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Politics of Intellectual Property: Environmentalism for the Net?"This essay argues that we need a politics, or perhaps a political economy, of intellectual property. Using the controversy over copyright on the Internet as a case study and the history of the environmental movement as a comparison, it offers a couple of modest proposals about what such a politics might look like--what theoretical ideas it might draw upon, and what constituencies it might unite.
Mertonianism Unbound? Imagining Free, Decentralised Access to Most Cultural and Scientific Material"This is a workshop about the commons and scholarly communications. I was honoured to be invited to it, and even played a small role in asking Elinor Ostrom and Charlotte Hess to write one of the original papers that helped focus the inquiry. I have written extensively about intellectual property, the public domain and the commons and care deeply about the future of scholarly communications, particularly in the sciences. Designing an architecture for freer and more usefully accessible scholarly work is a fascinating task, and I agree with many of the participants that the literature on the commons has a number of insights to offer. So I was both pleased and excited to be given the task of writing about the commons and the public domain in scholarly communications. This enthusiastic prologue notwithstanding, I am going to stray from that task -- one that is performed ably by others in this distinguished group -- and instead suggest that we need to think still more broadly about our subject matter. My topic is Mertonianism beyond the world of scholarly communications: the impact that more open access to cultural and scientific materials beyond the academy might have on scholarship, culture and even science. One implication of the commons literature is that in attempting to construct a 'comedic' commons, one must think very carefully about its boundaries -- the limits on who may use it and for what types of use. The tendency of my argument here is that, in the scholarly communications commons, the boundaries ought to be very wide indeed: one important design principle is that wherever possible neither use, nor contribution, nor ability to participate in the fine-tuning of the system should be restricted to professional scholars."
Mapping the Musical Commons: Digitization, Simulation, Speculation"This essay is a speculation on how recent digitization and simulation technologies are providing a means of mapping cultural processes that may contribute to new ways of enclosing the musical commons. Three broad, shifting, and interwoven themes permeate this speculation: contested concepts of ownership between a disorganized and reorganized capitalism; blurred distinctions between cultural products and human processes; living beings between the convergence of technologies for mapping and simulation. By outlining a potential paradigm shift in how people understand music, the essay suggests some new directions for ownership and control of primary cultural resources, especially with respect to embodied and simulated musical processes."
Fair Use Infrastructure for Copyright Management Systems"In this paper, we propose to address the displacement of a particular legal rule, the copyright fair use doctrine, by coded copyright management systems (CMS) rule sets. The fair use doctrine serves a variety of purposes in the current copyright system, including alleviating certain types of market failure, mediating between First Amendment principles of freedom of speech and the copyright system's grant of exclusivity, and facilitating bargaining between copyright holders and potential users. CMS technology addresses only one of these purposes: that of avoiding market failure due to comparatively high transaction costs. Current CMS proposals make no provision for addressing other fair use functions. Similarly, although recent legislation concerning CMS affirms the continued viability of fair use in digital media, it makes no provision for access to CMS-protected works. Thus, the access and use rules encoded within CMS potentially displace the carefully-crafted policies of the copyright legal rule, either by prohibiting unauthorized access and use altogether, or by allowing the copyright owner the technological discretion to constrain the degree of fair use. We argue that the social policies of fair use would be better served by a CMS framework that mimics as closely as possible the fair use access paradigm of published print media: low cost, potentially anonymous access exercised at the user's discretion. After reviewing the options for accommodating fair use within the framework of technological protection, we propose the creation of a 'trusted third party' CMS infrastructure that includes the Library of Congress. We suggest that as a condition of anti-circumvention protection, copyright holders who choose to encrypt their works for public distribution be required to deposit the key with the Library of Congress. Fair users would gain access by requesting the key from the Library or from a private repository within the network, rather than by presenting a "fair use license" to the copyright holder. The identities associated with key requests would be kept legally secure, under legislation similar to current protections for library patronage records. Finally, we review the implications of this proposal, cautioning that it is a second-best alternative to unimpeded fair use access."
Reclaiming a Commons"Our aim is to build links-- to get people to see how in our past we have always understood the value of openness. Not just in Stallmans Free Software Movement, not just in the Open Source Movement, but throughout our tradition, this is our past. And so we have launched a range of projects to stir up this idea that the commons is the open society. Challenging the copyright extension bill, building open code for education, pushing open governance projects, funding open research, supporting open source: This is an effort not to coopt, but to argue in support. This is an effort to get people to see that there is an undeniable place for a commons in a free society, and that commons will only exist if it is built."