...the ideas, the content! that which actually constitutes a book! which only the author can sell or communicate! once expressed it is impossible for it to remain the author's property.... It is precisely for the purpose of using the ideas that most people buy books - pepper dealers, fishwives, and the like... Over and over again it comes back to the same question: I can read the contents of a book, learn, abridge, expand, teach, and translate it, write about it, laugh over it, find fault with it, deride it, use it poorly or well - in short, do with it whatever I will. But the one thing I should be prohibited from doing is copying or reprinting it? .... A published book is a secret divulged. With what justification would a preacher forbid the printing of his homilies, since he cannot prevent any of his listeners from transcribing his sermons? Would it not be just as ludicrous for a professor to demand that his students refrain from using some new proposition he had taught them as for him to demand the same of book dealers with regard to a new book? No, no, it is too obvious that the concept of intellectual property is useless. My property must be exclusively mine; I must be able to dispose of it and retrieve it unconditionally. Let someone explain to me how that is possible in the present case [of ideas transmitted in words]. Just let someone try taking back the ideas he has originated once they have been communicated so that they are, as before, nowhere to be found. All the money in the world could not make that possible. [9]
These words precisely describe the condition of discourse and texts on the Internet and the World Wide Web today. Ironically, they were written over 200 years ago by the German philosopher Christian Sigmund Krause in 1783.
Once written and published and made available anywhere, even archivally, texts circulate, and exponentially more so when they are "published" in the labile and open architecture of electronic transmission and communication. having an economy of intellectual property means that publishers, authors, distributors and the legal profession must erect and monitor tollgates at the site of publication, distribution, copying, and dissemination through other media (including photocopying and classroom use or, to use an example still in the courts, including the music played over speaker systems in a bar). Erecting tollgates, as difficult as it was for print media, becomes profoundly challenging for the Internet.
Whereas the material site for transgressing or infringing on a copyright for print medium was the place of publication or duplication (the author's pen on paper; the printing press; the bookbinder; the book shop; the classroom), the analogous point or site of trespass in the disembodied, delocalized, de-spatialized, de-territorialized World Wide Web is one of the most evanescent of matters: the hypertext link, or more specifically, the "A HREF" command in html (hypertext markup language). When this command is placed around an address of a file available on another WWW site, the "reader" or "user" or "navigator" of a hypertext can jump between texts and indeed, sites of publication. Consequently, the logic of "tolling" or "accounting" or erecting barriers for trespassing on someoene else's "intellectual property" guarantees or demands that the hyperetext link itself, individual A HREF's, will be tolled. Indeed, by the logic of intellectual property protection, it MUST be.
In short, the fundamental assumptions of intellectual property drive
the Internet down the road towards a contradiction. Wherease the essential
technology of the hypertext publication is founded on the link and the
sort of demolition of barriers it enables intrinsically, the erection
of gates and partitioning of value and property codified in intellectual
property laws demand that this linking be restricted. The very viral properties
of the Web, its technology for putting text into circulation and inviting
people to navigate in no specifiable order along the possible routes of
that circulation, are summoning legal forces of inoculation and quarantine.
From the point of view of standing laws, the World Wide Web is a vast Xerox
machine.
In some ways, this drama scripted in the new technology, bringing into
conflict the protagonist of free expression and circulation with the antagonist
of property laws, is not very different from the drama enacted over two
centuries that eventuallty restricted the universalizing promise of the
printing press in its original ideal. It took a couple of hundred years
between the invention of the printing press and the codification of notions
of authorship and ownership of published material into law. In that interregnum,
there was a growing constriction of an ideal of free circulation that was
intrinsic in the printing press and its promise of universal access to
published material.
In some sense, it was the very universalizing of acts of literacy made
possible by the printing press that eventually spelled its demise as the
"bourgeoisification" of publishing and therefore its commodification displaced
the employment of the printing press to disseminate the Bible and public
information. Just as the A HREF is intrinsically about trespassing, so
is the printing press intrinsically about multiplying copies indisicriminately.
It's just that the latter is materially easier to control, monitor, and
instantiate as real estate or property, whereas the ephemeral nature of
computerized ones and zeroes networked globally (and even extraterrestrially,
as the recent Internet broadcasts from the Mir space station show) are
virtually impossible to commidfy, short of radically altering the nature
and access to the technology itself.
The spectre of a World Wide Web in which every A HREF is tolled brings
into relief, perhaps retrospectively, the fundamental problem with the
idea of intellectual property and copyrights. Not only is it a (technologically)
futile and (an intellectually chilling or) restrictive ideal when applied
to the Web, it is founded on essentially contradictory assumptions about
how humans should and do construct knowledge.
Even if we presume that all the ideas transmitted originated solely,
ab novo and ab ovo, in the minds and words of individual
geniuses, like a secret divulged, there is no getting the genie back in
the bottle. Nor, I argue, should there be. Instead, what's called for is
a re-evaluation, and a reconstruction, of our ideas of knowledge as based
in sharing, of genius as collective: contingent, free, ever-negotiated,
dynamic, unfettered by individual authority, and open to universal elaboration
and participation. The concept of intellectual property had its birth with
the rise of capitalism itself which in turn is twinned with the rise of
the book as a piece of property which in turn is inseparable from the idea
of the commodification of the printed word as a result of the mechanical
reproduction and proliferation of objects due to the printing press.
What a strange, perhaps even aberrant concept: that expressions of ideas could be owned and are equivalent to material things! This idea is codified in what we now call copyright laws which were in turn driven by economic forces: the rise of publishing houses and booksellers, along with the new ideas of writing as a mercenary profession rather than a craft or calling, and the writer as solitary originator or genius rather than someone who was carrying forward a public tradition, partipating in the circulation of social ideas. Martha Woodmansee shows that there was a subtle shift in the idea of inspiration as "emanating not from outside or above" (from Muses or Gods or the tradition) "but from within the writer himself." [5] The negotiation of these new concepts in the latter half of the eighteenth century were so intense that it produced a massive survey of the field by 1794 Ernst Marin Gräff's Toward a Clarification of the Property and Property Rights of Writers and Publishers and of Their Mutual Rights and Obligations. With Four Appendices. Including a Critical Inventory of All Separate Publications and Essays in Periodical and Other Works in German Which Concern Matters of the Book as Such and Especially Reprinting (Leipzig, 1794) [6]
Even though copyrights were not even imagined until the eighteenth century (*the first English occurrence of the word is in 1767 in Blackstone's), and regular laws governing them weren't conceived until the nineteenth century, today we consider them so natural that one of the measures of [Western!] civilization itself. In the last fifty years, copyrights have extended in time and space so that now estates, like Salingway's, [7] or publishing houses, can own an author's words even after an author is dead and across international boundaries. International agreements on copyrights are almost always part of any treaty or trade pact. For instance, three years ago, the inability to achieve agreement on copyright laws became one of the major sticking points in our treaty negotiations with China. It's not just that billions of dollars may be involved. The US is subtly demanding that China ascribe to the notion of the individual and our ownership of our own ideas. [8] The problem with this scenario is that the reasons China does not abide by Western and particularly American laws of intellectual property has less to do with lawlessness than it does with fundamental cultural differences. As Kenneth Ho notes in his on-line essay, "The Problem of Software Piracy in Hong Kong and China",
"[I]n the West, copying is usually perceived as a form of inferior imitation, but for the Chinese, but it is in fact the opposite. It is regarded as a compliment if a student can faultlessly reproduces a teachers work, and as noted by Wingrove (1995), it is no wonder that much of the ancient and modern Chinese paintings look alike to untrained Westerners as they adhe re closely to certain traditional basic principles and techniques. Thus it is perhaps best summarised by Swinyard (1990) that "in many Asian nations the highest compliment one can be paid is to be copied".China, like the World Wide Web, formulates an entirely different cultural construction of intellectual property and therefore is an intrinsic challenge to it. Yet, the imperial nature of commodification is such that very powerful forces are arrayed against resistance to standards and laws of intellectual property. The World Intellectual Property Organization, affiliated with the UN and funded at over $100 million, declares its intentions clearly in its manifesto, written by its President, Dr. Kamil Idris, Director:
"The roots of our organization can be traced back to the first intellectual property treaties of the nineteenth century. But our essential purpose has remained the same: to promote the protection of intellectual property throughout the world, through cooperation among States. For some of you, this may be an unfamiliar concept. But the fundamental principles on which it is based are simple, compelling and worth repeating. They may be summarized as follows: that the progress of humankind, in the widest sense, rests upon its capacity to advance ever further in the areas of technology and culture; that any such advance, be it by means of invention or artistic work, represents an "intellectual property"; that whoever originates or legally owns such a property deserves the right to protection under the law against its unfair use (for example, counterfeiting or piracy) by others; that by ensuring such legal rights, others will be encouraged to expend time and resources on attempting to make other advances. and thus, the protection of intellectual property - WIPO's fundamental function - may be broadly, but fairly, said to be the promotion of the progress of humankind."Another recent example is the case of Argentina:
Executives of Microsoft, IBM and Unisys are protesting a recent Argentine Supreme Court decision ruling that antiquated copyright laws don't cover computer software. Software makers point out that royalties aren't paid on about 70% of the software sold in Argentina, resulting in roughly $165 million in revenue losses annually. A recent study by Price Waterhouse & Co. indicates the biggest abusers are Argentine federal and local government agencies and small private businesses. "There's no culture in Argentina of assigning value to software," says a Unisys unit president. (Wall Street Journal 6 Feb 98).In short, the temporal and geographical reach of copyright laws are being extended as a naked form of cultural imperialism using economics and incendiary terms like "piracy," "theft," and "abuse" to mask the cultural assumptions being made. At the same time, the smallest unit which can be defined as a commodity under copyright laws has shrunk, so that digitization now opens up a vista of ever-finer increments of "property" being covered under intellectual property laws: a few seconds of music or sound, a few words of text, a few centimeters of a visual image.
Beyond the ideas of ownership, there are even more philosophical concepts of truth and freedom at stake. For at least thirty years, at least since the advent of The New Journalism with Norman Mailer and Tom Wolfe, postmodern literature has been worrying the bone of truth in fiction, blurring the boundary between fact and fiction. This was part of a larger world-wide postmodern movement whose fundamental philosophical tenet was that there is no truth accessible beyond the play of language. In a magnificent proof of what we can think of as "the trickle-down economics of culture," the New Journalism and postmodernism have trickled down the pants leg of culture to flood our shoes.
One would have to search pretty far, and in wet socks, to find the Old Journalism, which at least attempted to achieve a dispassionate, objective stance, and which tried to get at the truth. Instead, we have a whole genre of infotainment: beginning with NBC News run by a veteran sportscaster, then USA Today and CNN, and ending with Cops, Rescue 911, 48 Hours, docudramas dressed up as miniseries, wild bias dressed up as news, and the nauseating fixation on that mother of all postmodern factoid soap opera merry-go-rounds, The OJ Simpson Bill Clinton Scandal-Story- Trial-Show-Miniseries-Docudrama-Live Talk Show-Made for TV Movie.
Authorship; Ownership; Truth. These three terms define the parameters or the limits of the fictional case in hand of Job Jobim. They are intrinsic to our concepts of intellectual property, and in turn are connected to the very fabric of Western civilization, and its ideas of selfhood, of privacy, of property, of mind, and of creativity, beyond crass questions of profit and loss. Indeed, measured against these sweeping philosophical categories the case in hand seems nothing more than a blip on the screen. What gives it poignancy is that we here debate the future, and the inscription of the genetic code of the future, as we carry this old debate into the new electronic medium of the Internet. Please forgive me if in what follows I comment about this case by not talking about it. Instead, let me describe an incident similar to this case study which might shed some light on it.
Before doing so, though, if you are interested, you may want to consult
my statement of bias.
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