9/16 Suggested Reading and Viewing

A bit of a linkdump:

We ran across an interesting discussion on piracy and video game development on the Tumblr blog of independent game designer Notch. Our contribution can be found here.

BoingBoing’s Mark Frauenfelder presents a convincing narrative on the place of DIY in education and daily life through an interview with The Atlantic.

The UK government has announced that while “rights holders” (i.e. the culture industries) will have to pay 75% of the costs related to pursuing illegal file-sharing under the 2010 Digital Economy Act, but ISP’s will have to foot the remaining 25%. For ISP’s, this means footing a multi-million pound cost for law enforcement actions which provide economic benefit another industry entirely. And much like the taxes tacked on to our cell phone bills, these costs are going to be passed directly on to consumers by the ISP’s, so essentially, the public will now be paying to help UK copyright holders protect their profits.

Copyright vs. The Law

Techdirt points us to an interesting conflict going on in Sweden:

The Swedish National Police have been attempting to build a database which allows them to match shoe-prints found at crime scenes with the type of shoes that made them. In order to build the database, they have simply been downloading pictures of shoe treds from the internet. Now, some shoe companies are claiming that those images are their intellectual property and cannot be taken without permission.

The police claim that the law lets them ignore copyright in solving crimes, but an intellectual property professor quoted in the article notes that such an exemption only applies in the direct police investigation of a specific crime — not for the sake of building up a general database. The professor suggests that this appears to be a clear violation of Swedish copyright laws.

Fine points of Swedish copyright law aside (for the time being), what’s interesting here are the two potential ways to approach the dispute:

If we trust that the motive of the police is to protect the life and property of the citizenry, then we can see the conflict over the database as taking root in a claim by commercial brands that the protection of their intellectual property in the abstract (it should be safe to assume that this database will not result in any real economic damage) should trump the ability of the police to solve actual crimes.

If we’re feeling more cynical about state power, we could view this as a conflict between copyright and state power. Which source of authority is exerts more influence: the corporation’s ownership of it’s intellectual property or the state’s ability to surveil its citizens?

Open Universities, pt. 2

In our previous post we discussed the possibility that web-casting academic lectures could transform universities in some way, possibly making academic information accessible to more people outside the university, or helping to keep lecturers honest and accountable. On Monday, the New York Times published this story about attempts by humanities scholars to use the internet to transform the process of peer review:

some humanities scholars have begun to challenge the monopoly that peer review has on admission to career-making journals and, as a consequence, to the charmed circle of tenured academe. They argue that in an era of digital media there is a better way to assess the quality of work. Instead of relying on a few experts selected by leading publications, they advocate using the Internet to expose scholarly thinking to the swift collective judgment of a much broader interested audience.

So the idea here is not that digital information systems will help make education more accessible, but rather that they could be used to allow a broader segment of the public to weigh in on key academic questions: Which research findings are interesting, convincing or valid? Can research that stands the test of peer review by experts hold up in the court of public opinion? In other words, the process of internet reader review could be use to break down the social power and exclusivity of expertise, one important step in opening the intellectual commons.

Liberating iPod/iPhone Power Technology

In this video from MintyBoost, you can see the process of reverse-engineering the proprietary technology Apple requires for charging devices such as iPods. Apple generally requires any company making iPod charging devices to keep this technology confidential, thereby limiting the market on compatible devices to Apple’s whim. However, a little technical know-how allows such a device to be hacked and the specs set free.

Open Universities?

With growing concern in the United States about the cost, accessibility and quality of education, it may be useful to consider a recent trend in American Universities: many professors now publicly ‘share’ video of their lectures, opening their courses to anyone with internet access, rather than only to paying, enrolled students. The Chronicle of Higher Education recently published a great story about this.

Personally, as a lecturer myself, I imagine having my lectures taped and shared would make me self-conscious in practice, which might cause me anxiety or help me improve my lectures. It certainly might make professors accountable to a broader public, and help “peer review” their claims. It is also appealing in theory to consider the ethic of open-source teaching, which could push the conventional limits of public education. I have always found that colleges and universities are places where the ethic of an intellectual “commons” is strong; this trend still survives in the age of the corporate university in a somewhat muted form.

I am also a fan and follower of online lectures. The European Graduate School offers many lectures online, and considering their faculty of superstar theorists, this is a unique opportunity to hear from Zizek, Butler, DJ Spooky and a whole slew of continental philosophers, media and cultural theorists, film directors and other media practitioners. John Merriman‘s lectures at Yale in modern European and French history are online. MIT’s Open Course Ware site provides syllabi, assignments, lectures and other media to anyone with a web browser. There must be countless others.

Of course, many universities will worry about harming their bottom line, if prospective students can see lectures without enrolling and paying. Some professors will be uncomfortable, unable or unwilling to share their lectures. No matter how the “classroom” or the price of textbooks and materials might change in the internet era, it remains the case that students who want a credentialed degree will have to enroll and pay. Internet video alone won’t solve a national problem with access to education, rising tuition, failing schools, and so on, but sharing lectures online is already stretching the boundaries of the classroom.

Brooks on the Attitudinal Health of “Protocol Economies”

Today’s NYTimes features an op-ed by David Brooks that offers an alternative take on the changing notions of ownership I brought up in my post a few days ago. Brooks’ frames this as a transition from an economy of physical things (his corn and steel, my bicycle) to an economy of “protocols”:

A software program is a protocol for organizing information. A new drug is a protocol for organizing chemicals. Wal-Mart produces protocols for moving and marketing consumer goods. Even when you are buying a car, you are mostly paying for the knowledge embedded in its design, not the metal and glass.

Brooks then goes on to argue, referencing a new book by Arnold Kling (of the Cato Institute) and Nick Schulz (of AEI), that the success of a protocol economy “depends on its ability to invent and embrace new protocols.” And what is it that allows economies to nurture this ability?

Protocols are intangible, so the traits needed to invent and absorb them are intangible, too. First, a nation has to have a good operating system: laws, regulations and property rights.

[…]

Second, a nation has to have a good economic culture. “From Poverty to Prosperity” [ed., a new book by Kling and Schulz] includes interviews with major economists, and it is striking how they are moving away from mathematical modeling and toward fields like sociology and anthropology.

What really matters, Edmund S. Phelps of Columbia argues, is economic culture — attitudes toward uncertainty, the willingness to exert leadership, the willingness to follow orders. A strong economy needs daring consumers (Phelps says China lacks this) and young researchers with money to play with (Romer notes that N.I.H. grants used to go to 35-year-olds but now they go to 50-year-olds).

A protocol economy tends toward inequality because some societies and subcultures have norms, attitudes and customs that increase the velocity of new recipes while other subcultures retard it. Some nations are blessed with self-reliant families, social trust and fairly enforced regulations, while others are cursed by distrust, corruption and fatalistic attitudes about the future. It is very hard to transfer the protocols of one culture onto those of another.

So, according to Brooks, successful economies must quickly adopt new protocols, and the two most important factors in being able to adopt protocols quickly is to develop strong intellecual property rights and then to have inate anthropological characteristics that will develop strong leaders and eager followers, all arranged into self-reliant families. In short, Brooks takes a Randian, social Darwinist perspective on the global information economy. Those who excel in such economies do so because they originate from superior cultures and are bolstered by regulations which prevent the untermenschen from ransacking their protocols (which would, one assumes, weaken the incentive for futher protocol development). This is a proposal for a Bell Curve of the information economy.

On a related note, Arnold Kling got himself into a little scandal last February, when he suggested that Obama’s stimulus plan was actually “a reparations bill” (additional commentary here). Unintentionally as it may have been, Kling draws a very neat line between the ethics of slavery and colonialism and opposition to the so-called Socialism of government-run social services.

In any case, ignoring for the time being the fact that we all still rely very much on things like food and petroleum, not just “protocols,” Brooks’ logic (or the logic he takes from Kling, Schulz, et al) also fits quite nicely into a Hayekian/Trickle-Down worldview wherein the concentration of resources in the hands of the few somehow ultimately translates into prosperity for the masses.

As such, Brooks’ argument seems to have nothing to do with changing systems of value and ownership in the protocol age, except in that it seeks to justify the imposition of artifical scarcity on digital resources in order to preserve the same old justifications for enclosure that existed in those old-fashioned physical economies.

Who Owns Science? Part 2: the Bayh-Dole Act

In the United States, the question of who owns science was given a loud and clear answer in 1980 by Senators Birch Bayh and Bob Dole. Their “Bayh-Dole Act” allowed businesses and non-profit organizations to retain private, patent-style rights to control innovations and discoveries, even discoveries developed using federal funding. This effectively privatized large parts of big medicine and the military industrial complex. It also created a new academic trend: universities across the country created offices of technology transfer, which were responsible for surveying research being done and looking for ways to snatch up innovations and take them to market. This greatly accelerated a trend brewing since World War Two: universities began to rely more and more on private sector profitability for their funding. Ask any graduate student in the sciences who funds his/her education, and you’ll find many with private sector grants. It also encouraged another trend: the question of what topics should be researched became increasingly shaped by what is profitable. Because laboratories and experiments are often so expensive, private sector funders have little incentive to invest unless they think results could be profitable. Hence basic research in science, guided by the latest trends in the field, now takes a back seat to research that is more likely or more certain to generate profits.

Who Owns Science?

Via the P2P Foundation blog, I ran across some impassioned back and forth over the issue of IP in the realm of scientific research. The clash begins with a November 2009 manifesto published by the University of Manchester’s Institute for Science Ethics and Innovation (ISEI), in tandem with the Brooks World Poverty Institute

Entitled Who Owns Science?: The Manchester Manifesto [PDF], the report takes as its underlying platform the argument that the core purpose of scientific innovation is (or should be) to serve the public good and from that perspective, lays out an extensive series of particular points regarding current systems of IP as it relates to scientific research and innovation and in doing so reaches the conclusion that,

the dominant existing model of innovation, while serving some necessary purposes for the current operation of innovation, also impedes achievement of core scientific goals in a number of ways. In many cases it restricts access to scientific knowledge and products, thereby limiting the public benefits of science; it can restrict the flow of information, thereby inhibiting the progress of science; and it may hinder innovation through the costly and
complicated nature of the system. Limited improvements may be achieved through modification of the current IP system, but consideration of alternative models is urgently required.

The London-based Chartered Institute of Patent Attorneys (CIPA) immediately and unsurprisingly struck back at the report (again, this funny collective/private tightrope walk of the professional association). In my opinion, their three most important assertions are these:

– Patents can’t be used to prevent a product coming onto the market – if demand for a product is not met on ‘reasonable terms’ then, subject to certain safeguards, anyone can apply to the IPO for a compulsory licence under the patent. The competition authorities can also take action if patents are abused.
– Patents do not prevent universities from carrying out research – acts done for ‘experimental purposes’ don’t infringe.
[…]
– The alternative to patenting university research is that big business would get a free ride – they could use the work of universities to make profits for themselves.

In response, ISEI points out the employment of IP law to prevent the distribution of generic drugs as well as the fact that the blurred lines between academic reseach and “pre-commercial” development of scientific products within universities makes the boundaries of protected reseach uncles. Further, they argue that they are not seeking the abolition of IP altogether, but rather “to bring [IP] far more into line with the public interest – and indeed with the interests of the goose that lays the golden eggs and creates the discovery on which not only the IP Law industry, but civilization relies, namely science and technology research.”

They also very successfully create a class intervention into CIPA’s association between IP profits and innovation:

The IP system is a tool for encouraging innovation for drugs for rich markets, but this mechanism does nothing about affordability, leading to the problems of access described. In the absence of a rich market, the IP tool is of no help in creating incentives to discover and manufacture drugs, leading to the problem of neglected diseases for which the “necessary investment to discover and manufacture” drugs is lacking.

More information on ISEI’s research into the question of who owns science can be found here.

Fight for your rights? The problem with “copies.”

Today The New York Times published this story about “backlist titles,” books that were once top sellers in paper format, which may or may not be reissued today as ebooks. As publishers work to reformat and reissue such titles, the question of who owns the rights to reproduce these titles – authors or publishers – explodes back onto the scene. The fact that a change in format (from paper to electronic books for example) compels a new round of copyright battling is interesting, raising many questions: is the electronic version a separate “work” with a separate copyright as opposed to the paper version, or is the electronic version merely a copy of the paper work, which therefore puts the original copyright into play?

Behind this copyright question, a deeper question lurks: what is a copy? Obviously the copy is not identical to the original; a copy must be different, a unique object. But on the other hand, how different is too different? At what point does an object become so different from the original that it no longer counts as a copy? This ontological question about copies (or simulacra) and originals (a la Benjamin and Baudrillard), difference and repetition (a la Deleuze), etc., may seem cute or sophistic, but it could be a real thorn in the side of more practical, legal, ethical and political debates about the right to make copies. While I’m on a roll referencing European philosophers: might this problem of the copy be the Derridean lynch-pin which, when pulled out, will cause the whole copyright house of cards to deconstruct (self-destruct)? If we can’t define what a copy is, how can we tell if a copy has been made? How can we tell if an illegal copy has been made, or profited from?

A new thread: health care reform

So far, most of our activity here at Enclosure has been devoted to thinking about ‘privatization,’ i.e. the removal of goods, money, people, services, ideas, etc. from public or common spaces, and their installation behind barriers to access, barriers which shore up our capitalist system of private property: hence the term ‘enclosure.’

But this year’s long and frustrating debate in the United States over health care reform provides an opportunity to look at the issue of privatization from another angle. In this debate, we are not witnessing practices of enclosure or privatization; health care is already privatized and heavily deregulated in this country. The real fight for reformers on America’s liberal left has been the ‘public option,’ the attempt to wrest away health care provision from private hands and put it back in public hands. In other words, health care reformers are looking for the opposite of privatization, call it what you will (public-ization, common-ization, dis-enclosure, de-privatization, and so on…). As critics of the logic and practice of privatization, both authors of this blog are, not surprisingly, strong supporters of the public option.

The fact that so many American citizens and politicians are opposed to a public option furnishes another important topic for discussion. Privatization is not only upheld by organizational and institutional powers (copyright law, property law, lawsuits, police protection, etc.); privatization is also normalized, set up as a cultural value, fought for as a cherished belief (especially on the political center and right). The social, political and economic forms that keep privatization in place are supported by a widespread set of beliefs and values. This is to say that we not only have a system of privatization in this country, we also have a culture of privatization (for more on this, see our earlier post about Kristin Ross and cultural theory). In this year’s health care debates, this culture has proven as big an obstacle to reform as has the weight of inherited structural or systemic forms. The right has flooded the public sphere and the mediascape with messages linking a government-run health care plan with Stalinists and Nazis, as if the right to hold a Medicare card would transport one immediately into Animal Farm or 1984. Meanwhile, they miss the point that our current privatized health care system is more like Lord of the Flies. While we’re no policy experts here at Enclosure, we can say that the same capitalist forces working to slap DRM on our mp3s and privatize local utility systems (e.g. water supply and sewage treatment) have their dirty hands all over our health care system.

The lesson to be learned here is that resisting enclosure and privatization from happening in the first place is just as important and just as difficult as it is to dismantle an already existing system and culture of privatization. Hence we always have to think about privatization ‘before the fact’ and ‘after the fact.’ We have to prevent privatization from taking hold, prevent it from expanding, and to prevent it from becoming totalized.