ブロードバンド時代の制度設計

Now I tell this story in the Untied States and I get into lots of trouble for it but I truly believe it is a description of who we are in the United States right now. We are fundamentally a house divided about this idea of intellectual property because the United States is filled with people who believe that property is a fundamental good. I gave a speech once and someone stood up and said, "Did we not win the Cold War? Did not the fall and collapse of the Soviet Union demonstrate that property was the single most important value to be preserved above all else?" And the answer to that question is to say that we lawyers have allowed people to use this word "property" in a fundamentally misleading way. This question about intellectual property is not a question that should make us doubt free market economics as it applies to real property. These "properties" are fundamentally different and you can be as I am, a fundamental supporter of the free market as it attaches to "real property", and believe that property is a system for real space and real tangible goods that maximizes wealth by inspiring lots of innovations and yet be skeptical about the same set of controls applied to ideas and creativity in the name of intellectual property. You can be consistently, I think, as the framers of the American Constitution were when on the one hand they said, if the state takes property they must compensate the property owners. But on the other hand say that if the state creates a copyright it must take that property back after a limited time and turn it over to the public with no compensation at all. The same constitution embraces a strict protection for real property and an absolute commitment to a devotion of intellectual property to the public domain and that is because our framers recognized the difference between these two very different kinds of rights.

But we in the United States have forgotten this now. We have begun to associate the ideas of perfect control of real property with perfect control of intellectual property and any attempt to compromise perfect control is referred to as theft. This is a battle in the United Sates between those who believe in property and those who believe in theft and anyone who articulates reasons to limit the extent of control for intellectual property is, in classic American red baiting style, a thief. So I am referred to both as a communist and as a thief, two ideas in the United States which are not favored by most. But this is a confusion, which we lawyers should be better able to communicate to the rest of the world. The fact that you believe in strong property rights should not mean that you have to believe in perfect control over ideas. And in fact, perfect control over ideas concentrating control in the way that current copyright law in the US does is likely to stifle innovation.

Now, my home state of California is a perfect picture of this conflict in attitudes in the United States right now. I live in Silicon Valley. Silicon Valley is a part of the United States that demonstrates the great value of free exchange of ideas. The legal system in Silicon Valley provided very little opportunity for corporations to control the exchange of ideas among the employees. There was free flow of ideas and intellectual capital among companies in the Valley and the product of that freedom was extraordinary innovation and growth. In the south of California a very different idea reins. In the South, the belief is that culture should be owned; that the exchange of culture should be as the owners permit, and the owners in the South are not hundreds of thousands of individuals who exercise the right to control the access to these resources. They are plantation owners who exercise control over culture in a way that protects their vision of what culture should be. Hollywood and the recording industry are not descriptions of hundreds of thousand of individual competitors competing to exchange ideas and their creativity. It is a description of an extraordinary concentrated industry which can leverage their control from real space copyrights into control over innovation in the context of the Internet. This conflict between freedom in the North and control in the South is a picture of the United States right now, and everyone in this debate is divided in just the way that California is divided because of the confusion that exists about this idea of property. We all in some sense believe both in the virtue of freedom and in the importance of perfect control over property and that is what produces the confusion that American policy has evinced.

Consider the case of Napster as an example of this confusion. In the United States people associate the term Napster with a company started by two Sean's; Sean Fanning and Sean Parker, that enabled people to exchange music easily and quickly through a distributed system of serving content mimicking a Peer-to-Peer system, but technically not quite the Peer-to-Peer system. But the first Napster in the United States had nothing to do with computers. The first Napster in the United States was the cable television industry. In the United States the cable television system was born by technologists taking a bit of technology and putting it up on mountaintops, stealing the content of broadcasters and selling it to their customers in the valleys. For twenty years owners of this copyrighted work fought in the courts to stop this "theft". And for twenty years the court said that under existing copyright law this is not theft. You have no right to control this, "theft" of content from cable television providers even though they are reselling this content for commercial purposes to their customers. And so for twenty years an industry took off in the United States, which was in this fundamental sense based on the ability to steal other people's content.

When Congress in 1976 then got around to confronting this system of "theft", there was an industry there representing the thieves and pirates who could sit at the bargaining table across from the copyright holders and assert their interests. And when Congress got around then to striking a balance between the pirates and the copyright owners, Congress struck a balance which resonates with much in the history of copyright law. It was a balance that said that content owners must be paid for their content but we will guarantee cable companies a right to get access to that content through a compulsory license right. And the reason for this compromise was to make sure that while content owners got paid the existing interests of broadcasting would not be able to leverage their control over content into control over the cable industry. The objective was to make sure that cable could develop, that innovation and distribution could develop without the control of the old interests so that if this new technology competed with the old interests in a fundamental way the old could not leverage their control over the infrastructure into controlling the new.

Now exactly the same choice could be made in the context of innovation about the distribution and the creation of music on the Internet today. From the very beginning this company, Napster, has lobbied Congress. Not for the right to get access to copyrighted material for free, as in zero price, but they have lobbied Congress for the right to a compulsory right to get access to this content and then distribute it however their innovations decide. So this compulsory right would give birth to a score of companies competing in new ways to distribute content through MP3s or through streaming content, through devices that plug into computers or devices that get access to content across the airways. An extraordinary explosion of innovation to deliver and produce content that would be enabled because access to this content was guaranteed even though owners of the content would be compensated. A compulsory right that would turn this resource into a free resource in just the sense that the owners did not get a right to veto this new technology for deploying this resource. And they would not have the right to veto because we would expect them to veto any new technology that did not give them as much power as they had in the past. But American law and the American Congress did not grant content deliverers this right and the consequence of that has been a legal campaign where producers of innovation have been stopped at every new stage of innovation they develop for delivering content if the recording industry and Hollywood is not a partner in this delivery. The single message sent by the recording industry to innovators in the context of the Internet has been, unless we approve of your innovation, unless we give you our permission, this innovation will not be allowed because in the words of AT&T in 1964, "We will not permit the creation of a competitor to our self." or in the words on AT&T in 1998, "Because we will not allow the blood to be sucked from our veins." Regardless of AT&T, the idea is the same; using their legal rights over copyright they leveraged control over innovation in the context of the Internet to stifle innovation which threatens the business model they produced.

Now in both of these contexts we see a corruption coming from both layers. A corruption coming from the physical layer as Internet moves into broadband content and a corruption of the original values of the Internet produced by the code layer and in both contexts this is a corruption that is effected by old interests protecting themselves against the opportunities for innovation and creativity presented by new interests. Now there is a fundamental policy choice that governments must make in this context, which side are you on? Are you on the side of existing interests who would use law and regulation to protect themselves against the opportunity for innovation that the Internet presents? Or are you on the side of new innovation that would produce markets and opportunities that none of us now could begin to imagine? Now there is in response to this question no reason to be optimistic in the United States. Right now the attitude is uniformly in favor of changes that are designed to protect the old against the new. The changes that are effected through what is called, "deregulation of the telecommunications market" are changes that would permit greater discrimination to protect themselves against the architecture the Internet presented. And the changes that are being effected through radical transformations in copyright and patent law are changes that will permit strong, large interests in the context of content to protect themselves against new content providers and new innovators in the production of even software and innovation through the free source and open source software movements. These are changes to protect the old against the new, and what is missing is the attitude that protects the opportunity of the new against this power that has been leveraged from old industries into this new Internet context.

Now in this struggle, what is baffling to me is the role the rest of the world has played in this battle, because the greatest opportunity that the Internet presented to the world was the opportunity for innovation and creativity that was outside of the control of existing interests. The great opportunity for new devices to facilitate access and use of content was an opportunity for consumer electronic companies to enter into the computer age in a way that would explode the investment in this technology. The opportunity for content providers outside of the United States was to imagine a system for producing and delivering content where the dominant content providers are not a couple of companies primarily controlled by Western, or European and American interests, but an extraordinarily diverse range of cultural development that is no longer under the control of relatively easily identified interests. The great promise was of a platform that competition would support equally across the world to have the greatest impact and greatest transformation on the rest of the world, and yet the rest of the world accepts these changes that the United States and copyright law advances as if these changes are simply changes to protect against "thieves", but they are not. These are changes that are being designed and implemented to protect not against thieves but against innovation, and you and the rest of the world are the greatest beneficiaries of the promise of what this original network demanded. We are changing that in the United States. Those who participate through the World Intellectual Property Organization (WIPO) process are also helping us change it through laws that are being replicated around the world and the consequences of those changes will be to undermine the promise of a neutral platform that the Internet originally produced which existed for a couple of years at least but which is quickly disappearing as these transformations have their effect.

I am greatly appreciative to you that you have given me this opportunity to present this argument and I am eager to hear your response to what I said. Thank you very much.