Obama in Cyberspace

There have been some hiccups with the accessibility of my new Financial Times column.. which (ironically) is about accessibility.. Here it is.. (and thanks to the excellent Financial Times people who let me keep the copyright to my columns and allow me to put my own copies of those columns under a CC license)– check out the other people they have writing on intellectual property, communications, and the internets.

Obama in cyberspace

By James Boyle

For those stalwarts who lived through the Bush years in a thrall of horror and disbelief, broken only by Jon Stewart monologues, Barack Obama’s arrival has been cathartic. True, the sight of your retirement account statement may bring on nausea, chills and palpitations. (Is it really unrealistic to think of working until you are 70? As a bicycle messenger?) But there is always the soothing relief of hearing the announcement that yet another Bush policy has been overturned, even if the announcement generally comes with a pragmatic footnote. America is now against torture again. (But also against prosecuting those who tortured and against declassifying photos of abuse.) Guantánamo will be closed down. (Though we don’t know quite where the inhabitants will go.) The United States will do something about climate change. (Even though the actual plan is full of corporate giveaways.) The phrase ”Justice Department” no longer sounds like an oxymoron. And so on.

Sometimes the ”pragmatism” looks a little like ”not trying” – as when Obama scurried quickly into retreat on immunity for the telephone companies who participated, probably illegally, in spying on US citizens. But those who understand politics better than I give him fairly high marks on his combination of principle and pragmatism. And since I couldn’t craft a legislative majority at a dinner table over what Chinese food to order, I am reluctant to throw stones at those who have to deal with considerably more unwieldy coalitions.

So what does Obama’s mixture of principle and pragmatism look like in the world of the new economy, and more specifically, the world of intellectual property policy? The picture is definitely mixed. On the one hand, he has brought brilliant people to important positions. It is nice to have a Nobel prize-winner (Steven Chu) as Secretary of Energy, and another (Harold Varmus) as the Co-chair of the President’s Council of Advisors on Science and Technology. It is hard to imagine the Obama team talking about science as if it were simply one inconvenient partisan position or ridiculing the ”evidence based mindset” or, for that matter, evolution itself. The administration has good ideas about what to do with the slow motion train-wreck that is the US Patent and Trademark Office. It is not clear if those good ideas will be implemented, but one can hope. In the area of copyright law . . . well, the signs are mixed.

Traditionally, Democratic administrations take their copyright policy direct from Hollywood and the recording industry. Unfortunately, so do Republican administrations. The capture of regulators by the industry they regulate is nothing new, of course, but in intellectual property there is the added benefit that incumbents can frequently squelch competing technologies and business methods before they ever come into existence. Years of making policy this way have given us retrospectively extended copyright terms that are in excess of 100 years. (Perpetual copyright ”on the instalment plan” in Peter Jaszi’s words.) It has given us a one-sided and unbalanced view of the world, which registers with complete accuracy the real dangers that the content industry faces from any new technology, while ignoring the benefits those same technologies can provide – including to the content industry. The Obama administration’s warm embrace of Silicon Valley, and Silicon Valley’s chequebook, had given some hope that this pattern would change – and I think it will. Now, instead of taking copyright policy direct from the media conglomerates (who, after all, have a very legitimate point of view – even if not the only point of view) it is quite likely that the administration will construct it as a contract between content companies and high-technology companies such as Google. In some places, citizens and consumers will probably benefit, simply because optimising for the interests of two economic blocs rather than one is likely to give us a slightly more balanced, and less technology-phobic, set of rules. And perhaps the administration will go further. But recent actions make me doubt that this is the case.

First, the administration’s messages about the so-called copyright czar have left little doubt that it is the content industry that is going to be commanding the cossacks. (Would you really want to be called a “czar”? We don’t have a patent tyrant, or an antitrust dictator, so why a copyright czar? But I digress) The goal of the law that created this position is simple. It is to give unprecedented high-level governmental representation to the interests of a particular set of industries, so they can, ahem, help ensure that other agencies, such as the Justice Department put the appropriate resources and zeal into prosecuting DVD pirates and handbag counterfeiters. One wouldn’t want them to be confused about their priorities after all. (Even the Bush administration Justice Department, which historically thought nothing except gay marriage was constitutionally suspect, managed to perceive that this was a tad problematic if one believed in prosecutorial independence.) Obama isn’t responsible for this silly law. But he does control who fills the position. So far as I can tell, the debate has now shifted to precisely how dogmatic the representation of intellectual property holders should be. The idea that intellectual property policy might actually require a balance between multiple interests, including some who are not rights holders, has apparently been abandoned. If a few thoughtful scholars such as Larry Lessig get caricatured in the process, well, what’s the harm?

But the final straw may be the Obama administration’s opposition to a proposal on copyright exceptions for the visually impaired. About 95 per cent of books are not available for blind or partially sighted readers. Some countries have exceptions in their laws which, very sensibly, condition the grant of the copyright monopoly on a (very) few public interest limitations, such as the right to make non-commercial versions of works one has legally purchased in order to make them accessible to the visually impaired. (For example, generating a machine-readable audio book, or a Braille version, from a legally purchased digital text.) The proposal would generalise and harmonise those exceptions. It is backed by a number of developing countries and opposed – quietly – by the US and most of the European Union. Hip-deep in a colossal market failure on a global scale, they say optimistically that the market will provide an acceptable solution, though there is overwhelming empirical evidence that it will not.

Why oppose this proposal? Scaremongering aside, there is no real threat to anyone’s business model here. But if one sees any limitation of the most extreme version of copyright as a dangerous and ideologically driven attack on property itself, well then, one must fight. This proposal represents the ideas that rights should have limits and that we should harmonise limitations and exceptions as well as rights themselves. It is that principle, the principle of balance, that must be resisted. Even if it puts one in the embarrassing position of – ever so pragmatically – sacrificing one’s blind citizens to an industry agenda. In a world where we have to deal with torture and climate change and the collapse of our economic system, this little piece of moral cowardice is not something many people are going to notice. But it leaves a nasty taste in the mouth, nonetheless.

James Boyle is a professor of law at Duke Law School. His most recent book is The Public Domain: Enclosing the Commons of the Mind.

Thursday, June 18th, 2009 Uncategorized

8 Comments to Obama in Cyberspace

  1. Even setting aside for the moment that there is no such thing as “Intellectual Property” in the United States, let alone any so called property rights even involved; there are some limited time privileges that congress MAY choose to grant, there is nothing in article I which even says congress MUST actually do so, I am curious how one constructs the idea of for example copyright cartels seeking exclusive and unlimited rights to cultural artifacts as being legitimate? At best, it seems like arguing that Al Capone had a very legitimate point of view on filing taxes.

    Some suggest the U.S. constitution offers the idea as a kind of balanced social contract between the public interest and that of creative producers. This idea does not strike me as abhorrent in itself, and indeed that could be offered as a very legitimate viewpoint. However, the fundimental problem is that middlemen are now choosing to entirely renegotiate the terms of said contract after the fact into a one sided contract of adhesion. Applying the word “legitimate interest” to that seems far more than merely inappropriate, it perpetuates a fraud.

  2. David Sugar on June 21st, 2009
  3. For it to be a case of moral cowardice, opposition to the proposal would have to be accompanied by awareness that such opposition is unjustified.

  4. PL Hayes on June 21st, 2009
  5. Thanks for the comment. Since I have spent most of my career being portrayed as a foe of everything the content industry holds dear, I am savouring the experience of /. readers thinking I am an apologist for the same industry ;-> The entire article criticizes the Obama administration for adopting too closely the views of the content industry, for sending signals that they will pick as a copyright czar someone who serves the interests of that industry and, in an act of “moral cowardice”, giving up the interests of blind and visually impaired citizens to serve that agenda. On what do the slashdot comments focus? One single phrase that suggests that the content industry actually has a legitimate point of view. This is perhaps an example of ignoring the forest and focusing on a single twig?
    For 20 years I have written at far too great a length the reasons why I think the view of the content industry is mistaken. I think it is profoundly wrong and the legislation that has propounded it is in some cases unconstitutional. But the fact that I disagree with it and think it mistaken does not make it *illegitimate as a view.* That is an important point in, and a defining feature of, a liberal democracy.
    Here’s a discussion of my use of the term “intellectual property” http://www.movingtofreedom.org/2008/11/30/james-boyle-the-public-domain/
    And as for the “breaking the deal” point — that was actually the title of an earlier article about the shameful practice of retrospective copyright term extension. If you are interested, the book this site is devoted to contains a lengthy explanation of why the Jeffersonian view of copyright is superior to that of the content industry, why the Framers of the constitution might be appalled by the system set up under Article 1 section 8 clause 8, while ignoring that clause’s limitations, and why the path they have taken is precisely the wrong one.
    But to return to the main point — I’d at least hope for an equal amount of outrage at what is being done to the interests of visually impaired citizens, or in the appointment of the copyright czar.
    (And re PL Hayes’ point on moral cowardice, I agree. And I think it was.)

  6. James Boyle on June 21st, 2009
  7. “On what do the slashdot comments focus? One single phrase…..”

    That is precisely why i never read the comments on /.
    I read the post, the referenced articles or blogs, and move on with life.
    I thoroughly enjoyed what you had to say here, and fully agree.

  8. Markus on June 21st, 2009
  9. Thanks for the clarification. I’ve read – with admiration – your FT pieces and watched your google tech. talk video etc. but I’m not surprised the /. readers got hold of the wrong end of the stick. It’s rarely worth reading beyond the /. front page these days.

  10. PL Hayes on June 22nd, 2009
  11. [...] 3: Obama in cyberspace [...]

  12. 3 Count: Obama in (cyber)Space | PlagiarismToday on June 23rd, 2009
  13. I appreciate your ongoing support for accessibility for blind and visually impaired readers. We are a “low incidence” population, as the sociologists say. We’re likely to remain marginalized on most others’ moral horizons, but we may serve here as canaries in the coal mine.

  14. Mark Willis on July 6th, 2009
  15. Thanks Mark. Much appreciated and http://fairuselab.net/ is a great initiative. Congratulations!

  16. James Boyle on July 6th, 2009

From the Blog

  • Free/Low Cost Intellectual Property Statutory Supplement

    Today, we are proud to announce the publication of our 2014 Intellectual Property  Statutory Supplement as a freely downloadable Open Course Book. Statutes Cover  It offers the full text of the Federal Trademark, Copyright and Patent statutes (including edits detailing the changes made by the America Invents Act.)  It also has a number of important international treaties and a  chart which compares the various types of Federal intellectual property rights — their constitutional basis, subject matter, length, exceptions and so on.You can see it here in print, or download it for free, here

  • Persnickety Snit

    This is the fourth in a series of postings of material drawn from our forthcoming, Creative Commons licensed, open coursebook on Intellectual Property.  It is about lawyers and language. 

  • Macaulay on Copyright

    Macaulay’s 1841 speech to the House of Commons on copyright law is often cited and not much read.  In fact, the phrase “cite unseen” gains a new meaning.  That is a shame, because it is masterful.  (And funny.) One fascinating moment?  When Macaulay warns that copyright maximalism will lead to a future of rampant illegality, as all happily violate a law that is presumed to have lost all moral legitimacy.

    At present the holder of copyright has the public feeling on his side. Those who invade copyright are regarded as knaves who take the bread out of the mouths of deserving men. Everybody is well pleased to see them restrained by the law, and compelled to refund their ill-gotten gains. No tradesman of good repute will have anything to do with such disgraceful transactions. Pass this law: and that feeling is at an end. Men very different from the present race of piratical booksellers will soon infringe this intolerable monopoly. Great masses of capital will be constantly employed in the violation of the law. Every art will be employed to evade legal pursuit; and the whole nation will be in the plot…  Remember too that, when once it ceases to be considered as wrong and discreditable to invade literary property, no person can say where the invasion will stop. The public seldom makes nice distinctions. The wholesome copyright which now exists will share in the disgrace and danger of the new copyright which you are about to create.

    The legal change he thought would do that?  Extending copyright to the absurd length of life plus 50 years.  (It is now life plus 70).  Ah, Thomas, if only you could have been there for the Sonny Bono Term Extension debates.

  • Mark Twain on the Need for Perpetual Copyright

    This is the second in a series of postings of material drawn from our forthcoming, Creative Commons licensed, open coursebook on Intellectual Property.  The first was Victor Hugo: Guardian of the Public Domain The book will be released in late August.

    In 1906, Samuel Clemens (who we remember better by his pen name Mark Twain) addressed Congress on the reform of the Copyright Act.  Delicious.

  • Victor Hugo: Guardian of the Public Domain

    Jennifer Jenkins and I are frantically working to put together a new open casebook on Intellectual Property Law.  (It will be available, in beta version, this Fall under a CC license, and freely downloadable in multiple formats of course.  Plus it should sell in paper form for about $130 less than the competing casebooks. The accompanying statutory supplement will be 1/5  the price of most statutory supplements — also freely downloadable.)  More about that later.  While assembling the materials for a casebook, one gets to revisit the archives, reread the great writers.  Today I was revisiting Victor Hugo.  Hugo was a fabulous — inspiring, passionate — proponent of the rights of authors, and the connection of those rights to free expression and free ideas.

  • “We Need To Start Seeing Other Futures..”

    Today is the second day of “Copyright Week!” Talk about a lede. That sentence has all the inherent excitement of “Periodontal Health Awareness Week” or “‘Hug Your Proctologist! No, After He’s Washed His Hands’ Week.” And that’s a shame. Copyright Week is a week devoted to our relationship with our own culture. Hint: things aren’t going well. The relationship is on the rocks.

  • Discussion: “The Foolish War Against Song-Lyric Websites”

    Professor Alex Sayf Cummings, author of a fascinating book called Democracy of Sound: Music Piracy and the Remaking of American Copyright in the 20th Century (recommended as a  thought-provoking read)  has an interesting  post up about attempts to shut down music lyric sites such as Rapgenius.com.

  • The Top Ten List of a Conference Planner

    Academics (and others) arrange conferences.  Perfectly normal people are invited to those conferences to speak.  Most of them are just as charming as can be… but then there are the special ones.  This Top 10 List of the special people one has to respond to is devoted to all conference planners everywhere.  Hold your heads up high.  After this, purgatory should be a snap.

  • (EM)I Has A Dream

    EM(I) Has A DreamAugust 28th, 2013 is the 50th anniversary of Martin Luther King’s “I Have a Dream” speech. The copyright in the speech is administered by EMI, with the consent of the King family. Thus the speech may not be freely played on video or reproduced and costlessly distributed across the nation — even today. Its transient appearance depends on the copyright owner’s momentary sufferance, not public right. It may disappear from your video library tomorrow. It has even been licensed to advertise commercial products, including cars and mobile phone plans.

  • The Prosecution of Aaron: A Response to Orin Kerr

    Aaron Swartz committed suicide last week.  He was 26, a genius and my friend.  Not a really good friend, but someone I had worked with off and on for 11 years, liked a lot, had laughed with frequently, occasionally shaken my head over and deeply admired.

  • The Hargreaves Review

    An Intellectual Property System for the Internet Age

    James Boyle

    In November 2010, the Prime Minister commissioned a review of the Britain’s intellectual property laws and their effect on economic growth, quoting the founders of Google that “they could never have started their company in Britain” because of a lack of flexibility in British copyright..  Mr. Cameron wanted to see if we could have UK intellectual property laws “fit for the Internet age.”   Today the Review will be published. Its conclusion?  “Could it be true that laws designed more than three centuries ago with the express purpose of creating economic incentives for innovation by protecting creators’ rights are today obstructing innovation and economic growth?  The short answer is: yes.” Those words are from Professor Ian Hargreaves, head of the Review.   (Full disclosure: I was on the Review’s panel of expert advisors.)

  • Keith Aoki — A Remembrance Book

    A slideshow and downloadable book remembering Keith in words and pictures.  You can order a glossy, high quality copy of the book itself here from Createspace or here from Amazon.  We tried to make it as beautiful as something Keith would create.  We failed. But we came close; have a look at how striking it is… all because of Keith’s art.

  • Now THAT is how you teach a class

  • RIP, Keith Aoki

    Our friend, colleague, co-author and brilliant artist and scholar Keith Aoki died yesterday in his house in Sacramento.  He was 55 years old.

  • The Future of the Constitution?

    The Brookings Institution has organized a volume on “The Future of the Constitution” edited by Jeff Rosen and Benjamin Wittes and featuring articles by me, Larry Lessig, Jonathan Zittrain, Tim Wu and many others.  How will our constitutional tradition deal with the challenges posed by new technologies?  The topics range from possible personhood claims by artificial intelligences, to the future of free speech and the Net, to neuroscience and criminal punishment.  The essays are freely available online. Details after the jump.

  • Presumed Guilty

    My new FT column is up. Shakespeare, copyright, Scott Turow and a shadowy group of law professors..  What could be more fun? Ungated version after the jump. 

  • Waiting for ‘Waiting for Godot’

    What Could Have Been Entering the Public Domain on January 1, 2011?
    read more

  • Fantasy & Reality in Intellectual Property Policy

    My new column for the FT is up.  It deals with the incredible weakness of the data on which our intellectual property policy proceeds.   Ungated version after the jump

  • CBC Radio Interview on the History of Copyright

    Nora Young and the folk at CBC’s Spark have done it again, with a really nicely presented episode that includes a feature on copyright.  Nora interviews me about the history of copyright…  in 5 minutes.

  • EFF Pioneer Award Video

    Is here. I appear at 3:25 or so.

  • EFF Party in San Francisco!

    On November 8th, Cory Doctorow, John Perry Barlow, and numerous other digital luminaries will be gathering at the Minna Gallery in San Francisco for the EFF’s Pioneer Awards Party.  Cory is going to be the MC and — when not featured on XKCD blogging from a ballon in a red cape and goggles…

  • Net Neutrality Debate

    Great hour long radio show on net neutrality from NPR’s The State of Things.  Me, the inimitable Paul Jones of iBiblio, and Ryan Radia of the Competitive Enterprise Institute.  Frank Stasio is just a great interviewer.  Listen to it here

  • Op Art Comic in todays SF Chronicle

    We have a centerfold Op Art comic on “Copyright’s Futures”  in today’s San Francisco Chronicle.  The comic is

  • Why I Miss Justice Blackmun…

    This isn’t a post about intellectual property or the networked society, so if your interests only run that far, cease reading here.  In the late 80′s and early 90′s refugees were attempting to escape what was, in a decidedly non metaphorical sense, a hellish situation in Haiti..

  • Why We Need a Digital Civil Society

    Nitya Rajan interviewed me at Orgcon about why the legislative process malfunctions particularly badly on digital policy, and what the creation of civil society groups could do to fix that.  Video after the jump.

  • Follow thepublicdomain on Twitter.

    Comic

    read

    Get my new book

    the book


    › Buy the book on Amazon
    › Download the book