Hoarders of Thought

Intellectual-property lawyer Robin Gross has a windup Mickey Mouse toy on her desk next to a photograph of armed guerrillas. The contrast suits her.

Gross, a consumer advocacy freedom fighter, has devoted her professional career to challenging big copyright holders. Now that her new nonprofit group IP Justice has set up shop in a sunny office in the Haight-Ashbury district of San Francisco, Gross is busy working to keep intellectual property (like Mickey) in the public domain where it belongs.

"Copyright and I.P. law was originally designed to promote public welfare," Gross says. Intellectual property, unlike real estate, is designed to pass into the public domain. That's why there are limitations on the number of years a person can hold a copyright, trademark, or patent. The idea is to create a system in which inventors and creators are financially rewarded for their work, but which also allows the public "fair use" of the property so they can build even better inventions with it, communicate better, or simply learn something valuable.

It's almost a misnomer to call a creative work a form of property because a song or a piece of software cannot be owned in the same way a house or a car can be. "I.P. isn't like real property," Gross asserts. "Copyright allows the owner to lease their property to others before it falls into the public domain. This never happens with real property. You don't have a fair-use right to take someone's house away from them after they've owned it a few years."

Recently, however, consumers have been fighting a losing battle with copyright holders. The U.S. Supreme Court upheld a law extending copyright limits for an additional 20 years. The Recording Industry Association of America is hunting down copyright violators and suing them for millions of dollars. And anyone who tries to circumvent software that prohibits fair-use copying of CDs or DVDs risks doing jail time.

Gross, who was involved in key court cases about the legality of peer-to-peer software and the right to reverse-engineer copy-protection schemes, is currently setting her sights on a new international treaty called the Free Trade of the Americas Agreement. IP Justice has a strong international focus, with board members who hail from all over the world. For Gross, international treaties are the future of I.P. consumer advocacy. The agreement, if ratified, would bring 34 countries into conformity on I.P. laws. And these laws are strongly skewed to benefit copyright holders. "Why should developing countries adopt the policies of I.P. export countries?" Gross asks.

The only two countries in the world that are net I.P. exporters are the United States and the United Kingdom. Every other country imports more I.P. than it exports, making most of the global population into I.P. have-nots. That's why developing nations like Brazil are strongly against the I.P. chapter in the agreement and why advocates like Gross are hoping to influence what goes into the treaty before its hoped-for ratification date in early 2005. I.P. may not be analogous to physical property, but what the two have in common is their concentration in the hands of the wealthy.

Seventy-nine countries have signed on to the World Intellectual Property Organization, which makes sure nations respect each other's I.P. laws. But some countries are rebelling against the current I.P. regime. India, for example, refuses to allow patents on medicines. "They need medicine, and if they abide by U.S. patents, that would create a health crisis," Gross explains. Also, the governments of India, Brazil, and Peru only use open-source software, which means they aren't forced to pay steep copyright licensing fees to gigantic I.P. hoarders like Microsoft.

The global economic future is sure to be deeply bound up with I.P. and the laws that govern its use. While sometimes it may seem that nothing could be worse than the United States' Digital Millennium Copyright Act, the I.P. chapter of the free-trade agreement threatens to make the DMCA look like a walk in the park. For one, it vastly expands the criminal penalties brought against copyright infringers like file-sharers on Kazaa. "Peer-to-peer sharers will be eligible for imprisonment," Gross warns.

Luckily, her organization is out there fighting for truth and I.P. justice.

Annalee Newitz (freeintellectual@techsploitation.com) is a surly media nerd who has been forced to sell her thoughts to the highest bidder. Her column also appears in Metro, Silicon Valley's weekly newspaper.

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