Enclosing the Knowledge Commons: Three Variations on a Theme

It’s sometimes hard to see and understand how the knowledge commons is being privatized and locked up. In the past week, I’ve identified at least three major fronts in which industry groups are actively trying to assert proprietary control over information or infrastructure that belongs to all of us. The most intense and consequential struggle is over net neutrality, the principle that Internet service providers act as common carriers. Other attempted enclosures include a trademark bill that would threaten free speech rights, and new legislation that would expand the pernicious grip of the Digital Millennium Copyright Act.

First, net neutrality. The fight to save the Internet is in full swing. Led by such folks as Public Knowledge, Free Press, EFF, Daily Kos and a variety of others, the Save the Internet coalition is rallying the grassroots to put pressure on a Congress dangerously under the influence of telcos and cable companies. Without net neutrality, here are some scenarios that Robert McChesney warns could come to pass:

To learn more about net neutrality, Public Knowledge just produced a wonderful short web video explaining the issue. Also, check out the SavetheInternet.com website. Please contact your member of Congress to keep the Internet free and open. We shouldn’t have to pay shake-down money to our ISPs.

Over in the trademark world, a bill now pending in the U.S. House — H.R. 683, the Trademark Dilution Revision Act — would eliminate three long-standing exemptions that enable us to use trademarks without legal penalty. The use of trademarks in news reporting and commentary, fair use settings (such as education or parody) and non-commercial uses, would no longer be explicitly protected.

If a newspaper published a company’s trademark as part of a story, or if an artist tried to use a trademarked logo or product in a work of art, the trademark owner could sue. And we know who has the money and attorneys to vindicate their rights. For more, see this article in Editor & Publisher.

Finally, the record industry, software and information industries want to expand the nasty tentacles of the Digital Millennium Copyright Act, the reviled law that more or less eliminates the fair use doctrine in digital media. In draft legislation that will be introduced soon, the Intellectual Property Protection Act of 2006 would make it a crime to possess any anti-circumvention tools that could bypass copy protection systems. The “mere communication about the means of accomplishing a hack” would also be subject to penalties, according to law professor Peter Jaszi. It would become a crime to even attempt a copyright infringement;. The feds could use wiretaps in investigations of copyright crimes. Criminal penalties would be increased by 10 to 15 years. And copyright holders could seek civil asset forfeiture as penalties against infringers.

Nasty stuff. For more, see the CNET article on the issue.