RESISTANCE TO INTELLECTUAL PROPERTY: WHERE I DO TAKE A SIDE
In the Spirit of Aaron Swartz
Hal Pepinsky, firstname.lastname@example.org, “peacemaking” at pepinsky.blogspot.com
March 4, 2013
For all I have claimed in many a recent blog post to resist taking sides, as in victim offender mediation, I do have one exception: freedom of sharing of honest information. This is the primary reason that leads me on principle to favor restorative justice as the term is applied across the board: the only rules of admissibility of evidence are taking one’s turn at speaking to balance everyone’s talking and listening power, and not calling each other names. Personal interest is the only qualification for standing. And the parties to mediation are ideally the only ones who set limits of confidentiality. Beyond those boundaries, information is free and beyond manipulation. I call that “synergy,” where what (i.e., information) one’s return on what one gives is exponential. Thus does synergy supplant the entropy, the social heat, of exchanges that on their face hurt all victims who are present.
Today and tomorrow, instead of the usual 8am eastern time hour news broadcast, www.democracynow.org is livestreaming the two-day Freedom to Connect (FTC) annual conference, from the stage of Silver Spring, Maryland (DC suburb)’s historic town movie theater. I watched the opening hour. One segment included this year’s keynoter and Derek Khanna, now a fellow at Yale Law School, who was fired from the staff of a member of Congress for circulating a memo, that a recent bill to make copyrights permanent. (At democracynow.org, you can click on this and the other opening interviews to see one at a time.) Khanna cited one of the powers granted Congress under art. 1, sec. 8, that gives Congress the power:
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
As matters stand, federal law has given copyright and patent owners the power not simply to require royalties for use as one of their products as a component of another invention (thus promoting invention rather than stifling it as the writers of the Constitution intended), it is now, for instance, subject to a federal sentence of 5 years and fine of 1 million dollars to hook a US-made cell phone up to a computer and change (unlock) the settings so that the phone will take another service provider’s card (see another of the segments of the opening hour), one outcome $32 million lobbying by AT&T and Telecom. The provision of the law, that went into effect last month, was created by the Librarian of Congress, a presidential appointee, who struck out that “exception” to ownership of broadband access that is granted by federal license. If you think that’s outrageous, check the rest of the opening hour, or just tune in live to see how access to the internet is being monopolized.
This year’s conference commits itself to continuing the mission of the FTC as spoken by last year’s keynoter, Aaron Swartz. Swartz killed himself in January rather than show up for trial on federal criminal charges, for downloading more otherwise public information than a platform provider’s license allowed, even though the provider (for Harvard and MIT) did not want prosecution. It struck me as I thought about Aaron Swartz’s suicide that it was a US political cultural equivalent of the image that comes to me of the Buddhist monk self-immolating in the middle of a Saigon thoroughfare. Both connote despair. This time, too, the spirit of a suicide’s despair at structural violence gives synergizes the cause he lived and died for.
The most basic part of my anarchist thinking, a level beyond that of taking no moral sides, is that the accumulation of more property than one needs to support oneself and one’s communities, is the theft of information for one’s own profit. In A People’s History of the United States, Howard Zinn’s premise in his opening chapter was that the US empire was created by imposition of the English institution of the right to own land, broadened in the 5th Amendment to the Constitution to preclude taking property “without just compensation.” Now, the most fertile ground for securing the growth of global accumulations of private capital, is the realm of cyberspace. All this with such mass media obscurity that even this morning at the conference, not once did I hear anyone even mention antitrust laws and regulations. What a contrast that is to the time when the Sherman Anti-trust Act was passed.
Much as I value that Aaron Swartz’s martyrdom has brought to the service of the freedom of speech I too hold dear, martyrdom is not my own path. But freedom of information has been sacred to me since my Mama persuaded me in the late fifties that if all the state secrets in the world were suddenly made public, we would be in no greater danger than before. Looking back, that attitude helps as much as anything explain the divide between me, the intern, and the state department figures I talked with, including my suggestion to Secretary Rusk at his office reception for legal interns that support for US Vietnam policy would be stronger if the public knew that policy emerged from ongoing, vigorous debate among State Department professionals. It certainly was why, from the first manuscript I received for review to this day, I write nothing to editors except what I write in the section for authors, where I include my name and contact information. Resistance to exclusive ownership of information was what led me to take the initiative to get the attorney general to tell Indiana University that they really ought to open their financial records. By the same token I spent the next four or five years pushing promotion and tenure candidates’ right to see what was written about them by all evaluators, until the legislature changed the open records law to give state employees that right. (I notice that today that right is taken for granted at public universities across the nation; the only exception I know is Iowa, which grants no such right.) As I talked to administrators about P&T records, time and again, they told me that reviews just wouldn’t be honest if they were not confidential. I’m sorry, but my academic parents who themselves were academic brats raised me from childhood to believe that true scientific discovery depended on honest, open sharing of data, and if that doesn’t include information that a faculty member’s academic career depends on, I do take sides: Promises of personal confidentiality aside, groups and companies and institutions have no right in my book to own access to their information, let alone to their trade secrets.
Since I began declaring my lack of belief in ownership of intellectual property, the comeback has been: But without protection, many artists couldn’t afford to support themselves by doing their art. It occurs to me that this argument carries no more weight than the argument that tax increases for those who make or own the most will stop small business owners from hiring. Structurally, the only institution that can serve is the one Adam Smith warned against: the concentration of depersonalized, global monopolization of property, from musical downloads, to genetically engineered seeds. And underlying the control of all forms of property is the control of the flow of information. Love and peace--hal