[A2k] FT James Boyle: A Czar for the Digital Peasants

[Manon Ress]

A Czar for the Digital Peasants

By James Boyle
http://www.ft.com/cms/s/0/14aacbc8-41e1-11dd-a5e8-0000779fd2ac.html?nclick_=
check=3D1

June 24 2008

            One sure sign of a lack of political vision is a rise in
the number of pieces of acronymic legislation.  After September 11,
the US Congress passed the euphoniously named =93Uniting and
Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism Act=94 the initials of which spell out
=93USA =96 Patriot.=94    The Patriot Act is a pretty bad piece of
legislation, but at least its drafters worked hard on the acronyms so
that opponents could be labelled =93anti-patriot=94 =96 a perfect level of
analysis for Fox News. Admittedly, in this administration, having
public officials torturing acronyms rather than detainees might be
counted as a plus, but I still find the whole practice distasteful.
I'd suggest that politicians vow to vote against any piece of
legislation with its own normatively loaded acronym, no matter how
otherwise appealing.  It might make them  focus a little more on the
content.

             In any event, Congress has been at it again.  The House
just passed, and the Senate is considering, the Prioritizing Resources
and Organization for Intellectual Property Act of 2008 =96 or =93Pro-IP=94
Act.  (If it passes, a version is sure to be urged on Europe as a
matter of =93harmonisation.=94)  Are you pro-intellectual property?  Then
surely you must be for this piece of legislation!  The name says it all.

             Actually, there is more than a linguistic reason to
dislike this nasty little industry wish-list.  Bill Patry, a senior
lawyer at Google and a respected copyright scholar said it may be the
"most outrageously gluttonous IP bill ever introduced in the US".
Patry, whose blog and superb multi-volume treatise reveal him to have
a reverence for copyright law that verges on the Talmudic, joins other
academics and practitioners in condemning recent public policy.  He
characterises it as a policy based on an "unslakable lust for more and
more rights, longer terms of protection, draconian criminal provisions
and civil damages that bear no resemblance to the damages suffered."
Could not have put it better myself.

             Some of the worst excesses =96 including the absurd damages
provision =96 were eventually stripped from the House version, though
they may reappear in the Senate. But the central feature  remains =96
the creation of a White House level =93intellectual property czar=94.  If
there is one thing that is more puzzling than Washington's focus on
acronyms, it is its love for czars =96 drug czars, IP czars, Homeland
Security czars =96 as if Russian monarchs were the natural model for any
important executive position.  The czars were good at a lot of things,
including autocracy, the toleration of pogroms and a fondness for
having their cossacks sabre the peasants. None of these springs to
mind as the ideal quality for a contemporary leader, though again =96
with this administration =96 it is hard to know.  Why, then, do we
hanker after a czar?  Precisely because of its anti-democratic,
monarchical and absolutist connotation. We create a czar when we think
that something is so important that other values must be subordinated
to it, other goals ignored, power centralised, restraints
discarded.The great thing about czars is that they can act alone,
maximizing a single set of values, without worrying about the
troubling demands of bureaucracy but also sometimes without worrying
about the demands of the separation of powers and the rule of law.
That latter feature is worrying.

             What do people think of this particular czar?
"Establishing such an office would undermine the traditional
independence of the Department of Justice in criminal enforcement
matters.. Establishing such an office in [the White House] would
codify precisely the type of political interference in the independent
exercise of Department of Justice prosecutorial judgment that many
members of Congress and senators have alleged over the last couple
[of] years."  What rabble rouser said that?  Actually, it was Peter
Carr, a spokesperson for the=85 um =85  Department of Justice, speaking to
the Washington Post.  Even the White House had concerns =96 on
separation of powers grounds.  (This is consistent with the current
White House=92s textualist position on separation of powers, namely that
the other branches of government can be separate, and the president
gets to keep all the powers.)

             Why such a reaction?  Because the Department of Justice
(when it is not being corrupted to act as a lap dog by the
administration) understands very well that policy in matters such as
intellectual property is a balance.  We wish to protect the owners of
trademarks from counterfeited products and knock-offs.  And so we
should.  But lean over too far and we inhibit competition =96 for
example by chilling =93nominative use=94 in comparative advertising when a
drug has come out of patent and gone generic.  It is hard to say
=93compare to Viagra=94 if you are not allowed to use the word Viagra.  We
want to support intellectual property owners by enforcing their
rights.  But how much enforcement is the right amount?  Government has
to do lots of things including protect the environment, enforce child
labour laws, preserve the national heritage, the list goes on and on.

When it is a choice between one more prosecutorial dollar to be
devoted to cutting down on illicit copying of songs, or enforcing the
Clean Air Act or the Civil Rights Acts,  how do we make that trade-
off?  Ideally, when it is a matter of prosecutorial discretion, we do
it based on neutral expertise operating in a non-political
environment.  The point of having a czar, particularly a White House
level czar, is to make sure that does not happen. This would be a czar
who reflects the interests of one set of industries, one set of views
about intellectual property  =96 an entity that is literally designed to
=93codify.. political interference in the independent exercise of ..
prosecutorial judgment=94 as the DOJ spokesperson nicely put it.
=93Codify=94 is a nice word.  This Act would make political interference
with prosecutorial judgment something that is not aberrant, it is
ubiquitous and legally required.   We could call it the =93Politicize
Responsibilities Of Independent Prosecutors=94 Act, I suppose.  That at
least would be truth in labelling.  Whatever acronym we put on the
title page it isn=92t =93Pro-IP,=94 merely =93anti-balance.=94  This is one=
 czar
the digital peasantry should reject.



James Boyle http://www.law.duke.edu/boylesite is a Professor of Law at
Duke Law School.  His new book, The Public Domain: Enclosing the
Commons of the Mind

http://www.amazon.com/Public-Domain-Enclosing-Commons-Mind/dp/
0300137400 will be published this autumn by Yale University Press.
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Manon Ress
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