by
Lawrence Lessig
|
CONCLUSION
There are more than 35 million people with the AIDS virus
worldwide. Twenty-five million of them live in sub-Saharan Africa. Seventeen million have already died. Seventeen million Africans
is proportional percentage-wise to seven million Americans. More
importantly, it is seventeen million Africans.
There is no cure for AIDS, but there are drugs to slow its progression. These antiretroviral therapies are still experimental, but they have
already had a dramatic effect. In the United States, AIDS patients who
regularly take a cocktail of these drugs increase their life expectancy
by ten to twenty years. For some, the drugs make the disease almost
invisible.
These drugs are expensive. When they were first introduced in the
United States, they cost between $10,000 and $15,000 per person per
year. Today, some cost $25,000 per year. At these prices, of course, no
African nation can afford the drugs for the vast majority of its population: $15,000 is thirty times the per capita gross national product of
Zimbabwe. At these prices, the drugs are totally unavailable.[1]
These prices are not high because the ingredients of the drugs are
expensive. These prices are high because the drugs are protected by
patents. The drug companies that produced these life-saving mixes enjoy
at least a twenty-year monopoly for their inventions. They use that
monopoly power to extract the most they can from the market. That
power is in turn used to keep the prices high.
There are many who are skeptical of patents, especially drug
patents. I am not. Indeed, of all the areas of research that might be supported
by patents, drug research is, in my view, the clearest case where
patents are needed. The patent gives the drug company some assurance
that if it is successful in inventing a new drug to treat a disease, it will
be able to earn back its investment and more. This is socially an extremely
valuable incentive. I am the last person who would argue that
the law should abolish it, at least without other changes.
But it is one thing to support patents, even drug patents. It is another
thing to determine how best to deal with a crisis. And as African
leaders began to recognize the devastation that AIDS was bringing, they started looking for ways to import HIV treatments at costs significantly
below the market price.
In 1997, South Africa tried one tack. It passed a law to allow the
importation of patented medicines that had been produced or sold in
another nation's market with the consent of the patent owner. For example, if the drug was sold in India, it could be imported into Africa
from India. This is called "parallel importation," and it is generally permitted
under international trade law and is specifically permitted
within the European Union.[2]
However, the United States government opposed the bill. Indeed, more than opposed. As the International Intellectual Property Association
characterized it, "The U.S. government pressured South Africa . . .
not to permit compulsory licensing or parallel imports."[3] Through the
Office of the United States Trade Representative, the government
asked South Africa to change the law--and to add pressure to that request, in 1998, the USTR listed South Africa for possible trade sanctions. That same year, more than forty pharmaceutical companies began
proceedings in the South African courts to challenge the govern-
ment's actions. The United States was then joined by other governments
from the EU. Their claim, and the claim of the pharmaceutical companies, was that South Africa was violating its obligations under international
law by discriminating against a particular kind of patent--
pharmaceutical patents. The demand of these governments, with the
United States in the lead, was that South Africa respect these patents
as it respects any other patent, regardless of any effect on the treatment
of AIDS within South Africa.[4]
We should place the intervention by the United States in context. No doubt patents are not the most important reason that Africans
don't have access to drugs. Poverty and the total absence of an effective
health care infrastructure matter more. But whether patents are the
most important reason or not, the price of drugs has an effect on their
demand, and patents affect price. And so, whether massive or marginal, there was an effect from our government's intervention to stop
the flow of medications into Africa.
By stopping the flow of HIV treatment into Africa, the United
States government was not saving drugs for United States citizens. This is not like wheat (if they eat it, we can't); instead, the flow that the
United States intervened to stop was, in effect, a flow of knowledge: information about how to take chemicals that exist within Africa, and
turn those chemicals into drugs that would save 15 to 30 million lives.
Nor was the intervention by the United States going to protect the
profits of United States drug companies--at least, not substantially. It
was not as if these countries were in the position to buy the drugs for
the prices the drug companies were charging. Again, the Africans are
wildly too poor to afford these drugs at the offered prices. Stopping the
parallel import of these drugs would not substantially increase the sales
by U.S. companies.
Instead, the argument in favor of restricting this flow of information, which was needed to save the lives of millions, was an argument
about the sanctity of property.[5] It was because "intellectual property"
would be violated that these drugs should not flow into Africa. It was
a principle about the importance of "intellectual property" that led
these government actors to intervene against the South African response
to AIDS.
Now just step back for a moment. There will be a time thirty years
from now when our children look back at us and ask, how could we have
let this happen? How could we allow a policy to be pursued whose direct
cost would be to speed the death of 15 to 30 million Africans, and
whose only real benefit would be to uphold the "sanctity" of an idea? What possible justification could there ever be for a policy that results
in so many deaths? What exactly is the insanity that would allow so
many to die for such an abstraction?
Some blame the drug companies. I don't. They are corporations. Their managers are ordered by law to make money for the corporation. They push a certain patent policy not because of ideals, but because it is
the policy that makes them the most money. And it only makes them the
most money because of a certain corruption within our political system--
a corruption the drug companies are certainly not responsible for.
The corruption is our own politicians' failure of integrity. For the
drug companies would love--they say, and I believe them--to sell their
drugs as cheaply as they can to countries in Africa and elsewhere. There are issues they'd have to resolve to make sure the drugs didn't get
back into the United States, but those are mere problems of technology. They could be overcome.
A different problem, however, could not be overcome. This is the
fear of the grandstanding politician who would call the presidents of
the drug companies before a Senate or House hearing, and ask, "How
is it you can sell this HIV drug in Africa for only $1 a pill, but the same
drug would cost an American $1,500?" Because there is no "sound
bite" answer to that question, its effect would be to induce regulation
of prices in America. The drug companies thus avoid this spiral by
avoiding the first step. They reinforce the idea that property should be
sacred. They adopt a rational strategy in an irrational context, with the
unintended consequence that perhaps millions die. And that rational
strategy thus becomes framed in terms of this ideal--the sanctity of an
idea called "intellectual property."
So when the common sense of your child confronts you, what will
you say? When the common sense of a generation finally revolts
against what we have done, how will we justify what we have done? What is the argument?
A sensible patent policy could endorse and strongly support the
patent system without having to reach everyone everywhere in exactly
the same way. Just as a sensible copyright policy could endorse and
strongly support a copyright system without having to regulate the
spread of culture perfectly and forever, a sensible patent policy could
endorse and strongly support a patent system without having to block
the spread of drugs to a country not rich enough to afford market
prices in any case. A sensible policy, in other words, could be a balanced
policy. For most of our history, both copyright and patent policies were
balanced in just this sense.
But we as a culture have lost this sense of balance. We have lost the
critical eye that helps us see the difference between truth and extremism. A certain property fundamentalism, having no connection to our
tradition, now reigns in this culture--bizarrely, and with consequences
more grave to the spread of ideas and culture than almost any other
single policy decision that we as a democracy will make.
A simple idea blinds us, and under the cover of darkness, much
happens that most of us would reject if any of us looked. So uncritically
do we accept the idea of property in ideas that we don't even notice
how monstrous it is to deny ideas to a people who are dying without
them. So uncritically do we accept the idea of property in culture that
we don't even question when the control of that property removes our
ability, as a people, to develop our culture democratically. Blindness be-
comes our common sense. And the challenge for anyone who would
reclaim the right to cultivate our culture is to find a way to make this
common sense open its eyes.
So far, common sense sleeps. There is no revolt. Common sense
does not yet see what there could be to revolt about. The extremism
that now dominates this debate fits with ideas that seem natural, and
that fit is reinforced by the RCAs of our day. They wage a frantic war
to fight "piracy," and devastate a culture for creativity. They defend
the idea of "creative property," while transforming real creators into
modern-day sharecroppers. They are insulted by the idea that rights
should be balanced, even though each of the major players in this
content war was itself a beneficiary of a more balanced ideal. The
hypocrisy reeks. Yet in a city like Washington, hypocrisy is not even
noticed. Powerful lobbies, complex issues, and MTV attention spans
produce the "perfect storm" for free culture.
In August 2003, a fight broke out in the United States about a
decision by the World Intellectual Property Organization to cancel a
meeting.[6] At the request of a wide range of interests, WIPO had decided
to hold a meeting to discuss "open and collaborative projects to
create public goods." These are projects that have been successful in
producing public goods without relying exclusively upon a proprietary
use of intellectual property. Examples include the Internet and the
World Wide Web, both of which were developed on the basis of protocols
in the public domain. It included an emerging trend to support
open academic journals, including the Public Library of Science project
that I describe in the Afterword. It included a project to develop
single nucleotide polymorphisms (SNPs), which are thought to have
great significance in biomedical research. (That nonprofit project comprised
a consortium of the Wellcome Trust and pharmaceutical and
technological companies, including Amersham Biosciences, AstraZeneca, Aventis, Bayer, Bristol-Myers Squibb, Hoffmann-La Roche, Glaxo-
SmithKline, IBM, Motorola, Novartis, Pfizer, and Searle.) It included
the Global Positioning System, which Ronald Reagan set free in the
early 1980s. And it included "open source and free software."
The aim of the meeting was to consider this wide range of projects
from one common perspective: that none of these projects relied upon
intellectual property extremism. Instead, in all of them, intellectual
property was balanced by agreements to keep access open or to impose
limitations on the way in which proprietary claims might be used.
From the perspective of this book, then, the conference was ideal.[7] The projects within its scope included both commercial and noncommercial
work. They primarily involved science, but from many perspectives. And WIPO was an ideal venue for this discussion, since
WIPO is the preeminent international body dealing with intellectual
property issues.
Indeed, I was once publicly scolded for not recognizing this fact
about WIPO. In February 2003, I delivered a keynote address to a
preparatory conference for the World Summit on the Information Society
(WSIS). At a press conference before the address, I was asked
what I would say. I responded that I would be talking a little about the
importance of balance in intellectual property for the development of
an information society. The moderator for the event then promptly interrupted
to inform me and the assembled reporters that no question
about intellectual property would be discussed by WSIS, since those
questions were the exclusive domain of WIPO. In the talk that I had
prepared, I had actually made the issue of intellectual property relatively
minor. But after this astonishing statement, I made intellectual
property the sole focus of my talk. There was no way to talk about an
"Information Society" unless one also talked about the range of information
and culture that would be free. My talk did not make my immoderate
moderator very happy. And she was no doubt correct that the
scope of intellectual property protections was ordinarily the stuff of
WIPO. But in my view, there couldn't be too much of a conversation
about how much intellectual property is needed, since in my view, the
very idea of balance in intellectual property had been lost.
So whether or not WSIS can discuss balance in intellectual property, I had thought it was taken for granted that WIPO could and
should. And thus the meeting about "open and collaborative projects to
create public goods" seemed perfectly appropriate within the WIPO
agenda.
But there is one project within that list that is highly controversial, at least among lobbyists. That project is "open source and free software." Microsoft in particular is wary of discussion of the subject. From
its perspective, a conference to discuss open source and free software
would be like a conference to discuss Apple's operating system. Both
open source and free software compete with Microsoft's software. And
internationally, many governments have begun to explore requirements
that they use open source or free software, rather than "proprietary
software," for their own internal uses.
I don't mean to enter that debate here. It is important only to make
clear that the distinction is not between commercial and noncommercial
software. There are many important companies that depend fundamentally
upon open source and free software, IBM being the most
prominent. IBM is increasingly shifting its focus to the GNU/Linux
operating system, the most famous bit of "free software"--and IBM is
emphatically a commercial entity. Thus, to support "open source and
free software" is not to oppose commercial entities. It is, instead, to
support a mode of software development that is different from Mi-
crosoft's.[8]
More important for our purposes, to support "open source and free
software" is not to oppose copyright. "Open source and free software"
is not software in the public domain. Instead, like Microsoft's
software, the copyright owners of free and open source software insist
quite strongly that the terms of their software license be respected by
adopters of free and open source software. The terms of that license are
no doubt different from the terms of a proprietary software license. Free software licensed under the General Public License (GPL), for
example, requires that the source code for the software be made available
by anyone who modifies and redistributes the software. But that
requirement is effective only if copyright governs software. If copyright
did not govern software, then free software could not impose the same
kind of requirements on its adopters. It thus depends upon copyright
law just as Microsoft does.
It is therefore understandable that as a proprietary software developer, Microsoft would oppose this WIPO meeting, and understandable
that it would use its lobbyists to get the United States government
to oppose it, as well. And indeed, that is just what was reported to have
happened. According to Jonathan Krim of the Washington Post, Microsoft's lobbyists succeeded in getting the United States government
to veto the meeting.[9] And without U.S. backing, the meeting was canceled.
I don't blame Microsoft for doing what it can to advance its own interests, consistent with the law. And lobbying governments is plainly
consistent with the law. There was nothing surprising about its lobbying
here, and nothing terribly surprising about the most powerful software
producer in the United States having succeeded in its lobbying
efforts.
What was surprising was the United States government's reason for
opposing the meeting. Again, as reported by Krim, Lois Boland, acting
director of international relations for the U.S. Patent and Trademark
Office, explained that "open-source software runs counter to the mission
of WIPO, which is to promote intellectual-property rights." She
is quoted as saying, "To hold a meeting which has as its purpose to disclaim
or waive such rights seems to us to be contrary to the goals of
WIPO."
These statements are astonishing on a number of levels.
First, they are just flat wrong. As I described, most open source and
free software relies fundamentally upon the intellectual property right
called "copyright." Without it, restrictions imposed by those licenses
wouldn't work. Thus, to say it "runs counter" to the mission of promoting
intellectual property rights reveals an extraordinary gap in under-
standing--the sort of mistake that is excusable in a first-year law
student, but an embarrassment from a high government official dealing
with intellectual property issues.
Second, who ever said that WIPO's exclusive aim was to "promote"
intellectual property maximally? As I had been scolded at the preparatory
conference of WSIS, WIPO is to consider not only how best to
protect intellectual property, but also what the best balance of intellectual
property is. As every economist and lawyer knows, the hard question
in intellectual property law is to find that balance. But that there
should be limits is, I had thought, uncontested. One wants to ask Ms. Boland, are generic drugs (drugs based on drugs whose patent has
expired) contrary to the WIPO mission? Does the public domain
weaken intellectual property? Would it have been better if the protocols
of the Internet had been patented?
Third, even if one believed that the purpose of WIPO was to maximize
intellectual property rights, in our tradition, intellectual property
rights are held by individuals and corporations. They get to decide
what to do with those rights because, again, they are their rights. If they
want to "waive" or "disclaim" their rights, that is, within our tradition, totally appropriate. When Bill Gates gives away more than $20 billion
to do good in the world, that is not inconsistent with the objectives of
the property system. That is, on the contrary, just what a property system
is supposed to be about: giving individuals the right to decide what
to do with their property.
When Ms. Boland says that there is something wrong with a meeting
"which has as its purpose to disclaim or waive such rights," she's
saying that WIPO has an interest in interfering with the choices of
the individuals who own intellectual property rights. That somehow, WIPO's objective should be to stop an individual from "waiving" or "disclaiming"
an intellectual property right. That the interest of WIPO is
not just that intellectual property rights be maximized, but that they also
should be exercised in the most extreme and restrictive way possible.
There is a history of just such a property system that is well known
in the Anglo-American tradition. It is called "feudalism." Under feudalism, not only was property held by a relatively small number of individuals
and entities. And not only were the rights that ran with that
property powerful and extensive. But the feudal system had a strong
interest in assuring that property holders within that system not
weaken feudalism by liberating people or property within their control
to the free market. Feudalism depended upon maximum control and
concentration. It fought any freedom that might interfere with that
control.
As Peter Drahos and John Braithwaite relate, this is precisely the
choice we are now making about intellectual property.[10] We will have
an information society. That much is certain. Our only choice now is
whether that information society will be free or feudal. The trend is toward
the feudal.
When this battle broke, I blogged it. A spirited debate within the
comment section ensued. Ms. Boland had a number of supporters who
tried to show why her comments made sense. But there was one comment
that was particularly depressing for me. An anonymous poster
wrote,
George, you misunderstand Lessig: He's only talking about the
world as it should be ("the goal of WIPO, and the goal of any
government, should be to promote the right balance of intellectualproperty
rights, not simply to promote intellectual property
rights"), not as it is. If we were talking about the world as it is, then of course Boland didn't say anything wrong. But in the world
as Lessig would have it, then of course she did. Always pay attention
to the distinction between Lessig's world and ours.
I missed the irony the first time I read it. I read it quickly and
thought the poster was supporting the idea that seeking balance was
what our government should be doing. (Of course, my criticism of Ms. Boland was not about whether she was seeking balance or not; my
criticism was that her comments betrayed a first-year law student's
mistake. I have no illusion about the extremism of our government, whether Republican or Democrat. My only illusion apparently is about
whether our government should speak the truth or not.)
Obviously, however, the poster was not supporting that idea. Instead, the poster was ridiculing the very idea that in the real world, the
"goal" of a government should be "to promote the right balance" of intellectual
property. That was obviously silly to him. And it obviously
betrayed, he believed, my own silly utopianism. "Typical for an academic,"
the poster might well have continued.
I understand criticism of academic utopianism. I think utopianism
is silly, too, and I'd be the first to poke fun at the absurdly unrealistic
ideals of academics throughout history (and not just in our own coun-
try's history).
But when it has become silly to suppose that the role of our government
should be to "seek balance," then count me with the silly, for
that means that this has become quite serious indeed. If it should be
obvious to everyone that the government does not seek balance, that
the government is simply the tool of the most powerful lobbyists, that
the idea of holding the government to a different standard is absurd, that the idea of demanding of the government that it speak truth and
not lies is just naïve, then who have we, the most powerful democracy
in the world, become?
It might be crazy to expect a high government official to speak
the truth. It might be crazy to believe that government policy will be
something more than the handmaiden of the most powerful interests. It might be crazy to argue that we should preserve a tradition that has
been part of our tradition for most of our history--free culture.
If this is crazy, then let there be more crazies. Soon.
There are moments of hope in this struggle. And moments that
surprise. When the FCC was considering relaxing ownership rules, which would thereby further increase the concentration in media ownership, an extraordinary bipartisan coalition formed to fight this
change. For perhaps the first time in history, interests as diverse as the
NRA, the ACLU, Moveon.org, William Safire, Ted Turner, and
CodePink Women for Peace organized to oppose this change in FCC
policy. An astonishing 700,000 letters were sent to the FCC, demanding
more hearings and a different result.
This activism did not stop the FCC, but soon after, a broad coalition
in the Senate voted to reverse the FCC decision. The hostile hearings
leading up to that vote revealed just how powerful this movement
had become. There was no substantial support for the FCC's decision, and there was broad and sustained support for fighting further concentration
in the media.
But even this movement misses an important piece of the puzzle. Largeness as such is not bad. Freedom is not threatened just because
some become very rich, or because there are only a handful of big players. The poor quality of Big Macs or Quarter Pounders does not mean
that you can't get a good hamburger from somewhere else.
The danger in media concentration comes not from the concentration, but instead from the feudalism that this concentration, tied to the
change in copyright, produces. It is not just that there are a few powerful
companies that control an ever expanding slice of the media. It
is that this concentration can call upon an equally bloated range of
rights--property rights of a historically extreme form--that makes
their bigness bad.
It is therefore significant that so many would rally to demand com-
petition and increased diversity. Still, if the rally is understood as being
about bigness alone, it is not terribly surprising. We Americans have a
long history of fighting "big," wisely or not. That we could be motivated
to fight "big" again is not something new.
It would be something new, and something very important, if an
equal number could be rallied to fight the increasing extremism built
within the idea of "intellectual property." Not because balance is alien
to our tradition; indeed, as I've argued, balance is our tradition. But because
the muscle to think critically about the scope of anything called
"property" is not well exercised within this tradition anymore.
If we were Achilles, this would be our heel. This would be the place
of our tragedy.
As I write these final words, the news is filled with stories about
the RIAA lawsuits against almost three hundred individuals.[11] Eminem
has just been sued for "sampling" someone else's music.[12] The
story about Bob Dylan "stealing" from a Japanese author has just finished
making the rounds.[13] An insider from Hollywood--who insists
he must remain anonymous--reports "an amazing conversation with
these studio guys. They've got extraordinary [old] content that they'd
love to use but can't because they can't begin to clear the rights. They've
got scores of kids who could do amazing things with the content, but
it would take scores of lawyers to clean it first." Congressmen are talking
about deputizing computer viruses to bring down computers thought
to violate the law. Universities are threatening expulsion for kids who
use a computer to share content.
Yet on the other side of the Atlantic, the BBC has just announced
that it will build a "Creative Archive," from which British citizens can
download BBC content, and rip, mix, and burn it.[14] And in Brazil, the
culture minister, Gilberto Gil, himself a folk hero of Brazilian music, has joined with Creative Commons to release content and free licenses
in that Latin American country.[15]
I've told a dark story. The truth is more mixed. A technology has
given us a new freedom. Slowly, some begin to understand that this
freedom need not mean anarchy. We can carry a free culture into the
twenty-first century, without artists losing and without the potential of
digital technology being destroyed. It will take some thought, and
more importantly, it will take some will to transform the RCAs of our
day into the Causbys.
Common sense must revolt. It must act to free culture. Soon, if this
potential is ever to be realized.
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