Bruce Sterling is popularly credited with coining the term "Data Haven", for concentrations of illicit data in computer servers that reside beyond copyright protection law. This case study will examine, by looking at a specific Data Haven and the larger issues that surround Data Havens, whether Data Havens are a potential threat to the global intellectual property regime and whether or not Data Havens, as they currently exist pose an actual threat to said regime.
In his 1989 novel, Islands in the Net, Bruce Sterling speculated that in the future information would become widely pirated and impossible to protect. Operating from sovereign nations that were not signatories to any copyright protection convention, information could be copied and resold at cut-rate prices. Although somewhat speculative in 1989, the concept of a Data Haven, as it was termed, is a practical possibility at this point in time.
In a networked world, traditional concepts of sovereignty are necessarily eroded. Mass provides a convenient means for state regulation. In other words, most traded products are tangible. Trade in tangible goods can be easily regulated by states or other regulatory bodies. Tangible goods must be stored in a physical location. Tangible goods are (relatively) difficult to move from place to place. Tangible goods are difficult to reproduce and copy. In an environment where tangible goods make up the bulk of traded items, their mere physicality allows ample opportunities for taxation, for regulation or for property rights protection (trademarks and such)
But in a networked environment, the opportunities for regulation decline in the realm of intangible goods like information. Information, of course, has always been a traded good and the importance of giving authors property rights over their works has long been recognized as being essential to promoting creativity. But in these past paradigms, information was still relatively static, and subject to government control. Books had to be printed physically. Phonograph records had to be shipped. In short, protection of intellectual property rights could be treated in much the same way as tangible property.
Still intellectual property was somewhat easier to violate than tangible property. In order to steal a property owner’s grain, you’d have to physically go and steal it, a difficult logistical feat. In order to steal an author’s book, one would need only to purchase a copy and then set up their own printing press and make their own copies. This, of course, was not simple either, but compared to tangible property it was becoming relatively easier and a much larger problem by the mid 19th century.
In response to the possibility of intellectual piracy, several European States ratified the International Union for the Protection of Literary and Artistic Works in 1886, otherwise known as the Berne Convention. The Berne Convention has become the basis for all international intellectual property law and is administered by the World Intellectual Property Organization (WIPO) founded in 1967.
Under the Berne Convention, and various additions (such as the Universal Copyright Convention), most nations afford foreign authors at least the protection they provide to their domestic authors. The Berne Convention and WIPO are also extremely far reaching. The Berne Convention has been ratified by over 150 of the world’s 187 nations and all of the major producers of intellectual property.
Most recently, the protocols of the Berne Convention have been incorporated into the World Trade Organization (WTO) under the protocol known as the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). The TRIPS agreement expands the Berne Convention somewhat to include such things as intellectual property protections for databases and chip architectures, but is otherwise the same.
For over a century this regime has worked admirably. Again, even at the international level, information still had mass. Since no major producer of intellectual property was not a signatory to the Berne Convention, no non-member could ever seriously damage the regime. Bermuda might have a thriving pirate publishing industry, but how many people are going to fly to Bermuda to buy Hermann Hesse’s Steppenwolf?
But with the rise of the networked environment, there is now the potential threat for small actors who are not part of the global intellectual property regime to threaten the viability of the regime itself. Thus, we have the potentiality of &quotData Havens&quot as speculated by Sterling. A Data Haven could most easily be defined as a small nation that is a nonsignatory to the Berne Convention (likely in the Caribbean or Pacific) that markets itself to information providers who wish to provide information that is illegal (or undesirable) in other nations because of intellectual property laws or other factors.
So do Data Havens exist? And are they a threat to the current global intellectual property rights regime?
It should be noted that Data Havens do exist, and have always existed, the biggest of them being the United States.
By way of example, all neo-nazi literature in modern Germany comes from the United States. In Germany the mere possession of nazi literature is illegal. But in the US, it is, of course, completely legal to produce, distribute and own nazi propaganda. Of course this example does not fall under the rubric of intellectual property, at least not in the Berne Convention sense. It is, however, illustrative of how the regime is potentially at risk. Intellectual property is protected because it is seen as a socially desirable end. Similarly, in Germany it is seen as socially desirable to prevent the distribution of nazi literature. However in the US, this is seen as being specifically undesirable socially. Therefore, when the two paradigms come into conflict, the looser regime threatens the tighter regime. In this case, it has come to the point where Germany has nearly given up on trying to keep neo-nazi propaganda from flowing into its borders because it recognizes the futility in doing such.
Non signatories to the Berne Convention do not see it as being socially desirable to rigorously protect foreign authors’ property rights. In this case, since information (the very commodity that is being protected) can so easily flow through the Network, it is extremely difficult to protect the regime as a whole. Just as Germany cannot interdict nazi literature and cannot pressure the authors to stop producing it, it is inevitably difficult to stop the flow of pirated information and/or pressure the pirates (who reside in a sovereign nation) to terminate their activities.
Although it is likely that Data Havens pose a potential threat to the global copyright regime, do they actually in fact? The answer to this question is somewhat surprising. Let’s look at one specific Data Haven, Offshore Information Services, located on the Caribbean island of Anguilla.
Offshore Information Services (OIS) is a company that specializes in, as its name would suggest, information services. They are an Internet service provider for residents of Anguilla and offer typical services such as dial-up and domain name listings. More importantly, they offer space on their servers for non-residents. For a monthly fee, non-residents of Anguilla can store any information they want on their allotted server space. This information can be in the form of a web page or binary files.
Although, throughout the 90’s, there has been a push to get small nations to sign onto the Berne Convention, Anguilla is not currently a signatory. Therefore, a non resident of the island could potentially post a copyrighted work, say Hermann Hesse’s Steppenwolf on OIS’s servers without fear of legal retribution. But now, everyone can read Steppenwolf from my web page the world over. I could even link text from a legitimate web page housed in a nation that is a signatory to the Berne Convention.
OIS has indeed marketed itself as a Data Haven, beyond the reach government regulation:
PRESS RELEASE: 2/8/96 Anguilla, Offshore Information Services Ltd.
As a result of recent efforts to censor the Internet in France, Germany, China, and now the USA, Offshore Information Services Ltd. (OIS) anticipates a larger market for privacy services over the Internet. OIS is well suited to provide such service since it is located in Anguilla, a taxhaven in the Caribbean with strict secrecy laws. OIS is now entering this market.
OIS makes it easy for users to setup an online identity offshore. Setting up an offshore email identity can be as easy as changing the POP server name, user name, and password in their mail program. Using this new identity they can again have free speech on the Internet.
If users choose, they can login to a machine in Anguilla using ssh so that their communication over the Internet is encrypted.
Users can also maintain web pages offshore almost as easily as if they were onshore.
Anguilla has no restrictions on publications about dead presidents of France, or information about birth control, etc.
But, tellingly, although OIS has great potential to be a Data Haven, it is not and likely will not become one. OIS’s publicly available servers hold no information that is obviously pirated. And if OIS were to be taken as representative of the potential Data Haven industry, it would seem unlikely that they will pose a major threat to the intellectual property regime for several reasons.
Firstly, although Anguilla and OIS may see a potential market in the concept of Data Havens, they are primarily directing their laws and services (respectively) toward other markets. Anguilla, like several Caribbean nations promogulates laws that help industries in the fields of tax avoidance and secret banking. OIS’s services cater to these markets almost exclusively. The current monthly fees for information storage are $1000 a month. This price is likely too high for an individual pirate who wants to sell downloads of bootleg Ricky Martin CD’s. Therefore, the current market is not hospitable to the bulk of small time pirates.
Secondly, signatories to the Berne Convention routinely flaunt intellectual property protections anyway. For example, many East Asian nations give mere lip service to their responsibilities under the intellectual property regime, allowing massive pirating operations to go on with a wink and a nod. Given the availability of low risk piracy options around the world, there is no market pressure to drive pirates to an untouchable location such as a Data Haven.
Finally, and perhaps most profoundly for the global intellectual property regime, there are more viable Data Havens operating right now in cyberspace. Take for example, the Eternity Server. The Eternity Server is an ingenious marriage of technologies, fusing the robustness and anonynimity of USENET [otherwise known as internet newsgroups] with the convenience and search capabilities of the Web.
The Eternity Server works as such, one posts an HTML file with copyrighted materials anonymously to USENET. The file then propagates the normal way, from server to server, until the file resides simultaneously on hundreds of USENET servers. This makes the file practically impossible to take down once it’s been posted. The Eternity Server then assigns the file a specific virtual URL, which tells domain name servers all across the network where the file is (in USENET). Your web server then downloads the file as a web page, but without it coming from a specific web server (it exists simultaneously on hundreds of USENET servers) and without knowing whom the original author is.
The existence of Data Havens in this regard is more likely to be the wave of the future in piracy. USENET has already become a major source of intellectual property theft, as anyone who has looked at MP3 newsgroups can tell you. Since you can post anonymously and the information is indestructible, it provides the perfect means for the small time pirate. The problem with USENET lies primarily in its searchability and ease of use. By marrying it to the click-through, searchable structure of the Web, the cyberspace Data Haven provides a more fertile forum for intellectual property theft.
WEATHER
COMPUTER
TELEDIS
MOONROCK
SPACEGAR
DATAWAR
CELLYULAR
CRYPTO
12/10/99
Discourse: DISAGREE
Status: ALLEGE
Forum: WIPO
Scope: MULTILATERAL
Parties Affected: 187
TREATY
The legal ramifications of a data haven concerning the WTO are quite insignificant. By definition, a data haven resides in a nation not constrained by any intellectual property treaties. Therfore the WTO would be a weak forum to deal with this problem. But an effective WTO might have some unforseen legal effects.
Legally speaking the more potent question may be whether or not the WTO’s procedures will actually produce pressure to follow a data haven model in the future. As I concluded, data havens (as defined above) will not likely be the piracy model of the future for several reasons. Chief among those reasons was the fact that pirated materials are much more easily produced and distributed in nations that are signatories to the Berne Convention or part of the TRIPS regime. These nations, such as China (signatory to the Berne Convention but not TRIPS), simply ignore their responsibilities and let their pirating industries flourish.
However, if in the future, China becomes a member of the WTO, they may be successfully tamed. The ability for the United States, or some other nation, to bring suit against China in the WTO could lead to a sharp reduction in Chinese intellectual property theft. It is unlikely China would be willing to tolerate the sanctions imposed by the WTO, which would be worth the estimated amount of the piracy, clearly a sizable sum. Were this to widely become the case, the WTO might actually spur the growth of an "untouchable" data haven industry in small nations that have little trade and are primarily concerned with attracting capital to their shores. As the opportunities for piracy worldwide declined, assuming demand remained level, the profitability of operating a data haven, which now is quite low, would increase enormously.
a. Geographic Domain: GLOBAL
b. Geographic Site: SOUTHERN NORTH AMERICA
c. Geographic Impact: ANGUILLA
NO
MANY
INTELLECTUAL PROPERTY
DIRECT
a. Directly Related to Product: YES (DATA)
b. Indirectly Related to Product: NO
c. Not Related to Product: NO
d. Related to Process: YES (INTELLECTUAL PROPERTY)
INFORMATION
SERVICES
ANGUILLA AND MANY
INTELLECTUAL PROPERTY
Name: NA
Type: NA
Diversity: NA
HIGH AND REGULATORY
LOW AND 1,000's OF YEARS
NA
Bruce Doern, Global Change and
Intellectual Property Agencies, Pinter, London, UK,
1999
Michael Ryan, Knowledge
Diplomacy, Brookings Institution, Washington DC, 1999
Susan Sell, Power & Ideas,
SUNY Press, Albany, 1998
Nicholas Imparato, Capital for
Our Time, Hoover Institute Press, Stanford 1999
Cate, Vincent Offshore Information Services (URL) Date unknown
http://online.offshore.com.ai/, [Accessed
10/09/99]
Author Unknown The Worldwide Piracy Initiative (URL) 1999 Aug
http://www.piracy.com/, [Accessed
10/09/99]