2.3 A Close Reading Example

Over the past three decades, modern culture has become infatuated with the idea that knowledge should be owned like real estate or stock shares. The original idea, of course, is that copyrights, trademarks and patents reward people for their creative labors and thereby boosts the common good.

But this line of thinking has come to resemble a kind of Market Fundamentalism: copyrights, trademarks and patents are the only morally legitimate and practical method for managing creations of the mind. There is no middle ground. You either believe in intellectual property rights, or you support “theft” and “piracy.

This fundamentalist approach shuts down a broader discussion about how knowledge ought to circulate in our culture. To avoid any confusion, let me just say straight-up that I believe in copyrights and patents.  In some cases, they provide significant and necessary incentives to invest in new works. But today, copyrights and patents are going far beyond their intended goals—such as the U.S. Constitution provision to “promote progress in science and the useful arts”—to become ends in themselves. Instead of carefully balancing private interests and public needs, copyrights and patents are becoming crude, anti-social instruments of control and avarice.

This is the conclusion that I came to in my book Brand Name Bullies, which is filled with dozens of stories of copyright and trademark owners bullying citizens, artists, scholars and others with ridiculous legal threats.

Silent Campfires

One of my favorite stories about the alarming expansion of copyright law involves ASCAP, the American Society of Composers, Authors and Publishers, the organization  that collects performance licensing fees from public establishments where recorded music is played.

ASCAP decided that their domain should be extended to summer camps. Why shouldn’t boys and girls singing around the campfire be considered a “public performance” that should pay royalties? A while back ASCAP approached the American Camping Association and said it wanted blanket performance licenses from hundreds of summer camps— something on the order of $300 to $1,400 per season per camp.

This caused quite a ruckus. When it was discovered that ASCAP wanted money for the Girl Scouts to sing “This Land Is Your Land” and “Puff, the Magic Dragon”, the press went nuts. There were stories about camps resorting to non-copyrighted songs like “The Bow-Legged Chicken.” An ASCAP official heartlessly told a reporter: “They [camps] buy paper, twine and glue for their crafts – they can pay for the music too.” Eventually, after a huge public outcry, ASCAP backed down. But its claim to legal authority in charging summer camps for their “public performances” of copyrighted songs remains intact.

Lawsuit Barbie

The issue in so many of these battles is: Who shall control the “public meaning” of familiar images? Mattel is legendary in trying to protect the cultural “meaning” of Barbie. It has gone after any unauthorized uses of Barbie. It went after a series of photographs by Mark Napier called Distorted Barbie, which dared to depict Barbie as fat or as having Down’s Syndrome. Even highly distorted images of Barbie that were essentially unrecognizable were deemed unacceptable by Mattel.

Mattel went  after a magazine that caters to adult collectors of Barbie dolls. Mattel even pressured the Seattle publisher of a book, Adios, Barbie: Young Women Write About Body Image and Identity, to change the title. The book was reprinted as Body Outlaws. This extreme clampdown on free expression  spurred culture-jammers, such as the self-styled Barbie Liberation Organization, which substituted voice boxes of GI Joe with those in Barbie, so that GI Joe would say, “Let’s plan our dream wedding,” and Barbie would yell, “Vengeance is mine!”

I am happy to report, a federal circuit court in the United States  put a damper on Mattel’s bullying litigation. The case involved Utah photographer Tom Forsythe, who made a series of 78 photos of Barbie for his Food Chain Barbie exhibit. It featured Barbie in enchiladas, stuffed into a blender and in other kitchen poses. Only a few of Forsythe’s photos sold. He spent about $5,000 to mount the exhibit, and lost money. No matter; Mattel wanted to send a message that you can’t mess with Barbie. It spent years litigating the case, requiring Forsythe to find pro bono legal counsel, which spent nearly $2 million defending him. Forsythe prevailed in the circuit court, which delivered a stinging rebuke to Mattel for bringing a “groundless and unreasonable” trademark dilution claim.

Watch Your Words

The privatization of words—language is one of the most basic form of commons— is another disturbing trend. The Japanese corporation that owns the “Godzilla” trademark has a habit of threatening all sorts of people who use the phoneme “zilla,” including a website called “Davezilla” that featured a lizard-like cartoon character.

The corporate obsession with owning words is really quite extensive. McDonald’s claims to own 131 words and phrases. The San Diego-based McDonald’s actually claims to own the Irish prefix “Mc.” It has successfully prevented restaurant  from naming their businesses McVegan, McSushi and McMunchies.

Ralph Lauren, the clothing line, went after Polo magazine, run by an equestrian organization, claiming it was a trademark infringement for the U.S. Polo Association to use the word “polo” on its line of clothing! MasterCard went after Ralph Nader for using “priceless” in his campaign ads when running for President in 2000.  (Nader’s free speech rights ultimately prevailed.)  But the gay athletes who wanted to host a series of athletic competitions in San Francisco could not use the phrase “Gay Olympics” because that phrase is owned by the U.S. Olympic Committee, who gets to decide who can use it. “Special Olympics” for disabled kids is OK, but not “Gay Olympics.”

The TV demagogue Bill O’Reilly reportedly went ballistic when he learned that the comedian (and now senator) Al Franken was using the words “fair and balanced” as a subtitle in his book that mocked various right-wing pundit, including him. The federal court laughed Fox News’ case out of court, and Franken won. But pity the people who can’t afford to hire Floyd Abrams, a prominent First Amendment attorney, to represent them. A woman from Los Angeles dared to name her neighborhood newspaper the Beechwood Voice. She was threatened with legal action by the Village Voice, which claimed that use of the word “voice” as a newspaper name diluted its trademark.

These stories illustrate just how far Market Fundamentalism is willing to go in order to enforce its vision of the world. It wants to commodify all of culture as private property, and require people to obtain permission (and to make royalties) before embarking on any modestly derivative new creativity. This approach, not coincidentally, favors the Disneys, Time Warners and Rupert Murdochs because it protects the market value of large inventories of copyrighted and trademarked works. It directly stifles expression that is local, amateur, small-scale or non-commercial in nature—the kind of expression that almost anyone outside a powerful corporation would engage in. This amounts to a wholesale privatization of our cultural commons.

Patents Privatize Taxpayer-Funded Research

The Market Fundamentalist worldview is even more infuriating, if that is possible, when applied to patents arising out of publicly funded research.  Until 35 years ago, there had been a broad consensus that the intellectual property rights of federal research should stay in the public domain, or at least be licensed on a nonexclusive basis. That way, taxpayers could reap the full measure of value from their collective investments. In the late 1970s, however, large pharmaceutical, electronics and chemical companies mounted a bold lobbying campaign to reverse the public ownership of federal research. Since enactment of Bayh-Dole Act of 1980, authorizing universities to patent the fruits of federally funded research, we have seen a land rush to sell academic research that was once freely available to all.

Between 1980 and 2000, the number of patents secured by universities grew ten-fold, bringing in more than $1 billion in royalties and licensing fees—a windfall enjoyed mostly by a dozen top research universities. This, in reality, is a privatization of the public’s investments. Even though the public pays for the lion’s share of risky basic research for new drugs, the long-term equity returns tend to go to drug companies and a handful of top research universities. In the United States, we have seen this with the cancer drug Taxol; the anti-depressant Prozac; the hypertension drug Capoten; and a number of HIV and AIDS therapies.

The upshot is that citizens often have to pay twice for pharmaceuticals and other medical treatments—first, as taxpayers who finance the research, and second, as consumers who pay monopoly prices for drugs. This is a pure giveaway because it’s not even clear that companies need exclusive patent rights as an incentive to commercialize new drug research.

Corporations Loot Indigenous People’s Knowledge

Multinational corporations are no longer content to simply claim ownership of commons knowledge at home. Now they scour the developing world—in a practice known as biopiracy—to claim patents on the botanical and ecological knowledge acquired by indigenous people through the centuries. They move into Madagascar, Brazil, Guatemala and other poor countries to find plants and microorganisms that might be used in making new medicines and genetically engineered crops. But as Seth Shulman writes in his book Owning the Future, “Who, if anyone, should be able to claim ownership rights to the globe’s genetic and cultural inheritance?”

Sir John Sulston answers this question eloquently in his book, The Common Thread, which chronicles the race to de-code the human genome. A private startup company, Celera, was aggressively trying to put genomic sequences in one big privatized database. That way, it would have a monopoly over future use of the genomic data by licensing access to its database. Fortunately, a coalition of public-sector scientists published the data first, which is why the human genome is now in the public domain. Sulston  answers, quite rightly, that the human genome must be treated as the “common heritage of humankind.”

Life Itself Can Now Be Owned

We dodged a bullet there when the publicly funded scientists won the race to decode human genome. Yet the threat of private ownership of essential knowledge for the sake of profits is not by any means over. Further attempts will by the logical culmination of a path first opened by the U.S. Supreme Court’s Diamond v. Chakrabarty ruling in 1980, which authorized the patenting of live, genetically altered microorganisms. The patenting of living organisms opened the way for an ecologically and ethically dubious future in which the life forms that are part of the sacred web of life can be owned and treated as commodities. Knowledge is treated as private property, not as a public good.

One inevitable result of all these new ownership claims is the rise of new barriers to open sharing, collaboration and discovery among researchers and scholars. Patents are increasingly being granted for “upstream” research, which means that basic knowledge that everyone else must use for the field to advance, is becoming proprietary. Harvard, MIT and the Whitehead Institute, for example, have a patent on all drugs that inhibit something known as NF-kB cell signaling. Since this physiological process is believed to have something to do with many diseases such as cancer and osteoporosis, the patent deters anyone else from pursuing their own scientific investigations in this area.

Things were not always this way concerning valuable knowledge. Contrast these stories with Jonas Salk, the inventor of the polio vaccine. When journalist Edward R. Murrow asked him, “Who owns the patent on this vaccine?” Salk replied, “Well, the people, I would say. There is no patent. Could you patent the sun?” This story helps us remember that current notions about ownership of knowledge are not inevitable and universal; they are the result of mounting market pressures to make our scientific and cultural commons into private property.

The privatization of knowledge has only intensified as the courts—in the United States, at least—have lowered the standards for obtaining patents while broadening the scope of what is patentable. It is now possible to own mathematical algorithms embedded in software programs. The very tools needed to conduct scientific research are now private property, available only for a steep fee.

Imagine what might have happened to biotechnology and computer science if contemporary patent rules had been in place in the 1950s and 1960s. Neither the biotech nor the computer revolution would have occurred in the first place. Too much fundamental knowledge would have been off limits due to patents.

Problem of the Anti-Commons

The over-patenting of knowledge sometimes results in what is called an “anti-commons” problem, in which property rights for a given field of research are so numerous and fragmented that it becomes very difficult to conduct research. The transaction costs for obtaining rights are simply too numerous and costly. For example, there are thirty-four “patent families” for a single malarial antigen, and those rights, applying to different pieces of the research agenda, are owned by different parties in many different countries. One reason that a malaria vaccine has been so elusive is because the patent rights are so complicated and expensive to secure.

It is worth noting that openness, sharing and the public domain do not harm the market. Quite the contrary. They invigorate it. In 2005, I co-hosted a conference called Ready to Share: Fashion and the Ownership of Creativity. It explored the power of openness in apparel design. Precisely because no one can own the creative design of clothes—they can only own the company name and logo, as trademarks—everyone can participate in the design commons. The result is a more robust, innovative and competitive marketplace. This is exactly the effect that Linux, the open-source computer operating system, had on the software sector. It has opened up new opportunities for value-added innovation and competition in a marketplace until then dominated by the Microsoft monopoly.

Yale Professor Yochai Benkler argues in his magisterial book, The Wealth of Networks, that a great deal of knowledge production is more effectively pursued through a commons than through markets. Questions of ethics aside, why doesn’t money succeed at simply “buying” the knowledge it needs? Because money tends to subvert the social dynamics that make the knowledge commons work. It can sabotage self-directed inquiry. It undermines the social trust, candor and ethics that are essential to creativity and good research.

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