Dangers of over-zealous intellectual property cops

Worries about the poaching of intellectual property certainly didn't start with illegal downloads of Lady Gaga. Tensions between producers of art and ideas and those who wish to steal them have existed through history. At the same time, attempts to crack down on intellectual piracy have had their own unintended consequences, as Adrian Johns shows in "Piracy: The Intellectual Property Wars from Gutenberg to Gates," published last month by University of Chicago Press. Johns is a professor of history at the University of Chicago and chair of the Committee on Conceptual and Historical Studies of Science.

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Recent reports indicating that a British law firm tried to reap a windfall by threatening alleged digital downloaders with lawsuits have embarrassed the content owners themselves. The British Phonographic Industry has had to distance itself publicly from the venture, which seems to have intimidated large numbers of innocents.

Quite right, one may think.

But it is not the first time that the intellectual-property police have over-reached themselves. Indeed, a glance at the history of anti-piracy measures shows that this is really a case of "here we go again." And that history further suggests that mere distancing will not be enough. The intellectual property industry itself may have more reason than any pirate to fear excessively zealous policing.

Over the last half-millennium, measures to defend creative property have repeatedly proved counterproductive -- not just because individual pirates themselves escaped, but because those measures triggered public reactions against their own proponents. The major transitions that constitute the history of intellectual property itself were repeatedly caused by precisely this kind of reaction. In effect, the present nature of both copyrights and patents is a legacy of this long history of police overreach.

London's publishers of the eighteenth century, for example, would have understood the practices of today's intellectual property enforcers implicitly. In the 1750s, the city's publishers faced competition from cheap reprints produced in Scotland and Ireland - reprints that they denounced as piratical, because they impinged on what the Londoners insisted were perpetual property rights. They banded together and settled on a plan.

The publishers sent threatening letters to all the booksellers in the country, warning them to disown piracies on pain of prosecution and blacklisting. Ominously nameless agents were to be dispatched on horseback across the land to enforce the threats. The action's legal warrant was fragile at best, and in practice it proved disastrous.

An Edinburgh reprinter named Alexander Donaldson made the letter public and used it to launch his own, highly visible, appeal to save Britain's freedom from this kind of tyranny that would invade homes and constrict public knowledge. In 1774 the conflict came to the House of Lords. There, Donaldson won a sensational victory.

The attempt to uphold the principle of property in writings had led directly to the destruction of that very principle, because it had run up against convictions that were deemed more fundamental. What remained was the artificial, limited-term privilege known as copyright - the concept that we still retain today.

The industrial inventors of the nineteenth century, too - heirs to the heroic ideal of James Watt - would have understood today's enforcers. They complained loudly that patents needed to be easier to police and longer-lasting, denouncing rival industrialists as piratical. Their campaign to secure patentees' prerogatives had many implications, one of which was the passage of Britain's first modern patent law.

But it also sparked a counter-campaign to abolish patenting altogether. Led by Victorian Britain's principal arms manufacturer, it denounced the very idea of a patent as monopolistic, retrogressive, and philosophically absurd - and it identified the practice of enforcement as a serious impediment to the nation's progress. Although it came very close to triumphing (and a parallel bid in the Netherlands did triumph), the campaign against patenting eventually failed.

Yet it left a vital legacy. Almost all the arguments that skeptics have used to challenge intellectual property's principles and practices from then on, down to our own day, would be revivals of those pioneered in that conflict.

It would be easy to multiply examples of how bids to enforce creative property have clashed with other, more prized values, and thereby have proven counter-productive. It may even be that the nature of intellectual property makes such tensions inevitable.

Yet in at least two respects what is happening now is different. The first, obviously, is the advent of global digital networks. These evidently transform the possibilities for circulation and expropriating information, and create problems of policing intellectual property that are of a new order of magnitude.

The second, which is much less well known, is the rise of a global industry devoted to tackling those problems. The anti-piracy industry is nowadays a thriving one, with aspects including prevention, detection, enforcement, and, not least, lobbying for new laws and policies.

And it is not hard to find complaints, ranging across all the fields of the information economy, that the practices of this industry trespass on values central to a responsible, free society -- values like privacy and freedom of speech. That British firm's initiative may be a rather crude example, but it is certainly not an isolated one.

So the question that needs to be asked is both clear and consequential. The practice of policing creative property has repeatedly triggered the redefinition of that property itself. Could the same thing happen today?

In principle, there is no reason why not. Conflicts over intellectual property in its various domains -- gene patenting, GMOs, pharmaceuticals, and digital media, to mention only a few -- are an everyday presence. Criticisms and piratical practices in any of these realms have the potential to ramify into major challenges to the conceptual structure of modern intellectual property itself. What has been missing so far has been a sufficiently general trigger. The practice of policing could supply it. It would be ironic if the greatest revision of intellectual property's nature in 150 years were to be set in train by the very measures adopted to preserve it sacrosanct.

By Steven E. Levingston |  February 24, 2010; 5:30 AM ET Politics , Steven Levingston
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