PIRACY
The Intellectual Property Wars from Gutenberg to Gates
By Adrian Johns, University of Chicago Press, 591pp.
Reviewed – Canberra Times’ Public Service Informant 6 March 2010

Three recent Federal Court cases have highlighted the determination of intellectual property-based businesses to have governments enforce Intellectual property rights, and the difficulties raised in their doing so.

A young Brisbane man has agreed to pay $1.5 million to settle a case in which he was accused of copying and freely redistributing Nintendo game cartridge software.

A Federal Court judge has found that the band Men at Work infringed the copyright of the third-hand owner of the song “Kookaburra Sits in the Old Gum Tree” (previously gifted by the author to the Girl Guides Association) by using two recognisable bars of that song, as incidental musical quotes, in an instrumental bridge passage in the recording of an unrelated 32-bar verse and chorus.

Another Federal Court judgement has rejected a claim, from a coalition of movie rights holders, that the Internet Service Provider iiNet had infringed copyright by not preventing some of its customers using third-party Bit-Torrent servers to locate and download unauthorised copies of movies.

While the first case of game-cartridge piracy may appear relatively clear-cut, at least in legal terms, the Kookaburra case and the iiNet case highlight serious issues concerning what is covered by copyright, what is fair use, what is the social and cultural function of intellectual property, and how far up or down the supply chain legal obligations should be applied.

If intellectual property piracy is a form of theft, then legitimate owners must be robbed of their property. Is “intellectual property” an oxymoron? To what extent can an idea be someone’s property?

An innovation acquires value only when it is exposed to other people. Once exposed, it becomes part of the experience of those who comprehend it. From newborns to Nobel laureates, we learn from those who know more and we pass on to those who know less. To own information exclusively may seem as absurd as to own the air we breathe. But when societies are organised on the principle of private property and private reward for economic contribution, how is valuable innovation to be rewarded?

Professor Adrian Johns of Chicago University provides an illuminating history of the debates, wrangles and occasionally violent struggles that have characterised the development of intellectual property rights and their enforcement.

Since the european Enlightenment, economies generally have developed away from monarchic patronage, and toward monetized markets based on private property. Printing and later communication technologies have enabled markets for information of every kind, with ever cheaper unit costs of reproduction and distribution. Governments have long recognized that creators of valuable ideas, or valuable expressions of ideas, should be compensated for their effort and investment. But there is no natural barrier to replication and appropriation of their work in a free market for information.

Possession of intellectual “property” is ephemeral. I can acquire my copies or versions of your innovative creation without touching your original. So government-granted intellectual property rights can not control possession, but only control the right to exploit an idea in some publicly governed sphere. Patents (for a design) and copyrights (for a reproducible expression) are in fact private monopoly privileges. They descend directly from monopolies handed out by kings (published in “letters patent”) in return for money or loyalty. Early printers could be given a monopoly on the printing of Bibles, state proclamations or even mathematics, and royal patents for exclusive trade in a product could be given to a person who had nothing to do with its invention.

A state-granted intellectual property right is a defined opportunity to use (or authorise others to use) a created work in particular ways, in particular places, and for a particular period of time. Like other “rights”, without enforcement by state authority it is worthless.

As so often with a thorough history, Johns’ account shows that the conflicting interests and arguments, the commercial and political tactics, have barely changed over the centuries, regardless of the technical, legal or commercial details of the time. From 16th Century coffee house broadsheets to the digitised products of Microsoft, Google and Hollywood, the battle lines are the same.

Four stakeholder groups endure. Creators seek recognition and reward for their efforts. Entrepreneurs seek maximum market profits in publishing, broadcasting, manufacturing or other commercial exploitation. A public interest seeks maximum access at minimum cost, the freedom to appropriate and develop on others’ ideas, and trust in the authenticity of information and products. And politicians try to balance these irreconcilable demands, buffeted by vociferous lobbies and frustrated by often literalist courts.

Over the centuries it has been the entrepreneurs – not the creators – who win most arguments about intellectual property, defeating the generally disorganised, disunited and unfunded representatives of various public interests. The case for extending or enforcing property rights is usually promoted as supporting creators, but for the most part the commercialisation of creative effort, whether in print, movies, music, pharmaceuticals, inventions or software, delivers only trivial dividends to the original creators. Creators, often motivated other than by money, remain willing, though grumbling, feedstock for the information sales and distribution industries.

The real stakes are in the business risk of the entrepreneurs. The greater the profit at risk, the harder they fight to protect and extend their exclusive rights over that product. When government enforcement has wavered, industry groups have formed their own vigilante squads to raid suspected pirates, from early London booksellers to New York sheet music pirates of 1900 and Californian or Australian movie downloaders of today.

Much of our common law has evolved to protect private rights and property from arbitrary state power. But when private property becomes a legal fetish, the law’s practitioners and arbiters can fail the public interest.

Johns recounts how scientists and scholars have always worried that the monopolisation of knowledge can create serious blockages to the circulation of ideas necessary for human advancement. This debate goes back at least two hundred years to the 17th Century founding sages of the Royal Society. If anything, the private monopolisation of science is further advanced today than at any time since the Reformation, then the Enlightenment, busted the monopoly of the Church.

Recent decades have seen emerge a further group of stakeholders, beginning in the United States: the “patent trolls”. Harnessing casino capitalism to the laxity of US patent award systems, these entities buy up portfolios of neglected, obsolete or ill-defined “intellectual property” so as to extract payments from real businesses. Their claims only have to be marginally credible to be profitable, because many firms will calculate that the legal and commercial costs of defending their technical position, before an uncomprehending judge or jury, will be higher than a greenmail “settlement” fee paid to make the troll go away.

The “piracy” theme of this book highlights the defiance of information monopolies that was to some criminal, to others heroic, and to most simply pragmatic. The term was in use as early as the 1650s to describe British printers who re-printed popular works in defiance of the publishers’ own semi-official cartel – Stationers’ Hall.

As publishers step by step persuaded courts and parliaments to strengthen their property rights, the piracy industry moved to more accommodating jurisdictions – firstly to Edinburgh, Brussels, then Dublin. When English law was imposed on Dublin in 1800, leading book pirates such as William Carey (an Irish nationalist) emigrated to Philadelphia or New York, where the new United States of America welcomed and sheltered their enterprise as a stand against British economic privilege.

For over a century, American governments authorised or encouraged any “piracy” that served their purposes of nation-building, in what British publishers and governments deplored as “a scandal to civilization”. To this day, nations able to export goods and services based on innovation call for enforcement of property rights. Nations less developed in innovation or production comply only so far as their arms can be twisted by threat of sanctions. America, Japan and Singapore, all once enthusiastic pirates, changed sides as each, in turn, became a developer of innovation-based products. Most governments, on all sides, silently condone or encourage industrial espionage where the strategic value may seem to outweigh the threat of sanctions. And so the pirates sail on in new waters, whilst intellectual property entrepreneurs look for the main chance, mount public propaganda campaigns, or find ways to live with marginally dented profits.

Johns wonders how intellectual property rights can survive this Internet age of borderless, instantaneous and apparently uncontrollable exchange of information. An historian not a futurist, he will only hint that owners may have to accept some reduction in the scope or duration of their rights. Despite current rhetoric and propaganda stunts, governments may be losing the ability, and perhaps the will, to defend exclusive rights in a global market.

This large work is ambitious in scope and rich in case study. Johns writes well and holds attention, for the most part. Given the scope, I felt some attention could have been given to inter-governmental processes for coordination of intellectual property issues, from the Berne Convention of 1886 (not joined by the United States until 1988) to the current World Intellectual Property Organisation, WTO treaties, and the USA’s growing web of bilateral “free” trade agreements that demand governments criminalise the pirate trade in intellectual property.

For governments, intellectual property enforcement will always be a hot potato, with significant private interests ranged against irrepressible market forces, and new generations of pirates following each advancement in information technology.

Richard Thwaites has worked in book publishing, journalism, the National Office for the Information Economy, and on international negotiations on trade in services.