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Essay
A POLITICS OF INTELLECTUAL PROPERTY:
ENVIRONMENTALISM FOR THE NET?
JAMESBOYLEt
I. "CODEISCODE"-THELOGICOFTHEINFORMATION
RELATION
Everyone says that we are moving to an informationage. Eve-
ryone says that the ownership and control of information is one of
the most importantforms of power in contemporarysociety. These
ideas are so well-accepted,such clich6s, that I can get away with say-
ing them in a law review without footnote support. (For those
blessedly unfamiliarwith law reviews,this is a status given to only the
most staggeringlyobvious claims;the theory of evolution1and the or-
bit of the earth aroundthe sun2probablywould not qualify.)
t Copyright ? 1997 by James Boyle. This Essay draws on ideas first developed in my
book, SHAMANS, SOFTWARE,AND SPLEENS:LAW AND THE CONSTRUCTION OF THE IN-
FORMATION SOCIETY(1996). Those who study intellectual property will realize how extensive
a debt this Essay owes to David Lange's classic piece, Recognizing the Public Domain, LAW &
CONTEMP.PROBS.,Autumn 1981, at 147. Thanks are also due to Keith Aoki, John Perry Bar-
low, Robert Gordon, Peter Jaszi, Jessica Litman, and Bruce Sterling, and to the Yale and Co-
lumbia Legal Theory Workshop Series.
1. See generally CHARLES DARWIN, ON THE ORIGIN OF SPECIES BY MEANS OF
NATURALSELECTION,OR THEPRESERVATION OF FAVOUREDRACESIN THE STRUGGLEFOR
LIFE (The Heritage Press 1963) (1859). But cf. Genesis 1:1-29.
2. See generally NICOLAUSCOPERNICUS, ON THEREVOLUTIONS (Jerzy Dobrzycki ed. &
Edward Rosen trans., The Johns Hopkins Univ. Press 1978) (1543). But cf CLAUDIUS
PTOLEMAEUS,ALMAGEST,reprinted in GREAT BOOKSOF THE WESTERNWORLD (Robert
Hutchins ed. & R. Catesby Taliaferro trans., Encyclopaedia Britannica, Inc. 1952) (c. 170
87
88 DUKE LAW JOURNA L [Vol. 47:87
A.D.).
3. The anthology generally cited, at least in obligatory law review footnotes, is
MIRRORSHADES:THECYBERPUNK ANTHOLOGY (BruceSterlinged., 1986).
4. See generally WILLIAMGIBSON,NEUROMANCER
(1984).
5. For backgroundon the concept of legal form, see generally PAULHIRST,ON LAW
ANDIDEOLOGY 106-26(1979);MAXWEBERONLAWINECONOMY ANDSOCIETY 11-21 (Max
Rheinstein ed. & EdwardShils & Max Rheinsteintrans.,HarvardUniv. Press 1954) (1925);
Isaac D. Balbus,CommodityFormand Legal Form:An Essay on the "RelativeAutonomy"of
the Law, 11 L. & SOC'YREV.571,575-85 (1977);R. Warrington,Pashukanisand the Commod-
ity Form Theory,9 INT'LJ. SOC.L. 1, 5-9 (1981).
1997] A POLITICS OF INTELLECTUAL PROPERTY 89
... [P]hysicalexports will be less importantin world trade than they are now.
The varioustypes of invisibleexports-income flows frominvestments,paymentsfor
services, paymentsfor intellectualproperty-will soon be larger than the flow of
visible exports.
Hamish McRae, Here Come the FamousFive, INDEPENDENT (London), Sept. 14, 1997, Eco-
nomics, at 5. The actual figures bandied around are notoriouslyslippery, in part because
earningsfrom intellectualpropertymay be "invisible"on conventionaltrade balance sheets.
When figures are cited, it is generallyon a case-by-casebasis-for example, the intellectual
propertyvalue of softwareor of drugsderivedfrom plant forms. See, e.g., Darrell A. Posey,
ProtectingIndigenousPeoples'Rightsto Biodiversity,ENVIRONMENT, Oct. 1996,at 6, 9 (citing
a 1985 estimateof the marketvalue of plant-basedmedicines). Moreover,the economicsof the
estimates themselves are extremelyspeculative. For example, though it is claimed that the
1997] A POLITICS OF INTELLECTUAL PROPERTY 91
United States alone loses $60 billion a year through failure to enforce intellectual property
rights,see Doane, supra,at 466, the assumptionsbehindsuch assessmentsare often debatable.
Losses quoted for "piracy,"for example, often assume that each pirated copy of software
wouldhave otherwisebeen purchasedat full price. Even with all of these limitations,and tak-
ing the lowest possible figuresfor software,pharmaceuticals,data-trading,etc., it is clear that
the "knowledge-value"componentof the worldeconomyis both enormousand expanding. See
generally TAICHISAKAIYA,THE KNOWLEDGE-VALUE 234-37 (George Fields &
REVOLUTION
WilliamMarshtrans.,KodanshaInt'l 1991)(1985).
9.
In a "cleanroom"similarto manyothersin SiliconValley, a groupof technicians
is assemblingbatches of chips with the usual machinesof a semiconductorfactory.
But these chips are not fabricatedfrom layers of silicon. They are being made from
DNA, the stuff of genes. And they are designednot to do computationsbut to read
out the turbulentstreamsof informationthat evolutionhas packedinto the genomes
of livingorganisms.
92 DUKE LAW JOURNAL [Vol. 47: 87
The basic idea of the chips is to convertthe chemistryof life into a static form
programmedto monitor particulargenes. The chips are not in any sense living
things,thoughthey are made of DNA and programmedfrom the sequence of what-
ever gene they target. (The need to knowthe code in advanceis in many cases not a
seriouslimitationbecausemanygenes have now been sequenced,whichmeans that
the orderof theirchemicalunitshas been determined.)
NicholasWade, Meetingof Computersand Biology:TheDNA Chip,N.Y. TIMES,Apr. 8, 1997,
at Cl.
10. Biotech firms add value to informationdeveloped throughpubliclyfunded research,
and then demandpatent options as the prerequisitefor access by outsiders. See, e.g., Karen
Riley, RockvilleBiotechFirm TakesNext Stepin GeneticsJourney,WASH.TIMES, June 9, 1995,
at B7 (discussinga firm'splansto patenthumangenes for whichit receivedexclusiveaccess in
returnfor an $85 million grant). More modestly,financialdatabaseprovidersadd value to
public filings, providingreal-timeaccess to SEC filings for a fee, while also supportingthem-
selves with advertisingrevenue. See EDGAR Online TargetsStock Traderswith Low Prices,
INTERACrIVEMARKETING NEWS,Oct. 25, 1996, availablein LEXIS, Nexis Library,Curnws
File.
11. For an introductionto the biologicalapplicationsof informationtheory,see Biological
Info. Theory & ChowderSoc'y, FrequentlyAsked Questions(FAQ) for bionet.info-theory(last
modifiedSept. 15,1997) <http://www-lmmb.ncifcrf.gov/-toms/bionet.info-theory.faq.html>.
12.
In the forestsof Panamalives a GuyamiIndianwomanwho is unusuallyresistant
to a virus that causes leukaemia. She was discoveredby scientific"gene hunters,"
1997] A POLITICS OF INTELLECTUALPROPERTY 93
engaged in seeking out native peoples whose lives and culturesare threatenedwith
extinction. Thoughthey providedbasic medicalcare, the huntersdid not set out to
preserve the people, only their genes-which can be kept in cultures of
"immortalised"cells grownin the laboratory. In 1993, the US Departmentof Com-
merce tried to patent the Guyamiwoman'sgenes-and only abandonedthe attempt
in the face of furiousprotestfrom representativesof indigenouspeoples.
Tom Wilkie, WhoseGene Is It Anyway?,INDEPENDENT (London), Nov. 19, 1995, Science, at
75.
13. See, e.g., Frank Guamieri et al., MakingDNA Add, SCIENCE, July 12, 1996, at 220,
220-23(discussingthe "developmentof a DNA-basedalgorithmfor addition").
14. See JulianDibbell, TheRace to Build IntelligentMachines,TIME,Mar.25, 1996, at 56,
58.
94 DUKE LAW JOURNAL [Vol. 47:87
15. Pub. L. No. 104-104,110 Stat. 133 (1996) (codifiedin scatteredsections of 18 U.S.C.
and 47 U.S.C.).
16. TelecommunicationsAct of 1996, Pub. L. No. 104-104,110 Stat. 56 (codified in scat-
tered sectionsof 18 U.SC. and47 U.S.C.).
17. See, e.g., ALA-led Coalition ChallengesCommunicationsDecency Act, AM. LIBR.,
Apr. 1996,at 13, 13-14.
1997] A POLITICS OF INTELLECTUAL PROPERTY 95
18. Given the fate of these argumentsin the contemporarypoliticalarena,I should reiter-
ate them. The distributionof a particularresource(be it education,healthcare, or wired-ness)
througha marketsystemis going to have a lot of seriousnegative effects on those who cannot
pay, effects that will trackand actuallyintensifyexistinginequalitiesof class, race and gender.
Given the importanceof the resourcein question,its relevanceto the citizens'status qua citi-
zens, and the corrosiveeffects of such inequalitieson the well-beingof the polity, something
should be done to mitigate or eliminatethe problemof access. All of these argumentsseem
profoundlytrue, but they are hardlynew. In fact, subjectmatter aside, they would have been
completelyfamiliarto the authorsof TheFederalistPapers.
19. For the argumentsbehindthis claim,see BOYLE, supranote 8, at 58 passim.
20. To assess the precise nature of the analogy to "land-grabs"in the American West,
readers might care to look at BernardDeVoto, Sacred Cows and Public Lands, HARPER'S
MAGAZINE, July 1948, at 44, reprintedin BERNARD DEVOTO,THEEASYCHAIR257 (1955)
(discussingthe livestock industry'slong-termaspirationto convert federally-ownedland to
state or privateownership).
96 DUKE LAW JOURNAL [Vol.47:87
21. In my book, I explore the reasonswhy this problemis not solved when one moves to
the realityof imperfectmarkets. See BOYLE, supranote 8, at 3540. The abstractidea of trade-
offs also proves insufficientto generate the determinacyof resultthat most analystsclaim for
theirwork. See id.
22. SanfordJ. Grossman& JosephE. Stiglitz,On theImpossibilityof InformationallyEffi-
cientMarkets,70 AM.ECON.REV.393, 405 (1980). I cannothere go into a full analysisof this
debate, but those who talk confidentlyabout the economicefficiencyof the fine details of in-
tellectual propertydoctrinewould do well to look at the fundamentaldisputesbetween infor-
mation economists. For example, Kenneth Arrow argues that, without intellectualproperty
rights,too littleinformationwill be producedbecauseproducersof informationwill not be able
to captureits true value. (Even with intellectualpropertyrights,he believes that certainkinds
of informationgenerationmay need directgovernmentsubsidyon a cost-plusbasis.) See Ken-
neth J. Arrow, EconomicWelfareand the Allocationof Resourcesfor Invention,in THERATE
AND DIRECTION OF INVENTIVE ACTIVITY: ECONOMIC AND SOCIALFACTORS609, 618
(National Bureau of EconomicResearched., 1962). On the other hand, Fama and Laffer ar-
gue that, withoutpropertyrightsor some other way of protectingagainstpublic goods prob-
lems, too much informationwill be generated because some informationwill be produced
solely to gain a temporaryadvantagein trading,thus redistributingwealth but not achieving
greaterallocativeefficiency. See Eugene F. Fama& ArthurB. Laffer,Informationand Capital
Markets,44 J. Bus. 289, 295-97(1971). In other words,in the absenceof informationproperty
rights, there may be an inefficiently high investment of social resources in information-
gatheringactivities, activities that merely slice up the pie differently,ratherthan making it
bigger. Hirshleifergives a similaranalysisof patent law, concludingthat patent law may be
either a necessaryincentivefor the productionof inventionsor an unnecessarylegal monopoly
in informationthat overcompensatesan inventorwho has alreadyhad the opportunityto trade
on the informationimplied by her discovery. See Jack Hirshleifer,The Privateand Social
Value of Informationand the Rewardto InventiveActivity,61 AM. ECON.REV.561, 570-72
(1971). The difficultyof yieldingdefinite resultsis compoundedby the fact that some profes-
sional economistsseem to have a naive, pre-realistunderstandingof law. They often talk as
though there was a naturalsuite of propertyrightswhich automaticallyaccompanieda free
market. They make strong and unexplainedassumptionsthat certaintypes of activities (for
example, tradingon a superiorinformation-position)would naturallybe allowed and involve
no harm to others but that certain other activities(for example,tradingon coercion through
superiorphysicalstrength)wouldnot be. There is a fascinatingstudyto be done on these rem-
nantsof classicaleconomicsstill presentin supposedlyneo-classicalanalysis. The same kind of
erroralso creepsinto the workof some lawyer-economists.See BOYLE, supranote 8, at 84-88.
1997] A POLITICS OFINTELLECTUAL PROPERTY 97
itself, this tendency might push rhetoric and analysis towards more
expansive property rights. That push is compounded, however, by
two other factors.
First, courts are traditionally much less sensitive to First
Amendment, free speech and other "free flow of informationargu-
ments" when the context is viewed as private rather than public, or
property rather than censorship. Thus, for example, the Supreme
Courtwill refuse to allow the state to ban flag burning,26
but it is quite
happy to create a propertyright in a generalword such as "Olympic,"
and allow the word to be appropriatedby a private party which then
selectively refuses public use of the word. Backed by this state-
sponsored"homestead law for the English language,"27the United
States Olympic Committee (USOC) has decreed that the handi-
capped may have their "SpecialOlympics,"but that gay activistsmay
not hold a "Gay Olympics.""The Court saw the USOC's decision
not as state censorship,but as a mere exercise of its private property
rights. (Emboldened, Chief Justice Rehnquist applied the same ar-
gument to the Americanflag.)29
Second, intellectualpropertyrights are given only for "original"
creation. But the idea of the original author or inventor implicitly
devalues the importanceof the raw materialswith which any creator
works-the rhetorical focus on originality tends to undervalue the
public domain. After all, the novelist who, as Paul Goldstein puts it,
"craft[s]out of thin air"3 does not need a rich and fertile public do-
main on which to draw. The ironic result is that a regime which lauds
and proposes to encouragethe great creator,may in that process ac-
tually take away the raw materialswhich future creatorsneed to pro-
TABLE1
TENSIONSINAN INTELLECTUAL
PROPERTYSYSTEM
ONTHE NET
IV. A BRIEFCASESTUDY:COPYRIGHT
So much for the background.Now a brief case study.34The diffi-
culty in choosing a case is not in finding an example of intellectual
property expansion, but in knowingwhich one to pick. The last few
years have seen the expansion of first copyrightand then patent to
cover software, the patentingof life-formsand human genes, the ex-
tension of copyrightterm limits, and so on. Speakingnot to the level
of protection, but to the current conception of intellectual property
law, it is interesting to note the recent legislative proposal that the
Patent Office (and perhaps even the CopyrightOffice) should cease
to be part of the governmentand should instead be converted to gov-
ernment corporations or "performancebased organizations"which
would be forced to pay greater attention to their "users"and might
even be funded throughuser fees.35The idea that the rights-holders
are the true "users"or "clients"of the office is a striking one. One
might have thought that the Patent Office was supposed to represent
the public's interest in the developmentof the useful and mechanical
arts and physical sciences. On the internationallevel, we have seen
the General Agreement on Tariffsand Trade (GATT)36used to turn
intellectual propertyviolations into trade violations, thus codifying a
particularvision of intellectual property and sanctifyingit with the
label of "TheMarket."37 The example that I will pick, however, is the
34. This section of the Essay is a revised versionof the analysisprovidedin some of my
earlier work. See James Boyle, Sold Out, N.Y. TIMES,Mar. 31, 1996, at E15 (opining that
"robberbaronsare buyingup the informationage");James Boyle, Is Congressturningthe In-
ternetinto an informationtoll road?,INSIGHT, Jan. 15, 1996,at 24 (criticizinglegislativepropos-
als to expandintellectualpropertyrights);BOYLE, supranote 8, at 135-39(criticizingthe Clin-
ton administration's"White Paper" on its explication of the state of existing intellectual
propertylaw).
35. See OmnibusPatent Act of 1996, S. 1961, 104th Cong.;Morehead-SchroederPatent
ReformAct, H.R. 3460,104thCong.(1996).
36. General Agreementon Tariffsand Trade,Oct. 30, 1947, 61 Stat. A-11, T.I.A.S. 1700,
55 U.N.T.S. 194.
37. Employingchild labor or violatingenvironmentalregulationswill give a nation's in-
dustrywhat might seem to be an unfaircompetitiveadvantage,but will apparentlynot trigger
trade sanctionsunder existing treaties. See generallyNorth AmericanAgreement on Labor
Cooperation,Sept. 14, 1993, Can.-Mex.-U.S.,pt. 5, 32 I.L.M.1499, 1509-13(1993) (setting out
provisionsfor the resolutionof internationallabor disputes);Robert Howse & MichaelJ. Tre-
bilcock, TheFair Trade-FreeTradeDebate:Trade,Labor,and the Environment,16 INT'LREV.
L. & ECON.61, 62 (1996) (notingthat the GATT/WorldTrade Organizationframeworkdoes
not allow the impositionof tradesanctionson nationsthat violate environmentalor labor stan-
dards). However, refusingto accept and enforce a nation'svision of intellectualpropertylaw
can be cause for internationalaction. See J.H. Reichman,Compliancewiththe TRIPSAgree-
ment:Introductionto a ScholarlyDebate,29 VAND. J. TRANSNAT'L L. 363, 367 (1996).
1997] A POLITICS OF INTELLECTUALPROPERTY 101
41. See Letter from Jean Cantrell,Director, Governmentand IndustryAffairs, Dun &
Bradstreet,to CarmenGuzmanLowry,Associate Commissionerfor Governmentaland Inter-
nationalAffairs,United States Patentand TrademarkOffice (Nov. 22, 1996) (on file with the
Duke LawJournal),availableat <http://www.public-domain.org/database/db.html>.
42.
James Love of the ConsumerProjecton Technology,a Ralph Nader organization
that has been trackingthe proposedtreaty,said publicopinion againstthe plan was
galvanizedwhen it becameapparentthat the treatywouldaffectthe disseminationof
sportsstatistics. If the treatybecame law, Love said, newspaperscould be required
to obtaina license fromthe professionalsportsorganizationsto printbox scores, and
baseballcardcompanieswouldhave to obtainpermissionfrom MajorLeague Base-
ball to list batting averages, earned run averages and other statistics on players'
cards. The PTO received700-800commentson the sportsstatisticsissue alone, Love
said.
DatabaseProtectionPlan Defeatedin Geneva,But it May Returnin 1997, SOFTWARE L. BULL.,
Jan. 1997, at 8; see also JonathanGaw, Lockedup? DatabasesAre Focus in Debateover Intel-
lectualProperty,STARTRIB.(Minneapolis),Dec. 1, 1996, at 1D (noting that the treaty would
allow MajorLeague Baseball to collect fees from personswho post box scores on the Web);
David Post, Tryingto Stake a Claimon Information,RECORDER, Feb. 27, 1997, at 4 (noting
that restrictedaccessto professionalsportsstatisticsis but "thetip of a very largeiceberg").
43. Unlike the administration'sproposed implementinglegislation for the 1996 WIPO
Copyrightand Performancesand PhonogramsTreaties,the implementingscheme proposedby
SenatorJohn Ashcroftdoes not attemptto read the White Paper'sversionof the law into the
language of the treaty. CompareH.R. 2281, 105th Cong. (1997), and S. 1121, 105th Cong.
(1997), withS. 1146,105thCong. (1997) (Ashcroftbill).
44. See generally James Boyle, IntellectualPropertyPolicy Online:A Young Person's
1997] A POLITICS OF INTELLECTUAL PROPERTY 103
Guide,10 HARV.J.L. & TECH.47,58-111 (1996) and sourcescited therein. This tendencycon-
trastsunfavorablywith the most thoughtfuldefense of the White Paper,which argued that its
protectionswouldbe necessaryto put "Carson the 'InformationSuperhighway"' but whichwas
carefulto acknowledgethat some of the White Paper'slegal theories were controversial,and
then defended them on their own terms ratherthan offeringthem as propositionsso obvious
they needed no defense. See Jane C. Ginsburg,PuttingCars on the "InformationSuperhigh-
way:"Authors,Exploiters,and Copyrightin Cyberspace,95 COLUM. L. REV.1466, 1476 nn.39
& 41 (1995) (defendingthe White Paper'sembraceof the RAM copy theory but pointingout
that this approachhas been "questionedor even stronglycriticized");see also Jessica Litman,
The ExclusiveRightto Read, 13 CARDOZO ARTS& ENT.L.J. 29, 30, 41-49 (1994) (noting that
an early draftcharacterizedits recommendationsas "minorclarificationsof well-settledprinci-
ples," but arguingthat these recommendationswould, in fact, "amountto a radicalrecalibra-
tion of the intellectualpropertybalance").
45. See, e.g., Niva Elkin-Koren,CopyrightLaw and Social Dialogue on the Information
Superhighway:TheCaseAgainstCopyrightLiabilityof BulletinBoard Operators,13 CARDOZO
ARTS& ENT.L.J.345, 349 (1995) (analyzingthe problemscreatedby applyingcopyrightlaw in
a digitized environment);Andrea Lunsford& SusanWest Schantz,CopyrightBill Pending in
CongressThreatensFree Exchangeon Internet,COLUMBUS DISPATCH, Mar. 26, 1996, at 7A
(discussingpotentialwinnersand losers of proposedCopyrightAct of 1995);David Post, New
Wine,Old Bottles:The EvanescentCopy, AM. LAW.,May 1995, at 103, 103 (discussingthe ef-
fects of technologyon copyrightlaws); Pamela Samuelson, The NII IntellectualPropertyRe-
port, COMM.ACM, Dec. 1994, at 21, 21 (exploringhow the White Paper misrepresentsthe
currentstate of copyrightlaw and upsetsthe longstandingbalancebetween public interest and
publisherinterests);Evan St. Lifer & Michael Rogers, NII WhitePaper Has LibrariesCon-
cernedAbout Copyright,LIBR.J. NEWS,Oct. 1, 1995, at 12, 12, 13 (noting the concerns of li-
brariesin regardto copyrightregulationsproposedin NII White Paper);Vic Sussman,Copy-
right Wrong?A Fight Brews over Who Gets to Own the Future,U.S. NEWS& WORLDREP.,
Sept. 18,1995, at 99 (summarizingconcernscreatedby NII WhitePaper). Manyof these points
were also made in testimony. See IntellectualPropertyand the National InformationInfra-
structure:PublicHearingBeforethe WhiteHouse InformationInfrastructure TaskForce (visited
Nov. 20,1997) <gopher://sunbird.usd.edu:70/11/Academic%20Divisions/School%20of%20Law
/NII%20Working%20Group%20on%20Intellectual%20Property/Testimony/Testimony%20of
%20Prof.%20Jessica%20Litman> (testimony of Jessica Litman, Professor of Law, Wayne
State Univ.); Commentsof ProfessorMaryBrandtJensen,Universityof SouthDakota School of
Law (visitedNov. 20, 1997)<gopher://sunbird.usd.edu:70/00/Academic%20Divisions/School%
20of%20Law/NII%20Working%20Group%20on%20Intellectual%20Property/Comments/Co
mments%20of%20%20Professor%20Mary%20Brandt%20Jensen>; Comments of Professor
Neil Netaneland ProfessorMarkLemley, Universityof TexasSchool of Law (visited Nov. 20,
1997) <gopher://sunbird.usd.edu:70/11/Academic%20Divisions/School%20of%20Law/NII%20
Working%20Group%20on%20Intellectual%20Property/Comments/Comments%20of%20Pro
fs.%20Neil%20Netanel%20%26%20Mark%20Lemley>.
46. See Ginsburg,supranote 44, at 1482-83,1492-99.
104 D UKE LAW JOURNAL [Vol. 47: 87
capital gains tax cut is not necessaryto stimulate investment with the
rejoinder that some investors may decide to give the extra money to
charity. Yes, it may happen, but that doesn't go to the question of
whether the change was necessaryin the first place.
More important than the individual positions taken, however,
are the logical fallacies and baseline errorswith which the White Pa-
per is riddled. Intellectual property rights are limited monopolies
conferred in order to produce present and future public benefit. For
the purposes of achieving those goals, the "limitations"on the right
are just as importantas the grant of the right itself. To put it more
accurately,since there is no "natural"absolute intellectual property
right, the doctrines which favor consumers and other users, such as
fair use, are just as much a part of the basic right as the entitlement of
the author to prevent certain kinds of copying. Even the source of
the Congress's authority in intellectual property matters-Article 1,
Section 8, clause 8 of the Constitution-mentions two limitations on
intellectual propertyrights. The first is functional:"To promote the
Progress of Science and useful Arts...." The other is temporal:
"[B]y securingfor limited Times to Authors and Inventors the exclu-
sive Right to their respectiveWritingsand Discoveries[.]"48Thus, in-
tellectual property is a particularlyinappropriatearea to talk about
propertyrightsas if they were both naturaland absolute.
Yet this the White Paper does with a dogged consistency and an
unlikely passion. Observe in the following quotation how the White
Paper first sets up its own inflated idea of intellectual propertyas the
baseline, then implies that right-holders actually have an absolute
property right in the continuationof that level of protection. Amaz-
ingly, the "limitations"that define intellectualpropertyrights instead
become a "tax"on right-holders.
Someparticipants havesuggestedthatthe UnitedStatesis beingdi-
videdintoa nationof information "haves"and"havenots"andthat
this couldbe amelioratedby ensuringthat the fair use defenseis
broadlygenerousin the NII context. The WorkingGrouprejects
the notionthat copyrightownersshouldbe taxed-apart from all
others-to facilitatethe legitimategoalof "universal access."49
Of course, given the goals of copyrightlaw, it would have made
as
just much sense if the argumenthad been reversed, taking the fair
use rights of users and consumersas the baseline. The White Paper
wants to give expansive intellectual property rights because it be-
lieves, wronglyin my view, that this is the best way to encouragepri-
vate companies to fund the constructionof the information super-
highway. In response, a more skeptical Working Group might have
said:
Some reportshave suggestedthat the difficultiesof encouraging
companiesto developthe NationalInformation Infrastructure
could
be amelioratedby ensuringthat intellectualpropertyrights are
broadlygenerousandfairuserightsarecurtailedin the NII context.
The WorkingGrouprejectsthe notionthatconsumers,futurecrea-
torsandotherholdersof fairuserightsshouldbe taxed-apartfrom
all others-to facilitatethe legitimategoal of encouraginginvest-
mentin the information superhighway.
The White Paper not only illustrates the pervasive power of
baseline fallacies in information economics, it also shows how the
"original author" vision downplays the importance of fair use and
thus encouragesan absolutistratherthan a functionalidea of intellec-
tual property. In a footnote to the passage quoted above, the Work-
ing Group explainsfurther:
The lawsof economicsandphysicsprotectproducersof equipment
andtangiblesuppliesto a greaterextentthancopyrightowners. A
forexample,haslittlechoicebutto payto acquirephoto-
university,
copyequipment,computers, paperanddiskettes.It may,however,
seeksubsidization fromcopyrightownersby arguingthatits copying
anddistribution of theirworksshould,as a fairuse, not be compen-
sated.50
This explanationcompletes the picturepresentedabove. Fair use
rights are a subsidysought by universities. But wait a minute. Even
if the only goal of intellectual propertylaw was to encourage future
innovation and informationproduction,this argumentwould be fal-
lacious. Future creatorsneed some raw material to work with, after
all. Fair use is one importantmethod of providingthat raw material.
It can also be seen as part of the implicit quid pro quo of intellectual
property:We will give you this extremely valuable legal monopoly,
backed with state power and enforced throughthe courts (and by the
FBI); in return,we will design the contoursof your right so as to en-
courage a variety of sociallyvaluableuses. The White Paper wants to
55. RACHELCARSON,SILENTSPRING(1962).
1997] A POLITICS OF INTELLECTUALPROPERTY 111
CONCLUSION
60. This economic skepticismlinks works that are otherwise radicallydifferent in tone.
CompareBreyer,supranote 24, at 291-313(an early, and elegant, expressionof doubt about
the economic rationalefor copyright),with Samuelson,supra note 25, at 191 (criticizingthe
proposalsmade in the WhitePaper),and BOYLE, supranote 8, at 35-46 (discussinginformation
economicsand its role in the publicpolicyof an informationsociety).
61. LEOPOLD, supranote 52, at 210.
1997] A POLITICS OF INTELLECTUALPROPERTY 115