The story I have been writing for the past year is about technology,authorship, and property. It is a story which takes the past through thepresent and considers the future. My interest in technology is long standing.I am not a neo-luddite who believes technology, especially computer technology,has doomed us to a dehumanized existence. I am also not one to uncriticallyembrace a new technology without understanding the networks of power withinwhich it resides. While the progress of technology is a fascinating study initself, my interest lies more about the nest within which technology rests.This nest is one of property, authorship, copyright, and the larger economicand political concerns of powerful industries. These are all interwoven withthe technology itself so that one cannot study technology without also studyingthe surrounding issues. It is impossible to study the computer withoutunderstanding its historical situation. The solid object and the intangibleconcept surrounding its use are interconnected in the most important of ways.
Technology, also, exists within language. It is understood through storiesand gains social acceptability through the success of those who are paid toconvince us we cannot live without it. The stories which surround newtechnologies entrench an old notion of property, that there is a cleardistinction between what is mine and what is yours. However, new technologieshelp subvert this old paradigm by making it easier to share, to copy, and toexchange. Stories about authorship and ownership of computer technology aretold in order to naturalize the old-style system of proprietary ownership inthis new-style age. These stories are an important aspect of the intellectualproperty discourse which has the task of enveloping new technologies within itsfolds.
In the face of increased ability to exchange without control, it is importantfor stories about ownership to be told. Absent a clear understanding of whoowns new technology (computers, software, data bases, and telecommunicationsbeing the domain of a few powerful corporations), the average American citizenmay mistakenly believe they can communicate, exchange, and share informationfreely. While intellectual property may be a foreign concept to most people,it is the life blood of many industries. How intellectual property isprotected in an era where increasing exchange is possible is of great concernto me and to already established intellectual property industries.
When we entered the information age we entered a period where technology iscarefully owned and managed, but also an age where the conditions for totalfreedom in information exchange are possible. Anyone who has copied computersoftware knows that the reproduction is an exact duplicate of the original.Anyone who has used a VCR knows they can tape programs off the television withthe press of a button. But these are illegal activities. Most people do itanyway. It is called the 'free-rider' problem in economics. Regardless of thedisciplinary term, when it comes to information and cultural products, thetendency is to share, or at least be unaware of the illegal act you arecommitting.
If you were the owner of a software company, it is in your best interest toensure that everyone owns a legal copy of your program. Illegal copying harmsyour ability to maximize profits. However, there is no technological methodavailable to stop illegal copies because the nature of the program is to copyitself. People are allowed to back-up their legal software, but once thiselement of exchange is introduced copying becomes difficult to control.
Since you as a software owner cannot directly control the buyers of yoursoftware, you involve the law. This works well if someone has decided to sellillegal copies of your software. The 'pirate' is dealt with through lawsprotecting a certain definition of property. The same process works when youas a software owner charge others with copying sections of your code,replicating the 'look and feel' of your program, or reverse engineering yoursoftware. These activities are manufactured as criminal through a legalnarrative which describes these activities as crimes against property. Theselaws are legal stories which identify the bad guy and the punishment theydeserve. Staking out new forms of property does not occur without violence andthis violence is mostly subsumed under the law.
Legal avenues are not your only recourse. Because the illegal copying ofsoftware is not considered problematic by those who do it, and most Americansare pretty clueless about computers in general, and would just as soon own an'illegal' copy as an original, the rightful owner must somehow convinceeveryone to respect the conceptual fences he or she is establishing. This isdone through stories about the bad guys, stories which make them evil,dangerous, and of course, criminal. Public relations and 'education' are thetools of the late 20th century.
The narrative constructed goes like this: The hard working software companyspent money and time creating a product. Their hard work and ingenuity shouldbe monetarily rewarded and thus they get to own their software exclusively.Anyone caught with unauthorized copies is a 'pirate.' Anyone who appropriatesaspects of the computer code without permission is a 'thief.' These piratesand thieves are engaged in illegal activities, immoral even, which deprives therightful owner of their profits. They are also lazy because they steal insteadof create. They should be punished for their actions. Enter the world ofintellectual property.
In the world of intellectual property, a phrase can be owned, via trademark orcopyright. In this world, one must be careful what is painted on the walls, This dissertation is primarily concerned with the intellectual property law ofcopyright. The legal protection granted copyrighted works is premised uponwhat I will call a "traditional" story of copyright. This is a story whichemerged over 200 years ago and has been a controversial legal doctrine sinceits inception. Despite criticism, however, the traditional story of copyrightis rarely questioned and the story is fully embraced by the government andlegal communities which defend its assumptions with vigor. I am interested in this story for many reasons. First, because theinformation age is upon us and regardless of how we feel about technology, itis here to stay. Second, it is time we put energy into finding something toreplace the centuries old notion of 'intellectual property' instead ofinvesting more time and money into enforcing laws not fit for a digital world.The 'traditional copyright story' as outlined above, has grown from over 200years of ideological struggle designed to draw territorial boundaries aroundcultural goods. As we enter an information age, the 18th century notion of copyright shouldnot govern our legislative process. The traditional story as currentlyconstructed and enforced effectively thwarts the potential of informationtechnology. Third, while the possible subversion of this particular propertysystem is likely, it will not happen without great struggle. There is too muchat stake economically for the large power brokers of the time to quietly submitto such a revolution. I am interested in this topic because if we do not watchcarefully how the narratives concerning information and technology as propertyare constructed, we will find ourselves in a future of Orwelian proportions.Finally, I am interested in this topic because the potential for technology toradically transform the way we think, create, and exchange information isastounding. The narratives which have been created to entrench private property in theinformation age use multinationals as 'victims,' teenage hackers and developingcountries as 'villains,' and involve the government as both a peacekeeper andenforcer. This narrative process is about staking out property lines in newtechnology. It is about letting the average citizen understand what isacceptable and unacceptable. If this message can be uncritically passed onthrough narratives to the general population, then the property rights ofcurrent owners will hold true. If this message cannot be embraced, then moreand more individuals will find themselves facing criminal charges until a pointis reached where private property is accepted. This dissertation is about howthe conceptual fences of private property are drawn around the intangibletechnological objects which make up our current economy -- software,information, and even entertainment. While there is a possibility that themore subversive freedom of information discourse will prevail, the more likelycourse is one of increased violence until intellectual property is as naturalas tangible property. The period in which to disrupt this process is now. My intent is a humanistic one and reflect the values expressed by TerryEagleton when he writes: Men and women do not live by culture alone, the vast majority of themthroughout history have been deprived of the chance of living by it at all, andthose few who are fortunate enough to live by it now are able to do so becauseof the labour of those who do not. Any cultural or critical theory which doesnot begin from this single most important fact, and hold it steadily in mind inits activities, is in my view unlikely to be worth very much. While I do not want to be distracted into defining and justifying every aspectof this statement, I do want to embrace its main assertion -- that a work oughtto center its humanistic intent. This is especially critical in the area ofintellectual property and technology. Intellectual property is a method forensuring that many are denied entrance to cultural works. This dissertation,then, is driven by my normative concern for the path we are traveling. I seeit as one which centers the maximization of property to the detriment ofcultural inclusion. It is because I have a desire to see a more sharingsociety that I have written this dissertation. This dissertation is guided by two levels of analysis. The first looks at thediscourse which constitutes intellectual property -- its historical roots, itsmodern manifestations, and its applications to computer technology. I followthis discourse through a variety of texts in order to illustrate how propertylines are created in technological intellectual property as this form ofproperty becomes increasingly important to the American economy. Thestrategies I employ vary by chapter. In most chapters, specific texts are used to exemplify the manner in which thediscourse operates. These texts were chosen for a variety of reasons. InChapter Three, the working paper which constitutes the majority of the analysisis the most recent policy document put forth by the government on intellectualproperty and the National Information Infrastructure. In Chapter Four, thecourt cases mentioned are the closest to precedent setting without a definitiveSupreme Court ruling. Chapter Five analyzes a breadth of stories produced inthe popular media about computer hackers as a way to illustrate how property isdefined by defining its criminals. Finally, Chapter Six focuses on governmentdocuments about piracy because these documents give insight into how thegovernment constructs its policy towards intellectual property and who isinvolved. The second level of analysis has to do with how authorship is used to defineterritory and how technology subverts the authorizing function and provides forpossible alternatives to authorship. These possibilities and critiques arefound in Chapters Seven and Eight. CHAPTER SUMMARIES The first chapter is about narrative, the theoretical framework whichstructures this dissertation. It is about readers, writers, authors, anddiscourses. It is about how stories are told, why they are important and theimpacts they might have. This first chapter establishes the tension betweencontrol and exchange which is evident in intellectual property disputes. Thischapter, while linked to the dissertation, is designed to illustrate thegeneral conceptual framework within which I am working. Chapter Two begins the story of copyright . This chapter narrates theconstruction of a traditional copyright story. It begins in England in the18th century, highlights movements in Germany and France, and follows copyrightacross the ocean to the United States. This chapter is an assessment ofcopyright history and describes the transition from European copyright law toAmerican law. The Third Chapter describes how computer technology was first incorporatedunder copyright law and evaluates key policy recommendations to Congress on howto deal with technology. The most recent of these recommendations comes fromthe working group on intellectual property and takes up the story of theNational Information Infrastructure. This story tells us that the NII is usedto trade computer software and other cultural products illegally and must beregulated. The extension of property in the realm of computer softwareillustrates a trend towards greater proprietary control. Chapter Three dealswith the policy recommendations and Congressional action in regards to computertechnology. The Fourth Chapter takes up the translation of the traditional copyright storyinto the area of software and internet related problems. The protection ofcomputer software under copyright means it already is considered a form ofproperty. This chapter traces some of the major court decisions which haveshaped law in this area, establishes the traditional story as very muchpresent, and helps explain how the system of property works when applied tocomputer software. It is important because the codification of computersoftware under the concept of 'copyright' ensures that decisions will be madewithin this framework and the more radical possibilities are the illegalpossibilities. The Fifth and Sixth Chapters take us to the 'dark side' of informationtechnology. These chapters narrate how the hacker and the pirate helpconstruct the debate over information technology and intellectual property byproviding publicly recognized villains to be fought. In the name of protecting'legitimate' owners from the illegal actions of these villains the boundariesof intellectual property are carefully and uncritically drawn around newtechnology. The Seventh Chapter offers a critique of the traditional story. Finally, theEighth Chapter looks to the future and to the possibilities for authorship.The future scenarios detailed in this chapter are both probable and utopian. Some will not agree with the approach I am taking. How is it, afterall,possible for me to sympathize with thieves and dangerous criminals? For me,this is not the question. How these particular individuals are constructed asthieves and criminals is what interests me. They are constructed as suchbecause the technology which makes things so easy to exchange cannot be easilycontrolled, yet control is what is desired in an economy designed to maximizeprofits. In an effort to create a secure system, insecurity is manufactured.Yes, there are people who do harm to others. However, what is happening now isa struggle to control property ownership. Ownership established through 18thcentury notions of authorship, creativity, and originality. These conceptsensure that creative work continues to be looked upon as the product of theindividual mind when this is far from true. The current struggles overintellectual property help solidify the economic dominance of powerfulindustries instead of opening creative exchange up to everyone. Technology has the potential to transform our understanding of property,authorship, the production of knowledge, and our identities as Americancitizens. How new technologies will be protected and defined in an informationage has much larger implications than who will benefit. How boundaries inintangible property are defined, how we are defined as citizens, what isdefined as "ethical" and "unethical" behavior, and the extent to which we wishto see our ideas and minds commodified stand in the balance of this debate. There has never been universal consensus about the extent of intellectualproperty protection, despite government and business attempts to tightlycontrol it. However, the tension between ownership of information and freedomof information is intensifying as information becomes commodified and theobject of an international economy. The rhetoric about individual ownership isheated as new technology makes it easy to copy information and freely share it.This is a contest which transcends a boring recounting of the history ofcopyright. This contest is about how we will be defined as citizens, what willbe owned, and how we will produce and exchange knowledge in the future.