A(nother) Day of Thinking (yet again) about Intellectual Property

February 25, 2005    

 

I'm at the University of Iowa's Law School attending an interdisciplinary symposium on Intellectual Property. I drove the hour to Iowa City and arrived about 15 minutes early but then spent the next hour looking for parking and walking the 2 miles from where I eventually parked. I had forgotten how insane parking is in the campus area of Iowa City, as it is in any large college town. (My worldview is so far from car use in the last few years that these concerns just don't occupy any space in my brain anymore.) So, this was a surprise, though it shouldn't have been.

The other surprise upon arriving here, one that I think I'm justified in being surprised at, is that here in the Student Lounge of the UI Law School there's no wireless internet access. This I think is really weird. [1]

 

Other questions include: Why isn't there real sugar for the coffee, rather than just Sweet 'n' Low? Was I that late, or is it a commentary on simulacra and the Culture of the Copy? Most importantly, Is the target audience for this event people from academia?

 

I eventually decided that it was. I half-expected it, and should have wholly expected, it, though the "open to the public" notice must have thrown me off. I still would have attended, but I would have been more prepared for the direction that the discourse was directed.

 

This article is shaping up to be a very odd, tangential commentary on this symposium. [2] I'm here completely as an observer, today, though later, next month, I'll be a participant in a related event here, the Collage Conference. So today I feel my role is as correspondant for Detritus.net, to cover this event for those people who are interested in learning about such things from Detritus.net.

This symposium turned out to be a pretty good thing, despite the fact that very little information presented was news to me. However, I met some really great people, some new and some familiar to me.

 

The exciting aspect of the symposium is that a significant fraction of the speakers were obviously very concerned with matters of more importance than the standard pop-cultural concerns of file-sharing, sampling, parody and artistic appropriation. There were scholars and researchers from a wide variety of disciplines, including those working for 'global health equity' (issues like cheap pharmaceuticals for the third world, despite transnational drug corporations and their patents) and those thinking about indigenous rights. There were people who understood, as I have come to in the last several years, that this stuff doesn't matter much if it's only about priveleged artists and academics being able to cut and paste media. It has to include other, more important aspects of intellectual property struggles.

 

Siva Vaihyanathan understood this, as he made clear when he gave the keynote speech and basically gave a manifesto, in outline form, for a new "field" of academic work called "Critical Information Studies."

 

Here are some highlights from the 3 panels and Siva's talk, taken from my notes:

 

Panel: Open Sources, Open Access & The Commons

Rebecca Eisenberg, UM Law School, Bruce Wheaton, UI Research Foundation,

Jeff Murray, UI Prof of Pediatrics, Biology, Dentistry and Preventative Medicine, Nancy Baker, UI Librarian, Alberto Segre, UI Computer Scientist, Adrian Johns, U of Chicago History Prof, Eva Hemmungs Wirten, Uppsala University, Library Science, Sweden

 

-point made by Rebecca Eisenberg: there's often a misperception by producers of the profit potential of works. the current IP regime assumes the owners are able to make good assessments of how to make money from their properties. Sometimes they do, but sometimes they don't.

 

-Bruce Wheaton: there's been an interesting cultural development from "steal this book" to "give away this book."

 

-audience member: The public discourse is weighted heavily toward corporate culture owners.

 

- Eva Hemmungs Wirten - "I see this very high-pitched discussion as very American, if I'm allowed to say that."

 

- Academics are worried about doing public policy instead of doing research since it so time consuming.

 

Panel: Fair Uses

Christina Bohannan, UI College of Law

Sut Jhally, Umass Communication Department, Founder of Media Education Foundation

John Sorensen, Producer, New River Media (participant in "Untold Stories" study)

Pamela Trimpe, UI Museum of Art Curator

David Sanjek, BMI Archives Director

Siva Vaihyanathan, NYU, Dept of Culture and Communications

 

Christina Bohannan - teaches a course in copyright at UI

look up her work - her new paper is about "IP dilution", like in trademark law

 

a lot of "neoclassical"(?) economists are coming around to being for Free Use because IP laws are no longer "economically efficient"

 

"congress has pushed me too far, so i'm" going to make political arguments"

 

"nobody can say what is the precise optimal level of copyright protection."

 

she is quite ambivalent about the file sharing issue. why: people download music in its entirety. they are affecting sales of music. But, "the Music Industry is not exactly a sympathetic character." they refused to move into digital music for a very long time. There was a business model that was wrong. the napster-type companies pushed the music industry into going into the digital/internet market. Also: file sharing tech is a great technology regardless of what the content is.

 

congress seems to be captured by the industry interests. we need congress to think about what is the best thing long term. courts need to do the right thing too.

 

We must push what fair use is. Go ahead and push it. Don't be scared by Law Suits. "maybe i can be liable for contributory infringement" if you're doing a socially useful thing, go ahead and do it.

 

Sut Jhally

"right now it's incredibly depressing to be inside the U.S."

"We are forever fighting a battle"

broader context: there is an active program to push back all rights, including international law, social security, etc. its about corporate power against democracy.

 

Media Education Foundation - very aggressive about Fair Use. they've created many films. If you're commenting, you have to be able to use the thing you're commenting on.

"i would love to be the test case. i think we would win, even in this current Supreme Court."

 

"asking for rights presumes that who you're asking has the right."

Most institutions are by neccessity conservtive. Profs can do this. academics should refuse to publish in journals and presses that don't allow using fair use materials.

"When in doubt, just do it, and if you are the test case, you will become famous."

 

John Sorensen

producer for an indie documentary company that provides stuff to PBS

 

The first phase of Untold Stories was how the clearance culture is effecting things the second phase is to come up with a "best practices" - a guide for reasonableness so producers can convince gateholders to distribute their work.

 

Pamela Trimpe

 

She talked about the challenges for art curators. Clearing rights to reprint paintings, etc.

"What is it with you Iowans and copyright?" - VAGA (Visual Artists' Guild of America?)

 

the test: "something beyond the content of the original is created that provides value for everybody else."

 

David Sanjek

get back to the definition of the artifact, the artist, and the consumer

2 Live Crue vs Acuff-Rose

Acuff-Rose refused rights because of their opinion of 2LiveCrue, whereas the valorization of prostituion in the film "Pretty Woman" was acceptable.

"the parody was clearly intended to parody the whitebread original... this is criticism with a vengence." - the appeals court judge, Judge Nelson

 

you may own an artifact, but you don't control the meaning of that artifact. this case says something about meaning...

 

We have to continue these "on the ground scrimmages" but we also "have to talk about first principles of authorship, ownership and consumption or it's only a half-battle."

 

"If an artifact is not accessible, does it exist?"

 

(Siva plays 2LiveCrew's "Pretty Woman" on his powerbook to illustrate David Sanjek's talk)

 

Siva Vaihyanathan

used to be a fair use true believer but has fallen. fair use is religious.

his attitude is like Pascal's Wager:

As long as we have it, i'll support it, but it's not neccessariliy going to be around long and isnt that useful, perhaps.

 

"Fair Use these days is merely the right to hire a lawyer." – Lessig

 

Fair use is a local ordinance in a global economy. (Rosemary Coombs)

 

Problem: "we got fair use so there's no tension" (Justice Ginsburg)

 

Copyright to be reasonable should give just enough incentive so people keep creating stuff, but doesnt raise the price of creating new works. Fair use is a Defensive right only, not a preemptive, affirmative right.

Next month: the Supreme Court hears the Grokster Case.

basically a rehearing of the sony-betamax case.

"It doesn't look good."

 

"I think courts aren't the place to do this. I wish congress would sit down and figure out a set of basic uses that are acceptable."

 

the horror stories are flowing freely. so we might be ready for this conversation.

 

 

Panel: The Promises and Perils of a Licensed World

Paula Kaufman, U of Illinois Librarian

Ted Striphas, Indiana University, Dept of Communication and Culture

Gil Rodman, U of S Florida, Communication

Steve Jones, U of Illinois, Electronic Visualization Laboratory

John Wilbanks, Executive Director of Science Commons

Usha Balakrishnan, UI Director of Corporate Partnerships

Paul Greenough, Prof of History, Community, and Behavioral Health, etc

 

 

Paula Kaufman - libraries are increasingly licensing works, not buying them, and the licenses are very strict and prohibitive.

 

Ted Striphas - electronic books,

digital rights management schemes - how can we think philosophically about IP?

Contested Commodities - Janet Raden

"Alienability" - ability to bring something to market, to commoditize it(?)

Weak Conditional Alienability - "leaky IP protection"

 

Consumer Capitalism says that the health of the economy is based on relatively unlimited access to available goods.

"Read it once, read it for a midterm, read if for a final, read it one more time. that ought to be enough." - McGraw Hill ebook's justifciation for only 4 page views per page

 

Strong Alienability - rights are not just legal but practical, technological

Periodic Alienability - passwords expire, etc. this idea is on the increase.

"a global pay-per-view society" (Siva)

Episodic Alienability - like periodic, but not linked to a certain duration. shuts down after a certain amount of uses.

 

Gil Rodman

how can we create management systems? A: We can't!

because at some point the content has to be unlocked to view.

DRM will only work for people who don't have access to "work-arounds".

What happens when we move to licensing rather than purchasing?

This has already happened.

media (other than movies) have always been unlimited, not-pay-per-view

what damage is done by trying to do DRM?

Don't accept that the foundational moment of this conversation is commerce.

 

"Sharing is Theft" - the industry's current Orwellian Maxim

 

Steve Jones -

Made a DVD called Virtual Harlem

whether it becomes more than just a University learning environment is dependent on concerns about licensing and profits.

 

Will IP law effectively and fairly manage things like virtual environments?

Who will own the worlds where we live and play, and what will they charge us?

 

John Wilbanks

Science Commons

Creative Commons started in the creative culture area. founded in 2001 by Lessig. basic premise is you want to share your work. CC has been translated into 13 diffferent countries' legal codes.

 

In science you have to be REALLY careful, cuz it can mean a BILLION dollars (for a drug), rather than a few CDs sold.

 

you have to get away from DRM and to Digital Rights Description. then you can have a search engine for rights.

 

Science Commons is about streamlining contracts, sharing data.

there are already Matter Compilers - a virus that has screwed up rights managment is more serious than a file pretending to be a Madonna song.

 

 

Usha Balakrishnan

patent management at the University

Global Health equity

in order for a drug candidate to become helpful to people, it has to be paid for, lots of money, by somebody. there has to be an investment from somewhere outside the university.

if we're in this for public benefit, how do we manage this to widen the diffusion of these benefits?

 

between 1975-1999, only 16 of the 1400 drugs put on the market were for tropical diseases. (of coures not, cuz there's no money in it)

 

how do you insure that essential drugs and medicine are accessible to the poor?

 

Tenured professors must have courage to stand up and work on neglected diseases and unmet needs of our world. "Fostering best practices for ethical stewardship in global equity".

 

there's pent-up energy - people want to do a lot more good.

 

Doing good (well) by doing well (good).

I care about our world, I am a global citizen - not an activist. (interesting clarification)

 

more global health - the important thing is life.

"Even god himself must appear before the starving man in the form of bread." - Gahndi

 

the needs of poor people must be prioritized over rights of production. property rights must be trumped by human rights.

 

the present world system is very heavily weighted to corporate rights.

 

talked about India and laws for making generic drugs

 

in India TODAY, the Indian parliament is voting to change their patent law according to WTO standards. which means the Indian leverage of their drug companies is going to be lost gradually.

 

diversity is very important. we shouldnt have monolegal structures.

 

Nelson Pavlovsky

Online Policy Group vs. Diebold

student at Swarthmore, his group was concerned with electronic voting machines.

"by spreading around this evidence of our wrongdoing, you are infringing on our copyright." said Diebold.

 

"we won the case, and that got me to this conference."

Founded freeculture.org

 

Siva Vaihyanathan ("Vah-dee-ya-nah-then") Keynote

Critical Information Studies - Siva's name for this stuff.

What is the taxonomy of this stuff?

branding

we are fun and interesting.

"so little that happens at universities is either fun or interesting, let alone both."

-we are doing good and doing well. Why can we say that? because our enemies are getting angry and mean. that shows we're doing well.

 

scholars are partners to the "Free Culture" movement. Lessig coined the phrase.

scholars are providing the phrases and footnotes and cultural capital to activists and hacktivists. and they're participants in Lawsuits and Lobbying

 

What's Going on?

We are growing yet unorganized

 

-critical because it challenges status quo and dominant trends

-information because it's broader than "culture" or "science"

 

Roots

Legal Elements of Academic Creolization

history: ben kaplan (An Unhurried View of Copyright)

Critical Legal Studies - Jaszi and Woodmansee

Law and Economics - Richard Posner

Political Economy - James Boyle

Tech and Cyberlaw - Lessig

Anthropology - Rosemary Coombe - the Cultural Life of Intellectual Properties

 

Code Switching

Bridging Academic Divides:

public scholarship, not specialized

teaching vs research - connecting research and teaching better

breaking down distinctions between producers and consumers of knowledge (??)

(I don't see a distinction any more for many years. really now the distinction is between distributors and everyone else - the gatekeepers - steev)

 

Cultural Studies vs political economy - there was a war in academia between these. now we are bridging these gaps.

science vs tech

science vs humanities - we all use the library!

humanities vs prof schools

economists vs everyone - economists want to make connections in this field so they have to write stuff that everyone understands

 

Not Just About Copyright

local knowledge - indigenous peoples (vs patents)

Trademarks

code and technology - we must pay attention to arcane tech things, information systems

patents

 

Beyond Negative Liberties

not just about Fair Use

not just free speech

its about access, costs, abilities, chilling effects on audiences, citizens, creators, teachers, students

 

[("Negative Liberty" is a good name for something)]

 

Projects:

Scholarships

Criticism

Public Speaking

Open Access Journals

Open courseware

push publishers to lower costs of scholarly production

 

Ideology: Commitment to Variety of Democracies

cultural democracy

semiotic democracy

information democracy

political democracy

 

We're talking the raw materials of democracies.

 

challenges:

-There are more grave concerns than whether people can sample in their music.

 

-respect for indigneous production conflicts with individualism.

 

-diffuse movement

-global agendas are not forthcoming

-scholars are priveleged and elite and often elitist. they tend to forget this.

 

Next Steps

-foster more things like today

-national debates. open courseware, creative commons, open databases. etc.

-global network of interdisciplinary scholars. there have to be scholars -everywhere doing this stuff.

-dial down the Fair Use rhetoric

-recognize our class status

-recognize and replace us-centric discourse

 

 

"Until MC David Souter stepped in, there was no respect for hiphop" – Siva (talking about the 2 Live Crew Case)