Jack M. Balkin, from the Knight Foundation. CC BY-SA 2.0.

In “Digital Speech and Democratic Culture: A Theory of Freedom of Expression for the Information Society,” Jack Balkin (of the blog Balkinization) writes about what he sees as the appropriation of free speech ideals by media corporations in an effort to maximize their capital investments:

Thus, in the digital age, media corporations have interpreted the free speech principle broadly to combat regulation of digital networks and narrowly in order to protect and expand their intellectual property rights. … Invoking a property-based theory of free expression, they have rejected arguments that public regulation is necessary to keep conduits open and freely available to a wide variety of speakers. (22)

Balkin sees this as reminiscent of a similar appropriation during the first Gilded Age of the 1870s and 1880s especially, when the “robber barons” grew wealthy and strong. Corporations of the time lobbied (and won) for new property rights and new constitutional protections against employment regulations (24). The abolitionists and others had celebrated the freedom to labor for whom one chose as a rejection of slavery; the corporations reinterpreted this as the “freedom of contract,” and used it to prevent government labor regulations (24). So, for example, when Congress passed a child labor law in 1916, the courts–drawing on the freedom of contract now enshrined as a principle in the Constitutional theory of the day–struck it down two years later (in Hammer v. Dagenhart).

Bilkin writes:

In what Clinton Rossiter called the “Great Train Robbery of Intellectual History,” laissez-faire conservatives appropriated the words and symbols of early nineteenth-century liberalism–liberty, opportunity, progress, and individualism–and gave them an economic reinterpretation that served corporate interests. … By the turn of the twentieth century, the best legal minds that money could buy had reshaped the liberal rights rhetoric of the 1830s into a powerful conservative defense of property that they claimed was the rightful heir to the best American traditions of individualism and personal freedom. (24–25)

Today, Bilkin said, we’re seeing a similar move: “The right to speak has been recast as a right to be free from business regulation” (25). Corporations have moved to extend copyright, making it both broader (covering more) and longer (lasting for 70+ years instead of the original fourteen years of 1790. ) They have also argued that networks should be freer than ever of government regulation, because such regulations–passed in the name of protecting the public’s speech–infringes on their freedom of speech.

(Interesting note: this move–discussed in Balkin’s 2004 article–is very similar to what happened with corporate money and speech in the 2010 Citizen’s United decision.)

Copyright law is often approached in terms of debates over competing interpretations of the law: should copyright be used to protect the author’s freedom, or to encourage the public distribution of culture and information, or to turn intellectual products into marketplace commodities, or to serve the interests of corporate publishers and distributors?

He then explains that, at least in the Western–and perhaps especially in the American–tradition, “copyright is the enactment of the dream that the disparate goals and values of individual creative freedom, commerce, and informational dissemination can be reconciled in law.”

In the United States, copyright has always served a functional purpose:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries  (Article I, Section 8, Clause 8 of the United States Constitution).

Drawing on this, Streeter writes that:

From the beginning, therefore, copyright was understood more in functional than in formal or moral terms; the emphasis was more on copyright’s role in encouraging the distribution of culture and information than on its inherent justice.

American law depends on conceptual distinctions, particularly originality and the distinction between an idea and its expression, that are derived from the romantic image of authorship as an act of original creation whose uniqueness springs from and is defined in terms of the irreducible individuality of the writer.

But, Streeter points out, modern broadcast mediums–especially television, but also music, movies, and more–do not have individual “authors,” and yet our legal approaches to copyright still assume some notion of an individual author or creator.

One way the law has handled this is through the fictional “corporate person” who now owns copyrights and substitutes for individual creative humans. These large bureaucratic institutions now “create” most modern works, but still argue that consumers have a moral right to compensate them for their creation in a way that tends to invoke romantic authorship–and breaks down when the “creator” is a large multinational corporation.

Corporations have responded to create bureaucratic enforcement mechanisms, so-called “copyright collectives,” such as ASCAP and BMI. These groups create licensing arrangements that only roughly correspond to “actual” use or “actual” creators (and often strike me as rather reminiscent of a protection racket…).

New technologies that have emerged after Streeter’s book hold the potential for revolutionizing this relationship, although Amazon, Netflix, Hulu, Spotify, et. al. fundamentally do nothing about the problem of corporate content creation. They do, however, re-enable the possibility of individual creators (if such a thing really exists…) to escape the old bureaucratic confines and to more directly connect with consumers via mediators that can reduce the communications and collections overhead.

So is this really a revolution? Perhaps–but as I said, it does nothing about the major point of Streeter that much of today’s media has no individual creator at all. In such a case, these new technologies merely permit more efficient collection, cutting back on the number of “middlemen,” but don’t otherwise revolutionize anything at all.

At least at the University of California, San Diego, the process involves tech transfer officers–6 for the life sciences, 3 for other kinds of technology, and 1 who does both–reviewing the research done at UCSD. They look for innovations that may be potentially turned into marketable intellectual property. According to Dr. Montisano, a life sciences tech transfer officer at UCSD, they do not “police faculty.” As a result, they sometimes do not learn of new technology until after publication, which immediately causes the loss of international patent rights, and puts U.S. patent rights on a 1-year timeline.

If they do manage to intercept the technology in time–either through researchers submitting it to them directly, or by discovering it after publication–they review the innovation, and may file a provisional patent application to preserve their rights (this allows publication). They then have a year to convert that to a full patent.

Once they have provisional protection in place, the office looks for a good licensee for the technology. They first put a description of the innovation on the UCSD web site, making it available to interested parties who may be seeking such technology. They also identify and actively target potential companies for licensing, focusing on those they know do work in the field and who may be interested in the technology.

The point, according to Dr. Montisano, is to get the technology out into the world through commercialization, not to make a fortune, and UCSD looks for licensees on this basis. Such a focus emphasizes the public nature of the university, and emphasizes the role of the tech transfer office as the buffer zone between private and public enterprise–they license innovations for money, but do so with a goal of benefitting the public.

Additionally, the distribution process also protects researchers from undue market influences. The university owns the invention, not the professor, or grad student, or research tech. 50% of the incoming money goes to the university as a whole, while the remaining 50% is split by the department between those who developed the invention and the department. Thus, even the incoming money is diluted and sifted, buffering the researchers themselves from direct contact with the commercial players.

More rules are in place when it comes to researchers profiting or being overly involved in the commercial enterprise while retaining their role at the university. A university researcher cannot be the executive of a licensee company nor a board member, but can sit on a scientific advisory board. Such a researcher can own shares in the company, though, suggesting at least one way for the market to more directly intrude on an individual academic. Nonetheless, to be full involved in directing a licensee, a researcher must leave the university and their post as an academic and fully enter the commercial world.

Finally, the office itself is insulated from the money involved. Although they bring in millions to the University of California, UCSD’s technology transfer office is funded entirely by the state. No funding comes through a percentage of license fees and no officer receives specific bonuses for signing deals. This emphasizes their focus on the public service of commercializing technology, rather than on their use as market-enablers.

Madey v. Duke

Even after Madey, many researchers continue to ignore patent protections, and continue their work as if they didn’t need to license technology. The result has been increasing claims by license-holders, and a growing sense by researchers that this is complicating their scientific pursuits and introducing extra costs and restrictions.

Universities, now large licensors themselves of new technology thanks to Bayh-Dole and technology transfer offices, have turned to, in the language of Professor Robin Feldman, “open transfer” agreements to lossen up these restrictions. Such agreements are added to agreements when universities license their technologies for industry to develop, and permit both the licensing university and any other nonprofit they allow to use the technology for education and research. This approach co-opts the mechanisms of the market, rather like open-source licensing does, to permit the continued free sharing and publishing in the academic community.

What do these clauses look like? In the case of the University of California, San Diego, Article 2.2 of the sample agreement for licensing captures this “open transfer” provision:

2.2 Reservation of Rights. UNIVERSITY reserves the right to:
(a) use the Invention, and Patent Rights for educational and research purposes;
(b) publish or otherwise disseminate any information about the Invention at any time; and
(c) allow other nonprofit institutions to use and publish or otherwise disseminate any information about Invention and Patent Rights for educational and research purposes.

Part (a) and (b) are relatively standard in all licensing agreements, commercial or not. Most industry licenses also permit the licensor to use their own technology. Part (c) is the interesting part, as it permits other nonprofit institutions to also use and even publish on the technology, provided it is for educational and research purposes. In other words, what the Federal Circuit has taken out of common law, university tech transfer offices have recreated through their own market-focused and neoliberal license agreements.

This approach suggests that, despite efforts to commercialize the “ivory tower,” there remain creative resistance that seeks to maintain the traditional values and benefits of an academic research environment.

There are, of course, numerous challenges for tech transfer offices. Within the university, most scientists are “in it for the science” and not for the money, according to Dr. Montisano. University researchers have the tendency to publish first, forcing his office to chase after them to try to prevent the loss of patent rights (publishing first loses most international rights immediately, though U.S. law allows for a year’s grace). Outside the university, industry values focus on profit first–even if many researchers have been taught to value the science by universities first.

Diagram from James A. Severson, Ph.D., of Veratect Corporation, Kirkland, WA

Industry prefers to restrict use of its technologies to those explicitly licensed—and such licensees generally must pay for the privilege of their use. Methods and materials are kept close, as trade secrets, unless licensed out for approved use. Competitors must be kept from access to preserve corporate profits. Universities, on the other hand, have generally taken a much broader approach to technology use and sharing. Researchers in universities must “publish or perish,” and getting describing methods and approaches garners a researcher the most benefit when readership is broad. One-upping academic competitors is still a key goal, but the method is through demonstration and publishing successes, not through profit-making and market dominance.

The Bayh-Dole Act attempted to bridge the divide, and technology transfer offices are the means of its implementation. Prior to Bayh-Dole, “legislators were concerned that for a variety of reasons, the government”–formerly the federal government owned the research it funded–“had proved ineffective as a shepherd of the inventions created with federal research dollars” (see Open Source, Open Access, and Open Transfer: Market Approaches to Research Bottlenecks). By many measures, the results have been phenomenal: at the end of fiscal year 2009, UCSD alone had more than 400 licenses active around the world, with a steady increase since 2000. Also in 2009, UCSD’s technology transfer office distributed more than fifteen million dollars to inventors ($9 million), joint titleholders ($432 thousand) research labs and departments ($2.5 million), and the UC general fund ($2.5 million).

All the money suggests some obvious problems created by the “intrusion” of a neoliberal, market-focused approach into the “ivory tower” university environment (assuming such pure extremes ever existed). For a cash-strapped state government like California’s, why not emphasize this market-connected activity and turn universities into self-supporting institutions? Such an approach risks compromising the university focus of basic research and–perhaps even more importantly–ignores the less commodifiable teaching and research done at such institutions, especially in the humanities. Even within the sciences, forcing research to fit into license agreements and patent arrangements may impede the flow of data, slow down innovation by restricting information sharing, and, ultimately, force university researchers away from basic sciences that form the core of future applications.

Related articles

• Technology Transfer and the Third Way (kfwhite.wordpress.com)
• Columbia University’s Tech Transfer Guru, Orin Herskowitz, on Turning IT, Biotech, and Cleantech Ideas Into Businesses (xconomy.com)

But with intellectual property, even more than with traditional goods, one encounters dissimilar products that are not substitutable. Shubha Ghosh, in The Fable of the Commons: Exclusivity and the Construction of Intellectual Property Markets, uses songs to illustrate this: one song is both the same as and different from another song, but they are not perfectly interchangeable. The same may be said for some chemical and industrial processes. As a result, the intellectual property market cannot allocate goods based on price alone, but also on other characteristics (like quality or type of product). This does not lead to efficient trades or distributional balance.

In addition, intellectual property markets are deeply concerned with the licensing of rights, such as royalties and similar pricing arrangements. The complexity–with dimensions going beyond simple price–means often there is an asymmetry in information and strategic behavior by creators and users. The result is inefficient and undesirable distribution.

As a final example, most analyses of ideal markets suggest that buyers and sellers will reach agreement, but such analyses typically ignore situations in which a customer’s life is at stake–leading to a tendency to pay any price to get a product. There is, notes Ghosh, “something troubling” about this situation. But it is not necessarily easy to select a better alternative to these market-oriented models–somehow justice needs to factor into the model, but how?

I’ve just finished Adrian Johns’ 2009 book, Piracy: The Intellectual Property Wars from Gutenberg to Gates, a 500+ page magnum opus stretching from the 1600s to the present. Johns is a noted University of Chicago historian, and his book is a fascinating and essential read for anyone interested in the history of the term “intellectual property” and development of the modern copyright and patent systems.

via Required Reading: Adrian Johns, Piracy: The Intellectual Property Wars from Gutenberg to Gates | Electronic Frontier Foundation.

Of particular interest:

• The story of the rise of the term “intellectual property” in the 1870s and its connection to patents.
• How the United States once  refusing to recognize the copyrights of foreign (mainly British) authors, and gained a reputation as a “pirate nation.”
• Early anti-piracy efforts in 1903, aimed at sheet music reprinters.

Sounds like a good read!

Related articles by Zemanta

• Historian warns against copyright-fight heavy hitting (go.theregister.com)
• History of piracy, reviewed by EFF’s senior copyright lawyer (boingboing.net)

An attorney for Google slammed a controversial intellectual property treaty on Friday, saying it has “metastasized” from a proposal to address border security and counterfeit goods to an international legal framework sweeping in copyright and the Internet.

The Anti-Counterfeiting Trade Agreement, or ACTA, is “something that has grown in the shadows, Gollum-like,” without public scrutiny, Daphne Keller, a senior policy counsel in Mountain View, Calif., said at a conference at Stanford University.

via Google attorney slams ACTA copyright treaty | Politics and Law — CNET News.

I have to agree this Google attorney. I don’t like ACTA much, either, and don’t think it’s much of an improvement on the current, uncoordinated approach to copyright.

Related articles by Zemanta

• Google Attorney Slams ACTA Copyright Treaty (yro.slashdot.org)
• Preliminary Analysis of the Officially Released ACTA Text (eff.org)

• Violating copyright was defined as “infringement,” not “theft” (and remains so today).
• Before the Act, printers, not authors, were the ones granted monopoly rights over works.
• The United States, before and after the Act, was the source of many illicit reprints of British texts–since America did not get similar copyright rules until much later.
• Copyright was designed to create an incentive to create, but to still permit an eventual public benefit by expanding the public domain.

Want more discussion on how copyright ought to function? To commemorate the anniversary, the British Council asked just that question:

The world’s first copyright law was passed by the English Parliament on 10 April 1710 as ‘An Act for the Encouragement of Learning’. Its 300th anniversary provides a unique opportunity to review copyright’s purposes and principles.  If today we were starting from scratch, but with the same aim of encouraging learning‚ what kind of copyright would we want?

via Copyright 1710–2010 « Counterpoint.

There are a number of interesting ideas in there that are worth thinking about, including:

• Cory Doctorow’s proposal that copyright law ought to “recognize and celebrate the wonderful thing that is copying.”
• Mark Shuttleworth suggests, “It’s time to get creative about the incentives for creation.”
• Alex Fleetwood writes, “Copyright has become synonymous with the protection of endangered cultural industries.”
• Lawrence Lessig believes that the “problem that we are confronting is the result of a law that has been rendered hopelessly out-of-date by new technologies.”

Lateef Mtima, of Howard University School of Law, suggested that the settlement would help the disenfranchised get access to books — and that copyright as a whole “should be an engine, not a brake on social development.” The lone librarian, from the University of Michigan, expressed a similar sentiment, arguing that “Broad social progress depends on being able to find, use, and re-use the scholarly record.”

I find this perspective compelling, as it connects with my own view that copyright’s purpose is not to permanently protect the property of rights-holders, but rather to foster innovation and creativity. Put another way, copyright serves a social purpose beyond rewarding individuals; the creativity and innovation it encourages is supposed to benefit society as a whole.

The concern expressed by the CDT representative, and others, is that there are potential privacy concerns with Google recording electronic access to books in a way that existing access methods (libraries, bookstores) do not is a potential problem, although in many ways it is an inevitable potential issue with any move to electronic texts. Still, I do share the concern that a single company (Google) stands to be the major gateway provider going forward — especially after recent missteps with regards to privacy on Google’s part.

I found other arguments less interesting, including arguments that this “turns copyright on its head” (I don’t see it) or that this doesn’t effectively represent the class because some rights-holders haven’t participated (this is a criticism applicable to most any class action).

My biggest worry is that the barrier of entry for other to scan books as Google has is simply too great, and that Google will become the de facto for-profit curator of what should belong to the public as a whole. But is that concern enough to scuttle the settlement? I’m not sure.

The judge indicated he will be taking his time ruling on this, due to the complexity involved. I would to, if I were him!

Related articles by Zemanta

• Google’s book settlement draws fire in court (news.cnet.com)
• Judge Hears Arguments on Google Book System (nytimes.com)
• Who supports and who opposes the Google Books settlement (inpropriapersona.com)