Intellectual property law, technology, and our probable future

Intellectual property law, technology, and our probable future

NORTH- HOLLAND Intellectual Property Law, Technology, and Our Probable Future DEBORA HALBERT ABSTRACT The future for intellectual property law is ri...

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NORTH- HOLLAND

Intellectual Property Law, Technology, and Our Probable Future DEBORA HALBERT

ABSTRACT The future for intellectual property law is ripe with possibilities. Even as the U.S. government passes legislation that will make it more difficult to exchange information, technology is rapidly transforming the way we think and use the objects of intellectual property law. This article outlines our probable future if we continue to pass laws that perpetuate our current intellectual property framew6rk. I also offer two possible alternative scenarios that highlight the assumptions made in order to make intellectual property law work.

Introduction The United States is in a legal feeding frenzy over intellectual property rights. As intangible items become commodified, everyone wants a share. There are lawsuits over: who owns the images of the dead, who wrote a phrase in a song, reverse engineering of computer programs, the use of the "look and feel" of a computer program, ideas, body parts, and genetic material. Control over personal information is increasingly in the hands of data base owners who compile information on everything from consumer tastes to medical histories [1]. Ensuring the integrity of government computers against attack is an important security issue, and security as an issue is becoming increasingly important. Privatization of ideas and information, not to mention creative work, exacerbates the problem as property lines are drawn around intangible goods without acknowledging the dependency of culture on borrowing, using, rephrasing, and appropriating the work of others [2].J The question is usually phrased as how much can be o w n e d - not, ought it be owned? When ownership is challenged, it is not challenged on the grounds that intellectual property ought to be a public good, but rather to what degree it can be property [28].2 This distinction is important. When Pepsi trademarks the phrase "uh-huh," when Daffy Duck's DEBORA HALBERT recently completed her Ph.D. on intellectual property and computer technology at the University of Hawai'i. She is a research assistant at the Hawaii Research Center for Futures Studies. Address reprint requests to Debora Halbert, 1543 Liholiho St., Apt. F, Honolulu, HI 96822 email: halbert@ uhunix.uhcc.hawaii.edu t "Everyday life invents itself by poaching in countless ways on the property of others" (from M de Certeau, The Practice o f Everyday Life) quoted in Reference 2. 2 Additionally, economic analysis is primarily based on patent information even though it is generalized to copyrights and trademarks. This means that arguments for strong intellectual property protection may have less scientific validity than would appear at first glance. See Reference 28. Technological Forecasting and Social Change 52, 147-160 (1996) © 1996 Elsevier Science Inc. 655 Avenue of the Americas, New York, NY 10010

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intellectual property lawyer calls the local newspaper to tell them they can't quote the duck, and when a man's cancerous organ becomes the object of property, things are out of hand [3, 4]. 3 Our current framework of intellectual property, although enormously beneficial to the large information brokers of our time, is detrimental to the free exchange of information as well as the ability of a world citizenry to be a part of the future. The legal discourse of intellectual property is inviting because it seems natural to control your own creative work and to profit from it if possible. The notion of the individual author who is in control of his or her creative work successfully conceals the larger political and economic implications of the intellectual property system where major owners such as Microsoft own and control information systems and the information itself. However, the author maintaining copyright control is the exception, not the norm. If an employee leaves a company for another, her ideas remain the property of her past employer and they can sue to regain them [5]. If you want a paper published you will have to give the copyright to the publisher. There are even property rights in images. Elvis's image is not only popular but lucrative. His family does not own his image and cannot control its use [6]. 4 Jimi Hendrix's image is another example. His father says he didn't know he was selling his right to Hendrix's image and music and wants them back [7]. Two things about the history of intellectual property need to be kept in mind. First, the concept of intellectual property and the corresponding notion of originality stemming from a persons' intellect are not natural, nor have they been universally embraced. They are the outgrowth of economic interests and legal definitions within a specific historical context. That historical context is the eighteenth century struggle over copyright ownership and the development of a concept of "proprietary authorship" [18]. Second, intellectual property, specifically copyright, is designed to benefit the publishers who hold the copyrights, not the authors themselves [8-10]. 5 Copyright usually belongs to the company the author works for or the publisher who publishes the work, not the author. With each new technology, such as photography, television, photocopying, and computer programming, the concept of intellectual property is challenged due to the new relationships made possible. Each time a technology disrupts the intellectual property law, the law has been revised to include the new technology in a manner that keeps the basic relationship between "author" and "copyright owner" intact. The discourse on intellectual property obscures Just look on any can of Pepsi with the "uh'huh" slogan and you will see the TM sign. This means "uh-huh" is now the equivalent of any brand name and cannot be generically used by other companies. 4 "Presley's relatives, however, are not necessarily realizing the profit or controlling the uses to which the image is put. Prior to his death, Presley had conveyed the exclusive right to exploit his name and likeness to a corporation controlled by Colonel Tom Parker, his manager, in exchange for royalties. Factors Etc., Inc, is an assignee corporation controlled by Parker who is presumably free to exploit the Presley image in any manner. Once exclusive rights to attributes of the persona are assigned, they may be utilized without regard for the sentiments and sensibilities of heirs" (Reference 6, page 373, footnote 24). s As Mark Rose and Lyman Ray Paterson explain, copyright did not emerge to protect the author from exploitation. Rather, copyright emerged in order to protect publishers' right to the copies and their ownership of the "copyright." The legal battles of the eighteenth century relied on a discourse about proprietary authorship of ideas. The debate over copyrights and authorship culminated in the landmark case Donaldson v. Beckett. The case found that an author of literary text had a common law right of ownership that was held in perpetuity, however, the Statute of Anne (the first copyright law) restrained, or preempted this common law right, and limited an author's right to statutory ones (Reference 9, page 175). This decision to award statutory protection was designed to break the London bookselling monopoly by limiting the number of years copyright could be privately owned. A second implication of this case, and the most significant thing to emerge was the "development of 'intellectual property' as a creation of the author's i n t e l l e c t . . . " (Reference 8). However, the beneficiaries were ultimately the publishers (References 8-10).

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the relations of power that develop between authors and copyright owners, corporations, and the public. The recent conclusion of the Intellectual Property Task Force, that copyright law only needs minor repairs in order to address new technological concerns, perpetuates this relationship into the information age. As we mark the end of the twentieth century, several claims about intellectual property and the future can be made. First, intellectual property is becoming the exchangeable commodity supporting late industrial societies [11]. Second, cultural symbols, as well as day-to-day products, are increasingly privatized and unavailable for public appropriation [2, 6].6 Privatization of information and ideas will only become more expansive, because no incentives exist to alter the system in favor of more equitable access or freedom of information. Third, new technology can transform the way information and creative work is owned, made, and exchanged [12]. 7 In fact, this transformation is potentially so radical that our understanding of intellectual property, which developed in a printdominated age cannot adequately protect intellectual works in an electronically dominated age. s Fourth, in order to enforce intellectual property rights, it is increasingly important to resort to the law and education to convince people that ideas can be private property [13]. 9 As the stakes grow, so do the penalties for noncompliance. One final statement about intellectual property: the only way we think about creative work is as private property. Our language does not allow for other possibilities and our economic system provides such extensive monetary incentives (or the possibility of them) that to think of creative work as anything but personal property is foolish and naive. If you are unwilling to accept profits for your intellectual work, there are others willing to take the idea and use it for their own personal gain.l° Once the assumptions of intellectual property regimes are accepted and one speaks the statutory language of the law, there is no alternative but to see the expression of intangible thoughts and ideas as property. Given this context, it is important to stake out the ground created by intellectual property law as we enter a technologically driven future. There are several aspects of intellectual property law that must be kept in mind. First, how does the law interpret the text? Second, how is the author defined? Third, how is the law used? Fourth, what types of identities are created? Finally, what happens to creation? These are the questions I will ask as I begin to look at the future of intellectual property law and technology. Each scenario deals with these issues in different ways and each provides us with different alternatives for the future. Scenario 1: Business as U s u a l HOW DOES THE LAW INTERPRET THE TEXT? As can be imagined, the business as usual scenario began with current copyright law and offered few changes. "Literary work," as defined in the Copyright Act of 1976, 6"In the current climate, however, intellectualproperty laws stifle dialogicpractices-preventing us from usingthe most powerful, prevalent,and accessibleculturalformsto expressidentity,community,and difference" (Reference 2, page 1855; Reference 6). 7This is the conclusionof the Officeof TechnologyAsssessmenton this issue (Reference 12). 8This claim is contested. There are many intellectualproperty lawyers who believecurrent law is adequate with a few simpleadjustments. 9 If anyone doubts the types of punishmentthat the legal system attempts to assign to crimes dealingwith intellectualproperty, one only has to look to the documentationon hackers, pirates, and data theft to understand that a full-fledgedlegal battle designedto create property rights is being fought (Reference 13). ~0Copyright noticesare springingup due to the desire to exchange information, which corresponds with the desire to see this information used properly. Such notices state that the information within the electronic message is copyrighted but can be freely exchanged so long as it is always credited to the original author and

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had already been expanded to include works as diverse as photography, music, and computer programs [14].~1 More recent recommendations did nothing to change the basic interpretation of a text. The text remains the property of an individual copyright owner. However, the line between ideas and expressions, which typically was decided on a case by case manner, became more likely to err on the side of protection. The text, in legal terms, remained clear cut because, it was argued, it has decisive boundaries. A person creates an "original" work, which becomes the subject of copyright. The concept of originality was never questioned but always assumed. If you used part of a text it was called "fair use" (§107) [14], if you appropriate too much, it was called an infringement. The courts continued to decide the appropriate level of appropriation in a case by case manner which led to serious backlog as intellectual property became a more important economic issue. Derivative works provided an interesting test of originality and the boundaries of a text. Derivative works are adapted from other works. For example, a play based on a book written by a second author is a derivative work. Although these may be original in many aspects, because they are premised on someone else's work, it is a copyright issue. Derivative works cannot be too similar to the original or they violate the copyright. In the business as usual future, many avenues of creativity were eliminated by strict adherence to copyright law and the tendency to protect copyrights by not allowing for derivative works [15]. 12 Originality continued to be an important aspect of copyright even though it was increasingly obvious that there is little original in the products produced by mass culture. The original author, creating an American masterpiece, is a legal fiction used to shore up the culture industry. The text remained intact, even as the electronic world attempted to rip it apart, introduce alternative voices, connect it in a hyperlinked "metatext," and pull it in directions the copyright law was not able to address. In the business as usual world, the tension between the reality of textual creation and copyright statutes continued to generate enormous amounts of tensions that resulted in plenty of court cases. H O W IS T H E A U T H O R D E F I N E D ?

The author remained essentially untransformed by new technology, despite the possibilities of democratic authorship made possible by the internet. The author, or creator of the work, was rarely the copyright owner. Interestingly, whereas traditional publishing companies had a difficult time adjusting, they managed to transfer their copyright in hardcopy work to electronic work quite swiftly. These companies continue to retain copyrights and guard their rights against "inappropriate" use, even as the notion of the creative author is used to justify such strict protection. Laws have not changed with regard to the author. The law continued to define the author in terms of an autonomous individual. Collective authorship continued to be a profit is not made from the material. Of course there is no enforcement. However, it speaks to the willingness of authors to exchange ideas in a non-commodified manner while being all too aware that many less idealistic people do not think the same way. ~1 "Literary works" are works, other than audiovisual works, expressed in words, numbers, or other verbal or numerical symbols or indicia, regardless o f the nature of the material objects, such as books, periodicals, manuscripts, phonorecords, film, tapes, disks, or cards, in which they are embodied" (Reference 14, page 100). tz A recent case was decided against artist Jeff Koons who had taken a photograph entitled "A String of Puppies" and used it to create a sculpture of the same scene. The author of the photograph sued Koons for copyright violation. Koons's argument was that his sculpture, exhibited in a show about American banality, was a postmodern approach to illustrating the banality of art in an "image-saturated society." Koons used a technique called "appropriation" to bring this point home. He lost. (Reference 15)

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problematic for copyright law because it is difficult to share under the burden o f ownership. Authorship continued to be divided into "proprietary" or "real" a u t h o r s - t h e ones who published p r o f e s s i o n a l l y - a n d those who practiced exchange o f information without worrying a b o u t copyright control. Because the proprietary author was emphasized, most cultural and creative work was privatized and exchanged only for a price. HOW IS THE LAW USED? When arguments a b o u t intellectual property and computer technology first began, everyone agreed that works which already had copyrights attached could not be exchanged at will over the Internet. This sparked a first string o f lawsuits in which traditional publishers sued electronic publishers for copyright infringement when works they owned appeared via the Internet. H o w to define intellectual property over the Internet became the question to answer. The law became the tool used to ensure property rights were protected. The law was used in several ways. First, the law was used to protect and maintain property interests which m a y have been "liberated" from print via the Internet without the force of the law to protect them. This means people (most often system operators) were sued for newspaper articles, pictures, or music with copyrights attached which had been uploaded to the electronic world. Second, because the line between ideas and expression was traditionally decided on a case by case basis, the law was used in an infinite number o f technological lawsuits to determine when an infringement had occurred. As fair use and first sale doctrines were essentially curtailed in the electronic arena, it was easy to prove any copying was an infringement [16]) 3 Finally, the law was used to ensure that the status quo o f the Copyright Act was enforced. Because all court cases were (and are) decided on the merits o f the Copyright Act, there is no r o o m for questions that fall outside the proprietary framework. The law ensured that everyone played by the rules and the rules enforced a proprietary framework. Punishment for violating copyright was usually dealt in the form o f criminal penalties or huge fines. Pirating and hacking were the most notorious of these crimes against intellectual property and resulted in the most severe sentences. Once the criminal justice system had defined what these new crimes were, it was quick in assigning harsh penalities for criminals. A criminal law also developed that dealt with minor infractions such as distributing copyrighted information illegally. There was a significant increase in c y b e r c o p s - security officers dedicated to stopping computer theft in all its manifestations. Security for all types of intellectual property was the defense issue of the decade. Whereas the 1990s saw some computer raids, where private security forces invaded pirate strongholds, the twenty-first century saw an enormous crackdown on private bulletin b o a r d operators within and without the United States for offenses ranging from exchanging illegal software to maintaining a site where copyrighted materials were often sent and discussed. WHAT TYPES OF IDENTITIES ARE CREATED? The identity of author continued to be proprietary. A u t h o r s thought o f ttiemselves as people who created for a living. They continued to help illustrate to the general public what is "worth" reading. The "author function" identified by Michele Foucault years ago continued to inform the circulation o f texts [27]. Whereas m a n y people continued to use the Internet in a less commercialized fashion, this type o f discussion was relegated to the sidelines. ~3In a nonelectronicexample, publishingcompanieshave stifledthe ability of instructors to combine articles into a useful reading packet for their students. This is considered an illegal compilation (Reference 16).

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With the increase in possible infringements of information ownership, new criminal identities become more fully evolved. These included the hacker identity, which is the subject of the next scenario. Outside of the polarized identities of proprietary author and hacker, most individuals remained law abiding citizens. Legal enforcement and enormous amounts of education about the importance of intellectual property helped ensure that the vast majority of United States citizens continued to follow the rules as established by the information owners. W H A T H A P P E N S TO C R E A T I O N ?

Whereas the terminology of intellectual property rights was still used, these rights were far more expansive than anything known at the end of the 20th century. The lines between what traditionally could not be protected via intellectual property law (most noticeably living organisms) and what became allowable began blurring as early as the late 1990s [17]. Anything with a possible market was subject to ownership. Cooperation was rarely seen, which made industrial espionage a lucrative business [18]. 14 The creative spirit remained alive in the business as usual scenario. People continued to create, but the divisions between professionals who created for money and nonprofessionals who created for pleasure remained quite clearly drawn. The copyright law continued to be unreflective of the motivations behind creation and instead continued to rely upon the assertion that providing protection of expressions and providing the opportunity of making money facilitates creation. In fact, the heightened awareness of the proprietary aspects of ideas led to increased secrecy and policing of property. The more individuals understood creative work as property, the less willing they were to share freely. Once the assumptions of the business as usual scenario were accepted, the only alternative was to draw the lines around what can be considered "original" work and ignore the connections between works, or the culture as a whole. Creation occured increasingly within the confines of corporations who operated under the "work made for hire" doctrine (§101) [14]. It was also increasingly common to sign waivers of all rights to inventions made during employment to a specific company. Creation, in this scenario, remained undemocratized. Intellectual property litigation had to deal with the ownership of artificial intelligence. Many people at the end of the 20th century believed cyborgs were the next step in our evolutionary chain) s Cyborgs were also intellectual creations subject to property laws. Owning bodies was not new to the legal system. The law was deft at defining human from non-human as the line for what can and cannot be owned. Cyborgs were perhaps as great a challenge to intellectual property as computer technology generally. If they were patentable or copyrightable they could be bought and sold. If they were conscious, what right did humans have to treat them as property? As long as we used property laws to understand these creations, the cyborg remained property. There was no room to understand it as a person. There was no room to give it autonomy, or think of it as anything but property. Legally, it remained the property of its creator who could produce and market the cyborg as any other object. When the question about how much of our lives should be the subject of property was asked, instead of letting the property laws designed in the eighteenth century disintegrate, we continued to defend them until our very lives became the subject of property. ~4One only has to look to Silicon Valley today to see the beginnings of such a society. ~5"The greatest social consequence of the Darwinian revolution was the grudging acceptance by humans that humans were random descendants of monkeys, neither perfect nor engineered. The greatest social consequence of neo-biological civilization will be the grudging acceptance by humans that humans are the random ancestors of machines, and that as machines we can be engineered ourselves" (Reference 18, page 55).

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CONCLUSION TO BUSINESSAS USUAL No generation has seen the accumulation of information as property to such a great extent as present generations. Whereas detailed information about individuals has been privately owned and sold to whomever will pay for some time [1], our minds and bodies have more fully become the subject of intellectual property laws, owned and traded as any other commodity [4, 5, 19]) 6 This trend will continue unless politically organized groups stop the process. Corporations own personal information about all citizens, and increasingly privatize public documents by "adding value" in the form of headers and commentary. They own patents and copyrights in genes, biotechnology, plants, and potentially life saving drugs.~7 Intellectual property translates into profits, often times at the expense of the bodies the information describes, or the people who would use the products if they could afford them. Ownership of information leads to the need for secrecy and an increase in perceived insecurity. Once appropriately commercialized, the Internet will become a gigantic home shopping network. Most people will have access, but it will be one-sided and commercialized. The majority of the United States population lives with an artificial sense of empowerment when in reality information is still controlled by a few individuals who own both the messages and the technology through which the messages pass. This is a world dominated by the information elite, a world of global capital where the trade of dollars, information, and bits of data make some rich at the expense of the environment, the developing world, and the poor. The law helps us move forward and provides redress for those injured. However, the logic of the law is firmly entrenched in the concept of private property. As such, it is not capable of offering a transformative alternative. The business as usual scenario is not a happy one. The second possible future is really a subfuture of business as usual: it is the hacker future. This scenario, relies on the desire to see information free. It is questionable, however, if hackers provide a significant alternative or merely exist in a space which can be marked as oppositional. What would the world look like for a hacker?

Hackers and the Future The hacker future is a recent favorite subject of the entertainment industry, and this new-found fame helps illustrate the multiplicity offered by hackers. Hackers are both good and evil: they are the people who can commit horrible computer crimes and the ones who can stop such crimes from being committed. The hacker world is constructed much like a game, where the goal is to seek information and be the best at getting what others cannot. Instead of seeing the unapproved exchange of intellectual property as theft, hackers tend to see the intellectual property itself as theft which is unjustly kept from being exchanged. Thinking of secrecy and intellectual property as theft makes for 16 For those of you who might doubt this possibility, let me site a few examples here. One recent trend is challenging ownership of ideas which have not been expressed yet. Traditionally, copyright only protects the expression of ideas. However as corporations make bids on key employees and people move from job to job, the industry is becoming more concerned with the ideas stored in a person's head. Thus, law suits are emerging over who owns the ideas which transfer with a person to a new company. As James Bennet points out, "If it's your invention or idea, it belongs to the employer if you were hired to come up with those kinds of inventions or those kinds of ideas," said Stephen L. Carter who teaches intellectual property law at the Yale University Law School. (Reference 5, page 1). In other news, a man is suing the California Board of Regents for control of the intellectual property rights over his body parts (Reference 4, page 38). The commodification and selling of the body and body functions is also documented in Andrew Kimbrell's The Human Body Shop: The Engineering and Marketing of Life (Reference 19). ~ Sohail Inayatullah's and Jennifer Fitzgerald's article in this issue does an excellent job of detailing this trend.

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an interesting alternative to the business as usual scenario. Neal Stephenson offers an excellent description of the not too distant future where our current approach to information is taken to its logical conclusion and the U.S. maintains its intellectual property lead [20]. This is America... When it gets down to it-talking trade balanceshere-once we'vebrain-drainedall our technology into other countries, once things have evened out, they're making cars in Boliviaand microwave ovens in Tadzhikistanand sellingthem here--once our edge in natural resources has been made irrelevantby giant Hong Kingships and dirigiblesthat can ship North Dakota all the way to New Zealand for a nickel-once the InvisibleHand has taken all those historical inequitiesand smeared them out into a broad global layer of what a Pakistani brickmakerwould considerto be prosperity-y'know what? There's only four things we do better than anyone else: music, movies, microcode (software), high-speed pizza delivery (page 2). As Stephenson's colorful scenario points out, the United States is good at a few key i n d u s t r i e s - all of them (except pizza delivery) related to intellectual property. The hacker world will provide for a clash between unstoppable exchange of information and a heightened understanding of just how important intellectual property can be. HOW DOES THE LAW INTERPRET THE TEXT? In the hacker future, law as we understand it did not continue to exist and what went as law had nothing to do with the text. Hackers fragmented the text into bits of information that could be sold to the highest bidder. They did not understand textuality as "original" creations, but as utilitarian bits of information. Since complete information was always better than incomplete information the hacker slogan was: "Information should be free and plagiarism saves time" [21]. Hackers were less inclined to believe in romantic notions of authorship. In a world where writing computer code was the highest form of art, there was certainly room for creative people. However, these people created with the understanding that others would take what they had written and expand, pull apart, rewrite, and improve it as they saw fit. Hackers, at least when it came to code, understood the communitarian context of creativity. This opened new avenues for the text while at the same time maintaining the commodified nature of information. The hacker future embraced a strange contradiction of sharing .while trying to make a living selling information which necessitated a level of secrecy and ownership. HOW IS THE AUTHOR DEFINED? In the hacker world, the author was not a smoke screen for corporate power. Rather, it had meaning as attached to individuals. The hacker world was radically decentralized in a libertarian manner. Authorship became far more collective in the hacker future. Since the boundaries of the text were not so tightly guarded, everyone felt free to add, experiment, appropriate, and use information. Even if others complained about this activity, there were very few avenues of recourse. The author fluctuated between a proprietary person and a communitarian person. Authorship did not serve as a clear marker for the text in this world because ownership was so fleeting. Copies and appropriations appeared almost as fast as the "original." In such a world, authorship lost its meaning, because it became difficult to tell the duplicate from the original and most people gave up the notion of the romantic author completely. Making claims about the unfairness of someone copying your work because it was your "original" creation fell u p o n deaf ears. A "free" market was not an easy place for an author.

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H O W IS THE LAW USED?

The law can be applied to the hacker scenario in several ways. If hackers were the antagonists in the business as usual scenario, the law was brought down with force upon them. As Newsweek forecasts, the future is one in which hackers will continue to "steal" information and corporations will continue to "lose" millions of dollars to information theft [22]. If, however, the hackers control the discourse over intellectual property, then intellectual property law will be eliminated. I will focus upon this second possibility. The hacker was a legitimate information broker who found information and sold it to make a living. Personalized protection devices for creative work were constructed. If any given person could not create their own protection devices, they could buy them from someone else. In this future, people often lost control over the intellectual property, but this was considered the cost of playing the game. Being good in the hacker world meant keeping the items you wanted private from the groping hands of others while taking what you could in order to better yourself. It meant the law became whatever each individual could do to protect themselves. The hacker future was one of major corporations that continued to hold legal dominion of their own. Whereas the state-based legal system has long been extinct due to the insolvency of the government, there were numerous private judicial tribunals that could help with cases affecting the corporations. Corporations continued to be a dominant force and wrote what law there was in the hacker future. In addition, major corporations had their own hit squads which enforced their version of the law. This included "arresting" citizens, and confiscating their computer equipment [23]. 18 W H A T TYPES OF IDENTITIES ARE CREATED?

In the hacker future, people with money spend as much time as possible in virtual reality. Virtual reality technology improved over the twentieth century and provided an alternative to the environmentally destroyed planet. Business could be conducted in virtual reality, people could meet, and travel took on new meanings. Individuals had more freedom of identity than they did in the "real" world. Characters could be created, images designed, and identities constructed at will. This led to a playful approach to identity which included changing genders, colors, and size. Because you could walk around as a pineapple in virtual reality, there were many diverse options for identity. W H A T H A P P E N S TO CREATION?

Creativity became the tool of those who were inspired by the competitive, always changing world of high technology. Intellectual property laws worked early on the ensure some people maintained their lead in the industry, and these corporations later created their own laws. In a world without government intellectual property laws, but with hardedged competition, everyone and everything was up for grabs. People prospered from their creative work by making what money could be made quickly, inventing security measures to protect their "property," and taking whatever was there to be taken. It was a cut-throat world where dealing in information could be dangerous. Because the primary characteristic of this scenario was libertarianism, virtually everything that went as "art" was privatized. However, it was a form of privatization which left room for appropriation. ~s In 1984, Congress authorized a civil-court procedure called an "ex-parte search and seizure with expedited discovery." This procedure allows private parties (such as the Church of Scientology or Microsoft) along with an "officer of the court" to search a person's property for copyrighted materials. This type of search has been used to confiscate computers and software from people's homes, which is said to violate a company's copyright (Reference 23).

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A good idea was rarely left with its "originator" for long. What money could be made was made immediately and then multiple copies of the new item were available. Was information free in this environment? In a manner of speaking, yes. Information became a fully recognized commodity. Information could be traded, bought, and sold. Everything was up for grabs and secrecy only made the information more tantalizing. Hackers earned their keep through information. Any information was fair game and possibly useful to someone. Information reached a state of movement, if not freedom. In a world dominated by privatization, a poor economy composed of mostly service sector jobs, and a rich market for information and technology, it was logical that the best computer minds would become information brokers. ~9 The value of the hacker was the opposition he or she posed to information ownership. Most hackers would write code for computer companies or sell information to the highest bidder. In a world where rights still had meaning, the notion of private property continued to dominate. As long as this discourse on property structured thinking about products of the intellect, there was no way to share information or creative work, it could only be bought and sold. CONCLUSION TO THE HACKER SCENARIO

In the hacker world, information is reified. It becomes a thing in its own right. Hackers ride all sides of the fence. They are information producers, they are information consumers, they are pirates, and they are security. Technological know-how is the common currency, and anyone without access or technological knowledge is marginalized. The hacker world would not be fun without huge corporations to crack. The hacker would be bored in a world where information is shared peacefully without contestation. This future is a libertarian version of business as usual. It provides for better access, but only if you make the effort to participate. It is not transformational; it is oppositional. Our future does not have to follow the business as usual path. Nor does it have to embrace the oppositional discourse of the hacker, which provides little in the way of alternatives to property. Instead, a truly transformational scenario might be possible if we can give up our discourse of property. The decentralized nature of the internet can make a completely new approach toward traditional "intellectual property" possible. If we should want, the fragments of an old and tattered intellectual property system can be discarded and replaced with something more appropriate for the information age. What can be the replacement? How extensive would such a transformation be? What other languages can we talk in order to escape the limited discourse of private property? The legal system of intellectual property is outdated and entirely too rigid to sustain the need for a viable free flow of information.

Sharing as Utopia The transformation that occured in this scenario was one from competition to cooperation. In the sharing future, competition would be tempered by an overriding aura of cooperation. This type of sharing was especially appropriate for intellectual property. Sharing ideas is different from sharing tangible goods, because ideas can reside in more than one mind simultaneously. They cannot "belong" exclusively to one person. Ideas, by definition, cannot be owned once shared. Expressions, also, become more developed with each new contributor. Each expression of an idea creates other expressions and other possibilities. Thus, property in expressions is a problematic concept, which has ~9 I owe this analysis to Neal Stephenson's book (Reference 20).

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gained legitimacy through centuries of work codifying it into law. As Ursula Le Guin notes in The Dispossessed, "It is the nature of the idea to be communicated: written, spoken, done. The idea is like grass. It craves light, likes crowds, thrives on crossbreeding, grows better for being stepped on" (page 79 [24]). What would the world look like if intellectual property rights were replaced by sharing responsibilities? This would be a communitarian future. The nature of the idea is to be communicated, narrates Ursula Le Guin, and it is upon this theme that a communitarian future can be built. In such a future, people are socialized to give for the public good, to share, rather than work for their own self-interested purposes. Such a society assumes that human freedom can be best realized through collective welfare. In such a community, it could be possible to eliminate the very idea of "private property," and individual possession from the discourse, because the needs of the citizens would be the burden of the community. There are a number of feminist utopias built upon this basic assumption of sharing [24-26]. This scenario offers a conceptual alternative to business as usual. HOW DOES THE LAW INTERPRET THE TEXT? Similar to the hacker scenario, law did not exist in the sharing future. Intellectual property law was about protecting property and this function of the law was no longer needed. The Copyright Act, and other statutory definitions of "intellectual property," were no longer applicable. These documents limited the flexibility of the text and consigned its ownership to an individual or corporation. In the sharer future, texts and creation generally, were for the public good. Because it was recognized that people create for a variety of reasons, rewards were diverse and often as "cheap" as public recognition for an excellent idea.The work of individuals was cherished, and yet the extremes of proprietary bickering the business as usual scenario fostered were very far from this reality. Texts came in a variety of shapes and sizes and could be shared freely. Electronic networks were put to their best use by providing links upon links to the multiplicity of voices that existed in a world where textuality did not have to be owned. Exchange was given precedence over the sovereignty of ideas and this exchange occured in an environment where everyone could realize their potential as an "author." In this scenario the individuals who saw the internet as a possibility for new forms of authorship prevailed. The sharing of information took precedent over the owning of information. HOW IS THE AUTHOR DEFINED? Authorship in the sharer future was not a "profession." Everyone participated in the creation of art and "texts." Many people utilized their creative capacity by linking and developing already existing works. Because creation was premised on facilitating cultural development and not on monetary rewards, the possibilities opened up. It was recognized that "originality" is always culturally dependent, and great ideas did not appear from nowhere as the romantics had believed. Rather, everything was connected in the sharer world, including creation. Whereas individual names continued to be placed in conjunction with their work, it did not function as a boundary that marked one text from another. Because texts were rarely the work of a single person, names did not necessarily indicate ownership. The possibilities of collective authorship were fully realized in this scenario. Technology facilitated the free movement of the text. Sometimes a collective work would happen in which the contributors did not know each other, or even if others had contributed. Texts, in the sharer future, could develop organically and dialogically, where in the

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business as usual scenario they were kept tightly controled. This means authorship was less i m p o r t a n t and the dialogue became more important. It was possible to preserve a sense o f individuality within this collective. Every person was acknowledged for their contribution. The reward was in the p r o m o t i o n o f the collective good rather than private compensation. The creative in everyone was encouraged to flourish. Creativity was something everyone could make a part o f their lives. It was not a commercialized entertainment industry, but a form of cultural cohesion. It became important to understand that there was a relationship between the author and the text which could not be ignored. Copyright law bastardized this relationship by transforming the idea into property which could be stolen. A purely economic understanding obscured the desire each person had to share their ideas and creations. In the sharer future, it was possible to think, exchange, and create outside an economic framework. In this future, the idea a n d its benefit to society were placed first. HOW IS THE LAW USED? The p r o b l e m of criminality and theft was eliminated. In this future, those who would not share engaged in problematic behavior, and this could not be considered a crime. People who resisted the communitarian ethic were the exception instead o f the norm. Problems over intellectual works would arise, but they would not be couched in terms o f property. W h a t was absent was the desire for material accumulation. W h a t was present was a sense o f solidarity and freedom, a place where ideas could flourish. In the corporate business as usual scenario, ideas were the intellectual property o f others through legal agreements. In the sharing as utopia future, because there was no intellectual property, each idea was donated to the public and became impossible to steal. If a person kept his or her ideas secret, then society was perhaps injured, but there was no punishment for this behavior. Because everything could be published electronically, there were no publishing gatekeepers who could steal ideas and pretend they were their own. Thus, the environment in which creative works were exchanged did not have to be governed by law as understood in the business as usual scenario. WHAT TYPES OF IDENTITIES ARE CREATED? The identities created in this future were communitarian ones. These were people who understood their place within the community, their contributions to the larger whole, and their place in the world. A sense o f individuality continued to exist, but everyone recognized their relationship to the community. W h e n individuals were asked to cooperate with each other instead of endlessly compete, the r a m p a n t individualism o f contemporary liberalism quickly died away. As in the hacker future, technology allowed individuals to play with identities. However, because identity was not removed from community, there was less fragmentation and masking as seen in the hacker (and business as usual) scenario and more self-exploratory identity creation. WHAT HAPPENS TO CREATION? Creation, as discussed above, became the glue o f the community. It was no longer a product for mass consumption. The entertainment industry ceased to exist in this future, and entertainment became a local phenomenon. Everyone was encouraged to be creative and "stars" who have property rights in their "images" were replaced by people who wanted to p e r f o r m and share their creations. Conclusion Sharing as utopia is not based u p o n the law, but u p o n a transformational discourse. The law is helpful as long prearranged definitions are followed. Many people might

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respond that we don't need an alternate discourse on intellectual property, that thinking about creative and informational works through a legal lens is fine. Over the centuries the courts have developed a balance between protection and public use. However, this legal discourse leaves little room for normative claims about ownership of knowledge in an information age. If new ways of thinking about what we call intellectual property are to be found, we must move outside the law and into other modes of speaking. The sharing as utopia scenario provides this alternative, albeit in a bare outline form. In a world where the concept of private ownership is replaced with the concept of sharing, everything is changed. My point in writing about the sharing possibility is to highlight how the language of property and the legal system, which constructs property, informs how we think about creative work. New technology is posing a significant challenge to the traditional notion of authorship, to the traditional notion of the text, and to the traditional notion of intellectual property. The present response to these challenges- to shore up the boundaries of intellectual property law around the "original" author and the bounded t e x t - will only work for a short while. There are other possibilities if we are allowed to enter a creative dialogue. The communitarian future is designed to point out that thinking about creative work only in terms of intellectual property law does little to make the future brighter. It only facilitates the mass production and mass consumption made possible by the culture industry that seems emptier with each passing day. Absent a view of the future that provides for a cultural dialogue, technology will continue to be a tool for domination and the protection of property. This is not a world I wish to inhabit. References 1. Branscombe, A. W., Who Ownslnformation:FromPrivacytoPublicAccess?, Basic Books, New York, 1994. 2. Coombe, R. J., Objects of Property and Subjects of Politics: Intellectual Property Laws and Democratic Dialogue, Texas L a w Review 69, 1853-1880 (1991). 3. Ducking the Issue of the Little Black Duck, Honolulu Advertiser, B1 (February 21, 1995). 4. O'C. Hamilton, J., Who Told You You Could Sell my Spleen?, Business Week 38 (April 23, 1990). 5. Bennet, J., Who Owns Ideas and Papers Is Issue in Company Lawsuits, N e w York Times, 1,27 (May 30, 1993). 6. Coombe, R. J., Author/izing the Celebrity: Publicity Rights, Postmodern Politics, and Unauthorized Genders, Cardozo Arts & Entertainment 10, 365-395 (1992). 7. Fleming, C., and Giles, J. Jimi, Rest in Peace, Newsweek 64-65 (January 16, 1995). 8. Rose, M., Authors and Owners: The Invention o f Copyright, Harvard University Press, Cambridge and London, 1993. 9. Patterson, L. R., Copyright in Historical Perspective, Vanderbilt University Press, Nashville, TN, 1968. 10. Earle, E.I The Effect of Romanticism on the 19th Century Development of Copyright Law, Intellectual Property Journal 6, 278 (September 1991). 11. Toflter, A., Powershift: Knowledge, Wealth, and Violence at the Edge o f the 21st Century, Bantam Books, New York, 1990. 12. OTA Report on Intellectual Property Rights in an Age o f Electronics and Information. Joint Hearing, Subcommittee on Patents, Copyrights, and Trademarks of the Senate Committee on the Judiciary and the Subcommittee on Courts, Civil Liberties, and the Administration of Justice of the House Committee on the Judiciary, Ninety Ninth Congress, Second Session, April 16, 1986. 13. Hafner, K., and Markoff, J. Cyberpunk: Outlaws and Hackers on the Computer Frontier, Simon & Shuster, New York and London, 1991. 14. • 976 C•pyright Act• § • • • . De•niti•n •f a ``Literary w •rk••• in Se•ected Statutes and •nternati•na• Agreements on Unfair Competition, Trademark, Copyright and Patent. Paul Goldstein, Edmund W. Kitsh, and Harvey Perlman, eds., Foundation Press, Westbury, NY, 100, 1994. 15. Buskirk, M., Appropriation under the Gun, Art in America 80(6) 37-39 (June 1992). 16. Basic Books Inc. v. Kinko's Graphics Corporation (1991), in Kenneth D. Crews, Copyright, Fair Use, and the Challenge f o r Universities: Promoting the Progress o f Higher Education, University of Chicago Press, University of Chicago Press, Chicago and London, 1993.

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17. Churchill, J. I., Patenting Humanity: The Development of Property Rights in the Human Body and the Subsequent Evolution of Patentability of Living Things, Intellectual Property Journal, June 1, 1994. 18. Kelly, K., Out of Control: The Rise of Neo-Biological Civilization, Addison-Wesley, Reading, MA, 1994, p. 55. 19. Kimbrell, A., The Human Body Shop: The Engineering and Marketing of Life, Harper-Collins Publishers, San Francisco, 1993. 20. Stephenson, N., Snow Crash, Bantam Books, New York, 1993. 21. Branwyn, G., Street Noise, Mondo 2000 30 (1992). 22. Meyer, M., Stop[ Cyberthief[, Newsweek 36-37 (February 6, 1995). 23. Bauman, A. S., Only Police May Search Your Home, Right? Guess Again, Seattle Times A3 (October 24, 1995). 24. Le Guin, U., The Dispossessed, Harper and Row, New York, 1974. 25. Piercy, P., Woman on the Edge of Time, Fawcett Crest, New York, 1976. 26. Slonczewski, J., A Door into Ocean, Avon Books, New York, 1986. 27. Foucauit, M., What Is an Author? in Language, Counter-Memory, Practice: Selected Essays and Interviews, translated by Donald F. Bouchard and Sherry Simon, Cornell University Press, Ithaca, NY, 1977, pp. 113-138. 28. Horbulyk, T. M., Intellectual Property Rights and Technological Innovation in Agriculture, Technological Forecasting and Social Change 43,259-270 (1993).