[A2k] James Boyle: Obama in Cyberspace (FT)

[Manon Ress]

Obama in cyberspace

By James Boyle

Published: June 18 2009 11:08 | Last updated: June 18 2009 11:08

http://www.ft.com/cms/s/0/350fc16a-5bef-11de-aea3-00144feabdc0.html?nclick_=
check=3D1

For those stalwarts who lived through the Bush years in a thrall of
horror and disbelief, broken only by Jon Stewart monologues, Barack
Obama=92s 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.) Guant=E1namo will
be closed down. (Though we don=92t 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
=94Justice Department=94 no longer sounds like an oxymoron. And so on.

Sometimes the =94pragmatism=94 looks a little like =94not trying=94 =96 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=92t 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=92s 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=92s
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 =94evidence based
mindset=94 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 =94on the instalment plan=94 in Peter Jaszi=92s
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 =96 including to the
content industry. The Obama administration=92s warm embrace of Silicon
Valley, and Silicon Valley=92s chequebook, had given some hope that this
pattern would change =96 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 =96 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=92s 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 =93czar=94? We don=92t 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=92t
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=92t 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=92s the harm?

But the final straw may be the Obama administration=92s 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 =96 quietly =96 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=92s 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 =96 ever so pragmatically =96 sacrificing one=92s blind citizen=
s
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. http://thepub=
licdomain.org



***************************************************************************
Manon Ress
manon.ress@keionline.org
Knowledge Ecology International
1621 Connecticut Ave, NW, Washington, DC 20009 USA
Tel.:  +1.202.332.2670, Fax: +1.202.332.2673