How legislation is always linked to transgression

Excerpted from a long and really interesting interview of Yann-Moulier Boutang, conducted by Gaëlle Krikorian , and which appeared in the book: Access to Knowledge in the Age of Intellectual Property.


“GK: Until recently, most countries, despite enforcing their own laws protecting intellectual property, were not held to the same standards that are in force in the wealthiest countries. Now, however, every country belonging to the World Trade Organization must adhere to WTO standards, which has led to a considerable toughening of protective regulations in many countries. The question of how to apply these rules is currently at issue in most developing countries, but answers are not always evident. For intellectual property holders, the stakes are high: If the new laws are not respected, the property they hold loses all value. Yet you have put forward that the emergence of the notion of cognitive capitalism, the accumulation of immaterial assets, implies, by definition, a condemnation of the current frameworks of intellectual property law and of the tendency to impose increasingly restrictive protective measures. Should we then view this aggressive push to apply extreme, increasingly drastic policies to safeguard intellectual property, for example in the context of bilateral negotiations or international relations such as the Anti-Counterfeiting Trade Agreement, as the death throes of a dying watchdog?

YMB: Yes, I believe so. This is a classic, widely observed phenomenon. The

tightening of legislation, contrary to what we might think, does not equate to a

preventive implementation by the state or the authorities of a more repressive

system than the one that preceded it. On the contrary, it is a proof of the inverse:

that there are transgressions. It is the extent of these transgressions and the chal-

lenge to existing economic models that they express that explain the explosion of

enforcement measures. It was because the poor were poaching, chopping wood,

and traveling far and wide, especially according to where legislation favored

them, that the Poor Relief Act was adopted in Great Britain in 1662. Under that

legislation, beneficiaries could receive the poverty allowance only if they were

registered in a county and remained there, unless in possession of a fixed-term

work contract. (It is interesting, by the way, to consider the parallels with what is

currently happening in France and elsewhere with respect to international immi-

grants.) In Great Britain, the goal of the 1662 legislation was to limit the circulation

of the poor. We see the same phenomenon in the repressive laws governing slaves,

the use of tracking dogs, bounties, and physical punishment, such as the cutting of

tendons: Each of these barbarian methods expanded at a rate directly proportional

to the incidence of fugitive slaves attempting escape. In the same way, I believe,

major record labels’ excessive zeal for protecting intellectual property and the

insistence on this issue in the United States are mainly consequences of the fact

that much of this legislation cannot be applied and is constantly being violated.

With any legislation, you have to consider its application. Enforcement is

expensive and requires the power to monitor, to employ lawyers, to rule on cases,

to oversee the application of verdicts, to supervise payment of fines, and so on.

This kind of framework cannot be coordinated unless there are very large sums

involved. Beyond a certain tolerated level of transgression, the major labels will

take action. As long as there were only roughly fifty thousand users per day con-

necting to Napster to exchange data, copyright holders were unconcerned. When

the number rose to 36 million users a day, it was considered unacceptable—since

then, one can only guess how these exchanges have skyrocketed with the leap in

video downloading made possible by broadband.

Still, we need to realize that this push to curb access is, by nature, in absolute

contradiction with the spirit and practices of cognitive capitalism. The latter cannot

develop except through intensive digital usage, which in turn opens up an extraor-

dinary potential for the diffusion of content. This dynamic began first with text,

then sound, and then images. Gradually, everything becomes accessible, which

presents a significant problem for copyright holders, who then try to shore up the

walls, their legislative and technical protection systems, such as digital rights man-

agement (DRM). The framework protecting intellectual property was set up before

digital content found a wide audience, when broadband was not yet available. It

was the masses’ general ingenuity, more than the “general laboriousness” of which

Marx speaks, that grew with respect to technology. Because the goods in ques-

tion are nonrival, that is, infinitely consumable without being exhausted, copyright

holders find themselves constructing further obstacles beyond those protecting

material goods. These obstacles in the domain of knowledge goods are fundamen-

tally, absolutely artificial, whether they take the form of laws or technical tools such

as DRM. The tightening of rules is proportional to the frequency of the exchanges

taking place. Copyright holders are not raving, paranoid, or obsessed—they are

simply defending their interests, blow for blow. They are defensive lobbyists, simi-

lar to the planters who feared the effects of contamination when a free labor force

developed. They will use any means available, even, for example, attempting to

regulate in the name of antiterrorism, to gain influence over other countries and

defend against counterattacks such as Freenet, which allows people to share files,

browse the Web, chat, and establish Web sites anonymously, or the practice of

encrypting exchanges in order to keep their contents private.

What we have seen amounts to a series of desperate efforts. One may recall

the defeat on the users’ side, when Kazaa lost its case in the U.S. Supreme Court.

Radio listeners started recording broadcast content, digitizing it, and then broad-

casting it again without infringing copyright. Intellectual property specialists

called it “the analog gap.” The issue of such recordings was brought to Congress,

and certain members of Congress proposed, in all seriousness, that radio programs

should be aired with a technical tattoo to make these recordings impossible. That

restrictive project failed, because it was completely unrealistic, but this shows how

those hoping to restrict such exchanges sometimes let their imaginations run wild.

In French corporations and universities, the replacement of the position of

the director of information resources, or DRI, with that of director of information

systems, with security as the primary objective, led to an absolutely insane level

of compartmentalizing policies. These policies made little difference in a situa-

tion that has become familiar: You can build a stronghold, but when a pirate infil-

trates it, and he always does, he will be the one turning the protective systems to

his advantage, becoming invulnerable to expulsion. That is what happened with

Microsoft’s famous Palladium project, through which the firm hoped to create an

ultratough armor for computers by constantly violating users’ privacy to verify

that applications met intellectual property regulations. In the same way, when

Sony installed spyware programs in its video games, it was in the end at great cost

to the company. It wreaked havoc on users’ computers. Many lost the contents

of their hard drives. The company was unable to uninstall the program and was

finally forced to recall the games and compensate hundreds of thousands of cus-

tomers whose computers were destroyed. In the chase between cops and robbers,

the cops never get a head start. There is a delay, and their route is full of pitfalls.

The only real risk is when one is dealing with very large corporations that can

collude as oligopolies or cartels. The Internet would never have become available

to everyone, and we would never have witnessed the critical shift from heavy

computers with simple terminals (like those in the Sun system, Oracle, and those

of other computer companies) to the home computer and then the laptop, if ITT-

ATT had not been dismantled in 1974 into two separate firms, or, if later, IBM had

not been threatened by the prospect of a split.

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