just
about every other area of “intellectual property,” including
trademarks, patents, and trade secrets. While the World Intellectual
Property Organization and its adherents claim to balance technological
change with the interests of current big business, decisions always
slant toward the latter.
But we must not lose all discernment in our fight against abuses by
large intellectual property interests, because they are touching on to
something that affects us all. The ease of storing and transmitting
information that essentially takes on an eternal existence is a social
issue that we all must face. One current manifestation of the problem
is the recent decision by many health clubs to ban cell phones because
some contain cameras that can catch members in compromising positions.
The spread of cameras, sensors, and wireless networks will lead to
more such dilemmas that will make us wish we could sit down with the
intellectual property interests and discuss what we all have in
common. Too many people fall back on the oft-discredited but easy
phrase “information wants to be free,” which is no more appropriate to
the situation than the “get over it” response to violations of
We can’t stop the spread of information, but we can try to establish
norms and ground rules for its use. We have to celebrate what we can
achieve with the potent combinations of new technologies, but try to
remain masters of them. And that is why it’s high time for a summit.
Right now, we’re in a battle where those with the most social and
political power benefit at the expense of the rest of us. This means
large corporations having free rein over information transfer where it
benefits them, while they legally restrain its transfer where they
sense a loss. A summit will necessarily have to raise questions of
power, which are the questions powerful interests are most loath to
address. We must push all the harder to make the issues explicit.
What can we learn from the current copyright battles?