an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Among other aspects and dimensions, the frame “Beyond IP” summarizes two key complementary insights in contemporary politics of intellectual property. The first insight touches upon the limits, shortcomings and social costs that are associated with legal ordering of cultural/information production through intellectual property regimes. The second insight lists alternative structures, institutions and regulatory options for the promotion of innovation and ubiquitous cultural flourishing. Both insights reside upon concrete and persuasive arguments.
At least to some degree, the shift from an IP-centric approach to alternate methodologies that go beyond IP was stimulated by the emergence of digitization and networked communications platforms. New methods and reduced costs of producing, storing and distributing content/information provide fertile grounds and constant demonstration that there are enhanced schemes, beyond IP, for cultural and knowledge sustainability.
“Beyond IP” is not just a frame for mobilization but also a descriptive term that captures and summarizes contemporary information, creative and cultural activities, which rest upon concepts of free content, free access and openness as their building blocks.
Yet, it is at this juncture that another, less noticed, aspect of “Beyond IP” is being revealed: the political economy of certain “Beyond IP” realms, and particularly market-oriented realms, may be counterintuitive to the above-mentioned premises.
Free content and “freedom” from proprietary regimes do not necessarily derive true effective freedom for individuals. The networked environment and its strong lean towards selling “eyeballs” (audience attention) to advertisers, big data utilization, the use of information flows about consumer behavior to target advertisements, search results, and other content, stealth advertisement, sophisticated systems of predictive analytics, consumer data commodification and free utilization of content represent a brave new world which is nothing but the opposite of what one anticipates when looking beyond the shoulders of IP.
In such “Beyond IP” realms, power hierarchies, industrialized corporate structures, media concentration, content biases, abridged creative diversity and deflated authors’ welfare may even outweigh the disruptions of traditional corporate media realms.
Although the emergence of networked informational capitalism is well addressed, there is hardly any reference to the linkage between networked informational capitalism and components---both legal and ideological---which are derived from and are associated with “Beyond IP” cultural and informational zones.
The purpose of my contribution to this conference is to unveil some of the social contradictions and complexities that market-oriented “Beyond IP” realms tend to generate. This dimension, thus far neglected, attempts to question the conventional wisdom of critical copyright scholarship which tends to pair mostly (if not only) proprietary protection with corporate media social structures, media capitalism and the commodification of culture.
I will argue that tensions and dichotomies that we are accustomed to attribute to "IP-centric" regimes are tensions and dichotomies which may appear, or even be stimulated, also by certain Beyond IP regimes. As a consequence, for those who cherish cultural environmentalism, cultural democracy and public-regarding media realms, the political economy of information and content markets that operate beyond the boundaries of IP may be no less challenging than old school corporate media.
Thus, for example, Beyond IP free markets are in direct tension with the value of information privacy because they rely upon and extract revenues from trading and commercializing personal information. The economy of monetizing personal information also reinforces itself back on content and media spheres because it requires communicative and informational engagements/products that are suitable for (and maximize) such information gathering.
Market economy settings that are structured around free content may also incentivize what seems as an extreme version of the traditional “market for eyeballs” and advertisement-supported content distribution platforms, as well as wasteful investment in generating traffic for specific types of content that are likely to maximize audience attention.
Additionally, Beyond IP networked environments may also impose pressures that weaken other competing models of content production and content distribution, because “free” is becoming a predatory pricing mechanism that may leave little market share for creative substitutes which do aim at extracting revenues from selling content.
By making such claims, I am not arguing that an IP-centric approach and IP expansionism should be restored. Nor do I argue that notions such as access to knowledge should be abandoned. I do argue, however, that certain segments of the world Beyond IP stimulate pressures, tensions, disruptions and mass deceptions which go against the values of a democratic culture. Moreover, frames such as free culture, openness and "IP’s darker sides" may have masked our ability to fully comprehend and respond to the challenges that are imposed by contemporary industrial information economics of copyrightless markets.
Tensions and dichotomies that we are accustomed to portrait between “IP centric” and “Beyond IP” environments are tensions and dichotomies which are also internal to each environment. Hence, even if it is highly plausible that free open access infrastructures prevail in terms of their social contribution, one still needs to locate and regulate less desired internal patterns and tendencies of such environments. My paper considers such aspects and examines their implications on copyright, privacy, and telecommunications policy.
First Amendment scholars are well trained in locating dissonances in which free speech values were transplanted and manipulated in service of corporate and capital interests. Something similar may be happening with the concept of "Beyond IP."
Guy Pessach is Senior Lecturer, Hebrew University of Jerusalem, Faculty of Law. He can be reached at guy.pessach at mail.huji.ac.il.