Networks and States: The Global Politics of Internet Governance

7. IP versus IP

7 As Internet protocol began to spread virally over telecommunication networks in the early 1990s, a T-shirt sported by Vint Cerf, one of the inventors of the protocol, proudly proclaimed “IP on everything!” A few years later, Cerf’s T-shirt motto became “Everything on IP!” as he celebrated the coming together of all modes of communication—voice, data, video—on the Internet platform.1 To Cerf, IP meant Internet protocol. But to most lawyers IP has a different connotation. It is an acronym for intellectual property: a contested umbrella term2 that encompasses the law of copyrights, trademarks, and patents. Until about 1994, the two IPs occupied completely separate worlds. Since then, the conjunction and clash of the two has become one of the main drivers of the global politics of Internet governance. There is an ongoing struggle between the Internet’s ability to facilitate open networking and information sharing on a borderless basis and the attempts of the owners of trademarked names and digitized content to build legal and technical fences around their assets. Property rights require boundaries; inherent in the nature of property is the ability of the owner to exclude others from benefits so that they can make profitable exchanges. In the modern world, states are the primary enforcers of said boundaries and they, too, are founded on boundaries, an exclusivity over the power to legislate and 1. The T-shirts were worn at conferences of the Internet Engineering Task Force (IETF). A picture of Cerf wearing one can still be found on the Internet at http:// www.pcmag.com/encyclopedia_term/0,2542,t=IP+on+Everything&i=45362,00.asp. 2. In particular, Richard Stallman of the Free Software Foundation has mounted a crusade against the term intellectual property. According to Stallman, patent, copyright , and trademark law “originated separately, evolved differently, cover different activities, have different rules, and raise different public policy issues.” In Stallman’s article “Did you say ‘intellectual property’? It’s a seductive mirage,” Third World Network, 2004, http://www.twnside.org.sg/title2/twr171g.htm. IP versus IP 130 Chapter 7 police. Thus, the IP vs. IP conflict also provides a key arena in which national politics and power structures intersect with the global politics of Internet governance. There is a vast literature on the legal, cultural, and political aspects of copyright protection in the digital age,3 and a sizable scholarly and professional literature on trademarks and the Internet.4 Likewise, nonproprietary or “free” software has inspired an avalanche of scholarly analysis and popular writing.5 Oddly, however, those problems are rarely if ever grouped together and understood holistically as an aspect of Internet governance. It’s as if we were so focused on fish that we’ve lost sight of the ocean. The report of the UN Working Group on Internet Governance was symptomatic . It listed intellectual property rights ninth in a list of thirteen “public policy issues that are relevant to Internet governance.” The relationship between Internet governance and intellectual property was classified with trade as a public policy issue that is “relevant to the Internet” but that has “an impact much wider than the Internet and for which existing organizations are responsible.”6 While not exactly incorrect, the WGIG’s treatment of the issue massively understated both the centrality of intellectual property to the governance of the Internet, and the importance of the Internet to the future of intellectual property. If anything, the IP vs. IP struggles exceed the ICANN controversies in their shaping impact on Internet governance. The WGIG report also failed to appreciate the degree to which the problem of intellectual property on the Internet has eroded neat sectoral categories of responsibility for different policy domains among existing international organizations. It brings together concerns about trade, human rights, and Internet security as well as copyright and trademark. In fact, those aware of the behind-the-scenes politics know that the reference to “existing organizations” in the WGIG report came from status quo-oriented intellectual property interests and states. They wanted to ensure that responsibility for global intellectual property governance remained safely within entities such as WIPO (World Intellectual Property Organization) and the WTO (World Trade Organization), where they felt that things were pretty 3. Boyle 1996 and 1997; Litman 2001; Vaidhyanathan 2001; Landes and Posner 2003; Lessig 2001 and 2005; Elkin-Koren 2005. See also the extensive oeuvre of Pamela Samuelson at http://people.ischool.berkeley.edu/~pam/papers.html. 4. Burk 1995...