Intellectual Property

RIAA Loses Again

Cecille Isidro — Thu, 25 Sep 2008 10:20:00 -0400

The Recording Industry Association of America (RIAA) has been taking a lot of people to court--basically, harassing folks in an attempt to curb file-sharing. The $220,000 verdict against Jammy Thomas got a lot of news (and probably worried a lot of folks). However, on appeal (i.e., after a new court not cherry-picked by the RIAA to try the case looked things over), the RIAA lost… again. ZDnet covered the verdict.

At its heart, the verdict reaffirms that simply making a copyrighted work available is not the same as actually distributing the work. In other words, copyright holders actually have to show harm before they can sue the pants off of people. More importantly, it lends yet more weight to the notion that our copyright laws are woefully out of date and that the RIAA has systematically overstepped the legal bounds of its authority under existing copyright law.

Fundamentally, there will need to be a reassessment of copyright and a rebalancing of the rights of copyright holders and the benefits of copyright to the general public. As Article I, Section 8 of the United States Constitution clearly states:

"The Congress shall have power to...promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."

The goal is the promotion of the progress of science and the arts--not to enrich copyright holders. Clearly, we've strayed from that core mission and Congress should reaffirm its commitment to the original function of copyright.

Jennifer Washburn in The New York Times | 'When Academia Puts Profit Ahead of Wonder'

Communications — Sat, 06 Sep 2008 08:06:00 -0400

The Bayh-Dole Act of 1980 started out with the best of intentions. By clearing away the thicket of conflicting rules and regulations at various federal agencies, it set out to encourage universities to patent and license results of federally financed research. For the first time, academicians were able to profit personally from the market transfer of their work. For the first time, academia could be powered as much by a profit motive as by the psychic reward of new discovery...

...“Bayh-Dole tore down the taboos that existed against universities engaging in overtly commercial activity. Universities really thought that they were going to make it rich,” said Jennifer Washburn, author of “University Inc.: The Corporate Corruption of Higher Education” (Basic Books, 2005). “Each school was convinced that if they came up with that one blockbuster invention, they could solve all their financial problems.”

Ms. Washburn says that was “extremely wrong-headed.” Initially reacting to the law by slapping patents on every possible innovation, universities quickly discovered that patents were an expensive proposition. The fees and legal costs involved in obtaining a single patent can run upward of $15,000, and that doesn’t count the salaries of administrative staff members. Instead of bringing home the bacon, university tech transfer offices were throwing money into the void with little hope of returns. LINK

Can Technology Save Intellectual Property Without Crippling Our Culture?

adminn — Thu, 01 May 2008 21:16:00 -0400

The easy knock on Tarleton Gillespie's Wired Shut: Copyright and the Shape of Digital Culture is that it seems dated. In walking the reader through the many issues and arguments of digital copyright, Gillespie focuses on three seminal attempts at Digital Rights Management -- the Recording Industry Association of America's failed Secure Digital Music Initiative, moviemakers' somewhat more successful efforts to lock down DVDs, and the major television networks' push to require "broadcast flags" on digital television signals.

All three battles, while important, were waged years ago; more recent, equally relevant examples are touched on briefly or not at all. So while Napster gets plenty of attention, the BitTorrent explosion is never discussed. And Apple -- which has been perhaps the most influential player in this decade's DRM debates -- appears only fleetingly. Wired Shut was released in June 2007, yet often reads as though is was written in 2003 – an impression that's only exacerbated by the news made repeatedly by YouTube, Radiohead, Amazon and others in the months since publication.

Such criticism, however, is both facile and misguided. It's inevitable that a study like Gillespie's would lag behind the latest developments in such a fast-moving space. More importantly, though, the specifics of these case studies -- or more recent ones, for that matter -- are not the point. Wired Shut aims to show how copyright and DRM are about far more than particular technologies and specific media sectors -- what's truly important is the social contract these efforts are altering, and the implications for our culture and environment of information.

Gillespie, an assistant professor in Cornell University's Department of Communication, covers a great deal of ground in working toward that goal. Wired Shut first introduces the history and premises of copyright law, explaining how these have changed as the media being protected has migrated from paper to celluloid to digital bits. Readers are reminded that protecting authors' rights to their creations was a secondary concern for the founders -- copyright doctrine is enshrined in the U.S. Constitution -- it was a means to the more important end of promoting innovation and social progress. (There's also the historical irony, not stressed in Wired Shut but frequently mentioned by Gillespie elsewhere, that U.S. copyright law originally protected only U.S. authors. Much as today's China turns a blind eye to pirated Hollywood blockbusters, 18th-century American authorities took the view that copying and commercializing works from the continent was perfectly legal.) The groundwork for later DRM discussions is laid early as well, including a brief history of the politics and piracy concerns that led to the Digital Millennium Copyright Act -- a law Gillespie suggests "represents the most dramatic change in the history of U.S. copyright law" (177), and one for which he seems to have particular disdain.

Gillespie then surveys the relevant academic research in the fields of communication, information studies and intellectual property -- the book's bibliography alone is a tremendously valuable resource -- and explains why narrative and framing are at least as important to DRM as the technologies used to implement it. In particular, the accounts of the late Motion Picture Association of American head Jack Valenti and his masterful efforts to shape the digital copyright debate are an unexpected gem.

Valenti, who for decades was among the most powerful and charismatic lobbyists in Washington, crafted a compelling narrative of piracy, digital potential, and noble artists when the MPAA was pushing for the DMCA and other copyright protections. It's not that Valenti's arguments were flat-out wrong, only that the issues had more shades of grey that he would ever acknowledge. And because Valenti was so good at framing the debate, his narrative became the narrative -- which was invaluable in getting the MPAA's priorities written into law. As Gillespie writes elsewhere in the book, technology is required for DRM, but a much larger alignment is required: "This alignment is sometimes achieved forcibly, sometimes induced along shared commercial interests; always it is warmed by the embrace of a persuasive world view: the tale of Internet piracy and its consequences that the content industries have championed" (193). The Valenti anecdotes drive home this point far more effectively than any theoretical argument possibly could.

With the broader context properly set, Wired Shut then shifts to specific case studies. The aforementioned examples -- SDMI, the combination of encryption and the DMCA used to secure DVDs, and digital broadcast flags -- each get a chapter of their own. These mini-histories occasionally drift into more minutia than many readers might need, but more often than not these details pay dividends as Gillespie uses them to illustrate important but not-always-obvious implications. This is especially true with the DVD example -- which, as noted above, is where fairly strident fair-use advocacy supplants the academic even-handedness that reins elsewhere in the book.

Gillespie's stance here is not without justification, of course. As he explains repeatedly, the DMCA, with its prohibitions on circumventing digital encryption schemes and other content restrictions, effectively outlawed the tools needed to exercise perfectly legal fair use of copyrighted material. It's the perfect illustration of one of the book's main arguments: "The success of DRM will not be a technological feat, but a political project in which the content industries try to bring together allies that can collude to enforce their rules on users" (139). It's an attempt to solve social problems with technology -- to supplant legal code with computer code, and to effectively privatize and pre-empt the debate over what uses and restrictions best serve society's interests.

Moreover, he notes, this extremely robust "trusted system," with its web of technical, mechanical, and legal limitations, also disregards other legitimate end-user needs that have nothing to do with copyright. As Gillespie observes, "one example already in place is the restriction on skipping trailers, ads, and copyright messages at the start of a DVD" (182). And contractual restrictions limit even the sort of "diagnostic information" that DVD-player manufacturers may provide to end users -- limiting their customer's ability to repair a malfunctioning machine for fear of divulging the encryption secrets.

"The sleight of hand here is that the call for the protection of copyright, the heightened fears of piracy, and the careful characterization of the Internet as a fundamentally unsafe place for cultural expression, have all helped usher in a legally sanctioned, technologically enforced collusion of corporate content providers and hardware and software manufactures," Gillespie writes. "Together they can dictate not only the range of possible uses of cultural expression, but also how, when, and to what extent we will be charged for them" (188).

And that, ultimately, is the central warning of Wired Shut. In the final chapter, Gillespie steps back to consider the cultural implications of these technology-driven developments. Acknowledging the legitimacy of content owners' desire to control and profit from their creations, and the ease with which content lends itself to aggressive price discrimination, he asks: "But should culture work like airline tickets?" (273).

It's clear what his answer to that question is. Culture is not a commodity, Gillespie stresses, and we as citizens are not merely consumers. And "if cultural goods are widely and easily available to all, then viewers feel like part of a community -- perhaps just an audience, at first, but potentially something greater" (273).

So really, when the focus is the future of our culture, it doesn't much matter whether the illustrative examples are Jack Valenti and the RIAA in 1993, or Trent Reznor and iTunes in 2008. (And to Gillespie's credit, he regularly deconstructs the latest developments in his blog Scrutiny). Wired Shut brings a perspective and depth of analysis to the digital copyright debate that is all too often absent in the media or in Washington, and Gillespie poses provocative questions that anyone interested in this field would be wise to consider.

The Music Industry's Extortion Scheme

Ron Tang — Fri, 25 Apr 2008 11:40:00 -0400

What would you do if a bully -- let's call him "Joey Giggles" -- kept snatching your ice-cream cone? OK, now what if Joey Giggles then told you, "If you pay me five bucks a month, I'll stop snatching your ice cream." Depending on how much you hate getting beaten up, and how much you love ice-cream cones, you might decide that caving in is the way to go. This is what's called a protection racket. It's also potentially the new model for how we'll buy and listen to music.

Let's back up for a second. Four companies (Universal Music Group, Warner Music Group, Sony BMG, and EMI) control a staggering 90 percent of all record sales in the United States, and they're hopping mad. CD sales are in free fall, and the recording industry's revenues have shrunk from $15 billion to $10 billion in less than a decade. Instead of blaming themselves for failing to embrace the Internet soon enough, Big Music has pointed the finger at piracy, shaking down scofflaw MP3 downloaders with capricious, multimillion-dollar lawsuits. This has not strengthened the record companies' position -- at this point, they're losing money and everybody hates them.

Now Big Music is mulling the Joey Giggles approach. Warner Music Group is trying to rally the rest of the industry behind a plan to charge Internet service providers $5 per customer per month, an amount that would be added to your Internet bill. In exchange, music lovers would get all the online tunes they want, meaning that anyone who spends more than $60 a year on music will come out way ahead. Download whatever you want and pay nothing! No more DRM! Swap files to your heart's content -- we promise, we won't sue you (or snatch your ice-cream cone)!

Michael Arrington of TechCrunch has condemned this idea as a "music tax" and "the music industry's extortion scheme." Though the proposal is not technically a tax -- rather, it's a call for "voluntary blanket licensing agreements" -- it will certainly feel like one. And instead of paying for roads, schools, and bombs, you would be helping to keep record executives in cigars and the finest silks. As Arrington argues, there is good reason to believe that this huge pot of money will turn the music industry into a lazy near-monopoly that lives off of fat royalty checks. Once the majors get this guaranteed revenue stream, won't they just spend all their time scheming to increase the fee from $5 per customer per month to $7.50? There's also the small matter that not all Internet users listen to or download popular music. If this plan somehow goes through, millions of moms and dads who pay for Net access so junior can browse Britannica Online will find that they are subsidizing the hedonistic lifestyles of America's most-tattooed singing sensations.

Despite all the downsides, something like the music tax simply has to happen. Most of us don't want to steal music. But it takes a saintly person (like me) to jump through hoops to pay for something you can get for free. I use eMusic and Amazon.com, which both offer DRM-free MP3 downloads. Yet cheapskates galore still have their Limewire and BitTorrent and whatever future file-sharing tools savvy Web guerrillas haven't even dreamed up yet.

That's why piracy can't be stopped. Meanwhile, artists aren't being compensated in a sensible way. Sure, some musicians will make a living by playing live shows and selling T-shirts. A massively popular band like Radiohead can give away its music and still make millions. But plenty of other artists will no longer be able to make a living in the music business as royalties dry up, which will leave our culture a little less vital and a little less fun. What we need is a reward system, one that could eliminate middlemen and encourage a massive upsurge in creativity.

Which leads us back to the music industry's extortion scheme. It's not clear that the major labels will line up behind Warner's big idea. Universal Music Group, the biggest of the big, has pushed for a subscription plan called Total Music that is similar in some respects, so they might be receptive. The one thing that all of the major labels agree on is that they have to put iTunes in its place. Apple's online store just surpassed Wal-Mart as America's No. 1 music retailer. The record industry fears that if iTunes further extends its dominance, it will start dictating terms to the major labels -- calling for, among other things, lower prices. For the major labels, things like subscription plans and music taxes are enticing because they're opportunities to cut iTunes out of the loop: If you're coughing up $5 a month to Big Music, you'll never pay 99 cents for a song again.

Of course, Apple has its own plan for world domination. Last month, the Financial Times reported that Steve Jobs was pushing the major labels to make a deal that would let them peddle an unlimited music bundle. Apple reportedly wants to pay the majors $20 per iPod or iPhone to access all the songs in their catalogs. The majors want Apple to cough up closer to $80. In practice, this all-you-can-eat plan could mean a few different things. By paying an extra, say, $100 when you buy an iPod, you could have access to everything sold on iTunes. (Or, perhaps iPhone users could pay a subscription fee for the same deal.) While the details are still hazy, the upshot is that owning an Apple product would become even more appealing. The nice thing about this deal for the majors is that the labels earn less than $20 per iPod in download sales now, so anything above that would be gravy. The not-so-nice thing is that it would further entrench iTunes as a musical monolith. Are the major labels sure they want to become Steve Jobs' lackeys? Right now, iTunes controls more than one-fifth of all music sales in the United States. If Jobs gets his way on all-you-can-eat, that share will grow and grow until the labels will never be able to say no to him again. Cue maniacal cackling! The scrappy folks at eMusic have already cried foul, pointing out that the rumored deal smacks of a Microsoft-style antitrust violation. The major labels would be wise to take eMusic's lead.

All-you-can-eat iTunes works for Apple. Voluntary blanket licensing works for Big Music. The problem is that both of these grand plans cut out the little guy. Apple wants to ensure that the iPod will crush all other music-playing devices for 1,000 years by building an overwhelmingly dominant music retail platform. Big Music sells 90 percent of records; if they manage to squeeze money out of the ISPs, one suspects they'd be more than happy to screw the independent labels that make up the other 10 percent.

What plan will work best for music lovers and artists? Instead of a fake music tax, the best solution might be -- sorry, libertarians -- for the government to step in with a real music tax. In the book Promises To Keep: Technology, Law, and the Future of Entertainment, Harvard Law School professor William Fisher devised an ingenious reward system that levels the playing field for artists. At first glance, it looks a lot like the music biz extortion scheme. The feds would levy a small tax on all broadband subscribers. Musicians, signed and unsigned, would register their creations with the U.S. Copyright Office, who would then set up a massive Nielsen-style sample of music listeners to track the popularity of different songs. The more your song is played, the more you get paid. The revenue from the tax would be parceled out to the copyright holders.

The beauty of this approach is that it has the potential to cut out middlemen like Steve Jobs and the fat-cat record execs. My a cappella version of "Chocolate Rain" would have as much chance of making it as "Purple Rain," at least in theory. When the costs of discovering new music are zero and artists are paid on the basis of how often songs are played, listeners are more adventurous and bands with dedicated followers can make as much scratch as bands that record big hits. Bands get paid, music lovers can listen to their hearts' delight, and the record companies will slowly turn to dust. What's not to like?

Hollywood's Big Online Rival: the Little Guy

Cecille Isidro — Fri, 23 Mar 2007 21:12:00 -0400

The latest brouhaha over alleged copyright infringement on the Internet has pitted some of the biggest names in corporate America against each other: Viacom Inc. Chairman Sumner Redstone versus Google Inc. Chief Executive Eric Schmidt.

But you’d be wise to keep your eyes on two other guys who, in a small way, are helping to transform the media landscape: Christopher Allan Smith and Ryan Neisz.

They’re the creators and co-stars of an online comedy series called Snowmen Hunters, which was nominated this week by Google’s YouTube Web site for one of its inaugural video awards, which seek to honor user-generated content.

It’s tempting to dismiss these awards as promotional fluff. And their announcement obviously pales in importance to last week’s news that Viacom was suing Google for $1 billion, contending that YouTube hadn’t tried hard enough to stop people from posting unauthorized clips of TV shows and movies owned by the Hollywood giant, including SpongeBob SquarePants and Mean Girls.

Yet if I were running Viacom, I’d be nearly as concerned about shows such as Snowmen Hunters as I’d be about ensuring that my own stuff wasn’t misappropriated.

In the long term -- which in Web time means, like, five years -- these sorts of amateur offerings could wind up playing their own significant role in squeezing profits of the leading TV and film studios. "I don’t think there’s any doubt," says Mike McGuire, an analyst at technology research firm Gartner Inc., that such material "is shaking things up."

This is not to suggest that the top entertainment companies are suddenly going to disappear. What’s more, these conglomerates are all feverishly pursuing their own Web strategies -- in some cases by partnering with YouTube, in others by challenging it.

On Thursday, News Corp. and NBC Universal, with the help of some of Google’s main rivals, said they were launching an online video site stocked with TV shows and movies, plus clips that users can modify and share with friends. They’re confident that a slick, professionally produced collection will win out over Snowmen Hunters and other shows like it.

But I don’t buy that it’s going to be so easy to roll over this form of competition.

Already, McGuire notes, there’s a generation of online watchers who are inclined to spend the evening in front of the computer, clicking on one two-minute video after another -- part of a wider phenomenon that Wired magazine recently dubbed "snack-o-tainment."

"Ultimately, it’s a matter of time share," McGuire says. In other words, the more that somebody is glued to a skit on the merits of folding toilet paper instead of crumpling it, the less their eyeballs are fixed to CBS or MTV.

For Big Media, the real threat will emerge as more and more advertisers, attracted by the millions of viewers who genuinely enjoy this homespun programming, gravitate toward the sites hosting these productions and, in turn, more and more money starts finding its way to the talent behind them.

Already, a handful of companies are venturing down this path, including Revver Inc., a Los Angeles-based enterprise that will attach a targeted advertisement to your video and then split the revenue with you, 50-50. Its slogan: "What if creativity could pay the rent?"

Of course, most folks who fancy themselves the next Steven Spielberg or J.J. Abrams are looking for more than a way to make rent. They want a mansion in Bel-Air, with a pool out back and a Jag in the driveway. And it’s this impulse, some believe, that will keep the very best of the lot coming Hollywood’s way.

"Many of these people are just auditioning to be pros," says Jupiter Research analyst David Card. YouTube counts at least nine acts that have gone on to mainstream success thanks to their exposure on the Web site, including comedian Lisa Donovan (a.k.a. Lisa Nova) and musician Terra Naomi.

But others, such as Smith and Neisz, insist that they’re not so eager to make the leap.

The two were arranging plans this week to meet with agents in L.A., and they certainly wouldn’t spurn an offer from one of the major networks. What gets them most excited, though, is the notion that they might be able to earn a decent living from Snowmen Hunters or some other program they’ve put together all on their own, operating completely outside the traditional Hollywood system.

"We’re not doing this just to make a bank shot into a studio writing job," Smith says. "We’d love to have YouTube figure out an alternative model" that pays well.

Smith grew up in Concord, Calif., and Neisz in Merced. The cousins would spend their school vacations making videos -- "silly, little films," Neisz says, involving Lego building blocks, GI Joes and setting things on fire.

Eventually, they landed in Los Angeles, where they tried to break in as screenwriters, but that didn’t pan out. Today, each runs a modest video production business -- the 35-year-old Smith in Chico, the 31-year-old Neisz in Burbank -- that cranks out 30-second spots for local colleges and other banal fare.

They reserve their real passion for Snowmen Hunters. The show, which I watched for the first time this week and found amusing in a sick and twisted sort of way, features the exploits of a psychotic beer guzzler named Sherman Rance (Neisz) and his moronic sidekick Everett Van der Sloot (Smith) as they gun down, machete, strangle and otherwise assassinate every snowman they can find.

The show debuted last September, and so far they’ve produced 24 episodes, ranging from 2 1/2 minutes to nearly 10 minutes in length. The production values are pretty decent -- better than a lot of what you see on YouTube -- because they’re able to use the equipment from their day jobs. That also helps keep costs to a bare minimum.

Smith says Snowmen Hunters has been viewed about 1.7 million times -- not an astronomical number, but enough to qualify as a cult hit. And "our audience grows every week," Neisz notes.

Only a year ago, most producers of homemade entertainment "had a goal to cross over" into a regular Hollywood gig, says Jamie Byrne, YouTube’s head of product marketing. But increasingly, "their vision is to stay on YouTube" and to continue to develop short-form programs right there.

YouTube has said that it expects to introduce a payment formula sometime this year to compensate its content creators. Just how it will work -- and how much of the advertising pie will actually be shared -- is unclear. YouTube also needs to be careful: Depending on how future ads are integrated into the site, it could turn off its loyal fans.

Smith, for one, is cautiously optimistic. "We’re betting that videos like Snowmen Hunters will still be on the Net when the real money comes calling," he says. Wednesday’s introduction of Apple Inc.’s online-video-to-TV device, he adds, should only help.

No doubt. Things are moving so fast, he and Neisz may very well be blowing away Frosty and his friends today and taking on Comedy Central tomorrow.

The Legal Lock on Stem Cells

Cecille Isidro — Wed, 12 Apr 2006 00:00:00 -0400

California's $3-billion stem cell program has encountered repeated setbacks since it was approved by voters 17 months ago. Now it faces an entirely new and potentially even more worrisome challenge arising from two powerful patents -- patents No. 5,843,780 and No. 6,200,806, to be exact -- which cover all human embryonic stem cells and the method by which they're made.

Patents are supposed to stimulate innovation. That's why they exist. But it appears that these two patents, held by a foundation affiliated with the University of Wisconsin, may exert a dangerous monopoly over all future research in the field -- one that may pose an even greater long-term threat to stem cell science than the Bush administration's federal funding ban.

Here's the background. In mid-March, the Wisconsin Alumni Research Foundation, or WARF, announced that the state of California must sign a legal contract and pay user fees to the foundation if any state-funded scientists want to work with human embryonic stem cells of any kind. Yes, of any kind.

The foundation's patents are based on the work of James Thompson, a University of Wisconsin professor who was the first scientist to isolate embryonic stem cells, in 1998. But the patents are so broad -- unreasonably broad -- that they cover all human embryonic stem cell lines in the U.S., not just the specific lines developed by Thompson.

Jeanne Loring, an embryologist at the Burnham Institute in La Jolla, is one of many scientists who worry about the effect of this monopoly. In 1999, Loring tried to launch a company to work with stem cells, but the firm quickly collapsed when it couldn't raise the $100,000 in upfront fees the Wisconsin foundation charged. The foundation's commercial contracts also typically include an annual maintenance fee of $40,000 -- a steep hurdle for any young company.

Andrew Cohn, a spokesperson for the foundation, says the group has gone a long way toward meeting the concerns of its critics. In response to pressure from the National Institutes of Health, it dropped the fees it charges academics from $5,000 to $500 and adopted a more flexible licensing agreement. In its standard university contract, the foundation is careful not to claim any commercial rights to inventions made by academic licensees, even though its patents would permit that.

But Kenneth Taymor, a Stanford University attorney with the Program on Stem Cells in Society, says this discrete contract language is meaningless. "If a scientist develops a research tool, a therapy or some other useful invention stemming from embryonic stem cells," he says, "WARF can step in whenever it wants to and claim a share of the commercial rights." This, of course, inhibits research and commercial investment -- a problem only made worse by the foundation's close ties to Geron Corp. of Menlo Park.

In 1996, the foundation granted Geron Corp. exclusive commercial rights to many of the most valuable therapeutic uses of its human embryonic stem cells. In Taymor's words, the license encompasses "the crown jewels of regenerative medicine," including all the neurodegenerative diseases (Alzheimer's, Parkinson's, Lou Gehrig's), as well as diabetes and heart diseases. In 2001, Douglas Melton, a Harvard scientist, publicly complained that, because of this license, anything he develops in his academic lab is owned by Geron.

This monopoly doesn't just threaten the future of stem cell research. It also raises a fundamental question: Should the U.S. Patent Office allow the basic building blocks of science to be patented? This question goes to the heart of a recent U.S. Supreme Court case. The court is considering whether a patent should have been issued on the basic biological relationship between homocysteine (an amino acid found in human blood) and vitamin B deficiencies. After the patent was issued, its owner sued a competitor simply for stating the biological facts of the relationship in a publication.

Controversial patents like these have proliferated over the last two decades. They range from the absurd -- a patent on crust-less peanut butter and jelly sandwiches -- to the deeply troubling: a patent on the human gene responsible for hereditary breast cancer, which the owner has used to block other scientists engaged in breast cancer research and diagnostic testing.

California doesn't have a lot of room to maneuver. The Foundation for Taxpayer and Consumer Rights, based in Santa Monica, has urged California's stem cell agency to challenge the Wisconsin patents. But patents are not easy to reverse, even when they are clearly contrary to the public interest. That's why Congress needs to act now to reform the U.S. patent system.

The problem is twofold. First, Congress and the courts have continually expanded the range of inventions that are eligible for intellectual property protection, as well as the duration of that protection. Second, the patent office encourages examiners to approve patents, not reject them, so many that don't really meet the eligibility criteria slip through. If one examiner rejects an application, the applicant can file a "continuation" with another until it gets approved. This is precisely what happened with the Wisconsin stem cell patents.

It's time to bring rigor back to the U.S. patent system and stop this rubberstamping.

Hollywood and Whine

Cecille Isidro — Sat, 01 Feb 2003 04:00:00 -0500

It's a political tale as old as Capitol Hill: A lumbering industry selects a certain corporate-friendly party to be its Beltway patsy. In exchange for the requisite campaign donations and other perks, members of said party use their clout to push through the industry's legislative agenda--an agenda that would rip off consumers and harm the overall economy but enrich the corporate string-pullers immensely. Pundits and public-interest types grumble over the bald-faced cronyism, but as long as the money keeps flowing, the beneficiaries don't seem to care a whit.

Sounds like the buddy-buddy relationship between Republicans and the energy industry, right? The characters cited in the above scenario, however, are the Democrats and Hollywood, one of Washington's coziest couples. For years, Hollywood has poured money into the Democrats' campaign coffers and been rewarded with indispensable assistance on the industry's crusade of the moment--squelching new technologies that allow the dissemination of digital content in ways Hollywood can't control. One bill being hatched by Democrats would allow media companies to hack into networks like KaZaA, a file-sharing service which has replaced Napster as the most popular MP3 clearinghouse on college campuses. Another would outlaw high-tech devices that don't come equipped with government-approved hardware to make it impossible to copy digital media. And yet another would strip consumers of the right to play their legally purchased CDs on multiple devices. The Democrats' Pavlovian alignment with the grossest impulses of the entertainment industry was even written into the Democratic platform back in 2000, when the party urged "all steps necessary" against the leakage of copyrighted materials--a plank pushed on them by Hollywood.

From a purely pragmatic standpoint, this eagerness to support Hollywood's technophobia is easy to understand. The Republicans recently achieved total control of the government by back-scratching Big Oil, Big Pharma, and their ilk. The GOP's dominance, plus strong-arming from congressional leaders like Rep. Tom DeLay (R-Texas), has virtually grafted the corporate-money spigot to the Republican Party's bank account. A recent Washington Post analysis of the contribution patterns of 19 major industries, from liquor to health care, found that while those sectors split their contributions roughly 50/50 between Republicans and Democrats a decade ago, today they favor GOP candidates by nearly a 2-to-1 margin, which puts the Democrats at such a huge monetary disadvantage as to make them pathetically dependent on the few sources of campaign dollars they still have. The entertainment industry knows this well and is using its leverage accordingly.

As a matter of simple survival, then, Democrats would seem to have no choice but to carry Hollywood's water. But in fact, something like the opposite may be true. Democrats simply can't rent themselves out on as many issues as the GOP, and to attempt to do so will close off other, more rewarding avenues. Democrats lost the midterms, after all, largely by failing to offer a convincing alternative to the Bush administration's economic policy--a policy that consists of little more than handouts, subsidies, and protections to existing corporations, from tariffs for the steel industry, to anti-trust relief for Microsoft, to leaving emerging broadband providers to the mercies of the Baby Bells. Instead of helping Hollywood, Democrats can help themselves--and the country--by pointing out that such bought-and-paid-for policies are a recipe for long-term economic decline. Only by offering an alternative economic vision that promotes competition, innovation, and entrepreneurship can Democrats hope to rebound. But that's awfully hard to do when they're helping Hollywood stamp out the very technologies that will fuel long-term economic growth.

Broadband and Garage Bands

That Hollywood prefers to dine with Democrats isn't news. Save for a few notable exceptions--Arnold Schwarzenegger may head the GOP's gubernatorial ticket in California four years hence--the industry's major players have skewed slightly leftward for decades, especially on issues like abortion and the environment. It was sitcom powermeisters Harry Thomas and Linda Bloodworth-Thomas who burnished candidate Bill Clinton's powerhouse media persona during the 1992 elections; more recently, fundraising dynamo Barbra Streisand seemed on the verge of hara-kiri after last November's election catastrophe. Of the $30 million-plus that the TV, music, and movie companies spread around during the 2002 election cycle, nearly 80 percent of that sum went to Democrats--an unusually high percentage, even by Hollywood's standards. Of the top 20 recipients, only three were Republicans and only one--Noel Irwin Hentschel, a Bel Air businesswoman who got stomped during a special election--made the top 10. That snazzy $28 million overhaul of the Democratic National Committee's headquarters? It wouldn't be possible without a record $7 million donation from Haim Saban, the TV producer of "Mighty Morphin' Power Rangers" fame.

Payback has come in the form of several bills designed to clamp down on the free exchange of copyrighted music and movies, which entertainment companies deem the greatest threat to their future well-being. The most contentious of these measures is the Consumer Broadband and Digital Television Promotion Act (CBDTPA), sponsored by South Carolina's Sen. Ernest Hollings, which actually has zilch to do with promoting broadband. Along with placing new restrictions on the importation of foreign software, the Hollings bill would criminalize the sale of any digital hardware that doesn't come equipped with government-approved copy-protection controls. CD burners, DVD recorders, MP3 players, even Palm Pilots--all will be illegal unless their manufacturers are willing to render them incapable of making unauthorized duplicates. But Hollywood's definition of "unauthorized" is distressingly broad, encompassing actions usually regarded as integral to consumers' fair-use rights (such as recording a pay-per-view movie for private viewing).

Then there's Rep. Howard Berman's now-notorious H.R. 5211, a bill that would make it legal for entertainment companies to hack Napster-like music-swapping networks like Morpheus or BearShare. Or Sen. Joseph Biden's Anticounterfeiting Amendments of 2002, which would make it a felony, punishable by up to five years in prison and a $25,000 fine, to alter or forge digital watermarks, the electronic ID tags embedded in CDs and software. So if you should one day buy a new MP3 player that'll only play files with certain watermarks--say, those that denote approval of the Recording Industry Association of America--you'd have to break the law to make a non-watermarked recording of your garage band's "Freebird" rendition compatible with the device--even if that music was perfectly legal in the first place.

These bills are odious for many reasons, beginning with their blatant disregard for long-standing intellectual property rights. Copyright holders, for example, currently have no say over private performances of music or film--if I want to play the new DJ Assault disc on my laptop during the day, and then again in my stereo at night, I'm perfectly within my legal rights. But if Biden's bill becomes law, music labels could imbue their products with watermarks that would limit playback to certain devices. Changing a watermark, even if only to play your own jug band's basement recording, could mean time in the federal slammer. Hollings' bill would similarly diminish consumer rights by making it virtually impossible for people to copy digital media, even for uses now considered legitimate, such as creating a hard-copy recording of a TV show, or transferring a movie from an analog source (that is, an old VHS tape) to a digital one.

The Clone Wars

These proposed laws are bad enough for consumers. But the greater evil is their long-term impact on economic growth. By yielding to Big Entertainment's every whim, Democrats are harming an industry that promises to be a much greater engine of growth--Silicon Valley. Consumers demand such high-tech hardware as computers and TiVos precisely because they want to be able to take advantage of new technology and record TV shows, burn CDs, and swap MP3s, regardless of whether Hollywood deems such activities predatory. To give an idea of the promise this holds for new businesses, MP3 vendor SONICBlue, for example, had sales of $300 million in 2001 (without spending a penny on advertising). What Democrats tout as "anti-piracy measures" would strip these devices of their most marketable qualities, or at least make it illegal for consumers to use them to their hearts' content. "Any attempt to inject a regulatory process into the design of our products will irreparably damage the high-tech industry," testified Intel vice president Leslie Vadasz before the Senate Commerce Committee last March. "It will substantially retard innovation, investment in new technologies, and will reduce the usefulness of our products."

Though there's an element of Hollywood hyperbole to Vasdasz's alarms, it's worth noting that Silicon Valley's economic health is more vital to the nation than its relatively modest Beltway presence might indicate. The tech industry's annual revenues are more than 10 times those of Hollywood's, and it creates jobs across a much wider spread of the country. While Big Entertainment continues to be centralized in New York and Los Angeles, high-tech has roamed much farther afield from its Northern California roots, from Washington (Microsoft) to Texas (Dell) to Virginia (AOL).

Just as important, Silicon Valley has its own crusade, and one that inevitably conflicts with Hollywood's: the widespread adoption of high-speed Internet connections, which just 12 percent of American homes have today. The rationale is simple: Faster connections mean more productivity, and thus more demand for software and services. As Robert Crandall of the Brookings Institution noted in a report last year, even a modest upsurge in the number of homes equipped with broadband access would add $500 billion to the gross domestic product. So far, however, consumers are balking--because there's no "killer app" yet to convince them to spend $50 month on broadband access. What kind of killer app do consumers want? Movie and music downloads, the report concludes, that are "readily available, easily understood, and offered at reasonable prices."

Despite consumers' eagerness, however, Hollywood has been unwilling to respond to the competition offered by Napster and its descendants, preferring instead to enforce the status quo through crudely wielding its political clout. The industry has made a few token gestures, such as setting up its own file-sharing services like MusicNet and FullAudio. But perhaps unsurprisingly, these have failed, largely because they adhere to inflexible subscription models--pay a flat fee per month for a set number of songs from a limited roster of artists. So broadband growth remains relatively stagnant, especially compared to that in other Western nations such as France and Sweden, which have promised universal broadband access by 2005.

Hollywood argues that such suppression of emerging technologies is mere self-preservation. No movie studio will invest $100 million in the next Michael Bay blockbuster, the argument goes, if consumers will just end up downloading it for free, then burn DVD copies for 1,000 of their closest friends. The industry's survival depends on people's willingness to plunk down $9 for a movie, or $17.99 for the latest Britney Spears CD. Make that content freely available, say entertainment executives, and they will have no incentive to invest in expensive projects.

This may seem logical, but it's really just a tired retread of the industry's traditionally Luddite attitude toward new technologies--an attitude that has been proven time and again to be foolish. First it was the advent of the player piano in the early 1900s, which was cast as the certain end of the music business--if no one needed sheet music anymore, how would the nascent industry generate any revenue? Later the alarm was over the proliferation of cheap audiocassette recorders--why would anyone still buy music if they could just tape songs off the radio? More recently, during the late '70s and early '80s studio execs insisted that the VCR would destroy box office receipts. Jack Valenti, president of the Motion Picture Association of America (MPAA), famously characterized that humble instrument as "the Boston Strangler" of electronic devices. Yet since the Supreme Court ruled in favor of the nascent VCR industry in its landmark Betamax decision--affirming the legality of technologies that have substantial legitimate applications--Hollywood hasn't exactly suffered. The studios figured out how to milk money from the new market by partnering with Blockbuster and other chains, and home rentals now account for more than $16 billion of Hollywood's annual revenues--almost double those from box office receipts.

Yet once again, moguls are warning that a new technology will destroy the creative impulse. In November, for example, Star Wars producer Rick McCallum went so far as to equate the fight against file-sharing to the hunt for al Qaeda, telling an Australian audience that the effort to thwart illicit movie downloads needs to be "as concentrated an international event as the war on terrorism." He went on to claim, without substantiation, that the music business had already lost 50 percent of its revenues due to Napster and its descendants.

There was a good reason for McCallum's failure to footnote: the figure is entirely bogus. Forrester Research estimates that music sales have dropped off only 15 percent over the past two years, and that the decline had little to do with music downloads. "There is no denying that times are tough for the music business, but not because of downloading," says John Bernoff, a principal analyst at Forrester. "Plenty of other causes are viable, including the economic recession and competition from surging video game and DVD sales." Of course, digital technology may eventually cut into Hollywood's revenues (welcome to the wonderful world of capitalism). But the damage will likely be nowhere near the levels predicted by Hollywood alarmists. Stan Liebowitz, a professor at the University of Texas at Dallas School of Management, recently published a comprehensive estimate of how free MP3s will affect the recording industry's bottom line which predicts as a worst-case scenario that sales will drop by 20 percent. "I wonder how far we, as a country, would be willing to go to protect the record industry from a 20 percent decline in business," he says. "Are recent proposals such as the Berman bill, which would allow record companies to tamper with other people's computers, going too far? My own view is that such proposals are going too far."

Moreover, as Forrester's Bernoff points out, that 20 percent figure presumes that Hollywood does nothing further to adapt to the new competitive environment. "[Record] labels will soon discover that there are several simple ways of satisfying today's sophisticated digital music consumers," he says, such as allowing per-song "micropayments" and the sort of computer-to-MP3-player transfers that current Democratic bills would stifle. Indeed, Hollywood's sky-is-falling shtick has more to do with opportunism than genuine fear. "The folks making the presentation to [Democrats] are obviously sugarcoating this as being all about copyright protection, and crying wolf that Napster is at the door," says John T. Mitchell, legal director of Public Knowledge, a public-interest group that tracks digital-rights issues. "But a lot of the solutions being offered don't really have as their objective copyright protection. They're designed to restrain perfectly lawful uses, in order to extract more compensation from the public."

Reading Hollywood's Script

Yet the Democrats continue to parrot the Hollywood line. Last February, for example, in a prelude to the introduction of his digital watermarking bill, Biden issued a 52-page report entitled "Theft of American Intellectual Property: Fighting Crime Abroad and at Home." Arguing that the entire entertainment industry will collapse "if technological advances [are] left unprotected," Biden wrote that "software piracy alone cost the U.S. economy over 118,000 jobs and $5.7 billion in wage losses" in 2000 alone. And where did Biden get these eye-popping figures? The Business Software Alliance, a Microsoft lobbying group whose statistics should be taken with a grain of salt. Not only do the alliance's numbers pertain to software rather than music or movies, they also assume that every pirate would purchase a copy if their free access was curtailed. The flaw in the logic here is easy to spot--it's as if The Washington Monthly contended that everyone who read a friend's copy of the magazine counted as a lost sale.

The concern over lost jobs is particularly ludicrous, given that Hollywood has avidly embraced digital technologies, such as the filmless cameras that shot the latest installment of Star Wars, in part because they can streamline the production process, and thus production budgets. Yet industry trade groups like the RIAA insist that their anti-piracy campaigns are all about protecting low-tier jobs and fledgling artists, an argument that's wormed its way into the patter of congressional Democrats. In a speech to the Computer and Communications Industry Association last June, for instance, Berman offered a Left Coast version of the trickle-down argument much beloved by Republicans: "Internet piracy threatens the jobs of the session musicians, actors, carpenters, seamstresses, writers, photographers, retailers and other folks in my district."

Berman is either being deceptive or naive. Take session musicians, whom the recording industry has been trying to shove into extinction since the advent of the synthesizer. Where was Hollywood's outrage when cheap Roland and Yamaha multi-instrumental keyboards began supplanting live musicians in the 1970s, especially for such life-sustaining gigs as commercials and film scoring? It wasn't in the industry's interest to play the anti-technology populist card back then. Berman's plea also assumes that the entertainment industry must forever be dominated by a small handful of conglomerates, the equitability of whose revenue distribution can charitably be described as abysmal. Music's infamous "Rule Number 4,080"--"Record company people are shady"--is as true today as it was in the 1950s, when top acts were kept in virtual indentured servitude. According to an October New York Times breakdown, an artist who racks up album sales of $17 million may end up with just $70,000 once the various producers, studios, flacks, and managers have taken their cuts. The Internet is actually good for struggling musicians, providing a means of alternate distribution and publicity that allows them to sidestep the major-label racket. As singer-songwriter Janis Ian recently wrote in a USA Today op-ed, "musicians, especially those without a major-label contract, can reach millions of new listeners with a downloadable song, enticing music fans to buy a CD or come to a concert ... they would have otherwise missed." And straight-to-computer recording tools are negating the need for expensive studio time or overpaid producers. Musicians don't need to make platinum to make a living when their per-record haul is closer to 80 percent than 0.4 percent.

The Democrats and Hollywood shouldn't treat file-sharing and related technologies as vulgar theft, but as the leading edge of an emerging new market. If consumers are willing to pay seemingly exorbitant fees for gizmos such as DirecTV, wouldn't it make sense that they'd gladly shell out a reasonable amount for monthly access to new music and movies? Early adopters like college kids may be enamored of swiping free content, but a nation that can't program its VCRs isn't likely to have the patience for dealing with KaZaA's buggy software and frequent hiccups. As a KPMG study noted last November, the energy that Hollywood wastes on cajoling politicians would be better directed toward figuring out how to pipe new services into homes. It might force labels to slash prices on those Britney CDs, but it would also bring delivery costs down dramatically. On the other hand, far fewer homes will crave broadband connections if they know that, should Berman's file-sharing bill pass into law, their computer could be hacked if it's suspected of being a "server" for a music-swapping network.

Hollywood Upending

Instead of blindly kowtowing to the anti-competitive demands of Hollywood, the Democrats could make real political gains by encouraging innovative compromises that recognize the crucial role that content can play in promoting broadband. One idea that merits further study is the Intellectual Property User Fee (IPUF), a small surcharge on ISP accounts akin to the taxes on telephone bills that support universal phone service. This money could then be used to compensate Hollywood for its "generosity" in letting flourish the file-sharing services that will drive broadband's growth--growth that, in turn, will eventually provide a new market for Hollywood's content. Economically, it's a win-win situation.

Even if entertainment companies balk at such communal solutions, and threaten to withdraw their financial support, the Democrats should resist being bullied. Hollywood's lobbying might is vastly out of proportion to its political usefulness, especially to a Democratic party that desperately needs to make inroads in red-state America. The entertainment industry is widely despised as both greedy and amoral in Bush country, where few workers earn their paychecks from music or movies. In Washington, there may be a certain je ne sais quoi to having Susan Sarandon grace your fundraiser, but Hollywood is small potatoes when it comes to the economic well-being of the typical American voter. Indeed, caving to Big Entertainment will only make it easier for Republicans to level charges of hypocrisy every time a Democrat inveighs against corporate avarice. Millions of voters couldn't care less about caribou habitats in ANWR. But imagine the reaction when they learn that Big Entertainment wants to make it harder for them to record nightly reruns of "Friends."

More importantly, the Democrats' traditional support in Silicon Valley is also at stake. The GOP already outscores the Democrats by approximately 20 percentage points on most lobbyist scorecards of "tech-friendly votes"--especially those that tend toward the laissez-faire end of the spectrum. But the Republicans' perceived stuffiness on social issues has prevented them from monopolizing geek support. In the 2002 election cycle, the industry's contributions split just about evenly between the two parties, and the techie rank-and-file is usually acknowledged to be solidly in the blue. The Republicans are keen to change this, a task made far easier by the Democrats' capitulation to Hollywood.

In short, the Democrats can afford to lose some Big Entertainment support, since they'll likely pick up additional fans in Silicon Valley by embracing tech-friendly policies. More importantly, toning down the pro-Hollywood act in favor of a more farsighted technology policy could help the Democrats earn the precious title of "The Party That Made Broadband Happen"--or, more broadly, "The Party of Economic Growth." The political benefits of that title should be obvious: Is it better to help add $500 billion to the GDP, or to ensure that Sony Records honcho Tommy Mottola can afford his $45-million Manhattan townhouse? There's little question as to which most voters would prefer.

The last time the Democrats triumphed, it was all about the economy, stupid. That message could still work in 2004, but only if the party wises up to Hollywood's self-serving role in curbing broadband and, in turn, stifling greater economic prosperity for those living outside the 90210 zip code. Hollywood, in its attempts to outlaw digital technology, has been compared to a dinosaur shaking its claw at the approaching comet. Note to the Democrats: The dinosaurs got creamed.

Why We Must Talk About the Information Commons

Wireless Future — Thu, 01 Nov 2001 04:00:00 -0500

If Stevenson was correct in his reinterpretation of Goethe—“That which you inherit from your fathers/You must earn in order to possess”—then the efflorescence of digital technologies over the past twenty years is posing some unprecedented challenges to our democratic polity. The computer, the Internet and any other digital technologies are dramatically changing the character oforganizations, markets, the nation-state and the global economy. What is less clear is how the traditional rights and liberties of American citizens shall be re-interpreted inthe new digital landscape and find new soil in which to flourish—or wither.

Will individual citizens have the same freedoms in the emerging digital societyto express themselves as the First Amendment envisioned? Will creators be able toearn a fair reward from their creativity and reach audiences without impediment? Will everyone have access to a robust public “media space” of commercial, amateurand fringe expression, or will it be a closed, centralized system controlled by a few chiefly for commercial purposes?

These are not idle philosophical questions but urgent pragmatic matters ofsweeping importance. Unfortunately, not only are such questions not being asked with sufficient vigor and insight, I believe we do not truly have an adequate vocabulary for grappling with them. The sheer novelty and power of the new technologies have, for the moment, overwhelmed our ability to comprehend many of their long-term political and cultural implications. We have few thoughtful critiquesfor explaining how the potent new digital communications infrastructure will fortify or subvert our democratic traditions in the decades ahead. It is an exceedingly hopeful development, then, that a new language of the “information commons” is starting to gain currency.

While still a rudimentary concept, the information commons is a valuable idea because it provides a coherent framework and language for explaining phenomena that are otherwise ignored or misunderstood. By leapfrogging over a discourse rooted in an earlier media culture, the “information commons” helps us talk more cogently about constitutional and cultural norms that are increasingly threatened in the new digital environment. Beingable to name endangered values is the first step toward understanding what is at stake and mobilizing suitable responses.

This essay is an attempt to describe what the information commons is; why itis important to our democratic society; how it is jeopardized by recent developments in technology, markets and law; and how we might begin to protect the information commons in the future. I hope to demonstrate that the “information commons” is not a trendy buzzword, but a useful socio-political concept for understanding the American “ecosystem” of creativity and information in the digital age.

For the complete document, please see the attached PDF version below.

Will the 1's and 0's Run Free?

Communications — Wed, 21 Feb 2001 11:00:00 -0500

A New America Event
02/21/2001 - 12:00pm

When former antagonists Napster and Bertelsmann made friends a few months back, many assumed that the war between copyright and technology was over; that a workable scheme for protecting Intellectual Property in new media was on the horizon. Not so, argues Brendan Koerner: efforts… more

The New Politics

Cecille Isidro — Mon, 17 Apr 2000 00:00:00 -0400

Several years ago I was driving cross-country from Washington to Berkeley. My D.C. license plates inevitably sparked interesting political discussions along the way, especially in the Rocky Mountains, where I encountered many people with sympathy for the militias so often derided on the coasts. One conversation in particular made a strong impression.

I chatted with a nice fellow who was fishing with his son. He was discussing his firsthand experience with the federal government's abuse of power. When I told him I was on my way to Berkeley, he said, with some regret in his voice, "Those guys in the '60s had it right. I didn't realize it at the time but the antiwar radicals were patriots. They understood that the government couldn't be trusted and tried to do something about it."

Here was a guy most people would have placed on the far-right fringe of American politics expressing his admiration for those who defined the far left. Isn't that shocking? Well, yes, at first. But the more you think about it, the more it makes sense.

The so-called ideological spectrum bears a strong resemblance to a circle. Although guided by very different logic, people on the far left and far right of politics have reached similar conclusions regarding the danger of governmental abuse of power and the importance of individual rights.

The Internet often reminds us of the plasticity of political ideology. Few, if any, of the hot online issues that currently receive attention in political and policy communities have a readily identifiable ideological divide. In other words, there is no right or left in cyberspace.

I am not arguing, as some have suggested, that the Internet is post-political. On the contrary, as the Net grows, political disputes regarding technology's future will only increase. What is clear, however, is that in all such policy disputes there will be no "liberal" or "conservative" position, and partisan labels will provide little guidance. Consider a few of the most prominent issues of the moment:

Internet Taxation: Having failed to reach an agreed-upon two-thirds majority recommendation, the 18-member Advisory Commission on Electronic Commerce voted 10 to eight to a five-year extension of the moratorium on new Internet taxes. The deep divisions that kept the committee from reaching consensus didn't follow ideological or party lines. Utah Gov. Mike Leavitt, a Republican, has led the opposition to Virginia Gov. James Gilmore, also a Republican, who has led the drive to ban taxes on e-commerce.

It's possible to view this issue in ideological terms. The exemption of Internet sales from taxation is an extremely regressive tax policy. Poor people spend less money online. By exempting online purchases, the tax burden is disproportionately placed on the people who can least afford it, instead of on relatively wealthy Internet users. But that argument is rarely, if ever, invoked. Rather, attention is rationally placed on the unfairness of putting brick-and-mortar retailers at a comparative disadvantage.

Striking even closer to the concerns of public officials of all stripes, the exemption of Internet sales from taxation is a potential threat to states and localities that rely on sales taxes to finance their programs. That is a concern naturally uniting the most partisan of Democrats and Republicans.

Privacy: What is striking at the moment when it comes to privacy is that the big, bad government wolf is not a Joseph McCarthy-like reactionary or even a religious prude in the image of Pat Robertson, but more like Bill Clinton. That's right, the same president reviled by the political right as a dope-smoking, draft-dodging liberal is also feared as an information-age Big Brother. As if this does not seem weird enough, Georgia Rep. Bob Barr, conservative icon and House impeachment manager, is teaming up with the ACLU to protest Echelon (ELON) , the network of spy agencies that is monitoring all sorts of electronic global communications. Has the world gone mad?

Not really. The Internet has introduced new problems ranging from malicious hacking and sales of prescription drugs to cyberstalking. Most people want these problems addressed. Disagreement comes when the solutions more than the problems themselves frighten people. So, for example, the FBI's proposed rules, which would require computer manufacturers to make PCs eavesdropping-friendly is a step too far for many -- even if it means that some criminals may escape punishment. Others, however, are willing to let the government onto their computers to protect their children from pedophiles lurking in chat rooms. Which group of people are the liberals and which are the conservatives?

OK, let's move past the straightforward part. Many privacy advocates argue that the real danger is not from the government, but from profit-seeking corporations, greedily searching for consumer data. This is the DoubleClick (DCLK) threat. Now who can stop these companies from violating our rights? Industry self-regulation? Unlikely. Why, it's the government, of course.

Uncle Sam is being called on to restrict private firms in their collection of personal information. To the libertarian (for those who think my whole argument comes down to over-reliance on the liberal-conservative divide), this is unacceptable. The government should not be restricting the behavior of private firms. But if the government does not act, individual liberty would be, in a real sense, even more threatened, albeit by private companies.

Intellectual Property: It would surprise no one if tomorrow an Internet company patented the idea of going to work in the morning. Stories of silly patents mask a potentially debilitating problem. What is the proper extent of property rights in an information-based economy? The e-commerce patent follies raise some worries of overly aggressive protection of intellectual property rights stalling economic activity.

The coming donnybrook in the intellectual property field will concern biotechnology. Already private companies have patented sequences of the human genome. This poses a danger not only for the future of genetics-based industries but also for medical researchers. Do such patents preclude scientific investigation? If there is no commercial angle, will large pharmaceutical companies or other biotech firms invest the hundreds of millions required? Should the government bankroll research that will benefit a limited number of investors who planted their flag in this unmarked terrain? Which is of greater weight, the property rights of those who secured patents, or the health of a market for genetic innovation that could be prematurely stifled by speculation?

These are difficult questions for which ideology is no guide.

The ambiguity helps explain why neither the Republicans nor the Democrats have been able to establish themselves as the party of high tech (notwithstanding the efforts of both to do just that). Not only do tech concerns cut across party and ideological lines, but tech interests inevitably clash with core elements of each party's constituency. For example, high-tech companies' insistence on the need to raise immigration quotas offend both right-wing Republicans and the Democrats' labor base.

It is conceivable that as Internet and other technology issues take on broader societal significance, a new or existing political party will abandon positions based on old cleavages to emerge as the Party of Technology. For the immediate future, the ideologies that animate political parties will not allow any such co-optation. Both parties will continue to court Internet support, and tech leaders will continue to play both sides of the fence.

In the long run, however, the persistence of issues that do not conform to the right-left schism could finally banish this flawed paradigm to memory.