IP, The Internet, And The Ancien Regime

As a consequence, the long-term future of the system of IP rights in general and of the patent system in particular might perhaps be no longer in the first place a tool for coshing competitors but for orchestrating the collaboration of players in a given market. The growing discussion of ideas like Open Innovation might be an indicator for such change of minds.

However, if these assumptions are assumed to be true, this development might well hurt companies basically relying on some sort of classic business model. They might see some incentive to fight down any transformatory steps in the system of IP law from a coshing tool towards a framework for orchestrating collaboration. I am inclined to call these proponents of the 20th century world representatives of the 'ancien regime'.

This is not pure theory. It is well known that e.g. a certain breed of books and newspapers publishers dont' like the Internet that much. The phonographic Industries still appear not to have made up their mind as to whether they should prefer to embrace companies like Apple aspiring to reconcile them with the Internet, or better prefer to continue sueing their own customer base. Moreover, already at the time being, a rift is perceivable between some companies and/or branches of the industry sticking to strong provisions for obtaining injunctive relief in patent law while others start tinkering with ideas of Soft IP etc. pp. having a potential of watering down the classic function of the patent system. In particular, take the ongoing discussion on the relationship between standards, on the one hand, and patents, on the other hand.

My guess is that while it should be acknowledged that the classic business model and, hence, the classic model of IP utilisation, will last for many years or even decades, it would be extremely wise to allow the augmentation of our economy by creating headroom for a variety of diffrent business models and corresponding models of IP utilisation to rise. Vice versa, it might turn out to be utmost detrimental to accept that lobbying efforts undertaken by proponents of the 'ancien regime' leads to a system of law where new approaches don't have room to develop and thrive.

As already indicated above, the main transformative factor of our days might be the growing availability of broadband Internet connectivity. And, it might not come as a surprise that there are plenty of political and lobbying approaches to control the empowering potency of the Internet by curbing its capabilities in a way that long established but outdated business models still can be preserved.

One important cornerstone for the proponents of that 'ancien regime' in this context is to promote the notion of piracy in conjunction with the Internet. In order to rescue certain established sorts of business models, they deem necessary to scare off people from using it up to the limits of its technical potential, utilising concepts of law originated deep in the 20th century. With all due respect to a recent decision of a Swedish Court, it should be well noticed that such law puts the current shape of the Internet in question as we know it today, well beyond some particular P2P-related Copyright quarrels. Mr Andres Guadamuz from U Edinburgh writes in his TechnoLlama Blog:

"[...] There are wider questions about the case. Will the music industry take it as encouragement and start suing other tracker sites? Roger Wallis, a visiting professor at the Swedish Royal Institute of Technology, and a witness at the trial (and subject to a flower online campaign), declared that “This will cause a flood of court cases. Against all the ISPs. Because if these guys assisted in copyright infringements, then the ISPs also did. This will have huge consequences. The entire development of broadband may be stalled.” While I am not sure about the accuracy of the statement from a legal standpoint, Dr Wallis may be right about the ISP implications. It has become clear in recent months that the copyright industries are starting to wage a war against ISPs and their role in copyright infringement. Their tireless pursuit of the 3-strikes policy is just one of the fronts in which this battle is being fought. This is a tricky strategy, as the 3-strikes policy is very unpopular, and as proved recently by France, one that politicians may be unwilling to back up (with the exception of South Korea). [...]"

And Mr Joff Wild comments in his IAM Blog:

"[...] Frederik Neij, Gottfrid Svartholm Warg, Carl Lundstrom and Peter Sunde are expected to appeal this decision. They will now become martyrs to a large community of internet users and anti-IP organisations, inside Sweden and across the world. The idea of standing up to multinational organisations on behalf of ordinary citizens is a very potent one - especially right now. Whether it is actually true or not does not really matter if the narrative is established in those terms.

There could also be serious political ramifications following today's decsion. The Pirate Party was founded in Sweden in 2006 and although it has not polled a large number of votes in elections up to now, it has influenced the stance other more mainstream parties have taken on IP. Since the Pirate Bay case began in Sweden, the party has enjoyed a new lease of life and currently has over 12,000 members, as well as the second biggest youth wing of any political organisation in the country. It plans to run candidates in the forthcoming European elections and proportional representation could see it winning an MEP's seat or two in Brussels. The Pirate Party is not only interested in copyrights, it wants to see the patent system abolished as well.

Whatever the rights or wrongs of this case, it seems pretty clear to me that once again IP and its supporters are on the defensive in Europe. [...]"

There are more worrying signs of some fruitless battles of representatives of the 'ancien regime' against a networked culture of the 21st century. The ACTA Drafts leaked some days ago do comprise some statements about border seizures of counterfeit goods etc. pp. Some of these proposals merely reflect aspects of the legal status quo in the EU. Why all this ado to keep such texts secret?

Mr Michael Geist recently had cited some Canadian Officials to the effect that one of the reasons was the perceived stalemate at WIPO, where the growing emphasis on the Development Agenda and the heightened participation of developing countries and non-governmental organisations have stymied attempts by countries such as the United States to bull their way toward new treaties with little resistance. Why should there be any need for hiding proposals concerning conventional border seizures from the Government of, say, Brazil?

Well, the more relevant item might be Section 4 of the Draft (which was empy in the leaked text!) on Special Requirements Related to Information Technology and Internet Distribution. In worst case scenarios, this might well be a placeholder for attempts e.g. to get away with the mere conduit privilege of Internet access providers or something like that, turning them into gatekeepers at will of the stakeholders of the 'ancien regime'.

In this context, the classification remark on the leaked ACTA documents is troubling:

"This Document Contains Foreign Government Information to be treated as US CONFIDENTIAL MODIFIED HANDLING AUTHORIZED*"

And further:

Derived from: Classification Guidance dated February 8, 2008
Reason: 1.4(b)
* This document must be protected from unauthorised disclosure but may be mailed or transmitted over unclassified e-mail or fax, discussed over unsecured phone lines, and stored on unclassified computer systems. It must be stored in a locked or secured building, room, or cabinet."

With other words, in terms of usual precautionary measures to protect state secrets in affairs of diplomacy, the ACTA Drafts always have been handled in a virtually open manner. If keeping secret those documents in view of snooping secret services of other countries had been in the focus, much stronger measures surely would have been taken. The sad conclusion of this finding appears to be that the real and single purpose of classifying those papers is to keep civil society (NGOs etc.) out.

All these desperate attempts to bring creative utilisation of the Internet under control of stakeholders of the 'ancien regime' might turn out to be some sort of Pyrrhic victory. Despite all speeches made by politicians on Sundays pledging the promotion and fostering of Innovation at all cost, the real picture is different: A substantial part of the ordinary people, of the political class as well as of the Executives in Industry are deeply terrified of what is currently going on in a breathtaking speed. Some personal skills considered valuable in a 20th century world are devalued at speed of light. And meanwhile many contemporaries even start understanding certain assertions aready given ten years or so ago during the dot com bubble, stating that there is always a tendency to overestimate short-term effects of technological revolutions while at the same time underestimate long-term changes. Now, roughly ten years after the short-term hype of the dot com bubble, more and more people begin to feel the heat some of the long-term effects of the technical revolution which by far is not over. Not everybody is enthusiastic. But, no doubt, progress in technology will go on and on, taking its toll in outdated models of how a society should run.

Finally, a thought-provoking analogy from Mr Lawrence Lessig's Blog:

"[...] Before 'the dawn of aviation', in fact, the law was that the owner of a bit of land owned not just the land, but all the land to center of the earth, and, as Blackstone put it, 'to an indefinite extent, upwards.' [...]. This, of course, created a problem once the history of aviation was born. For obviously, if I own all the space above my land, then companies like United are just napsterizing my property as they fly above my land. The Supreme Court finally resolved this matter in 1946. The Causby's, North Carolina farmers, complained because military aircraft were causing their chickens to fly in panic to their death as they smashed into the walls. The Causby's claimed "trespass" and demanded the military stop flying over their land. The Supreme Court rejected the argument that airplanes trespass. As Justice Douglas wrote for the Court, '[The] doctrine has no place in the modern world. The air is a public highway, as Congress has declared.' Were that not true, every transcontinental flight would subject the operator to countless trespass suits. Common sense revolts at the idea. To recognize such private claims to the airspace would clog these highways, seriously interfere with their control and development in the public interest, and transfer into private ownership that to which only the public has a just claim. 'Common sense revolts at the idea.' Where's a good 'common sense revolt[...]' when you need it?"

With other words: Conditions are perceivable where old-established law must give way to new technology. What might be regarded as common sense in the age of the Internet?