Introduction: the state of culture

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INTRODUCTION

The state of culture

For those following copyright and access-to-knowledge (A2K) issues, the death of Aaron Swartz came as a heartbreaking and powerful blow. Swartz had been indicted by the U.S. federal government under the Computer Fraud and Abuse Act (CFAA) for downloading files from the academic database, JSTOR, without authorization. JSTOR hosts a digital archive of old academic papers in the humanities, which are of primary interest only to academics. The “value” to JSTOR is that libraries pay a significant fee for access. The “value” to academics using the database is that it makes research and citation much easier in the fields covered by JSTOR. The “value” to those whose work appears in the database is not monetary because journal authors do not receive compensation from the digital existence of their published work.² Thus, “value” here is a complex idea.

To download the files, Swartz entered an unlocked storage room at the Massachusetts Institute of Technology (MIT) where he tapped into the computer system and ran a script that allowed him to capture the data.³ Over the course of several days, Swartz acquired millions of JTOR files. His intent was to share these academic articles widely as a political statement that would underscore the existing barriers to access to knowledge. His motivation was to demonstrate how the walls of the information age are used to monetize the intellectual work of others at the expense of the public.

When identified as the perpetrator, the U.S. federal government charged Swartz with wire fraud, computer fraud, unlawfully obtaining information from a protected computer, recklessly damaging a protected computer, aiding and abetting, and criminal forfeiture.⁴ For these charges, he faced up to 30 years in federal prison.⁵ To put the length of this sentence into context,⁶ compare this sentence to the 35 years to which David Headly was sentenced for helping to plan the attacks in Mumbai, resulting in over 167 deaths.

One might question how Swartz’s “crime” would justify even the possibility of such a long sentence, given there was no real harm done. JSTOR did not want to prosecute and the scope of the “crime” committed against MIT included entering an unlocked storage room and tapping into an open and unsecured computer system.⁷ However, the justice department’s agenda included taking computer infractions such as this one very seriously. In the negotiations that followed the indictment, Swartz was offered between three and six months in prison if he pled guilty to a felony offense.⁸

While the Justice Department points to the plea bargain that was offered as evidence that it was not overly harsh with Swartz, its public reasonableness masks the fact that the “crimes” for which he was indicted should not have been considered felonies at all. The fact that these were felony charges to begin with was a reason that Swartz refused the plea. Furthermore, those close to Swartz have a different story to tell about justice and prosecutorial discretion in this case. As Law professor Lawrence Lessig puts it:

Here is where we need a better sense of justice, and shame. For the outrageousness in this story is not just Aaron. It is also the absurdity of the prosecutor’s behavior. From the beginning, the government worked as hard as it could to characterize what Aaron did in the most extreme and absurd way. The “property” Aaron had “stolen,” we were told, was worth “millions of dollars”—with the hint, and then the suggestion, that his aim must have been to profit from his crime. But anyone who says that there is money to be made in a stash of ACADEMIC ARTICLES is either an idiot or a liar. It was clear what this was not, yet our government continued to push as if it had caught the 9/11 terrorists red-handed.⁹

So why the intensity of the federal prosecution? This question can only be answered by understanding the new political economy of the information age. The extent of the possible penalty for these non-violent, arguably not even illegal actions is related to the fact that a computer was involved. Why would a computer make such a difference? Because information, access to it, and its control are the foundations of the new wealth made possible by the information age. As such, the law has been configured to support this new regulatory regime.

In part, the harsh response is related to Aaron’s actions as a political subject. Aaron’s short manifesto, published online and mirrored in many places, was used by prosecutors to demonstrate his “malicious intent” and justify the extensive penalties.¹⁰ Swartz was an advocate of free information and had dedicated much of his young life to fostering better access to knowledge, better communication tools, and the possibility of a world where information was unlocked and free. In his manifesto, written years before Swartz engaged in what he considered to be an act of civil disobedience, he said that, “sharing isn’t immoral—it’s a moral imperative. Only those blinded by greed would refuse to let a friend make a copy.”¹¹ Swartz, as an advocate for access to information, called it a moral obligation to resist the privatization of knowledge.¹²

Aaron was a threat to the political order of the computer-based world. It is possible to suggest a depoliticized motivation for the prosecution of Aaron Swartz—he was after all, breaking the law, and we live in a system where the rule of law prevails.¹³ However, the law is not without politics and is certainly not neutral. Arguing for the intent to share academic papers widely as a malicious theft demonstrates the power of those siding with the current balance of copyright to frame and control how access to knowledge will proceed. Ironically, for a democracy anywhere in the world to fail to see that such laws limit our freedom, demonstrates how powerful is the ideology of private property over information. Freedom of information under the paradigm in which we find ourselves today is only an ideal if that “freedom” is freedom to purchase, concentrate, and own information.¹⁴

The federal prosecution of Aaron Swartz is an example that helps reveal how the nation-state, as the entity with police power, is used to construct a global enforcement regime for the protection of intellectual property (IP). Instead of civil cases brought by private actors, increasingly taxpayer dollars are now used to enforce criminal laws against property theft in intellectual property. The series of laws lobbied for and successfully promulgated by the culture and content industries at national and global levels demonstrate the success of an intellectual property paradigm that increasingly controls information and culture and permits sharing only under the auspices of the limited transfer of a private property right. The state of copyright law today is important because these political battles will define the scope of ownership, sharing, and culture well into the future.

Aaron Swartz’s story is not only a moment of concern but also offers hope that the battle over access to knowledge in the information age has not yet been lost but has rather just been engaged. There are now those around the world who have woken up to the fact that the institutional frameworks for the information age set in motion during the 1980s and 1990s are worth resisting. There are now activists around the globe who have aligned against the efforts to further expand intellectual property protection, as the global protests against the Anti-Counterfeiting Trade Agreement (ACTA), the U.S. protests against the Stop Online Piracy Act, and the growing number of voices wishing to see changes in IP policy, from software patents to geographical indications, demonstrate. Furthermore, the tactics of pro-intellectual property forces are more visible today to the general public than at any time in the past because content industries have turned against their fans and consumers to protect their property.

Not all within a given nation-state will embrace the pro-intellectual property policy position that may be required to join international trade regimes and is generally embraced by governments. States themselves are fractured and diverse entities where one branch may have a different set of intellectual property-related goals that contradict other parts of the state apparatus. However, what is important to note here is that the general trajectory globally is towards more property protection and the underlying assumption upon which policy is made is that more protection is a good thing. The U.S. federal government has led the way in ratcheting up protection of intellectual property. It has done so both domestically and internationally and thus is the starting point for any analysis of global intellectual property law. The United States has led the way, but other countries have implemented their own versions of anti-sharing. Most controversial are the “three-strikes” laws that can be found in France, New Zealand, and South Korea, among other places.¹⁵

Pro-intellectual property interests have used the state to establish a legal regime that has moved well beyond the protection of copyrights, patents, trademarks, and other types of abstractions as a limited monopoly balanced against a public interest, to protecting these abstractions as a form of property to which an original owner must be given virtually absolute rights. In doing so, the state becomes an advocate for a specific political economy of intellectual property that has ramifications for the free flow of information, access to knowledge, and the future of innovation. Intellectual property has always been, but has now more visibly become, an issue of social justice.

The global political economy of information ownership

Copyright law has been enormously successful as a tool to defend past acts of creativity from present (and future) transformations and appropriations. It has also become an excellent tool for concentrating ownership of this abstract property, the vast majority of which is now owned by media and information conglomerates that control access to information, entertainment, and knowledge.¹⁶ In defining the scope of protection in the way it does, intellectual property establishes a specific political economy of ideas and creativity. As James H. Mittelman states about the ideological underpinnings of globalization, “certain ideas become centerpieces of consensus, and consensus is more cost-effective than coercion.”¹⁷ While there remains the need for coercion, the consensus that has been established for global intellectual property rules is one produced for, and with the direct aid of, transnational corporations (TNCs). Peter Drahos, who has done excellent work detailing the role of TNCs in developing the global intellectual property rules that exist, helps clarify the political economy of the present and the future:

TNCs are unified by the belief they will all do better in a world where states and citizens have embraced an ideology that favors hyper-strong intellectual property rights (IPR) because that ideology enables those TNCs to invest in turning knowledge from a public good into a private good and to set the terms of access to it.¹⁸

As Drahos makes clear, intellectual property has functioned as a de facto global consensus, one that is often challenged, but remains grounded in the international impetus towards neoliberalism.¹⁹ The global narrative produced to justify ongoing neoliberal efforts aligns around a discourse of “the information society,”²⁰ which further justifies the concentration of a type of knowledge production, governed by intellectual property laws.

The concept of globalization is an essential frame for understanding intellectual property debates. Globalization can manifest itself in many ways, but contemporary globalization can be understood “as a set of social processes that are thought to transform our present social condition into one of globality,” according to Manfred Steger.²¹ Globalization creates new and overlapping social networks that “overcome traditional political, economic, cultural, and geographical boundaries.”²² These networks mark an “expansion and stretching of social relations, activities, and inter-dependencies,” while also creating “an intensification and acceleration of social exchanges and activities.”²³ These understandings of globalization are exemplified by economic and cultural exchanges across the boundaries of the state.

Those seeking to enhance intellectual property protection align best with the rules and concept of neoliberal globalization. Neoliberal globalization has sought to connect the world through trade agreements and the free trade of commercial goods, culminating in the creation of the World Trade Organization (WTO), of which protection of intellectual property is an integral part.²⁴ Often understood as motivated by large transnational corporations and the nation-states that support them, those who study the evolution of international agreements governing intellectual property have argued that this ideological set of values is the primary impetus behind the expansion of intellectual property at the global level.²⁵ This model has resulted in efforts to transform the public domain into commodities and places primary value on private ownership instead of public ownership of all commercial as well as public goods. The result is that access to knowledge becomes an activist stance.²⁶ Continued expansion of intellectual property protection is the goal of advocates for this model, which they claim is tied to economic development for all.

In contrast to the neoliberal actors who wish to expand intellectual property protection, the second globalized ideological position relevant here is based upon the desire to see information circulate more freely without the barriers of the nation-state or the control of industrial giants interfering in a significant way. The global critique of intellectual property focuses heavily on issues of development, claiming that development is actually hindered by strong intellectual property laws. Those who advocate for reduced intellectual property protection, and for a stronger sense of public use, especially when it comes to patented medicines, embrace the more minimalist approach to intellectual property. Some scholars go so far as to advocate for the elimination of intellectual property, especially copyrights, as we know them, but most simply seek more flexibility in the law, especially for the global South.²⁷

Development in this model is possible only with far freer access to knowledge, technology, and culture than that made possible under the strict regulatory structures of current intellectual property laws. Many defending the existing regulations, including the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS), claim that the law as it currently stands includes adequate safeguards of the public domain, public health, and local desires to have flexibility in intellectual property laws, but advocates for more minimal standards of protection believe that TRIPS has gone too far and imposes too great a cost on the global South. While those seeking to maximize intellectual property argue that innovation only occurs if you allow the innovator to own and control the results, those who seek to minimize intellectual property protection claim that inspiration and innovation emerges from a far freer circulation of ideas, and that intellectual property is part of a larger global political economy that merely entrenches the inequalities of the status quo and exacerbates them into the future.

These tensions—to maximize protection and control and to limit protection and control—are what makes it necessary to analyze intellectual property debates along global trajectories. The network of nation-states, civil society actors, non-governmental organizations (NGOs), and industry representatives aligning with either side of the debate do not easily fit conventional international relations models. It is tempting to try to characterize and fit global politics into these conventional roles, dividing the world along the lines of the nation-state into North versus South, or along old Cold War ideological lines of capitalism versus communism. In these bipolar narratives, the industrial world as an engine of capitalism is poised against the developing world that often tends towards communism (at the worst) and protectionism of domestic markets that are antithetical to neoliberal trade policies (at their best). Theories of globalization problematize and undermine this rather simplistic view by suggesting that the relationships forged internationally must be understood through a different geographic and policy configuration.

Intellectual property can offer an excellent view of the complexities of globalization. In terms of intellectual property politics, it is often easy to characterize the lines as following these larger state-based divisions, especially given that the most significant attempts to expand the scope and length of intellectual property laws have come from the United States and the industrialized world. Furthermore, the global South has clearly been disadvantaged by the modern configuration of intellectual property laws, and efforts at the World Intellectual Property Organization (WIPO) are focused on a state-based development model in respect to the creation of the domestic laws, developing countries are encouraged to expand IP protection in an effort to enhance development via intellectual property regulation. In other words, one cannot escape the role and relevance of the nation-state in constructing the international legal apparatus upon which intellectual property is built. However, the story is far more complex than a traditional story of Western hegemony and state-based politics would suggest.

While the U.S. government, for example, has been a primary actor internationally in seeking expansive intellectual property rights, numerous NGOs with origins in the United States or strong advocacy networks in the United States have actively fought these expansive efforts. James Love’s Knowledge Ecology International (KEI) is an excellent example of why it is important to think beyond the nation-state and understand the far more complex global relations that exist.²⁸ KEI has offices in Washington, DC and Geneva and, as an international NGO, has been instrumental in convincing WIPO to focus on development issues. While born as an American consumer-based advocacy group, it has transformed into a global network to resist the overexpansion of intellectual property rights. How might one locate such an organization in the bipolar narrative of nation-states? Rather, this organization, funded by donations and grants, and based in the developed world, clearly stands up for issues that the U.S. government does not, and will not, advocate for.

It is far more likely that KEI will find support from nation-states such as India and Brazil, both of whom have lobbied for more flexibility in patents on life-saving medicines and have sought to resist the expansive narratives of intellectual property in the context of development. Thus, member states, groups such as KEI, and activists were crucial in establishing the development agenda at WIPO, but would have met with opposition from other member states, as well as industry groups.²⁹ U.S. citizens and the U.S. government may have found themselves on opposite sides of the development agenda debates, but then so might the citizens and governments of other countries at the table. Obviously, while the North/South divide regarding development and IP is a stark and clear one, it is also the case that many developing countries have strong IP advocates among their business elites and their lawyers, and in their intellectual property offices. The fact that virtually all nations are members of WIPO and have signed TRIPS suggests at the very least that international legitimacy can be tied to a state’s efforts to sit at the table in the important international forums. Thus, while populations across the globe—both inside and outside the developed world—may continue to engage in what industry actors call piracy, their government officials may support the more expansive model of intellectual property protection as required by international law.

Even those advocating for different lengths of protection may change over time, making the possibility of stable categories even more complex. Matthew David insightfully identifies an “aging effect” within intellectual property systems that is applicable here. This aging affect demonstrates that younger creators rely upon a public domain, but, as they age into ownership of IP rights themselves, they begin to seek stronger protection of their past creative work from others seeking to build upon it. This aging process applies equally well to individuals as it does to states. In David’s words:

The young require a creative commons, where the old call for ‘closure’. This can be seen as societies develop, as individuals move through their careers as authors and/or inventors, as new creative media emerge from older forms, and as tastes, styles and genres emerge within artistic fields. The most jealous protectors of intellectual property today—whether these be states, individuals, corporations and their representatives, and/or established field representatives—only emerged as a result of their previous success in profiting from yesterday’s creative commons, often in the face of accusations of piracy or in conditions where intellectual property (here-after IP) law did not exist or was evaded.³⁰

David’s analysis of how the same entity—be it an individual or a state—can advocate for a different level of rights at different stages of development makes it easier to see which types of interests can be and are protected by assorted levels of intellectual property protection.

For example, relaxed laws that allow for more sharing are designed to help the “younger” fields of innovation (think about the early computer software years where sharing was the norm). More restrictive laws help solidify control over the markets. At this point, we have reached a stage of significant control internationally. It is important to stake out the ideological pressures impacting the legal realm of intellectual property and then discuss the cross-cutting complexities that do not map onto existing narratives of North versus South, state versus NGOs, transnational corporations versus local businesses, or activists versus lobbyists.

Given the complexities of alliances, resistances, and advocacy positions that tend towards maximizing or limiting protection, the global debate over intellectual property can be better understood through examining the complex networks of states, industry actors, NGOs, and of course the flow of culture itself rather than focusing solely on the agency of the state. A global model for understanding the tensions over how to protect intellectual property is much better explained through positions regarding the scope and length of protection—hence the usefulness of characterizing states, industries, and organizations as IP maximalists or minimalists, instead of as representatives of the global North versus the global South. It is the ideological trajectories that can provide the lines for analysis when individual actors, states, or industries cannot.

With this complex global model as a starting point, it is important to identify who owns intellectual property in the twenty-first century. The function of modern copyright has been enormously successful in facilitating the continued concentration of the ownership of cultural products as the corporate entities that own these products merge. First, modern artistic forms—the movie, sound production, the mass-produced novel, and products with multiple creative contributors and heavy investment costs— resulted in the need for concentrated ownership rights. Bill Ivey notes that ownership was placed with “the corporation that had assembled the creative team, financed the project, and distributed it to audiences.”³¹ Because it was possible for corporate concentration, the modern knowledge industrial complex is highly centralized, and the cultural heritage of modern nations is owned and controlled by corporate entities, a fact not recognized by most citizens.³² Furthermore, most artists do not benefit from the system at all, with only a few of the most visible ones receiving royalties.³³

Second, this corporate concentration represents a global phenomenon, with corporate control deterritorialized.³⁴ While it is assumed that American culture industries dominate, the transnational ownership of culture conceals ownership as much as it reveals it. Perhaps most interesting is the growing divergence between the American assumption that it leads the way in the creative industries and innovation and the reality of who owns innovation. U.S. domestic and foreign policy, as will be described in the next two chapters, is designed around the assumption that American ingenuity must be protected globally. However, the globalized world in which we live means that in fact behind the veneer of American global cultural hegemony lies a far more complicated story of ownership and one that suggests that the U.S. government may be supporting the interests of corporate conglomerates housed outside the United States at the expense of its own citizens.³⁵ German citizen Leo Kirch, for example, is one of the owners of the biggest collection of copyrighted television shows and films, which he purchased from Columbia, Paramount, and Universal.³⁶ What goes as American is really owned globally without allegiance to any national culture.

Concentration is considerable.³⁷ In music, the “big five” is now the “big four,” which together own 75 percent of the world’s music.³⁸ In publishing, six primary entities control virtually all scholarly publications, and non-academic publications have also become increasingly concentrated.³⁹ The American movie industry is dominated by six movie studios, which control virtually all movie production in the United States.⁴⁰ When Ted Turner purchased MGM, not for its tangible assets, but for copyright control over its film library, he came into the possession of over 3,600 titles.⁴¹ As Paul Goldstein puts it, “now Turner—not the writers or producers or directors, let alone MGM—controlled the copyrights in all those movies.”⁴²

The production and distribution of news, from newspapers to television to radio, have been highly concentrated, with entire media markets often served by a single corporation.⁴³ Americans have long lived under the mythology that they have a free press, but it is a system so concentrated in terms of media monopoly as to undermine the very idea of freedom, and this is the system that is exported globally.⁴⁴ Finally, the domination of Microsoft and the failed anti-trust efforts of the Clinton Administration demonstrate the power of centralized copyright control over everything from software to internet browsers. While Google still advocates for the free exchange of information, Google’s increasing control over digital copies and cloud-based knowledge suggest it too may become an advocate for more copyright laws at some point in the future. Copyright law is designed to protect the products of this industrial complex within a legal system where an adequate defense against copyright infringement is well beyond the reach of virtually everyone, rich and poor alike, especially when lined up against the corporate attorney’s of these global monopolies. These trends have been remarked upon and described in great detail by an enormous number of excellent scholars.⁴⁵