[thingist] I don't care if Bill Gates thinks it's communism!

[w]

Philippe Aigrain, champion of the digital commons died two weeks ago in
a mountain accident. He was 71:

https://mondediplo.com/2005/11/13commons

Is there any limit to property? Current developments might suggest not,
as property rights are steadily extended. Property rights, in the form
of patents, copyright and, to a lesser extent, brands, apply to ever
wider fields and are protected by ever stronger laws, police powers and
technological tools. Resistance to the patenting of medicines,
software, plant varieties and cell strains has been active and
determined. But it is up against a concerted offensive by multinational
companies, patent offices, specialised legal consultants, the United
States government and the European Union, all working together to
reinforce and extend property rights.

New technologies are helping to make copyright law more strictly
enforceable, preventing the use of copyright material even for
legitimate ends (1). When it comes to violating intellectual property
rights, everyone is guilty until proven innocent, from users of peer-
to-peer file-sharing networks to farmers whose crops have accidentally
become mixed with genetically modified varieties for which they do not
hold licences (2).

Jean-René Fourtou, the CEO of Vivendi Universal and chairman of the
International Chamber of Commerce, addressed directors representing
pharmaceutical, media and software multinationals at the United Nations
in October 2004. He announced a global war on intellectual property
piracy, calling on business leaders to unite and form a massive lobby
working to influence governments (3). This will be a pre-emptive war
that lumps independent producers and users in with industrial
counterfeiters and organised crime, imagining a single enemy that will
be defeated via tightly and ingeniously enforced property mechanisms.

There has been resistance to this offensive. Campaigns for access to
medicines in developing countries have had some success, as have those
against the patenting of software or living organisms. Increasingly,
patent applications for GM crops or biotechnology products are
rejected. But resistance is fragmented; campaigns only rarely succeed
in pulling together as parts of a single cause.

On the technological side, there is a strong pull away from ownership
of published works or recorded media. New forms of collaborative
innovation, whereby ideas and expertise are freely shared, are proving
more productive than traditional ways of working. Once dismissed as the
work of an eccentric fringe of naive scientists who didn’t understand
the harsh reality of economics, these cooperative approaches are now
being taken more seriously. They have the particular advantage of
orienting innovation towards the general interest and the preservation
of cultural diversity, rather than being tied to profit incentives.

Academic research has convincingly established the superiority of what
Yochai Benkler calls “commons-based peer production” (4) in a wide
range of information technology development. In this model, every stage
in the development of a product is freely accessible to all, and anyone
who wants to use or modify it may do so as they see fit. The product is
in this sense a common good, and is often protected against patenting
by any individual or group.

The development of diametrically opposed visions vying for pre-eminence 
will have profound implications for the future not only of technology,
but also of the world’s economies and social systems. Two scenarios are
proposed. One vision’s most fervent supporters are a small group of
large multinationals, represented by Fourtou’s UN audience. Their
position was summed up by Bill Gates, who dismissed those wishing to
restrict intellectual property rights as “modern-day communists” (5).
More moderately, the defence of intellectual property is based on a
conviction that it is the oil, “black gold”, of the 21st century.
Critics such as Jeremy Rifkin (6) regard that defensive vision as a
plausible nightmare which is to be avoided. And the defensive vision
has flaws that cannot be ignored. IT networks do not lend themselves to
requisitioning or to restrictions on access and usage; such
restrictions are a hindrance to their development.

A number of important projects (see Open sources, below) have shown how
powerful the alternative vision of cooperative development can be when
freed of the constraints imposed by property and contracts. But there
are difficulties: attempts to expand free cooperation models and apply
them to new areas meet internal obstacles. One problem is the
complexity and perceived impenetrability of technology, whose future we
have been too willing to abandon to specialists. Another is fear about
what reappropriation by the public might mean. Society’s inventiveness
is gradually finding ways around these problems.

The preservationists, with their artificial engineering of scarcity to
maintain monopoly prices, are encountering serious difficulties:
information capitalism is proving as fragile as it is powerful. A
serious illustration of this fragility is the total divorce between
pharmaceutical companies’ profits and share values, and their
strategies’ real effects on public health. Financial concerns lead them
to prioritise research objectives that are not those which society
needs (7). Coalitions are now emerging to challenge the arrogance of
big pharma proposing an alternative that will re-establish the common
good alongside the principle of property, complementing the more
general effort to rein in the financial sphere’s unrestrained power
over the economy and society.

Is this hoped-for coalition of the common good possible? Or is the
fight against restrictions on the circulation of information goods
(including data, software, expertise, genetic information and the
organisms that contain it) a utopian dream? The movement has had a few
successes: resistance to software patents in Europe; the emergence, at
the World Intellectual Property Organisation; and at Unesco, of
coalitions that bring diverse NGOs together with developing countries’
governments. Officially, documents such as the 2004 EU directive “on
the enforcement of intellectual property rights” (8) are intended to
fight organised crime and its links with industrial counterfeiting. In
practice, they facilitate attacks on generic medicines, freeware and
voluntary sharing of products.

Do charities and campaign groups working with impoverished countries,
plus a few lawyers and political figures, have a chance against highly
organised business lobbies defending IP with armies of lawyers and
connections at the highest level in governments and political parties?
There are reasons for optimism. Though the international legal system
seems biased towards the interests of multinational companies, it does
not know how information is exchanged and innovation achieved in
reality. Despite redoubled efforts, tighter rules and harsher
enforcement practices, stopping free information exchange is about as
easy as pushing water uphill.

The popularity of freeware is helping to establish the principles on
which it is based. Goods developed through free exchange and
cooperative innovation present such advantages, in independence from
suppliers, that they are finding their way into more homes and offices,
including those of major administrations and companies.

This kind of creeping, underground spread among users is not enough. It
keeps commons-based peer production at a distance from the mainstream
economy, instead of developing new forms of integration. It cannot
provide funding to enable all citizens to participate in the
development of common goods and of a large, vibrant sphere of activity.
If it is to be credible, any coalition in defence of common goods must
articulate its proposals around the general aim of bringing capitalism
back under control.

To do that, we need to reject the defeatist mentality that treats
technological change as an external factor independent of human choices
and actions.

Philippe Aigrain
Translated by Gulliver Cragg

Philippe Aigrain is a campaigner for common goods and author of Cause
Commune (Fayard, Paris, 2005, www.causecommune.org)

(1) EU Directive 2001/09 frees the providers of “protection” technology
from any obligation to allow for legitimate uses of the material they
protect, even where the law recognises these legitimate uses. If the
protection is bypassed, it is so hard to prove that this was for a
legitimate end that in practice the technology makes the law instead of
the judge.

(2) See the case of Canadian farmer Percy Schmeiser’s battle with the
chemical giant Monsanto. Schmeiser was found guilty of violating its
patent even though the Monsanto patented crops he was accused of
“exploiting” had grown on his land because of natural accidents. See 
www.percyschmeiser.com

(3) Financial Times, London, 12 October 2004.

(4) Yochai Benkler, “Coase’s Penguin, or Linux and the Nature of the
Firm” in Yale Law Journal, New Haven, 4 June 2002.

(5) Michael Kanellos, “Gates, ‘Restricting IP is Tantamount to
Communism’”, CNET News.com.

(6) Jeremy Rifkin, The Age of Access, Putnam Publishing Group, Itasca,
2000.

(7) See Frederic M Scherer, “Global welfare and pharmaceutical
patenting”, The World Economy, Oxford, July 2004.

(8) Directive 2004/48/CE, 29 April 2004.