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February 21, 2006

Observations after 2 days of WIPO PCDA meetings

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A few quick observations after two days.

Rhetoric less inflammatory

First, the rhetoric from country delegations seems much less strident and revolutionary than it did last year during the Development Agenda IIM process. Last year, the rhetoric from Brazil, Argentina and India especially, but also Africa, was all about what a terrible job WIPO was doing and how IP was terrible and WIPO needed to change its mandate and essentially become yet another UN development agency.

This year, the rhetoric seems much less inflammatory, at least from the country delegations (some of the left-wing NGOs are as predictably bad as ever). This may reflect a bit more realism on the part of the drivers of the development agenda, and it may be in part because of a turnover in the delegation from India. Or it may just be that we're early in the process. But others have also noticed that the rhetoric has been toned down a bit, which is encouraging.

Still pretty bad, though

I don't mean to say that the discussions have been sensible. Today we heard for hours on end about how IP protection threatens the public domain, and how technical protection measures (TPMs) threaten cut "enclose" knowledge and even will keep public domain works away from the public.

Why anyone would apply DRM to a public domain work is beyond me, but even if they did, jeez, it's in the PUBLIC DOMAIN. There are multiple sources for public domain works.

Library loonacy

We also heard quite a bit about how TPMs threaten libraries. Their concern seems to be that, if they acquire digital goods under IP protection that include TPMs, once the copyright has expired and the work has moved into the public domain, they still won't be able to crack the TPM. We even heard concerns that so much time will have gone by that the keys to unlocking the TPMs won't be available.

This is interesting on several levels. First, the libraries apparently have more confidence in the ability to develop tough DRM than even DRM vendors have. Most DRM vendors expect a constant cracking of progressive DRM tools by hackers and hobbyists, but it doesn't bother them terribly much because the hackers and crackers are marginal consumers of IP goods. Most consumers aren't going to go to the trouble of finding the cracking tools on-line, downloading and applying them. The majority of consumers will simply comply with the DRM. Heck, the majority of consumers don't even take advantage of Microsoft's automatic update feature for keeping their operating systems up-to-date. Most users of antivirus software probably don't even keep their virus definitions up-to-date.

Second, the libraries seem to assume that, even after a work moves into the public domain, the only access they'll have is the TPM'ed copy they bought 70 years ago. Doesn't it make more sense to assume that they would just toss the TPM'ed copy and acquire a public domain copy when it's in the public domain? And don't we think content providers would be happy to carve out a special license for libraries that would suit their needs?

I'm always tempted to ask whether, in a digital world, we still need libraries at all, since libraries seem to be at the root of so much trouble these days. The basis for libraries has historically been scarcity and inadequate distribution. But, when the digital information society has been fully implemented, why will we still need libraries at all? And it is possible that the libraries have already realized this, and are actually trying to reinvent a new mission for themselves as the publishers to the world?

I don't SERIOUSLY question whether we still need libraries. But one of these days I'm going to work up the nerve to ask the representative of the library group the question, just to see if her head stays on.

It does seem that what libraries want is that they will be able to secure a single digital copy of a work and then make it available to everyone. That is NEVER going to work, but it seems to be what they want.

What drives anti-IP hysteria?

So much of the anti-IP hysteria seems based on one of two drivers: Either they are just philosophically opposed to ownership of IP, or they are fearful of the unknown. That's what much of the anti-DRM angst seems to boil down to--fear of the unknown. It's like all the people who are afraid of RFID, because they imagine the worst-case scenario and condemn the entire technology without any evidence of legitimate concern.

I'll make the parallel to encryption again. There was much fear and dread about encryption during the encryption debate some years ago. Now, today, is encryption controversial? No, and neither will DRM be controversial 8 years from now.

But I was wrong a minute ago when I said there were two basic drivers of anti-IP hysteria. There's actually a third: simple Naderite anti-corporatism. There is this amazing distrust of corporations, and it is so thoroughly instilled in them that it never enters their calculation that people who make and sell things actually want their products widely distributed. The think somehow that corporations are in the business of investing enormous sums of money and energy into creating new products and services, but that they plan to make money somehow by locking it all away and not letting anyone anywhere near it. It's completely illogical, and contrary to all experience and observation.

It's also anti-corporatism that drives some of the activists, because the whole reason they do what they do is opposition to Microsoft, to Oracle, to big PhRMA, to Hollywood, to the RIAA. If a little guy is doing it ,and making no money at it, then it's a thing to be celebrated. But if a corporation is doing it, and making money at it, it's somehow evil and must be opposed.

It's as if corporations are actually invaders from outer space, here to conquer us. They have gone to great pains to infiltrate human society, but secretly they plan to do us all in.

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