Intellectual Property: Does Anyone Care?

The race to control intellectual property is becoming the landgrab of the 21st century. But you won't hear a word about it in this year's presidential or congressional races.

I don't know whether that represents politicians' unwillingness to understand and discuss important issues, the public's preference for pabulum and easy answers, or both. But by the time the next presidential election comes around, unless people wake up to what they're losing on a daily basis, the system will be warped totally beyond recognition, perhaps beyond repair.

Under the current system, enshrined in new laws and court rulings, tradition and the public interest have been abandoned. The winners in this landgrab are the companies, mostly large, that control intellectual property and persuade Congress to do their bidding on large and small matters.

Led by the nose by the entertainment and software industries, where greed and the desire to control users are boundless, Congress and other law-writing bodies have unbalanced long-standing equations. Congress warped the copyright law in 1998 with the Digital Millennium Copyright Act (DMCA), which gave holders of intellectual property vast new powers and absolute control over those who want to use it.

The DMCA isn't just about college students using Napster or Linux fans who want to use software that lets them play back DVD movies on unauthorized devices.

It's about the free flow of information and the most severe threat ever to the "fair use" doctrine, which lets scholars, researchers and anyone else quote small parts of copyrighted works. If we live in a world where everything is pay-per-view, education will suffer. Libraries will die.

The patent system, meanwhile, has broken down as the U.S. Patent and Trademark Office grants monopolies to "inventions" of highly questionable originality, such as Inc.'s online reverse auction, in which shoppers say what price they're willing to pay and vendors decide whether to sell at that price.

Only the lawyers win in the challenge of bad patents, which are a deterrent to real innovation. Meanwhile, large companies are patenting the fundamentals of life itself. Will some multinational corporation own the rights to the seeds from which we grow crops that feed us, or the rights to our descendants' genes?

It's possible.

Trademark law, too, is in a landgrab when it comes to Internet domain names. An increasing number of domain-name disputes are being taken to the World Intellectual Property Organization, which has a consistent record of ruling in favor of powerful interests.

Over time, these issues - particularly what's now called piracy- will take on ever-greater significance. When molecular manufacturing (nanotechnology) arrives, physical goods will be comprised of cheap raw materials and software blueprints.

We should worry if we can't figure out how to reward innovation without stifling the free flow of information when it comes to Napster. What will we do in the future, when the issues have even bigger consequences?

The politicians are silent on all of this. That worries me a great deal.

DAN GILLMOR is technology columnist at the San Jose Mercury News. Contact him at

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