Interview with Yann Moulier-Boutang on A2K

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  • Interview with Yann Moulier Boutang, by Gaëlle Krikorian

Source: from the book: Access to Knowledge in the Age of Intellectual Property


Interview

GK: Until recently, most countries, despite enforcing their own laws protecting

intellectual property, were not held to the same standards that are in force in the

wealthiest countries. Now, however, every country belonging to the World Trade

Organization must adhere to WTO standards, which has led to a considerable

toughening of protective regulations in many countries. The question of how to

apply these rules is currently at issue in most developing countries, but answers

are not always evident. For intellectual property holders, the stakes are high: If the

new laws are not respected, the property they hold loses all value. Yet you have

put forward that the emergence of the notion of cognitive capitalism, the accumu-

lation of immaterial assets, implies, by definition, a condemnation of the current

frameworks of intellectual property law and of the tendency to impose increasingly

restrictive protective measures. Should we then view this aggressive push to apply

extreme, increasingly drastic policies to safeguard intellectual property, for exam-

ple in the context of bilateral negotiations or international relations such as the

Anti-Counterfeiting Trade Agreement, as the death throes of a dying watchdog?


YMB: Yes, I believe so. This is a classic, widely observed phenomenon. The

tightening of legislation, contrary to what we might think, does not equate to a

preventive implementation by the state or the authorities of a more repressive

system than the one that preceded it. On the contrary, it is a proof of the inverse:

that there are transgressions. It is the extent of these transgressions and the chal-

lenge to existing economic models that they express that explain the explosion of

enforcement measures. It was because the poor were poaching, chopping wood,

and traveling far and wide, especially according to where legislation favored

them, that the Poor Relief Act was adopted in Great Britain in 1662. Under that

legislation, beneficiaries could receive the poverty allowance only if they were

registered in a county and remained there, unless in possession of a fixed-term

work contract. (It is interesting, by the way, to consider the parallels with what is

currently happening in France and elsewhere with respect to international immi-

grants.) In Great Britain, the goal of the 1662 legislation was to limit the circulation

of the poor. We see the same phenomenon in the repressive laws governing slaves,

the use of tracking dogs, bounties, and physical punishment, such as the cutting of

tendons: Each of these barbarian methods expanded at a rate directly proportional

to the incidence of fugitive slaves attempting escape. In the same way, I believe,

major record labels’ excessive zeal for protecting intellectual property and the

insistence on this issue in the United States are mainly consequences of the fact

that much of this legislation cannot be applied and is constantly being violated.


With any legislation, you have to consider its application. Enforcement is

expensive and requires the power to monitor, to employ lawyers, to rule on cases,

to oversee the application of verdicts, to supervise payment of fines, and so on.

This kind of framework cannot be coordinated unless there are very large sums

involved. Beyond a certain tolerated level of transgression, the major labels will

take action. As long as there were only roughly fifty thousand users per day con-

necting to Napster to exchange data, copyright holders were unconcerned. When

the number rose to 36 million users a day, it was considered unacceptable—since

then, one can only guess how these exchanges have skyrocketed with the leap in

video downloading made possible by broadband.


Still, we need to realize that this push to curb access is, by nature, in absolute

contradiction with the spirit and practices of cognitive capitalism. The latter cannot

develop except through intensive digital usage, which in turn opens up an extraor-

dinary potential for the diffusion of content. This dynamic began first with text,

then sound, and then images. Gradually, everything becomes accessible, which

presents a significant problem for copyright holders, who then try to shore up the

walls, their legislative and technical protection systems, such as digital rights man-

agement (DRM). The framework protecting intellectual property was set up before

digital content found a wide audience, when broadband was not yet available. It

was the masses’ general ingenuity, more than the “general laboriousness” of which

Marx speaks, that grew with respect to technology. Because the goods in ques-

tion are nonrival, that is, infinitely consumable without being exhausted, copyright

holders find themselves constructing further obstacles beyond those protecting

material goods. These obstacles in the domain of knowledge goods are fundamen-

tally, absolutely artificial, whether they take the form of laws or technical tools such

as DRM. The tightening of rules is proportional to the frequency of the exchanges

taking place. Copyright holders are not raving, paranoid, or obsessed—they are

simply defending their interests, blow for blow. They are defensive lobbyists, simi-

lar to the planters who feared the effects of contamination when a free labor force

developed. They will use any means available, even, for example, attempting to

regulate in the name of antiterrorism, to gain influence over other countries and

defend against counterattacks such as Freenet, which allows people to share files,

browse the Web, chat, and establish Web sites anonymously, or the practice of

encrypting exchanges in order to keep their contents private.


What we have seen amounts to a series of desperate efforts. One may recall

the defeat on the users’ side, when Kazaa lost its case in the U.S. Supreme Court.

Radio listeners started recording broadcast content, digitizing it, and then broad-

casting it again without infringing copyright. Intellectual property specialists

called it “the analog gap.” The issue of such recordings was brought to Congress,

and certain members of Congress proposed, in all seriousness, that radio programs

should be aired with a technical tattoo to make these recordings impossible. That

restrictive project failed, because it was completely unrealistic, but this shows how

those hoping to restrict such exchanges sometimes let their imaginations run wild.


In French corporations and universities, the replacement of the position of

the director of information resources, or DRI, with that of director of information

systems, with security as the primary objective, led to an absolutely insane level

of compartmentalizing policies. These policies made little difference in a situa-

tion that has become familiar: You can build a stronghold, but when a pirate infil-

trates it, and he always does, he will be the one turning the protective systems to

his advantage, becoming invulnerable to expulsion. That is what happened with

Microsoft’s famous Palladium project, through which the firm hoped to create an

ultratough armor for computers by constantly violating users’ privacy to verify

that applications met intellectual property regulations. In the same way, when

Sony installed spyware programs in its video games, it was in the end at great cost

to the company. It wreaked havoc on users’ computers. Many lost the contents

of their hard drives. The company was unable to uninstall the program and was

finally forced to recall the games and compensate hundreds of thousands of cus-

tomers whose computers were destroyed. In the chase between cops and robbers,

the cops never get a head start. There is a delay, and their route is full of pitfalls.


The only real risk is when one is dealing with very large corporations that can

collude as oligopolies or cartels. The Internet would never have become available

to everyone, and we would never have witnessed the critical shift from heavy

computers with simple terminals (like those in the Sun system, Oracle, and those

of other computer companies) to the home computer and then the laptop, if ITT-

ATT had not been dismantled in 1974 into two separate firms, or, if later, IBM had

not been threatened by the prospect of a split.


When the Internet was developed, Microsoft did not believe in it at first.

Netscape’s Web browser quickly became the most widely used. In order to push

its own, decidedly inferior browser, Internet Explorer, Microsoft deliberately pro-

grammed its Windows operating system, which is installed as a matter of course on

all PCs (only Macs run without it or PCs with the GNU-Linux operating system) to

make it systematically crash whenever users tried to open Netscape. This monopo-

listic practice (along with the obligatory installation of Windows on personal com-

puters) came before the courts in a highly publicized trial brought by Netscape and

by more than thirty of the states, including the largest ones in the country. Micro-

soft was able to escape being dismantled in the United States thanks to George W.

Bush’s election in 2000.


In Europe, however, a very similar legal action against Redmont undertaken

by the European Commission ended in a conviction and a record-setting fine of

$480 million, while Microsoft’s appeal in the European Court of Luxemburg was

rejected. I believe, therefore, that the only really dangerous enemy of consum-

ers’ individual liberties in their endeavors of cooperation and the creation of new

common space for innovation is very large corporations’ ability to block access

to digital technology by imposing new enclosures, as Yochai Benkler, Philippe

Aigrain, Lawrence Lessig, and I have emphasized. Even the president of IBM could

have prevented the democratization of computer access. When he was advised to

seek a patent for his technological advances after he helped develop the computer,

building on the pioneering work of Alan Turing, John von Neumann refused. As

president of IBM, his view was that the computer would never sell and was des-

tined to be used by only a small handful of wealthy customers—himself included.

Monopoly, elitism, and Malthusianism all go hand in hand. We have seen how far

wrong his prediction proved to be.


GK: While economic self-interest may explain the logic espoused by copy-

right holders in wealthy countries, we see these nations also bringing their full

influence to bear on the poorest countries to force them to contribute sums that

appear colossal in view of their resources to help increase protective measures and

enforce regulations, even though the economic impact of these measures is rela-

tively insignificant. What is at stake in terms of controlling knowledge and tech-

nology, however, is very significant. Is this where confrontations between wealthy

and developing countries are playing out? Why would developing countries join

such an unequal game?


YMB: In the history of patent legislation, it is very clear that emerging economic

powers have never respected patents during their period of development—

whether we consider the United States, the Soviet Union, or China—because they

knew it would prove too costly. Poland, for example, was favorable to software

patenting, but when it joined the European Union, Poland dropped Microsoft

flat because it became clear that the cost of intellectual property rights would far

exceed the benefits to be gained from fiscal advantages or a low-cost workforce

and that small companies would be forced out.


The United States made its move into cognitive capitalism early. The Americans

also have a legal culture that lends itself especially well to the culture of patents

and brands, while countries with a non–Anglo-Saxon culture are much less well

adapted to this activity. The United States is fifteen or twenty years ahead and is

trying to consolidate its lead to prevent other countries from catching up. Here we

have a classic trait of economic liberalism: turning liberal when you are at the top

of the class, in a position of hegemony, because you no longer fear competition. It

is an attempt to establish one’s power and push one’s advantage. The United States

put in place a legal system protecting intellectual property that, in fact, allowed the

country to protect itself from Japan, for example, which was an emerging rival. The

eight years of Bill Clinton’s presidency and then George W. Bush’s presidency until

2001 were characterized as the Silicon Valley years, with the boom in California. The

Americans knew that intangible goods, services, and intellectual property were

not covered by the commercial negotiations begun in the 1960s, with the Kennedy

Round of the General Agreement on Tariffs and Trade, which led to the creation of

the WTO. And because free access was finally taking off at an international level,

the United States, very shrewdly for their interests, set in motion a legal offen-

sive designed to confirm their lead over other countries. They made what Laurent

Thevenot calls “investment in forms,” that is, an investment in an institutional

framework that, once in place, allows one to reduce the cost of transactions. When

the Marrakesh Agreement was signed in 1994, not one country in the Global South

came out with a positive balance in terms of intellectual property. These countries

could not have simultaneously accepted free access and policies protecting intel-

lectual property unless they had some hope, in the end, of benefiting from the

system in one way or another. Instead, they were offered a Paretian balance, in

which no country can improve without the other worsening. The United States

gained more than the others while convincing its partners that they, too, would

come out winners in comparison to their situation before the agreement.


Of course, not all the Southern countries were in the same circumstances. India,

for example, had already developed cutting-edge pharmaceutical, chemical, and

electronic industries. Korea had invested in patents, as had Japan before. Korea

began with large-scale importation of patents and went on to produce them itself.


Korea currently produces a phenomenal number of patents, far more than France.

There are also many Southern countries with financial investments in Northern

ones—sovereign wealth funds made investments in banks with large intangible

holdings. Some countries, such as India, Thailand, and Brazil therefore stand to

profit from the system as it has been adopted, but not the majority of developing

countries, and this system leads to inequalities between Southern countries.


Even in countries such as India, there are greatly varying positions with

respect to this issue. Vandana Shiva and others are adamantly opposed to increas-

ing intellectual property protection measures, and they won a victory in India’s

parliament in 2004, when new intellectual property legislation, which was sup-

posed to be enacted a maximum of ten years after the Marrakech Agreement of

1994, turned out to be more flexible than the United States, Europe, and Japan had

hoped. Nevertheless, the more that Indian capitalism advances (take, for example,

the steel producer Arcelor Mital, the computer industry centered in Bangalore, or

the generic-drugs industry), the less India wants to play the role of a mere sub-

contractor or that of the number-two factory of the world. India is rising in the

productive circuit, investing in research and development, and producing large

numbers of engineers—English-speaking ones moreover—and founding research

centers. India’s traditional business strength now goes hand in hand with the proj-

ect of capitalizing on intellectual property.


GK: These diverging perspectives and inequalities between countries play into the

hands of those working to develop and homogenize intellectual property protec-

tion on an international level. But despite these deliberate efforts, it seems that

the push for access is difficult to contain, and myriad cracks are spreading and

threatening to burst open. Copyright holders’ ability to work in a partnership,

to resolve their competitive differences and join forces, allowed them to obtain

the Trade-Related Aspects of Intellectual Property Rights Agreement—the TRIPS

Agreement. There are, however, still permanent tensions that could grow into frac-

tures between these groups, benefiting those who are pursuing access to knowl-

edge and information.


YMB: The copyright holders were successful in obtaining TRIPS, but they lost at

Doha over the ticklish question of generic prescription medicine.1 The success of

TRIPS opened the eyes of many Southern countries, because although India had

Bangalore and managed to stay afloat, the agreement put a real stranglehold on

countries in Africa and Eastern Europe. Proponents of toughened enforcement

of intellectual property laws tried to regroup, but it’s true that cracks had begun

to spread.


The first crack appeared in the area of proprietary goods and services, under the

pressure of free and open-source alternatives. Consider IBM, for example. They had

begun making watches and calculators in the 1930s, then shifted to very large com-

puters, then software, then computer tech services. In marketing those services,


IBM at first focused exclusively on offering proprietary services, based on very

large patent holdings. As IBM was aware, however, a real culture of free access was

developing, and they later changed their approach and decided to explore free solu-

tions. The company invested 3 billion dollars in the free approach, calculating that

they stood to save at least 600 million themselves on nonproprietary systems. IBM’s

yearly business revenue from free services is currently 3 billion. IBM opened up a

new sector to develop this culture, which did not exist inside the company, a culture

based on cooperation, sharing, and the use of standards acceptable to everyone,

without favoring one group at another’s expense, in contrast to proprietary sys-

tems, in which the objective is imposing a standard and taking users captive.


When IBM made its move to free services, the computer boom was losing

momentum. Corporations that had for years cheerfully financed everything to

do with computer technology began to cut off funding. In this context, it became

clear that the free system was eminently economical, but often also more efficient

and reliable, in part because it is easier to identify and isolate piracy in programs

with open, readable source code. This is also why Java, a free programming lan-

guage, became standard, even in hybrid open-source systems. The allied forces

of major computer firms working to defend proprietary solutions disintegrated.


This is why IBM, which manages a portfolio of fifteen thousand patents that earn

the company 2 billion dollars per year, decided that its engineers and departments

needed to address its clients’ culture of free access and do everything it could not

to alienate them.


At the other end of the spectrum is Microsoft, whose image has become so

repugnant to fans of free access that they have a permanent hostility to the firm,

and Microsoft cannot even get its wiki platform to work, using the company’s

own standards, to break into the universe of free access. Proprietary vocabulary

remains so closely associated with Microsoft that its corporate managers have

even considered trying to find the company a new name.


Microsoft’s overwhelming presence in the market goes back to Bill Gates’s

stroke of genius when he decided to grant IBM a license for his MS DOS operat-

ing system in 1985–86—at a juncture when IBM was releasing its PC patents to

the public domain—on condition that the system be systematically installed on all

personal computers. This clause was and still is completely shocking and rapacious

in terms of nonbiased competition. Microsoft acquired a position of near monop-

oly, no thanks to its powers of innovation. As we have seen, though, Microsoft

missed the ball when the Internet arrived. Today, the company is aware that Vista

and Windows 7 are the last proprietary programs it will be able to impose on cus-

tomers. In his departure speech, Bill Gates even made this explicit. The plan to

corner the market on all user applications connected to the operating system had

backfired. This was, in fact, what the company was censured for in the wake of

antimonopoly legislation: creating mandatory compatibility between the operating

system and applications. Although Microsoft slipped out of its trial in the United

States, thanks to the Bush administration, in Europe, the company was ordered

to provide parts of its operating system to users working with related software.

In other words, Microsoft failed in its bid to capture, via Windows, control of the

other user applications for music, television, video, games, and office and home

automation.


The stunning success of free software in the server market foreshadowed the

decline of Microsoft’s business model, which was unable to integrate hardware and

software into a proprietary whole with public success, as Apple did, or ride the

powerful wave of free cooperation, as IBM finally did. There is no doubt that cre-

ating barriers around a strictly proprietary model contributed to a kind of inertia

that, for many hackers, reflects a similarity to the dinosaurs. This split between the

free and proprietary approaches was the first area of conflict between major pro-

prietary companies.


Another crack in the united front maintained by intellectual property advo-

cates was thanks to Google. The directors of Google are aware of the increasingly

immaterial nature of production. They also realize knowledge goods are difficult

to sell. They have built an economic model that meshes with this free-use era. The

model works because Google offers an unbelievable range of services and access.

From this point of view, Google is a “small-c” communist organization, in contrast

with Microsoft, which labeled developers of free software “communists,” as often

happened during the McCarthy era. Google realized that interaction itself would

represent an economic resource.


This is what I like to call “pollination” and “coralization.” If you offer people

free tools, human activity will seize them and begin to pollinate as bees do, but

it will produce something much greater than honey, something called “posi-

tive externalities,” in this case, networks, which in a business economy normally

require an enormous investment, hundreds of billions of euros. The value of pol-

lination if compared to the value of honey and wax product is three-hundred-fifty

times to one. Interaction creates networks spontaneously. Peer-to-peer services

build networks, which are very valuable from an advertising point of view.


Google understood the role that interaction can play. In this system, human

interaction is the raw material. Google harnesses it in a way that advertising

executives do only secondarily, by using the linguistic and communicative inven-

tiveness of people who are constantly creating perspectives on society. Google

represents a huge step forward. It forced the gaps wide open and caused a crisis,

or at least an awkward predicament, for those supporting the proprietary system.


This is why I believe it is strategically sound to create an alliance with Google to

dismantle old, archaic models, even though I feel we simultaneously need to be

ready to fight it, because Google’s goal is to make money, and the company could,

in any case, be bought out by Chinese pension funds or anyone else at any point,

which could easily lead to problems, especially around the issue of privacy, since

Google uses personal data.


Google has also developed a real dynamic of social creativity within the com-

pany itself. It is the only company in California that has kept the spirit of the

golden age of start-ups so alive. The company offers both innovative and well-

paid working conditions, somewhat like the multinational companies of the 1950s

and 1960s that paid 35 percent more than other employers. It is an entirely dif-

ferent conception of creativity being applied, where on Thursdays, for example,

employees have no obligations in terms of work. This is a fundamentally con-

trasting approach to that of companies such as Microsoft, which are run through

secrecy and stress. Google understood that creativity requires special conditions to

develop and that keeping employees under constant pressure, like bees stripped of

their own honey to make them keep producing and feeding themselves, is a fruit-

less approach. People who are put in an environment where they can flourish will

produce results on their own. This is why it pays to offer a guaranteed minimum

wage that provides the proper conditions for creative production, somewhat like

the grants given to researchers. Giving someone an order to create is absurd. This

kind of performative proclamation is impossible. It’s impossible to sit people down

in front of a sheet of paper and tell them “You shall produce,” the way workers

used to be stood in front a lathe and told to produce. By the same token, ordering

people to cooperate is completely ineffectual. We cooperate with people we like,

with whom we share affinities. Although it is possible to coordinate by force, this

works only through a material apparatus. The new immaterial nature of production

has freed these processes from Fordist control.


Traditional employers have a warped, negative view of these issues. They often

think we could live in a society characterized by abundance and information, a

society in which the state invests and certain circumscribed areas would remain

free of charge, without affecting the business sector, where it would be possible

to apply a host of intellectual property regulations and reap the benefits. They

believe there can be periods of expansion, like the dot-com boom, but that there

is always a financial stabilization afterward, bringing us back to the baseline. But

that won’t happen, because there is no baseline. The new situation brings a greater

degree of freedom, in comparison with the capitalism that preceded it. Contrary

to their hopes, there cannot be a partition between material, industrial produc-

tion and life. Universities are the factories of the twenty-first century, producing

codified, marketable knowledge, and in this sense, the European project to place

university funding at 3 percent is ridiculous—funding will realistically need to be

in the region of 20 percent.


GK: If cognitive capitalism has ushered in certain kinds of progress that tend to call

into question traditional hierarchies such as employee/boss, worker/owner, and so

on and that may have the “power to liberate society,” there remains, for a major-

ity of people worldwide, the problem of access to this new world. As you have

commented, intellectual capital becomes discriminatory in this context, in the dis-

tribution of social divisions, and although participation in training and education

has risen around the world, for a large proportion of the population, the world of

cognitive capitalism is still out of reach. This is where we encounter the difference

between information and knowledge. Gaining access is one thing, but being able

to evolve in this period of expansion, to benefit from what is available, is another.


YMB: It would be a mistake to think that cognitive capitalism is relevant only in

Northern countries. Some people say Africa isn’t wired in, and poor populations

will never be able to connect, and that’s not true. We have seen, for example, the

explosion of cell phone use in the favelas in Brazil. This is because, in the context,

portable phones offer an incalculable range of uses: to look for a job and be con-

tactable at any point regarding job offers, to gain access to a boundless range of

things and types of information, to protect yourself by calling the police or friends

when it’s necessary, and so on. Cell phones are a network for everyone. This makes

them even more important than housing—they even take the place of fixed hous-

ing for many people. We live in a physical circle of personal contacts, people we

know physically, but outside this circle is a much larger circle that also plays a

very important role. For now, the content that people exchange on cell phones is

of only relative interest—soccer scores, standardized information, and so on, but

things can change. And people are certainly going to be turning more and more to

free systems, as has happened with peer-to-peer, because the activity alone can

make these channels economically feasible.


There is no question that, on the one hand, education and training have a role

to play. On the other hand, it would be wrong to think of education as an empty

bottle to fill. That’s not how it works. Popular cultures produce values and knowl-

edge. And it isn’t true that just because people haven’t been informed or trained,

they can’t use technology and engage with the transformations taking place.


We also need to realize the networks are interconnected. Cell phone users, for

example, represent an extraordinary mix. In Africa, these phones are important

for illiterate users, people with higher education, immigrants sent back to their

own country, and so on. I do not share the views of Dominique Walton, who says

the Internet gives an illusion of democracy while in reality, users are trapped by

codified content, and the whole system simply follows the market’s rules. The dot-

com crisis in 2000 was associated with a poor understanding of the phenomenon.


The market sector thought it could take hold of the Internet, and it turned out

to be mistaken. The market won’t sell effectively on the Internet unless it makes

effective use of interaction and offers things that the conventional market system

doesn’t. The market cannot engage with this kind of interaction unless the Internet

remains open and not locked into a strictly market-oriented arena. It is interac-

tion that empowers users and gives them agency. This potential cannot, of course,

be realized without looking at the political struggle for access, open source, and a

general free-of-charge culture. . . .


GK: In developing countries, we find a certain elite (although, as they make up

10 percent of the population, we should perhaps stop referring to them as elite)

that has emerged and become a player in this immaterial world, but there is also a

split. Until now, the upper classes and the intellectual and cultural elites have kept

control. What is more, on a national as well as an international level, inequality is

growing. In the context of productive connections formed through cognitive capi-

talism, should we worry about the possibility of a worldwide social structure based

on two main classes, one for which cognitive capital represents an opportunity to

exercise its freedom and another that is excluded from this new reality, remaining

subjugated under classic forms of domination and trapped in the sterile role of

consumer? What possibilities are there for these populations to take part in the

creative process?


YMB: There is a split between the populations, but it doesn’t divide them into

monolithic units. The split is related to culture, rather than only to economic fac-

tors. In Brazil, for example, we can see how the split between those in favor of a

proprietary approach and those opposing it becomes a new determinant of class

distinction without following the contours of people’s social attachments. It actu-

ally cuts across the closed class system and divides it on different lines. Access to

digital content reorganizes things. We also need to recognize that the masses, such

as poor favela dwellers, represent a valuable resource for cultural capitalism. In

Rio, the carnival is the means to exploit the creative resource of the favelas, serv-

ing to boost tourism, which has become the city’s main industry.


Of course, managing to harness this rich resource is one means of functioning

in modernity, but harnessing people in this way is also a way of co-opting them as

partisans of the proprietary system. This brings us to a basic question of access and

the free-of-charge system. If we simply demand piracy, making everything free,

without addressing the question of intellectual property except as a limit to be

transgressed, it leaves the creator out of the equation. How will Native Americans

or Aborigines be repaid or compensated when multinational corporations plunder

their intellectual resources at the same time that these same corporations make

vehement claims about the importance of respecting intellectual property when

they are the owners in question?


The debate on open source and copyleft versus the Creative Commons is very

important and is helpful in thinking about this question. There are real differences

between these choices. On the one hand, you have Richard Stallman, a computer

scientist, who doesn’t understand that although in collaborative programs, it is

more effective not to protect them from interventions by others, the same does

not apply to writing a text. Mallarmé would be categorically opposed to having his

texts modified, and we can understand why. Similarly, in the context of a collec-

tive text or a manifesto, for example, although it is drawn up collectively, we also

understand that the text cannot be changed unilaterally, even by those who sup-

port it. Nobody would let right-wing extremists alter a manifesto for the Socialist

Party, and vice versa. There must be a closure clause to protect the integrity of the

project. On the other hand, proponents of the Creative Commons, with whom I

identify myself, are opposed to a certain kind of diabolical, paradoxical pact. We

are against the alliance between the most sophisticated forms of capitalism, based

on rights of ownership, and a position we might call “terra nullius,” which says

that anything not codified as property is public domain and can be used—in other

words, that positive externalities can be harnessed. Corporations are very skilled

at this. The real question is how we can reencode what is in the public domain

while also protecting its authors.


In the current system in France, authors’ rights are recognized only on an indi-

vidual basis. In music, cinema, theater, and so on, a huge proportion of those con-

tributing to the production and creation of a work of art are not considered its

authors, but are seen as technicians. Furthermore, the cost structure represents

the bulk of distribution costs. In publishing, we find the following breakdown: The

distribution network takes 60 to 70 percent of the product’s final value, and once

the bookstores have deducted their fees, that leaves around 10 percent to be split

between the publisher and the author. The distribution mechanism of member-

ship contributions works in such a way that small sums, which should go to the

authors, in fact end up in a shared account and eventually benefit only those who

make the largest contributions. Only 10 percent of authors can currently make a

living from writing, but they can do it because those who make 10, 20 or even let’s

say 50 percent of their living are contributors to their product. In this way, lower-

profile authors, as well as those who contribute to a work’s production without

being considered authors, have little to gain from the current system and often

have to endure unstable positions. Digitizing a product can lead to lower revenue,

because of copying, which then leads to a crisis in this economic model. The ones

who suffer the most are people already struggling to make a living.


If we look at the alliance against copying in the cinema world, it is composed,

unsurprisingly, of the major SACEM (Société des Auteurs, Compositeurs, et Edit-

eurs de Musique) authors, but also technicians. The groups taking action against

copying are, in part, those profiting from the established system, but also many

others struggling to survive who know the economic model is outdated, that copy-

ing affects financial returns and consequently the investment in production on

which their salaries depend. Accordingly they view the expansion of digital con-

tent as a threat. If sales are affected by digital content, then producers become

anxious and try to limit costs, which affects technicians first, destabilizes produc-

tion teams, and so on. This is why we must tackle the issue of authors’ rights and

find a new form of insurance by changing the cost structure, which we can do

through increased dematerialization.


There are still vast numbers of elements that could be dematerialized. If this

lowers costs, then, first of all, prices will drop, making the results more afford-

able, but it will also be possible to shift the dividing lines, and we will then be able

to change current relationships of power. We could consider the possibility of a

model in which, through digital channels, products become public and accessible

while production, authors, and technical teams would be subsidized. This is how

the Opera is currently run in France. When you buy a ticket for 20, 50 or even 200

euros, the actual cost is around 1000 euros. The opera is subsidized, along with the

press and free access. While in the current system, distribution channels take the

lion’s share of funding to cover costs, materials, energy and transport, we could

conceivably push digitization further along, so that instead of a CD or a DVD, for

example, you would use an intangible product (a digital file) that can be distrib-

uted at very low cost. Of course, there would still be distribution expenses, such

as the cost of network administration, but instead of making up 70 percent of the

price, they would represent 10, 15 or 20 percent. A large part of the price would in

this way be made available simply to pay those with artist roles, but also techni-

cians and other jobs associated with the creative process.


The objective is to incorporate free access into economic models, develop chan-

nels, find finance circuits that use interaction as a resource, and change the legal

structure. The point is to move from an extremely primitive copyright system

based on elementary, binary notions that says you either have the right to do any-

thing or no rights at all—the root of copyright is prohibiting copies—to a system

where the author and the producer exist, where each one’s contribution is recog-

nized and, by extension, brings in a living wage, and where what counts is the way

a product is used.


This brings us to the importance of usus in relation to fructus and abusus—in

other words, it brings us back to property laws. Depending on the situation, it is

possible to make the public pay, give it something free of charge, or strike a bal-

ance between the two extremes. In the system I am describing, the public gains

access to products, so in this model, it is the public that trains itself, providing its

own references about a product. The public is constantly tagging the product. I

always thought that if Paul-Loup Sulitzer’s books weren’t wrapped in cellophane,

if they were on-line, there would be a spontaneous backlash, and nobody would

want to read this literature, which is of no interest to any part of the public.2


The other side of this dynamic is that a good product finds its own audience,

which expands and differs according to taste and use and according to people’s

ability to pay. As an academic, for example, I cannot afford an access fee of 150

euros for journals and am happy to read what is available on-line. If I read an

interesting book, I’ll recommend it to the university library and to students.

It is clear that putting media on-line does not take away buyer demand. By the

same token, it is absurd to view downloads as just so many products not being

purchased, especially since people in a position to buy are revealed through the

actions of those who aren’t and who use downloads instead, because the latter

become like consultants. When kids download something and show it to their par-

ents and friends, customers with spending money are directed toward the product.

This is the economic model we should be defending. It is not about destroying all

definitions of property, but about removing the effects of closure. The current sys-

tem is presented as being constructed to encourage inventors and producers, when

in fact it tends to breed parasitic chains. We must therefore work to enact much

more sophisticated legislation that makes it possible actually to support people

who are inventing and creating while taking account of people’s income and not

creating obstacles to access.


People need to consider what type of intellectual property protection will ben-

efit them most. The patent system favors large corporations, because patent regis-

tration is something small start-ups cannot afford. There have also been more and

more problems associated with applying patent protection. There is no worldwide

patent authority, and the United States issues a staggering number of patents,

many of which are questionable and rightly called into question. Some Brazilian

manufacturers were telling me recently that the tangle of patent administration

is becoming an increasingly powerful deterrent to people interested in doing

research. This explains why the science community is often particularly cool, if not

hostile, when it comes to patents. The author’s rights–royalties system, as used by

songwriters, for example, is more favorable to small parties, but difficult to apply:

It requires frameworks for listening, attribution, allocation, and so on. If we take

the example of a flat fee for downloads that has been discussed, it is clear that the

task of attributing and reattributing royalties will not be easy.


However, there is also a growing interest in brand names, which are much more

manageable and affordable for small companies, because their capital and main-

tenance costs are much lower, which also explains why brand laws tend to be put

in place more quickly than other types of intellectual property laws in develop-

ing countries. Furthermore, brands seem to present us with an interesting model

in terms of protecting goods based on traditional knowledge and other collective

rights. Generally speaking, the advertising model offers many important advan-

tages. It allows one to publicize and recognize authorship and thus facilitates attri-

bution. Publicizing someone’s work is not payment in itself, but it does bring pro-

fessional recognition and help the author to build and promote her career. It is a

symbolic wage. On some level, it becomes a form of brand. I believe we should not

be fighting the notion of attribution, or the project to codify usage, or the system

of economic compensation.


GK: It is in the nature of intangible goods and their means of production to favor

certain kinds of collective action—sharing, exchange, collaboration, and the pro-

duction of collective intelligence. Would you say that the A2K movement, which

has gained momentum thanks to the arrival of cognitive capitalism, will be able

to defeat the movement for increased intellectual property restrictions by simply

continuing to push forward in the same direction that it has heretofore followed?


In this sense, piracy might be one of the first steps to take, because it allows peo-

ple to participate in free expansion and also because it would represent a form of

direct resistance against control and repression that we would be better off break-

ing through immediately, before it has a chance to solidify.


YMB: The problem with piracy is that it can function like the drug dealers’ tech-

nique of distributing free samples of the product, then cruelly cutting off access in

order then to sell it to users who have become addicts. Microsoft uses this method.


The company knows it is unable to force licenses on the entire market in China,

even if it can in Shanghai, on the coast. It isn’t possible in the rest of the coun-

try. The important thing is for the standard to become indispensable. So Microsoft

allows piracy to take place, which helps its products become the default choice.


The company’s wager is that when people have money to spend, they will go buy

the original products and stop using pirated ones, becoming customers. The effect

of piracy in this case actually hinders the development of free access.


From a certain perspective, piracy is the tribute vice pays to virtue. Some acts

of piracy, namely, viruses and bugs, are deliberately developed by businesses to

stimulate customer use of help hotlines—there is proof that they do this. The aura

surrounding piracy also serves to legitimize the system. It’s like the story of Par-

mentier: To allay people’s anxiety about potatoes, he had to put up a fence around

the potato patch, which stimulated interest and desire.


If we take counterfeiting, the business revenue for Swiss watches comes to 5

billion per year, perfume is 5 billion, and luxury industries the same. These three

industries are favorite targets of counterfeiting. There is, furthermore, an unbe-

lievably wide range of calibers of counterfeit watches, costing from a few hundred

to several tens of thousands of euros. The people who buy copies can’t afford to

buy real ones, but by buying copies, they are contributing to the image, providing

advertising for the brand. Buyers start out with crude counterfeits and progress to

closer and closer approximations of the real thing, until they can actually afford

it. In China, certain counterfeit retailers offer four or five levels of quality, ranging

from very crude copies to undetectable ones. Studies of customs seizures show

that wherever counterfeiting spreads, not only does it fail to harm the market for

branded products, it in fact boosts the market. The two complement each other,

rather than substituting for one another. Counterfeiting stimulates a demand,

which turns into a social norm, especially among people with money to spend. It

is the same economic model at work in peer-to-peer networks. Piracy, therefore,

has a positive effect on sales. It is for this reason that promoters of free access

often criticize piracy as being the cause of consolidation of proprietary standards.


Some economists view piracy, in terms of a rather sophisticated model, as a form of

“free” goods that creates a space for valorization. Having done this, piracy creates

a market based on the coralization produced by this particular type of consumer.


Certain people use piracy because they don’t want to pay for something, oth-

ers out of necessity, others out of defiance, and others do so even while mak-

ing a public issue of defending intellectual property, because people aren’t always

consistent in their behavior. So piracy brings together people with widely varying

motivations. They have different reasons for using piracy to gain access to knowl-

edge, but we need to make the consequences clear to them, to explain the advan-

tages of alternative, nonproprietary systems.


We also need to make sure all computers have free programs installed on

them so that people can choose freely. Logically, along with demanding access

to knowledge with as few obstacles as possible, we should also be promoting the

development of basic computer know-how, which will be a sort of modern civic

education and allow every computer user to get into the operating system and see

it functioning, see its limits and barriers, and so on. Until now, only “hackers” and

“crackers” had these kinds of skills.


GK: There is a very diverse set of figures behind the movement supporting access

phy to put forward, but who come together to lead an offensive. With a wide range

of motivations, they manage to join forces in collective action, which gives them

a certain power. How do you view this multitude, and what would you say are the

alliances and demands likely to emerge from the issues they share in this context?


In the fight to abolish slavery, the ultimate goal could be articulated clearly and

simply. In the case of A2K, how is the movement taking shape, and how can the

goal be articulated? What seems desirable?


YMB: I think people agree that it is time to condemn the arbitrary reign of cor-

porate power. The antimonopoly effort is one of their motivations. The demands

made, however, are more diverse in nature. Some people are in favor of the prin-

ciple of free access and believe that the domain of learning ought to be subsidized

and not represent another space occupied by merchandizing, for making profits.


Another category of people is concerned about the decline and contamination of a

public sector as a result of market norms and would like to protect this public sec-

tor while reigning in market expansion, which is a more sophisticated position. A

third type of position claims that the system of barriers protecting property is ill-

suited to the domain of knowledge and represents an impediment to innovation.


There is yet another category that takes a more technical perspective and raises

the issue of the standards battle—which in 1999 led to Tim O’Reilly from Open

Access splitting with the Free Software Foundation’s policies. They are convinced

that the fundamental issue in the industrial sector, as well as in the public sector,

is the choice of norms, which are used by companies to try to escape the effects

of competition.


Finally, there is another view, which is roughly the one I myself hold, that says

the real issue consists in finding economic models that effect a compromise involv-

ing cognitive capitalism, and a viable system for the public sector and traditional

learning, and the radical democratization of society—these are the three elements

to be brought together. This means it is vital to integrate some parts of capital-

ism, the most interesting ones, because it opens up arenas that the greatest pos-

sible number of citizens, researchers, students, and customers can use. The battle

certainly isn’t over yet. We have already seen it in the case of slavery: Almost a

century went by between the first revolt and abolition of slavery, in 1804, and the

start of its absolute abolition, in Brazil in 1889. It is in any case unsurprising that

certain parties in the so-called “real,” material economy are opposed to a radical

evolution. In some cases, it might be people drawing pensions, but it could also be

employees working to produce tangible goods who turn reactionary in the hopes

of protecting their jobs, which are more important to them than society becoming

authoritarian and noncreative.


In addition, there are complex alliances at odds with each other. We see this

with the issue of traditional knowledge. In the lawsuit over the Amazonian Ror-

aima Reserve in Brazil, for example, which the Supreme Court decided in favor

of the defenders of the reserve, there were landless groups, wealthy settlers who

wanted to grow soy, the army, prospectors working for the Brazilian national cor-

poration Petrobras, wood manufacturers, and ecologists. Their motivations were

all interlinked. Native Americans, like the Aborigines in Australia who fought

against multinational corporations, actually made a tacit, technical use of prop-

erty rights by demanding a sort of author’s right to resources in the reserve when

multinationals refused to recognize the relevance of authorship—often, in this

case, taking the form of collective author’s rights. The Brazilian state and army

had recognized the Native Americans’ right to a usufruct, but not to the trans-

ferability of property, which means, in other words, that they maintained sover-

eignty. There was a deep-rooted conflict between those who accepted the Native

Americans’ sovereignty and right to oppose the state on issues such as petroleum

development and those who denied it. In this conflict, the army pointed to the

necessity of national security, and the settlers and landless groups took the same

line, while on the other side, an alliance between proponents of Native Americans

sovereignty on Amazonian soil and ecologists who wanted to limit the clearing of

forest for farmland was endorsed by the local, but not the federal government.

Native Americans believe the forest cannot be touched because trees have souls, a

belief that they expressed tactically in the language of property because it was the

only means of making their message understandable. In the same way, Stallman

called for interoperability and nonclosure of systems in bourgeois law by creating

the idea of “copyleft” while preventing the ransacking of public space that was

attempting to consolidate private property.


In a political battle, there is unavoidably some mixing of alliances between

people with different objectives. There are two parts that make up access to learn-

ing, for example. There is access considered as an absolute, timeless virtue, and

then there is a more historically determined position, which is therefore more stra-

tegic and raises the issue of rearranging the power structure. The idea of knowl-

edge communism could represent the locus of this reorganization, the field where

all the different groups can reach an agreement. People don’t refer to it as “com-

munism,” but say “for common use,” “new common ground,” “common space.” The

term “communism” is, in fact, derived from “commoners,” and we must not forget

that in revolutionary history, it was the commoners who started things, not the

“communists.” I use the notion of the communism of capital because I think capi-

talism needs to be brought into common use by the commoners, since they are the

ones producing it and generating its income. Free access to learning can provide

the impetus for a political representation of society, the development of a coopera-

tive society in which exploitation is significantly reduced and gradually eliminated

as innovative forms of work and creation emerge.” (from the book: Access to Knowledge in the Age of Intellectual Property)