Since Ars Technica started in the summer of '98, I've seen a steady increase
in the amount of reporting that I do on intellectual property-related issues.
This trend isn't due to a change in my tastes in reporting the news so much as
it is to a marked increase in the visibility of intellectual property (IP) as a
significant factor in the shaping of the technological and cultural landscape. IP has always been there, a mostly neglected, esoteric corner of the
legal system that has functioned largely out of sight of the majority of
consumers. But as of the past few years, the sheer volume of patent, trademark
and copyright disputes seems to have increased exponentially. Even more
significantly, these
disputes are having a greater impact on everyday folks, from Quake mod authors
to music fans to farmers. The current situation has caught many of us off guard,
provoking confusion as to the nature and/or reality of an IP-based threat to our
civic freedoms.
Many of the voices in online debates around IP fall into one of two camps. I
won't take the time to do more than very briefly summarize these two positions,
because we're all familiar with them by now. The first is the "information
wants to be free" camp, which advocates the free and communal sharing of
information and rejects any notion that products of the intellect can or should
be understood, legally or philosophically, as property. At the other extreme is
a camp that is comfortable drawing direct, strong analogies between concepts of
ownership of physical property and concepts of ownership of intellectual
property. Furthermore, this camp is intent on letting the "free" market
determine a value for information, much as it determines a value for more
traditional types of property. This second camp usually feels that the
anti-IP rhetoric coming from the first camp is merely a rationale for
piracy, while the first camp feels that members of the second are mindless
shills for the corporate machine.
Somewhere in between these two extremes lies a large majority who find both
extremes attractive for different reasons, but who can't in good conscience
commit to one stance or the other. These people (myself included) on the one
hand acknowledge the many benefits that IP law has yielded in the modern economy,
but on the other hand worry about the ever-encroaching technological and legal
threats to our personal freedoms by large, moneyed corporations wielding bands of lawyers. Developments in the daily news make us
uneasy, and we don't quite buy the argument that a creator (or a third party rightsholder) has some sort of basic, God-given, exclusive "right" to
completely dictate how, when, and where you use the products of his or her labor. Neither,
though, will our essential conviction that people are entitled to be able to
profit from their work allow us to be convinced that price-free access to all products
of the intellect is a basic civic right.
There's a reason why so many of us are caught in the middle. It's because the
morally absolute language of rights leaves us too little wiggle room for holding
a useful dialogue about the ways a fair intellectual property system should look
and function. What I intend to do in the
following editorial is argue for a new type of discussion, one focused more on
larger systems and structures than on the rights of the individual actors
governed by those structures. To that end, I'll describe the way that the
existing intellectual property structures are developing, and I'll then talk
about how we can visualize some alternatives to them.
Rights language--it's not always the best option
The language of rights--the rights of creators, consumers, third parties
who've invested in the creation and/or distribution process, etc.--while
historically quite effective in bringing about change for the better, also has
some severe shortcomings. As Robert N. Bellah et al point out in The Good
Society, framing a social issue in terms of individual rights hinders
fruitful dialogue about common conceptions of the public good and what kind of
society we want to live in. There seems to be an atomistic view in much American
civil discourse that says if we focus our juridical energies on maintaining
equitable relationships between individual actors in a system, then the system
as a whole will order itself equitably. In other words, if the legal system can
keep individuals from stepping on each other's rights, the thinking goes, then
the big picture--who has privilege and who doesn't, who makes the rules and who
follows them, who's on top and who's on bottom, who benefits from the existing
arrangement and who doesn't--will work itself out in a manner that's fairest for
everyone.
Such thinking flows naturally from the perennially popular Darwinian
metaphors that civic leaders (especially those in the corporate world) love to
employ. Just like an ecosystem is thought to consist of a collection of
individual animals or species competing for resources on the neutral playing
field provided by Nature, a society is thought to be a collection of individual
people (or groups) competing for resources on the neutral playing field provided
by the blind letter of the law. Laws are then made with an eye to enabling
individuals to compete fairly, and the legal system finds itself primarily
occupied with adjudicating the collisions that result when one party's rights
conflict with another's. And what area of law is best suited for handling such
rights-based conflicts? Litigation. So in our present environment where
civic issues are construed solely in terms of rights, is it any wonder that
litigation flourishes? And when we as a society are consumed with litigating
each other, is it any wonder that it seems impossible for everyone to stop for a
moment, step back, look at the big picture, ask themselves what kind of system
we're creating and who's benefiting from it, and then call off the lawyers long
enough to cooperate and build something better?
Because it focuses civic debates inordinately on individual relationships at
the expense of addressing systemic or structural problems, rights language
impoverishes civic discourse and closes off avenues of potentially fruitful
discussion. As Bellah notes, a right is a binary proposition: you either have it
or you don't. Thus, framing a new debate, like the one around intellectual
property, solely in terms of rights at the very outset drastically limits our
options for exploring possible ways to order our intellectual property system so
that it benefits society as a whole.
There is a way to approach
IP, and other important social issues, from a perspective other than that of rights. It's harder and more complicated, but in
the end it's more productive. Instead of talking about rights--the rights
of authors vs. the rights of consumers vs. the rights of publishers vs. the
rights of investors--we should instead talk about structures--how they
look, how they function, what they include and what they leave out, who they benefit and who they
don't.
