The Piratenpartei And Other Aspects of IP War

The incident triggering Mr Wild's recent comment had been the publication of the encyclical letter Caritas in Vertitate authorised by pope Benedict XVI. It comprised a relatively small portion of text concerning IP:

'[...] In the context of immaterial or cultural causes of development and underdevelopment, we find these same patterns of responsibility reproduced. On the part of rich countries there is excessive zeal for protecting knowledge through an unduly rigid assertion of the right to intellectual property, especially in the field of health care. At the same time, in some poor countries, cultural models and social norms of behaviour persist which hinder the process of development.'

This surely is quite a moderate statement if compared to some of the outright abolitionist campaigns from various anti-patent groups. Moreover, the direction of the critics appears to be sectorally focused on pharmaceutical patents. But the prestige of the Holy See behind such sentences might add to the general feeling that more and more parts of the public take an averse mood towards the patent system in general. Who is the IP advisor behind the pope endorsing such sentences in an Official encyclical letter, leaving the question entirely un-answered who should pay for the development of new drugs if there would be no patent protection in place? The EU Commission has apoproached the pharmaceutical industry in Europe with severe accusations of anti-competition behaviour including mis-utilisation of patents but at the end of the day their final report did not suggest to abolish or significantly reduce patenting for pharmaceutical inventions. From where does the pope take the competence in economy matters to do such kind of diagnosis?

A few weeks ago I had provided a summary of the recent developments concerning the German Pirate Party ('Piratenpartei') to be published by IPKat Blog, concluding in my statement saying that here in Germany the Piratenpartei might well become the new Greens of the 21th century, and the system of Intellectual Property as we know it would then likely suffer heavy collateral damages.

On the weekend of July 04, 2009, the German Piratenpartei have held their 2009 annual convention in Hamburg. Of course I wasn't there in person but I followed reports covering that event on the web, thereby heavily relying on twitter.com in order to get appropriate leads.

My personal impression is that - at least up to now - the German Piratenpartei has identified three areas of own core competence:

• Improvement of protection of civil liberties;
• Reform of copyright law; and
• Reform of patent law.

Moreover, I have gained the impression that the level of knowledge and understanding of the matter at stake in the heads of the main folks there is exactly in the above-indicated order:

They are brilliant in uncovering severe flaws in the factual presentation as well in plotting regulatory projects by members of the German Government and the respective supporting parliamentary groups concerning matters of civil liberties in general and in particular of Internet-related politics in particular (e.g. a Bill to set up a mandatory Internet filtering infrastructure).

Moreover, they have a relatively sound understanding of political issues in the context of copyright matters, mainly because of

• a long-standing tradition of dealing with the role of copyright in the context of free software (GPL and such stuff), and
• the recent development of CC licences which are getting increasingly popular.

At the bottom end of their knowledge list stands the field of patent law: They have little understanding of its inner workings, are used to utter severe doubt as to its usefulness at all, go mainstream in the sector of their clienteles by rejecting patents on computer-implemented inventions and biotechnology, but at the time being they don't dare to take an absolute abolitionist position like their Swedish counterpart.

Some elder folks in German are still having severe problems in grasping why the supporters of the Piratenpartei do think that the Internet is something special beyond a sectoral niche of technology so that defending it is worth to create and run a political party mainly devoted only to the impact of the digital technical revolution.

If ruled by the inner and strong feelings of many individuals of the political elite just now governing Germany, usually standing in the age of 40 years and above, the Internet as it stands now never should have come into existence. They are genuinely thrown into panic when considering that all of what they count as some sort of forces of the dark are able to freely access and utilise such powerful technology. They never ever would voluntarily accept such un-conditional openness of any global technical infra-structure. In former decades politics in Germany has well documented how they would have liked a nation-wide computer network which is easily controllable by the state: The predecessor of the Internet as we know it was - in Germany - a system called Bildschirmtext ('BTX' for short) technically and politically tightly controlled by the then state-owned German Bundespost. It was technically confined to within the borders of Germany; access to foreign computer systems was possible only in exceptional, pre-agreed cases via heavily regulated trans-border gateways. BTX was kept operational from 1983 up to 2007. It simply got crushed by the Internet which was not only technically far superior but also allowed unfettered access to a wealth of computer servers all over the world.

Surely some cautious politicians would now love to have gone at some length to update the old BTX system in those days in order to make it keeping pace with the technical evolution. But the Internet turned out to be somewhat subversive and, after all, disruptive: The technical development work stated with the famous ARPANET as early as 1969 but all of the technological progress reached until mid-1990s was quite well shielded from the general public in socially closed circles of military and academia. Nobody in politics or regulatory authorities took any notice. After in 1990 the gateways of the Internet were opened in a liberal fashion for commercial applications, it took roughly about five more years until it was actively perceived and embraced by the technology-affine early adopters in society. But the technology then flooding factories, offices and houses across the entire population was, in a technical sense, already quite mature, and it took only another five years for building a huge hype which was abruptly terminated in 2000 when the dot-com bubble burst.

Now the time window for crippling the Internet by heavy regulation was closed for some time.

There had been only one issue where politicians and regulatory authorities had sounded alarm in conjunction with the ongoing revolution of computer technology: Who remembers the cryptography debate of the 1990s, in particular the Clipper Chip initiative under U.S. President Clinton? It aimed to make law enforcement backdoors in certain encryption devices for telephones mandatory and was announced in 1993 and by 1996 was entirely defunct. During the second half of the 1990s we saw a heavy political debate in Europe about freedom of encryption on the Internet, and the dot-com bubble with its e-commerce promises eventually killed the weakened mood of politicians to restrictively regulate this field of technology.

Around the year 2000, the enthusiasts behind the first Internet hype had won their victory.

But afterwards? Well, after the hype was over it become clear that the Internet is of such versatility that it will penetrate our daily lives ever deeper. And costs for intercontinental glass fibre routes further plummeted, the reason thereof not being without irony: In the hype years of the 1990s, incredible sums of money had been collected for installing huge trans-ocean data transmission cables by wiring the high sea with tens of thousands of miles of glass fibre cables. After the dot-com crash there were large over-capacities, and some of the cable operators went bust. After closing the respective bankruptcy proceedings, those cables were still crossing the oceans, however, mostly un- or underused. But they could then in the years from 2002 up to today be purchased and put back into operation for much less money as the costs for the installation. Hence, the investors of the 1990s who lost huge sums in failed Internet backbone carrier companies effectively have subsidised the further spreading of cheap broadband access in our days.

And now, at the end of the first decade of our new century, even the most sleepy folks in economy and politics are about to awake, some of them crying foul when recognising what they had missed within the past two decades.

To summarise up: There have been two factors causing the Internet technology being ultra-disruptive, undermining normal routine regulatory approaches:

• The long incubation period from 1960 to ca 1990 where the technology was developed up to quite a technologically mature state without anybody outside some very hermetic circles in military, academia and technology spin-offs taking notice; and
• The availability of cheap and huge long-distance backbones for establishing inter-continental Internet connectivity at low costs, speeding up the uptake of the Internet after ca, 2002.

Currently I do see two main fronts of political battle on Internet regulation:

• The question of civil liberties; and
• Copyright issues.

As regarding the first of both points, in my Piratenpartei article I have given some account to recent German moves to establish a technical infrastructure for filtering Internet contents; I wont' go more into the details here.

Concerning Copyright politics, recently German publishers are, in view of ever declining numbers of copies sold, wreaking havoc and upheavel, perceiving that their specific business models are reaching some sort of a dead end. They act like a shipping company that used to operate ferries to cross a sound. Now a bridge over the water has come into operation and they are bitterly complaining that their business model has collapsed. Some of them now go to the Government, politically demanding additional taxes to be imposed on the bridge users to the benefit of the shipping company.

In reality, the Hamburg Declaration of various international publishers has been finalised demanding new additional ancillary copyright protection to safeguard the future of established business models of journalism. The text of the declaration is quite vague but what is meant might be that the freedom of setting hyperlinks for free shall be curbed; in particular search engine operators and other aggregators like bloggers would be required to pay for linking to websites of established publisher's companies. This approach might be seen in relationship to some uttering from an otherwise distinguished senior U.S. Judge Posner who recently suggested to ban linking in order to save newspapers.

It goes without further saying that such initiatives, if successful, would destroy the Internet as we know it today. And I am inclined to add that destroying the collaborative dynamics of the Internet surely would harm Europe's economic well-being.

As some sort of side-effect of this kind of death agony of old-fashioned business models we might see a strong rise of groups like the Piratenpartei taking a very critical stance on Intellectual Property. What I have described above relates to Copyright; however, groups favouring some sort of abolitionist agenda will most probably not stop short before reaching the boundaries of the realm of patents. The question will then be how big will be the resulting collateral damage with regard to the patent law.

Finally I would like to hint towards another grouping aming at creating a more sound intellectual underpinning of critics of the current system of Intellectual Property. In the years 2008 and 2009, the Heinrich-Böll-Stifung, a German not-for-profit foundation politically supporting the German Greens, has hosted a series of parlour talks on "Zeit für Allmende" what I would like to translate into "The time for Commons has come". The invited participants were recruited from broader quarters of the Greenerie, of the churches, from universities and from circles of journalists. In one of the talks it was explicitly mentioned that options for new political coalitions towards strengthening regimes of commons at the expense of regimes of property should be discussed. The result of all that efforts seems to be condensed into a manifesto titled "Gemeingüter stärken. Jetzt!" - "Strengthening Commons. Now!". Very similar to the situation at the Piratenpartei, the topics within the field of Copyright appear to be evaluated more precisely than in the field of patents; in the latter case, the usual sectoral assertion dominates (in particular, patents are considered evil in biotechnology and software).

For the patent people, any healthy option within this political tohu-bohu in the years of the Internet revolution and the resulting troubles with the legitimation of Intellectual Property Rights should not be a blind apology of the status quo ante. Not every aspect of Commons needs to be detrimental to the realm of Intellectual Property Law as, for example, the Open Source licences have shown. But it is high time for patent professionals and their associations like FICPI to find answers on the fundamental questions concerning the foundation and legitimation of IP which are now on the table. Where are committees of the professional Institutes like epi or other associations like FICPI, AIPPI, or GRUR, charged with toughening up the profession in view of the ongoing political discussion on, say, abolishing - in part or entirely - Intellectual Property laws to the benefit of strengthening a regime based on Commons?