Halbert, Debora J. Resisting Intellectual Property Law. New York: Routledge, 2005. Print.
- Book Overview:
- Chapter 1: This chapter considers the public domain – it defines the original intent of the public domain before moving on to consider how it is “interwoven” with copyright law in order to point out how this concept serves the “public” as opposed to the “private.” By rejuvenating the concept of the public domain Halbert hopes to revise the function of copyright law in order to reestablish the balance it once contained. Fight for the public domain is usually carried out by academics.
- Chapter 2: This chapter considers EULAs and other “shrinkwrap licensing agreements” that overstep copyright law. It also looks at copyleft/GPL licensing options. This chapter argues that EULAs actually go beyond the protections of copyright law to move the consumer paradigm from sale of product to simple licensing of product. As a response, H. considers Stallman’s open-source movement as an alternative to overly constrictive EULAs.
- Chapter 3: This chapter considers p2p networking, filesharing, and bittorrent. It also takes up the tensions between copyright and artistic creativity. Finally, this chapter also considers the “power of disintermediation” as an alternative to the hypercentralized control model of information distribution and use.
- Chapter 4: This chapter looks at the “discourse of morality” that surrounds patent law, pharmaceuticals, and high-profile disease (AIDS). Specifically, the chapter considers the transnational activist movements that have reframed the discourse of rights in the context of discourses in morality with respect to health care as human right.
- Chapter 5: This chapter takes up the world of patent law and its relationship to the human body. By looking at the Human Genome Project, this chapter considers the Lockean premise of “sweat of the brow doctrine” in the context of genetics and human life. This chapter offers an alternative to the current paradigm of patent protections for biological developments in order to reframe the conversation around owning the body.
- Chapter 6: This chapter considers the harms of biopiracy and biocolonialism. It also looks to traditional knowledge systems in particular cultures as a way to offer alternatives to the transnational system of IP. The chapter critiques TRIPS as a construct of European universalism before looking to how traditional knowledges are currently protected by indigenous peoples.
- Chapter 7: This concluding chapter looks at the history of TRIPS and considers the struggle surrounding its implementation in transnational trade environments as a way to discuss (and dream) of different forms of resistance to the current model of IP.
- H. is weary of using the words “intellectual property” because it invokes rights discourse as opposed to the overly legalistic terms “copyright” and “patent.” When the words IP are called forth they skew the debate toward the universal . . . which is hard to refute.
Chapter 1: Theorizing the Public Domain – Copyright and the Development of a Cultural Commons*
- CTEA (Sunny Bono Copyright Term Extension Act) extended copyright protection to all works currently in the public domain by twenty years. . . . and in so doing stopped the development of the public domain for two decades (13).
- Many argue that the public domain is the bedrock of democratic life and a healthy public sphere because it serves as the realm wherein ideas can be freely exchange outside the bounds of IP protection (14). The internet didn’t cause the shrinking of the public domain but it exacerbated it. As Boyle mentions, closing in the “wasteland” of the public domain can allow for more productive uses of those ideas . . thereby increasing the public benefit for all (the 2nd Enclosure movement). Of course, the public is left out of this enclosure logic.
- The erosion of the public domain is accompanied by a shift in thinking about citizens as democratic participants in the construction of a shared lifeworld to thinking about citizens as passive consumption units in a corporate world (15).
- A key assumption of this chapter: “the expansion of private property rights is detrimental to the free flow of ideas and the ability of a democratic people to exchange ideas and creative work in a meaningful way” (16). This assumption highlights the idea that the public domain and the public sphere are intimately linked by a free flow of information.
- H. relies on Mark Rose’s work on the development of literary property to make the argument that the public domain has long been thought of (problematically) as another form of property (17). Pirates are simply engaged in the process of claiming a larger public domain than the law allows (17).[Implications: as H. notes, the discourse on piracy indicates that those with the power to define property and theft construct the bounds of the public domain by drawing “lines of demarcation” between the private and the public. As such, this (like most things) is a problem of definition and power.]
- H. draws attention to the tension between organized and unorganized “publics” as a means to demonstrate why the unorganized public that claims domain over the public domain is increasingly delegitimized: the organized public (i.e., government as representative public body that governs public property) will always hold more sway than the unorganized public (the multitude) because the organized public views the unorganized public as a threat to its authority as “voice of the people” (18). For this reason it is in the interest of the state to delegitimize the unorganized public in the interest of asserting its own sole authority as guarantor of the public good. Once authorized as the singular organized public the government can oversee the transition of the unorganized public’s rights, lands, and IP to private individuals in the name of serving the unorganized public’s interests (remember: it is a MOB and can’t be entrusted in making collective decisions for its own betterment).
- H. divides the public sphere into various different publics (each with its own public domain): academic publics, consumer publics, middle-class publics, subaltern publics, and traditional knowledge publics (20)[2. This seems like a partially productive place to return in order to discuss why a share-alike position might work in the academic public but can’t be sustained in the consumer public. . . . if we accept that the publics can be divided as such.].
- H. next considers the idea of the “people.” First she notes that the people have always been a force that serves two bodies of elites: the autocrat and the representative body (parliament). This means that representative democracy was not a system designed to extend power and definitional work to the “people” but a way to get the “people” to submit their power to a select, elite few (parliament) instead of one (king) (22).
- Turning to Habermas and Anderson, H. argues that the public sphere and nation both depended (for their coherency) on the circulation of texts (23). Text needed to circulate in the public (salon, academy, etc.) and receive accolade before it could move into the realm of the private commodity. As such, the public sphere of the 18th century relied on a healthy public domain to function. Yet, the Habermasian public sphere is problematic because it: 1) fuses consumption with a notion of human freedom; 2) the “public” that composes the public sphere is too abstract and embraces a notion of public that only includes the bourgeoisie; and 3) because each public sphere is a political site of spatial contestation it is never neutral. . . in fact, it always works in the interests of some private group (Harvey)(24). Finally, the public sphere has been critiqued as the “ideology of the information age” because it argues that all citizens must know; however, they come to know through practices of textual consumption by big media and the corporate elite.
- Why fight for the public sphere then at all? Even if it is a “phantom” the battle for the public sphere is important because the circulation of texts (cultural works) tends to play a significant part in how individuals define their identities; as such, the circulation of texts in a non-commodified public sphere can insure that many folks have access to the cultural works that assist in acts of self-definition (25). This is another way of saying that the public sphere extends beyond just politics into the domain of culture.
- Because of various communications technologies the creation of a (digital?) transnational public sphere (pluralistic, multifaceted) must occur. Further, as H. mentions, as long as “the public can be reduced to individual rights, the public domain will always lose to individual property claims simply because there are not real individuals within the public domain to resist the colonizing forces of individual interest” (26).
- An unarticulated claim: neoliberal economics operates at the level of intellectual property rights because, it is argued, a laissez-faire governmental approach to economic development will lead to the greatest possible outcome for the public . . . that approach is buoyed up by private interests and privatization schemes undergirded by IP law. As such, neoliberal economics is intrinsically tied to private property and IP protection discourse.
- Because of the radical potential of the digital web to extend the bounds of the public domain (through ease of access), the expansion of IP protections backed by corporate/private interests is a countermove to the free circulation of ideas (28).[2. There is an implication for your own research here. H. relies on the idea of “circulation” of texts (drawn from Habermas and Anderson) to define her notion of the public sphere. You can connect this circulation to ideas about rhetorical ecology in order to create an argument about the interconnectedness of IP and ecology in the realm of rhetoric.]
- The New World Order of Knowledge: the internationalization of IP rights that extends the Euro-American idea of property rights into all domains of culture and life in the non-Western, often developing countries of the Global South (34).
- H. highlights that discourses and movements of conservation and preservation arose in direct response to the erosion of the public common lands (public domain) at the end of the 19th century by robber-baron capitalists (35). In this way the environmental movement (or the conservation/preservation wings of it) have their basis in a fight to preserve the public domain.
- In a concept called the “comedy of the commons” the public domain is seen as a resource value enhancer[4. This is a similar argument to that of publicity for bands giving their music away.]: increased participation and use of a public domain resource enhances the value of that resource rather than diminishing it (think public squares, parks, marketplaces, etc.) (35).
- H. claims that the war over the public domain occurs on two fronts: 1) the war over the “regulated public” or the public of texts and inventions that are protected under IP and serve a larger social function; and 2) the war over the “unregulated public domain” or the battle being waged over the expansion of rights toward monopolist tendencies in capitalist societies (36). As a remedy, H. recommends: 1) introducing the “vibrant, flexible, and democratic” public back into the public domain (as opposed to the singular, bourgeois capitalist public); 2) the public domain needs advocates like librarians, legal scholars, and artists who advocate for the public domain (and to illustrate how copyright is infringing on the first amendment guarantee of free speech); 3) Conceptual transformations in how we think and talk about IP and the public domain must occur so ideal like the public domain aren’t denigrated based on the connotations of their conceptual meaning (e.g., no more “falling” into the public domain). This also means reconceptualizing our “property” language to sound more like lease; 4) We need a new understanding of “author” and authorship; and 5) appropriation in the context of biocolonialism and biopiracy must be considered so the commercialization of indigenous and traditional knowledges isn’t allowed to further strengthen Western IP regimes.
- The public domain is more than a simple theoretical construct – it has real, material consequences and should be considered as such. Just remember, another world is possible.
Chapter 2: Licensing and the Politics of Ownership – EULAs vs. Open Source
- H. sees the use of EULAs as a means to covertly extend the protection of IP through copyright in ways that aren’t legal . . . or at least push against the legality of protection. Of course, EULAs and shrinkwrap licenses create a catch-22 for software purchasers as they must open the wrapping or agree to the terms before they are allowed to see the product. . . as such, an agreement is required to even open the document being protected (45). As such, EULAs and shrinkwrap licensing circumvent copyright by extending protections beyond the legal limits established in copyright (which is already generous).
- As a response to overly constrictive EULAs and copyright protections on software, open-source/freeware movements have established the GPL (General Public License). Not only does this alternative offer a model to combat EULA/shrinkwrap, it also offers a licensing scheme appropriate for the developing world . . . a world that desperately wants to acquire computer technology but can’t afford the licensing to use it (47).
- In her analysis, H. looked at 14 EULAs and discovered that whether the software was free, for educational purposes or commercial the EULA protected in similar ways. First, all are use licenses. . . which means you aren’t purchasing the software, just the ability to use it[5. You might consider likening these sorts of licensing agreements to how Hardt & Negri (following Deleuze) describe the function of rent in the postindustrial economy,]. Next, EULAs prohibit reverse engineering. EULAs also designate software sales “as-is” and note that the contract (and license) can be revoked at any time if there is a violation in use.
- UCITA pushed IP protection outside of copyright (a public law domain) into the law of personal contracts (private law). As such, copyright was circumvented in the interest of the personal contract (which makes no provisions for fair use or the first sale doctrine). Further, private contract law also meant that censorship of a product could be imposed (rather than the public protection afforded under copyright law). UCITA did not pass.
- GPL states that all computer code designed under the license is available to all users (57). GPL also stipulates that open licensing is hereditary – if you improve on open-source code you must also give that code back to the open-source community[9. Hence the development of tutorials and how-to sites to capitalize on open-source platforms like WordPress MU]. GPL is “free” in that the code is accessible; however, it doesn’t mean you can’t charge for what is developed from the code.
- GPL is useful because: 1) code is open; 2) code is open genealogically; 3) people make money from services surrounding the code, not the code; and 4) piracy isn’t an issue because the code is free (58).
- Open source is a good idea because: 1) it is cheap . . . as such, it can serve many developing nations in entering the information economy; 2) businesses and governments can use the code without paying for proprietarian software; 3) open-source provides a comparative advantage to businesses because many different companies will be shopping for their services (because they too use the same open-source software code to run their stuff); 4) the code is more bug free because of the social production and testing it undergoes in a community of users[6. Implications here for bittorrent tracker development for your own work.]; 4) easier licensing and information exchange leads to quicker, more drastic innovations in code (60-2); and 5) open-source provides an alternative to TRIPS/WTO constructions of IP. . . and it eliminates piracy.
- Open-source encourages a “moral liberal regime of copyright” that understands citation – not proprietarian claims of ownership – as the locus of responsibility for appropriation (64).
Chapter 3: I want my MP3s – The Changing Face of Music in an Electronic Age
- H. uses the example of appropriation by Enigma to demonstrate how the production and distribution of commercial music in the contemporary age is a transnational action (that, in turn, identifies the complexities of IP in transnational environments). As H. notes, “As the Enigma example illustrates, the international political economy of music rests upon a definition of rights that benefits the music industry and those that work within its framework” (67).
- H. claims that international piracy networks should be considered in terms and contexts of “global inequality, appropriation, and an understanding of music [and texts] as cultural communication” (67). H. makes this argument because music (and other shared media) actually move beyond the kinds of consumption models that the content industries have envisioned as distribution mechanisms toward a sociality that is infinitely more complex and nuanced than simple consumption.
- How filesharing is defined will, according to H., also define the future commercialization of the internet. According to H., music sharing is a form of “disintermediation” or a force that removes all the “middle men” in music purchasing (and into he process also topples the monopolistic tendencies of the culture industry).
- The conflict between the U.S. stance on FIMLA (allowing music to be played in businesses without royalties) in the context of TRIPS and the WIPO/WTO is a great example of the transnational nature of IP protection in the contemporary age (72).
- H. devotes a good deal of time to considering actions against Napster and MP3.com in order to demonstrate the assault on file sharing technologies. Yet, as H. notes, filesharing technologies are global . . . and because the users are distributed across vast temporal-spatial zones it is impossible to police every aspect of this massive, decentralized distribution mechanism (77). She goes on to highlight how business practices and industry models are outdated and inefficient; however, their shortcomings are pawned off on piracy and pirates as an excuse (as opposed to shifting business models).
- The argument about piracy as disincentive for further creation is problematized by H. as she considers the fact that bands continue to play music and give their music away despite a lack of monetary compensation (a monetary compensation that is usually drastically reduced by the predatory schemes of music publishers/signers) (79). Further, the monopolistic tendencies of the three or four international music conglomerates is further stifling the production of heterogeneous cultural production (in the formalized channels of the Culture Industry anyway) resulting in a loss of autonomy for the artist.
Chapter 4: Moralized Discourse – South Africa’s IP Fight for Access to AIDS Medication
- This chapter takes up the issue of overly constrictive IP in relation to issues of health and moral questions about access to medications that might prevent or at least forestall death (87). In essence, this chapter draws attention to an example of how transnational activism trumped the discourse of property with the discourse of morality and human rights.
- H. notes that Big Pharma has long monopolized the language of victimhood and moralized discourse as a means to impose strong IP regimes on developing countries at the expense and detriment of the health of those countries populations.
- The US, working in the interest of Big Pharma, has repeatedly used the TRIPS agreement as a means to circumvent low-cost access to pharmaceuticals in generic form in developing countries (98). The DOHA declaration assured access to medicines for poor and developing countries. H. claims that this success was the result of a shift from the legalistic world of IP protection to the materiality of lived suffering. . . a reorientation of discourse from the theoretic to the lived material of the lifeworld (107). This example also draws attention to the fact that health is a human right and that human health shouldn’t be commodified into systems of capital.
Chapter 5: Patenting the Body – Resisting the Commodification of the Human
- The patenting of genetic code could be described as a form of “posthuman colonialism” (112). In this section H. notes that human identity – despite being fractured, distributed, and always in the act of becoming – is wrapped around the human body (112); IP understands the body as a bundle of “rights” and, as such, allows it to be divided into a collection of individual parts subject to commodification and owned as “inventions.”
- In this chapter H. argues against the idea of the body as a “wasteland of untouched resources” that needs to be intermixed with the effort and labor of a scientist in order to be commodified into a product that has “value.” (113)
- The chapter considers the 1980 US Supreme Court case that extended property rights to humans; next, it looks at the ownership of human tissue through the John Moore case (a case that establishes the human body as natural resource to be appropriated for the inventive work of scientists); finally, the chapter considers the Human Genome Diversity Project in order to draw attention to the dangers in associating the human body with a set of property rights. . . rights that can be commodified and patented in the interest of capital.
Chapter 6: Traditional Knowledge and Intellectual Property – Seeking Alternatives
- In this chapter H. considers the oppressive, appropriative histories of colonialism as a means to consider how the natural environment (and knowledge about it) in colonized lands became another source for the privatization of indigenous knowledge – folk knowledge, or to use Boon’s terms, copia (136). Law, as the legitimating structure of the imperialist powers, secures this privatization through IP protections of local knowledges as commodities.
- The construction of indigenous peoples as “natural” and non-civilized allowed for an appropriation of them (and their knowledges) in the interest of the “common heritage of mankind” . . . in other words, indigenous knowledges were placed in the public domain (or were seen as natural resources), served up ready for appropriation into privatization schemas of the imperialist masters (138). This situation is made even more difficult by the counterclaims of IP protection for indigenous knowledge by the colonized themselves.
- In this chapter H. argues that instead of supporting the view of local knowledge as natural resource or supporting indigenous peoples rights to IP protection we should instead learn from the indigenous system of knowledge to see how we might more productively engage with IP and the continued expansion of the public domain against the forces of privatization and private property (139).
- H. notes that, “Traditional knowledge in the eyes of the Western scientist is ‘uncultivated’ knowledge – it is knowledge that has not been refined by the individual labor of someone who recognizes its value as productive property” (150).
- The shift of colonialization away from the natural resources of raw materials (rubber, wood) by colonialist, imperialist Western powers signals a concomitant shift toward the exploitation of the “natural resources” of indigenous knowledge (152).
- H. notes that the alternative IP paradigm (of control and protection) in indigenous cultures claims that there is “a concern for cultural control and preservation of the sacred within a culture. It is argued that it is necessary to recognize that many peoples throughout the world continue to value things not for their economic worth, but for their spiritual, cultural, or emotional qualities. In other words, it is possible to live an uncommidified life” (154).[7. Link this perspective on IP with the recent declaration of rights for living beings in Bolivia and you see the emergence of an alternative, non-capitalist ethics that refuses commodification in the interest of ecological harmony.]
- H. notes that a paradox exists in IP: as more and more people are aware of the repercussions of IP, they are more and more resistant to its prescripts, dictums, and directives (165)[10. Here you have an argument for the relevance of teaching IP in the comp classroom as a step toward a less capitalist ethics.].
- H. notes that the struggle over IP is actually a struggle over meaning: What will be the meaning and value of the public domain/ How should open source as an idea be interpreted? Is access to essential medicines a human right? What are the consequences of using biopiracy in language instead of bioprospecting? (165-6). H. also notes that direct, participatory activism plays an important role in resistance to IP.
- H. claims that IP is, inherently, a transnational issue. As such, alternative models (to the Euro-American status quo) of IP should be considered in developing a framework(s) that works for the contemporary era. This means moving beyond the logic of capitalism toward a communitarianism that understands that another world is possible.