They came so close to setting Mickey Mouse free. Until a few months ago when congressional passage of the Sonny Bono Act extended the term of all corporate copyrights by 20 years, the rights to Mickey’s first cartoon were due to expire in 2002. Just three more years, and the century’s top-grossing commodified signifier (possibly outranked only by the Coca-Cola logo) would have taken his first, tentative steps into the light of the public domain. Weightier things have happened in the history of Western civilization, to be sure, but given the hyperreality of the age, there’s no telling what cultural shock waves the unshackling of Mickey might have set rolling. With the right spin, the event could have joined the fall of the Berlin Wall among postmodernity’s great moments of iconic liberation.
Tech journalist Seth Shulman’s Owning the Future, a brief but sweeping report on the malignant growth of intellectual-property claims in the last two decades, has matters more substantive than cartoons to dwell on— technological innovation strangled by the proliferation of software patents, for instance; medical breakthroughs stymied by corporate knowledge hoarding; age-old farming cultures threatened by the wholesale commodification of crop DNA. But in the end, his argument tells us basically the same thing Disney Inc.’s anxious lobbying on behalf of the Bono Act already did: that nothing haunts the information-age corporation so profoundly as the specter of unchained information, and that corporate efforts to keep the chains on are getting weirder and fiercer all the time.
Shulman’s crisp analysis tells us plenty, though, about the social conditions that frame those efforts. The standard Tofflerian version of 20th-century economic history, plausible enough in its bare outlines, gets a brisk retelling here: sometime between the saving of Private Ryan and the launching of Sputnik, we are reminded, the old “Second Wave” industrial economy, in which tangible products were central, gave way to the Third Wave, “a new historical era in which knowledge assets play a driving role in economic growth.” Mercifully, however, Shulman turns the blithe free-market boosting of Toffler and his disciples on its head. Against the “triumphalist” vision of cyberguru Esther Dyson, for instance, who sees only desperate lateSecond Wave resistance in the furious intellectual landgrabbing now under way, Shulman insists on the obvious: that the landgrabbing is in fact a “symptom” of the new dispensation, in which corporations live and die by whatever chunks of information they can stake their claims to.
Shulman’s dispatches from the high-tech turf wars document recent patents on, among other eyebrow-raising examples, two very large prime numbers, a plant used by South American shamans to concoct the hallucinogen ayahuasca, the sexing of unborn infants by “looking at their genitals” in ultrasound images, approximately one-third of the known human genome, and, believe it or not, in a claim granted to a Connecticut inventor only a year ago— the wheel.
As this brief list suggests, Shulman’s book is entertaining, and a selective reader could easily skim for the pure thrill of outrage, skipping from one mind-boggling case of info-profiteering to another. But Shulman himself is careful never to stray too far from the larger and subtler social consequences: the stifling of scientific and technological evolution, the removal of fateful decisions about human and other gene pools from the realm of democratic choice, the exacerbation of inequalities and conflicts between rich and poor nations, and, ultimately, the prospect of “an ominous descent into a new Dark Age.”
Only in the last few pages of Owning the Future, however, does Shulman seek to map out a coherent strategy for averting these bummers— and it’s here you finally sense something missing from his argument. Not that his suggestions don’t sound eminently sensible. He simply proposes, after all, to reinvigorate the much diminished notion of the public domain, and he proposes to do so by updating certain tried-and-true legal and political approaches to managing more conventional forms of property. Declare the human genome a natural sanctuary, for instance, just like Teddy Roosevelt did with Yellowstone. Make health-related patent holders license their knowledge to all comers— the same way cities and states use zoning laws to regulate some private properties in the public interest. Nothing too radical there.
But that’s just the problem: Shulman spends much of his book arguing persuasively that there is something radically different about intellectual property, and that notions of property derived from the logic of tangible goods can’t adequately be applied to the “unreal estate” of the conceptual. It’s disconcerting, then, to find him in the end trying to do just that.
Indeed, it makes you wish that maybe Shulman had made a little room in his analysis for Mickey Mouse— or for that matter any other products of the culture industry. Because although the solid objects of industrial production might not offer adequate precedent for the cutting-edge, info-intensive technologies that fascinate Shulman, the soft, subtle objects of which culture has always been made are another story. Computer programming and genetic engineering are in fact suffused with the logics of cultural production— of language, writing, and symbol. That’s the very thing that makes them radically different, in the end. And had Shulman chosen to pursue that difference to the end, it might have been interesting to see what sort of policy proposals he came up with. No doubt they would be soft and subtle indeed, perhaps too much so to even count as policy at all. But as the bulk of Shulman’s book makes plain, the current crisis of our intellectual-property regime is a radical one, and nothing short of a radical rethinking is likely to see us clear of it.