May 30, 2024

What's the Biggest Impact of IT on Copyright?

On Saturday I gave a talk (“Rip, Mix, Burn, Sue: Technology, Politics, and the Fight to Control Digital Media”) for a Princeton alumni group in Seattle. The theme of the talk is that the rise of information technology is causing a “great earthquake” in media businesses.

Many people believe that the biggest impact of IT is that it allows easy copying and redistribution of all types of content. To some people, this is the only impact of IT.

But I argue in the talk that the copying issue is only one part of IT’s impact, and not necessarily the biggest part. The main impact of IT, I argue, is that computers are universal devices that can perform any operation on digital data (except those operations that are inherently undoable and therefore can’t be done by any device).

I stress universality over copying in the talk for two reasons. First, it’s a point that most people miss, especially non-techies. Second, it lets me hint at the most important tradeoff in copyright/tech policy, which is how copyright sometimes stands in the way of developing powerful technologies for creating and communicating. Most people are quick to see the advantages of strong copyright in the digital world, but slow to see the price we’re paying for it.

This debate – whether IT is primarily a copying machine, or a creative tool – seems to run deeply throughout the online copyright debate. Those who see copying as the main impact of IT don’t much mind restricting digital technologies to further their copyright aims. But those who see creativity as the main impact of IT aim to protect the vitality of the IT ecosystem.

I come down on the creative side. I think the biggest long-run effect of IT will be in changing how we communicate and express ourselves. This is not to say that copying doesn’t matter – it clearly does – but only that we need to take the creative effects of IT at least as seriously as we take copying.

As I say in the talk, if IT’s impact is like an earthquake, file sharing is not the Big One, it’s only the first tremor.

(Thanks to Ed Lazowska, whose email exchange with me after the talk triggered this post.)

The Exxon Valdez of Privacy

Recently I moderated a panel discussion, at Princeton Reunions, about “Privacy and Security in the Digital Age”. When the discussion turned to public awareness of privacy and data leaks, one of the panelists said that the public knows about this issue but isn’t really mobilized, because we haven’t yet seen “the Exxon Valdez of privacy” – the singular, dramatic event that turns a known area of concern into a national priority.

Scott Craver has an interesting response:

An audience member asked what could possibly comprise such a monumental disaster. One panelist said, “Have you ever been a victim of credit card fraud? Well, multiply that by 500,000 people.”

This is very corporate thinking: take a loss and multiply it by a huge number. Sure that’s a nightmare scenario for a bank, but is that really a national crisis that will enrage the public? Especially since cardholders are somewhat sheltered from fraud. Also consider how many people are already victims of identity theft, and how much money it already costs. I don’t see any torches and pitchforks yet.

Here’s what I think: the “Exxon Valdez” of privacy won’t be $100 of credit card fraud multiplied by a half million people. It will instead be the worst possible privacy disruption that can befall a single individual, and it doesn’t have to happen to a half million people, or even ten thousand. The number doesn’t matter, as long as it’s big enough to be reported on CNN …

[…]

So back to the question: what is the worst, the most sensational privacy disaster that can befall an individual – that in a batch of, oh say 500-5,000 people, will terrify the general public? I’m not thinking of a disaster that is tangentially aided by a privacy loss, like a killer reading my credit card statement to find out what cafe I hang out at. I’m talking about a direct abuse of the private information being the disaster itself.

What would be the Exxon Valdez of privacy? I’m not sure. I don’t think it will just be a loss of money – Scott explained why it won’t be many small losses, and it’s hard to imagine a large loss where the privacy harm doesn’t seem incidental. So it will have to be a leak of information so sensitive as to be life-shattering. I’m not sure exactly what that is.

What do you think?

Art of Science, and Princeton Privacy Panel

Today I want to recommend two great things happening at Princeton, one of which is also on the Net.

Princeton’s second annual Art of Science exhibit was unveiled recently, and it’s terrific, just like last year. Here’s some background, from the online exhibit:

In the spring of 2006 we again asked the Princeton University community to submit images—and, for the first time, videos and sounds—produced in the course of research or incorporating tools and concepts from science. Out of nearly 150 entries from 16 departments, we selected 56 works to appear in the 2006 Art of Science exhibition.

The practices of science and art both involve the single-minded pursuit of those moments of discovery when what one perceives suddenly becomes more than the sum of its parts. Each piece in this exhibition is, in its own way, a record of such a moment. They range from the image that validates years of research, to the epiphany of beauty in the trash after a long day at the lab, to a painter’s meditation on the meaning of biological life.

You can view the exhibit online, but the best way to see it is in person, in the main hallway of the Friend Center on the Princeton campus. One of the highlights is outdoors: a fascinating metal object that looks for all the world like a modernist sculpture but was actually built as a prototype winding coil for a giant electromagnet that will control superhot plasma in a fusion energy experiment. (The online photo doesn’t do it justice.)

If you’re on the Princeton campus on Friday afternoon (June 2), you’ll want to see the panel discussion on “Privacy and Security in the Digital Age”, which I’ll be moderating. We have an all-star group of panelists:
* Dave Hitz (Founder, Network Appliance)
* Paul Misener (VP for Global Public Affairs, Amazon)
* Harriet Pearson (Chief Privacy Officer, IBM)
* Brad Smith (Senior VP and General Counsel, Microsoft)
It’s in 006 Friend, just downstairs from the Art of Science exhibit, from 2:00 to 3:00 on Friday.

These panelists are just a few of the distinguished Princeton alumni who will be on campus this weekend for Reunions.

Princeton-Microsoft IP Conference Liveblog

Today I’m at the Princeton-Microsoft Intellectual Property Conference. I’ll be blogging some of the panels as they occur. There are parallel sessions, and I’m on one panel, so I can’t cover everything.

The first panel is on “Organizing the Public Interest”. Panelists are Yochai Benkler, David Einhorn, Margaret Hedstrom, Larry Lessig, and Gigi Sohn. The moderator is Paul Starr.

Yochai Benker (Yale Law) speaks first. He has two themes: decentralization of creation, and emergence of a political movement around that creation. Possibility of altering the politics in three ways. First, the changing relationship between creators and users and growth in the number of creators changes how people relate to the rules. Second, we see existence proofs of the possible success of decentralized production: Linux, Skype, Flickr, Wikipedia. Third, a shift away from centralized, mass, broadcast media. He talks about political movements like free culture, Internet freedom, etc. He says these movements are coalescing and allying with each other and with other powers such as companies or nations. He is skeptical of the direct value of public reason/persuasion. He thinks instead that changing social practices will have a bigger impact in the long run.

David Einhorn (Counsel for the Jackson Laboratory, a research institution) speaks second. “I’m here to talk about mice.” Jackson Lab has lots of laboratory mice – the largest collection (community? inventory?) in the world. Fights developed around access to certain strains of mice. Gene sequences created in the lab are patentable, and research institutions are allowed to exploit those patents (even if the university was government-funded). This has led to some problems. There is an inherent tension between patent exploitation and other goals of universities (creation and open dissemination of knowledge). Lines of lab mice were patentable, and suddenly lawyers were involved whenever researchers used to get mice. It sounds to me like Jackson Lab is a kind of creative commons for mice. He tells stories about how patent negotiations have blocked some nonprofit research efforts.

Margaret Hedstrom (Univ. of Michigan) speaks third. She talks about the impact of IP law on libraries and archives, and how those communities have organized themselves. In the digital world, there has been a shift from buying copies of materials, to licensing materials – a shift from the default copyright rules to the rules that are in the license. This means, for instance, that libraries may not be able to lend out material, or may not be able to make archival copies. Some special provisions in the law apply to libraries and archives, but not to everybody who does archiving (e.g., the Internet Archive is in the gray area). The orphan works problem is a big deal for libraries and archives, and they are working to chip away at this and other narrow legal issues. They are also talking to academic authors, urging them to be more careful about which rights they assign to journals who publish their articles.

Larry Lessig (Stanford Law) speaks fourth. He starts by saying that most of his problems are caused by his allies, but his opponents are nicer and more predictable in some ways. Why? (1) Need to unite technologists and lawyers. (2) Need to unite libertarians and liberals. Regarding tech and law, the main conflict is about what constitutes success. He says technologists want 99.99% success, lawyers are happy with 60%. (I don’t think this is quite right.) He says that fair use and network neutrality are essentially the same issue, but they’re handled inconsistently. He dislikes the fair use system (though he likes fair use itself) because the cost and uncertainty of the system bias so strongly against use without permission, even when those uses ought to be fair – people don’t want to be right, they want to avoid having suits filed against them. Net neutrality, he says, is essentially the same problem as fair use, because it is about how to limit the ability of properties owners who have monopoly power (i.e., copyright owners or ISPs) to use their monopoly property rights against the public interest. The challenge is how to keep the coalition together while addressing these issues.

Gigi Sohn (PublicKnowledge) is the last speaker. Her topic is “what it’s like to be a public interest advocate on the ground.” PublicKnowledge plays a key role in doing thiis, as part of a larger coalition. She lists six strategies that are used in practice to change the debate: (1) day to day, face to face advocacy with policymakers; (2) coalition-building with other NGOs, such as Consumers Union, librarians, etc., and especially industry (different sectors on different issues); (3) message-building, both push and pull communications; (4) grassroots organizing; (5) litigation, on offense and defense (with a shout-out to EFF); (6) working with scholars to build a theoretical framework on these topics. How has it worked? “We’ve been very good at stopping bad things”: broadcast flag, analog hole, database protection laws, etc. She says they/we haven’t been so successful at making good things happen.

Time for Q&A. Tobias Robison (“Precision Blogger”) asks Gigi how to get the financial clout needed to continue the fight. Gigi says it’s not so expensive to play defense.

Sandy Thatcher (head of Penn State University Press) asks how to reconcile the legitimate needs of copyright owners with their advocacy for narrower copyright. He suggests that university presses need the DMCA to survive. (I want to talk to him about that later!) Gigi says, as usual, that PK is interested in balance, not in abolishing the core of copyright. Margaret Hedstrom says that university presses are in a tough spot, and we don’t need to have as many university presses as we have. Yochai argues that university presses shouldn’t act just like commercial presses – if university presses are just like commercial presses why should universities and scholars have any special loyalty to them?

Anne-Marie Slaughter (Dean of the Woodrow Wilson Schoel at Princeton) suggests that some people will be willing to take less money in exchange for the pyschic satisfaction of helping people by spreading knowledge. She suggests that this is a way of showing leadership. Larry Lessig answers by arguing that many people, especially those with smaller market share, can benefit financially from allowing more access. Margaret Hedstrom gives another example of scholarly books released permissively, leading to more sales.

Wes Cohen from Duke Uhiversity asserts that IP rulings (like Madey v. Duke, which vastly narrowed the experimental use exception in patent law) have had relatively litle impact on the day-to-day practice of scientific research. He asks David Einhorn whether his matches his experience. David E. says that bench scientists “are going to do what they have always done” and people are basically ignoring these rules, just hoping that one research organization will sue another and that damages will be small anyway. But, he says, the law intrudes when one organization has to get research materials from another. He argues that this is a bad thing, especially when (as in most biotech research) both organizations are funded by the same government agency. Bill [didn’t catch the last name], who runs tech transfer for the University of California, says that there have been problems getting access to stem cell lines.

The second panel is on the effect of patent law. Panelists are Kathy Strandburg, Susan Mann, Wesley Cohen, Stephen Burley, and Mario Biagioli. Moderator is Rochelle Dreyfuss.

First speaker is Susan Mann (Director of IP Policy, or something like that) at Microsoft. She talks about the relation between patent law and the structure of the software industry. She says people tend not to realize how the contours of patent law shape how companies develop and design products. She gives a chronology of when and why patent law came to be applied to software. She argues that patents are better suited than copyright and trade secret for certain purposes, because patents are public, are only protected if novel and nonobvious, apply to methods of computation, and are more amenable to use in standards. She advocates process-oriented reforms to raise patent quality.

Stephen Burley (biotech researcher and entrepreneur) speaks second. He tells some stories about “me-too drugs”. Example: one of the competitors of Viagra differs from the Viagra molecule by only one carbon atom. Because of the way the viagra patent is written, the competitor could make their drug without licensing the Viagra patent. You might think this is pure free-riding, but in fact even these small differences have medical significance – in this case the drugs have the same primary effect but different side-effects. He tells another story where a new medical test cannot be independently validated by researchers because they can’t get a patent license. Here the patent is being used to prevent would-be customers from finding out about the quality of a product. (To a computer security researcher, this story sounds familiar.) He argues that the relatively free use of tools and materials in research has been hugely valuable.

Third speaker is Mario Biagioli (Harvard historian). He says that academic scientists have always been interested in patenting inventions, going back to Galileo, the Royal Society, Pascal, Huygens, and others. Galileo tried to patent the telescope. Early patents were given, not necessarily to inventors, but often to expert foreigners to give them an incentive to move. You might give a glassmaking patent to a Venetian glassmaker to give him an incentive to set up business in your city. Little explanation of how the invention worked was required, as long as the device or process produced the desired result. Novelty was not required. To get a patent, you didn’t need to invent something, you only needed to be the first to practice it in that particular place. The idea of specification – the requirement to describe the invention to the public in order to get a patent – was emphasized more recently.

Fourth speaker is Kathy Strandburg (DePaul Law). She emphasizes the social structure of science, which fosters incentives to create that are not accounted for in patent law. She argues that scientific creation is an inherently social process, with its own kind of economy of jobs and prestige. This process is pretty successful and we should be careful not to mess it up. She argues, too, that patent law doctrine hasn’t accounted adequately for innovation by users, and the tendency of users to share their innovations freely. She talks about researchers as users. When researchers are designing and using tools, they acting as both scientists and users, so both of the factors mentioned so far will operate, to make the incentive bigger than the standard story would predict. All of this argues for a robust research use exemption – a common position that seems to be emerging from several speakers so far.

Fifth and final speaker is Wesley Cohen (Duke economist). He presents his research on the impact of patents on the development and use of biotech research tools. There has been lots of concern about patenting and overly strict licensing of research tools by universities. His group did empirical research on this topic, in the biotech realm. Here are the findings. (1) Few scientists actually check whether patents might apply to them, even when their institutions tell them to check. (2) When scientists were aware of a patent they needed to license, licenses were almost always available at no cost. (3) Only rarely do scientists change their research direction because of concern over others’ patents. (4) Though patents have little impact, the need to get research materials is a bigger impediment (scientists couldn’t get a required input 20% of the time), and leads more often to changes in research direction because of inability to get materials. (5) When scientists withheld materials from their peers, the most common reasons were (a) research business activity related to the material, and (b) competition between scientists. His bottom-line conclusion: “law on the books is not the same as law in action”.

Now for the Q&A. Several questions to Wes Cohen about the details of his study results. Yochai Benkler asks, in light of the apparent practical irrelevance of patents in biotech research, what would happen if the patent system started applying strongly to that research. Wes Cohen answers that this is not so likely to happen, because there is a norm of reciprocity now, and there will still be a need to maintain good relations between different groups and institutions. It seems to me that he isn’t arguing that Benkler’s hypothetical woudn’t be harmful, just that the hypo is unlikely to happen. (Guy in the row behind me just fell asleep. I think the session is pretty interesting…)

After lunch, we have a speech by Sergio Sa Leitao, Brazil’s Minister of Cultural Policies. He speaks in favor of cultural diversity – “a read-only culture is not right for Brazil” – and how to reconcile it with IP. His theme is the need to face up to reality and figure out how to cope with changes brought on by technology. He talks specifically about the music industry, saying that they lots precious time trying to maintain a business model that was no longer relevant. He gives some history of IP diplomacy relating to cultural diversity, and argues for continued attention to this issue in international negotiations about IP policy. He speaks in favor of a UNESCO convention on cultural diversity.

In the last session of the day, I’ll be attending a panel on compulsory licensing. I’ll be on the panel, actually, so I won’t be liveblogging.

Princeton-Microsoft Intellectual Property Conference

Please join us for the 2006 Princeton University – Microsoft Intellectual Property Conference, Creativity & I.P. Law: How Intellectual Property Fosters or Hinders Creative Work, May 18-19 at Princeton University. This public conference will explore a number of strategies for dealing with IP issues facing creative workers in the fields of information technology, biotechnology, the arts, and archiving/humanities.

The conference is co-sponsored by the Center for Arts and Cultural Policy Studies, the Program in Law and Public Affairs, and the Center for Information Technology Policy at the Woodrow Wilson School of Public and International Affairs and funded by the Microsoft Corporation, with additional support from the Rockefeller Foundation.

The conference features keynote addresses from Lawrence Lessig, Professor of Law at Stanford Law School, and Raymond Gilmartin, former CEO of Merck, Inc. A plenary address will be delivered by Sérgio Sá Leitão, Secretary for Cultural Policies at the Ministry of Culture, Brazil.

Six panels, bringing together experts from various disciplines and sectors, will examine the following topics:

  • Organizing the public interest
  • The construction of authorship
  • Patents and creativity
  • Tacit knowledge and the pragmatics of creative work: can IP law keep up?
  • Compulsory licensing: a solution to multiple-rights-induced gridlock?
  • New models of innovation: blurring boundaries and balancing conflicting norms

We expect the conference to generate a number of significant research initiatives designed to collect and analyze empirical data on the relationship between intellectual property regimes and the practices of creative workers.

Registration for the conference is strongly encouraged as space is limited for some events. For additional information and to register, please visit the conference web site. Online registration will be available beginning Friday, April 14.

We hope to see you in May.

Stanley N. Katz, Director, Center for Arts and Cultural Policy Studies
Paul J. DiMaggio, Research Director, Center for Arts and Cultural Policy Studies
Edward W. Felten, Director, Center for Information Technology Policy