Comparative tales of origins and access: intellectual property and the rhetoric of social change.

Author:Silbey, Jessica


This Article argues that the open-source and antiexpansionist rhetoric of current intellectual-property debates is a revolution of surface rhetoric but not of deep structure. What this Article terms "the Access Movements" are, by now, well-known communities devoted to providing more access to intellectual-property-protected goods, communities such as the Open Source Initiative and Access to Knowledge. This Article engages Movement actors in their critique of the balance struck by recent law (statutes and cases) and asks whether new laws that further restrict access to intellectual property "promote the progress of science and the useful arts." Relying on cases, statutes and recent policy debates, this Article contrasts the language of traditional intellectual-property law (origins and exclusivity) with the new language of the Access Movements (antiorigins and access). The Article compares the language of the Access Movements to that of sociopolitical movements of the past, and it draws lessons for successful and unsuccessful uses of rhetoric to enact social change. The Article concludes by showing how the language of the Access Movements retains certain core elements of the intellectual-property regime to which it is reacting and investigates whether this is an effective strategy (whether or not a conscious one) to stimulate change.

CONTENTS INTRODUCTION I. VARIATIONS ON THE THEME OF "ACCESS" II. INTELLECTUAL-PROPERTY ORIGIN STORIES A. The Political Structure of Origin Stories 1. Authenticity 2. Heroic Actors 3. Consent B. The Myth, a Disconnect III. INTELLECTUAL PROPERTY AND THE RHETORIC OF SOCIAL CHANGE A. The Antiorigins of the Countermobilization 1. The Private/Public Breakdown 2. A Community "Sharing Nicely" 3. A New Incentive Story 4. Community Building and the Public Interest B. Questioning Hierarchies 1. Reversing Default Rules of Exclusivity 2. Substantive Equality Evaluations 3. Constrained Freedom 4. New Forms and New Relations 5. The Value of Diversity IV. THE LAST STAND A. Autonomy and the Rights Revolution B. Consent and the Specter of Choice C. A Third Way CONCLUSION INTRODUCTION

There is a movement afoot among lawyers and advocates concerning intellectual-property protection. Indeed, there are several related movements afoot. James Boyle is credited with calling out the Second Enclosure Movement. (1) On his heels (and even before), groups organized to provide open access to innovation and expression. (2) Without presuming direct causality, it seems fair to say that these related movements, which this Article will collectively call the Access Movements, are a response to the expansion of intellectual-property rights (building fences statutorily or on a case-by-case basis) and a growing digital culture that disseminates information and expression broadly and quickly (breaking down fences). In a networked world where information and expression are only a click away, most users of the Internet recognize how much knowledge and culture (in the form of patented inventions, trademarks, or copyrighted works) are not flee to use. (3) For the most part, the Access Movements do not advocate dismantling the intellectual-property system. They do, however, advocate preserving a meaningful public domain and creating a robust commons by loosening the boundaries of intellectual-property protection and reshaping the norms of intellectual-property control. The Access Movements do this to serve the purposes of intellectual property--to promote science and the useful arts (4)--and nourish participatory democracy. (5)

On the surface, this "countermobilization"--what some have called a "new politics of intellectual property"(6)--is a story about distributive justice. And this makes sense. Much of intellectual-property law is designed to balance the societal benefits with the burdens of monopolizing a good. (7) Recent Movement memes such as "Access to Knowledge" (A2K) and "biopiracy" critique the balance struck in our current system, and highlight the negative welfare effects of overprotecting intellectual property. (8) But below the surface, the Access Movements' tale of distributive justice is more complex. As a story, its moral is not simply "redistribute"--give more to the users who are in need. Instead, it asserts the primacy of certain values over others: the importance of community and of leveling hierarchies. The Access Movements' mantra is not a facile reaction to the expansion of intellectual-property protection by saying, "let the intellectual property be free." The Access Movements, in their reconstitution of intellectual-property norms, still embrace ownership and exclusion, but they also challenge fundamental baselines of intellectual property--such as the defaults of market freedom, exclusivity of title, and individual ownership--as being in need of updating for our new digital world. This Article excavates this more complex story by analyzing the community that the Access Movements create through their critiques and proposals concerning the division of property and power in our networked world.

To this end, this Article is descriptive. It uncovers and then compares the narrative justification for traditional intellectual-property rights with the counternarrative of the Access Movements. The Article is also normative. At its conclusion, the Article will question the efficacy of the Access Movements' rhetoric as insufficiently self-conscious of its failure to discard the language of the past. It will show how, in the main, the Access Movements do fundamentally change the language and distributional values of intellectual property. But it will also show how even the most radical voices in the Access Movements reinscribe into their narrative justifications for property the liberal legal commitments of idealized autonomy and consent. The upshot will be that, for all the reactionary rhetoric, the Access Movements do not go as far as other revolutionary movements have gone in transforming the discourse of legal entitlements from exclusion to access. A close reading of the Access Movements' rhetoric and recent case law demonstrates, on the one hand, an ambiguity that threatens the Access Movements' coherence and, on the other hand, a reinscription of core features of traditional intellectual-property law. In its conclusion, this Article explores whether, in light of past social-reform movements, discarding or revolutionizing the language of traditional intellectual-property law is necessary to facilitate a sea change in our intellectual-property relations.

The Article proceeds in four parts. Part I briefly discusses the range of voices employed by the Access Movements; it defines the varying meanings of "access" to which the Movements are dedicated. It will then move to an exposition of the most radical positions on the spectrum within the Movements. It does so to investigate whether the antidote to the Second Enclosure Movement tells a different story than (and therefore enacts a different politics from) the traditional justification for intellectual property.

After mapping the various meanings of "access," Part II introduces the narrative structure of the dominant explanations for intellectual-property protection. These narratives are origin stories, an identifiable story genre that glorifies and valorizes enchanted moments of individual creation, discovery or identity in order to justify exclusivity and monopoly. (9) As Part II will show, these origin stories of intellectual property serve as heuristics, explaining the political, economic, and social hierarchies that result from the legal ordering affected by intellectual property protection. These heuristics sound in liberal legal politics (possessive individualism). (10) Unconscious or unspoken, these origin stories hide the manner in which repeat players and higher-status innovators disparately benefit from intellectual-property law. (11) And because these narratives are compelling (they are such good stories), they persuade us that the difference between the haves and have-nots regarding intellectual-property protection are "natural" or inevitable. As such, the origin stories justify the continued disparity in access to wealth and power stemming from intellectual-property law that is built upon concepts of individual ownership and the productive power of excludability. (12)

Part III investigates the rhetoric and substantive goals of the Access Movements. If our dominant intellectual-property regimes are modeled on origin stories to justify exclusion, and the Access Movements are fairly defined as countermobilizations to the expansion of intellectual-property entitlements, the Access Movements should rehearse antiorigin rhetoric that instantiates contrary values of sharing and equality. The question is whether they do. To what extent is this countermobilization a revolution in form and substance? How much change are the Access Movements proposing, and is there any evidence that the new language is working to change outcomes in actual cases? Part III will answer these questions by further elucidating the meaning of "access" in light of its corollaries and opposites (e.g., "openness" and "exclusivity"). It does so in the context of recently litigated disputes, emerging and novel property relations, and newly founded organizations devoted to access and innovation. These examples will show how both the language and substantive agenda of the Access Movements reject some parts of the origin stories described in Part II. A new language of property emerges, built on the old one, that values relation over exclusivity, group-oriented productivity over individual creation, and equality of access over uninhibited alienability.

Part IV shows how, despite this change in surface rhetoric and shift in narrative focus from origin to community, the Access Movements remain committed to core principles of liberal political theory. Idealizations of...

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