Sharpening Contradictions of Intellectual Property

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28/07/2021 by socialistfight

By Gareth Martin

Mark Zuckerberg, in a virtual reality headset, testifing in Oculus Intellectual Property Trial. Wikipedia reports: “Around May 2014, shortly after Facebook made its deal to acquire Oculus VR, the Wall Street Journal reported that ZeniMax had sent two letters to Facebook and Oculus VR, asserting that any technology contributions Carmack had made towards VR while he was still an employee of id Software, including the “VR testbed” that Carmack had frequently demonstrated, were within the intellectual property (IP) of id and ZeniMax.” This case is ongoing, showing the complexity of the issues involved.

Recently, on 24 March 2021, Mark Zuckerberg of Facebook fame proposed to a congressional hearing a solution for the problems that are widely acknowledged to plague the platform regarding inflammatory, false, and otherwise dangerous content on its platform. And while this proposition was met with much scepticism, it does highlight an issue that is becoming more and more of a problem for capitalist orthodoxy.

The legal point at question in this discussion is known as Section 230, and it provides platforms with protection from legal liability for material posted by its users. This is a matter that has caused great concern on both sides of the Atlantic in recent years, but in reality, this is just one manifestation of a problem that has been long brewing. The laws and conventions that contemporary society relies upon to govern the role of media are now technically outdated, most of them originating in the era of the Gutenberg printing press. More recent additions were made with the onset of the telephone, but modern information technology has long since superseded that old reality.

Section 230, and similar laws common across the world, grants protection to a platform on the grounds that the platform does not itself either produce the content, or vet the content. A platform is not in itself a publishing house; it does not decide what to publish or write the material it publishes. This is actually a convention brought in by the advent of telephone, and a distinct development from the conventions governing print media like newspapers.

A newspaper might receive thousands of letters to the editor, and then choose to print a handful. In doing so, the paper is necessarily making an editorial decision, to print this or that letter, and not others, or any. By contrast, if one person were to make a threat over the telephone or engage in a conspiracy – such as when Boris Johnson and his friend Darius Guppy discussed a plot to have a journalist beaten – that is taken as the responsibility of the individuals involved, not of the telephone company for having facilitated and delivered the messages.

And therein lies the contradiction for the modern capitalist establishment. Facebook, like the telephone company, is essentially correct to argue that it is not responsible for the content created and posted by its users. On the other hand, Facebook is not a point-to-point communication medium like a telephone call. A Facebook or Twitter post can and will be passed on and read by many more people than just its original recipient(s). And as such, all the concerns about public communication, around incitement, threats and conspiracy, apply to it in a manner that they do not for the phone system.

Legally and conventionally speaking, these platforms are well within their established rights, and their resistance to further intervention is not merely a disavowal of responsibility. If the platforms were to become fully liable for every message they carried, they would have no choice but to act like the editor of a newspaper and review every single message before it was posted. But such a solution would not only completely destroy their business model and render their platform useless, it would also be no less morally concerning than is their current ambivalence. Imagine if every telephone company had to have someone listen in to your calls in case you said something that broke the law – that would effectively be the place you arrived at.

There is no easy and obvious solution to this conundrum within the orthodox capitalist paradigm. The underlying technological base of society has changed, and that change requires and demands a new form of society, which has yet to manifest. This particular venue is one of the sharpest contradictions in modern capitalist orthodoxy.

It is however far from the only one stemming from the same source. The publishing business has been around for centuries and has had a profound impact on legal and political life for centuries. Copyright laws were introduced because in the early days of publishing, it was common for one print shop to publish an original work commissioned by another. But technology has long since marched much further on, and these ancient conventions on intellectual property are coming under increasing strain.

The advent of vinyl recording did not threaten these conventions, but the appearance of the Compact Cassette tape certainly did. A widespread generational experience of the 70’s and 80’s was the recording of music off the radio, sometimes adverts and all, and later the appearance of the home-made mixtape. Capitalism was perfectly willing to service this practice, and sold far more reel-to-reel copying machines than could possibly be justified by the relatively few legitimate business purposes for such devices. The purchasers of such instruments were overwhelmingly amateur music enthusiasts, enjoying the wink of a studiously blind eye.

None of this caused the recording industry too much concern at first, but over the decades the problem has become much, much worse. Things started getting serious in the era of home video when it became possible for amateur or criminal outfits to mass produce illegal copies of film and TV media. The film and recording industries mobilised lobbyists to protect their business model, arguing for enhanced penalties and ubiquitous warnings. Things got worse again when home computing and the CD went mainstream, as digital copying was both more innate to the on-the-desk technology in people’s homes, and capable of making far more faithful copies. In the early days of software, what later became known as “piracy” was initially no more than common courtesy among sympathetic hobbyists.

In fact, the field of information technology has long had a rather ambivalent relationship to legality, not least because many inventions and innovations were made by people breaking the law. Thus when Microsoft finally introduced CD copying software to its Windows operating system, Bill Gates was notoriously forced to use the criminal slang “ripping” live on stage, because ripping was, and is, the accepted jargon for the practice among techies.

The fundamental problem driving all of this is, of course, economic. The central contradiction is that the value of a commodity tends toward its replacement cost, and the replacement cost of something that can be infinitely copied is zero. Throughout most of history, artists and performers were not only unlikely to be wealthy but were widely regarded as a semi-criminal element of society. It was only the historically particular convergence of specific technologies in the C20th that brought about the phenomenon of the super-rich media mega-star, the window between when recordings could be made industrially, and when they could be easily copied.

Already the ground has started to shift. Some artists are no longer producing albums with the intent to make their money from selling copies, but instead as a loss leader to attract audiences to a concert. The same effect drives a problem widely acknowledged to affect the legacy news media, namely the question of how reporters are to be paid in an environment where news is so easily obtained for free. Conversely, the recording industry has stepped up efforts to criminalise piracy and to enforce ever stiffer penalties, but however Draconian they get it remains the case that they are swimming against the historical tide.

And perhaps more pointedly, the same issues apply to questions of patents in all sorts of fields, particularly that of medicinal drugs – and now, the Covid vaccine. In all these cases, the advance of technology has created a major discrepancy between the interests of capital, and the interests of the public at large, that cannot be solved within the existing system today.▲

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