Over The Counter Culture

“Everything about viruses is extreme,” Zimmer began. The number of viruses
on Earth is estimated to be 1 followed by 31 zeroes. Small as they are, if
you stacked them all up, the stack would reach 100 million light years. They
are the planet’s most abundant organism by far.

They’re fast. We take decades to reproduce. A flu virus can generate
billions of itself in us within hours. And they evolve
10,000 times faster than us, because they’re creatively sloppy about making
copies of their genomes, and they readily combine genes among varieties when
jointly infecting a cell. Each of us has four trillion viruses on board, in
1,500 all-too-fungible varieties.

Yet they can also be “time stealthy.” You may have a bout of childhood
chickenpox that is over in days, but the viruses may hide in your nervous
system and emerge decades later as shingles. HIV spreads inexorably because
of the lag of months or years between infection and visible symptoms.

The earliest record of a virus in human history is the smallpox marks you
can see on the mummified face of Ramses V, who died in 1145 BCE.
Viruses leave no fossils, but in a sense they ARE fossils, with the ancient
gene sequences of retroviruses buried in the genomes of every creature
they’ve infected over the ages. About 8 percent of our genome—some
100,000 elements—comes from viruses, and some of those genes now work for
us (enabling the mammalian placenta, for instance). One French scientist
revived from our genome a functioning 2-million-year-extinct virus just by
deducing the original code from the current variety in that stretch of DNA.

For billions of years the planet’s life consisted solely of bacteria and
their viruses, the bacteriophages. They became a planet force, and remain
so today, determining the makeup of the atmosphere, among other things. Every
day half of all the bacteria in the oceans are killed by phages. Some of
the carbon from the bodies sinks to the bottom, some is freed up to
fertilize other life. Ocean viruses cart around and transmit genes for
photosynthesis to previously incapable
microbes—10 percent of oceanic photosynthesis happens that way. If some
day we have to geoengineer the atmosphere to manage climate change, we may
want to employ the viruses that are already doing it.

Virology will be revolutionizing science for decades to come. One body of
investigation suggests that the so-called giant viruses may be a whole
fourth domain of life (added to bacteria, archaea, and eukaryotes). As the
ultimate parasite, viruses were assumed to come along after life evolved,
but they might an instrument of that evolution. One hypothesis is that
viruses took primordial RNA and generated DNA to better protect the
genes. They might have created life as we know it, a long time ago.

–Stewart Brand

A paragraph taken from a letter written by (or on behalf of) the Rt Hon Jeremy Hunt MP, Secretary of State for Culture, Olympics, Media and Sport, to a Member of the UK Parliament, who had expressed their voters’ concerns over the government’s moves to encourage ISPs to block websites aimed ‘primarily’ at copyright infringement:

“Many users of infringing sites may be unaware that the sites they are viewing carry content unlawfully, and they may find it useful for such unlawful sites to be less readily available.”

Just… wow. Orwell would be proud of such a literary creation. I thought previous New Labour governments were Big Nanny, but this is just absurd. A website owner does not have full rights to the words on the website. Please, Mr ISP, take an active and detailed concern in what websites I visit, and save me from the commercial horror!

Full letter available from its eventual recipient, Matthew Temple (http://www.mattytemple.com/)

The use of viruses to deliver beneficial genes to upgrade your brain is very much a reality: check out this article from Nature this week:

read here: http://www.nature.com/news/2011/110317/full/news.2011.167.html

Last week saw the news that it is now possible to create superblood by taking it out of the body and using very clever, targeted gene therapy to upgrade the DNA. It’s currently being trialled in AIDS patients, making a subtle mutation to their white blood cells so that they’re more like the HIV-immune cells of so-called HIV controllers – people that can resist HIV attacks because of different ‘flags’ on their cells. Once upgraded, you infuse the blood cells back into the patients where they can start taking on HIV with newfound immunity.

read here: http://www.nature.com/news/2011/110301/full/471016a.html

The usage is therapeutic so far, but each year sees new approaches to blood doping in the Tour de France. How long until this becomes one? How long until someone creates a safe virus capable of boosting your brain functions, and sells it on the Internet? What happens when not just your organs are modified, but also the DNA capable of being passed on to your children (“germ line” modification) – would you leave them with a trust fund, or spend the money permanently making your progeny handsome geniuses?

So humans can now be patched and bugfixed. How long until we have open-source humans? Jokingly, the time is apparently already upon us – a user of popular software source code sharing, review and editing site GitHub uploaded his genome for ‘patching’. We don’t yet have widespread technology to implement the patches that are being written and suggested, but as gene therapy progresses and gets commercialised (and maybe even amateurised), we one day doubtless will.

What a bizarre feeling it must be, knowing that the open-source crowd can pore over the very blueprints to you and start imagining and coding “You, version 2.0“…

(I’m posting what should be a comment on this blogpost by @legalbrat (Tim Bratton, legal in-house at the Financial Times) but for some reason won’t go through). Tim knows his stuff and bats hard and well for his employers, but has a fair and intelligent approach to digital content issues. It’s well worth reading his blog and following him on Twitter.

On this issue, we disagree.

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Tim – I feel this misses Google’s point almost entirely. How does cheaper dispute resolution help a business that argues that it the reason it could build a billion-dollar business based on creating value for users is that the US doesn’t grant as far-reaching intellectual monopolies as the UK does. It thrives, and employs tens of thousands of people, without relying so heavily on monopoly-backed scarcity, whereas the harder our industries try to do so (no videos on YouTube, unfair, draconian DRM, paywalls, even rootkits), the harder the market has punished them.

I’ll return to this, but I feel it’s only fair to address your suggestion more head-on, first.

If ADR is the solution, we already (post Woolf reforms) have CPR costs biases in favour of parties that want to pursue cheaper alternatives to lawsuits (see this important bit of our litigation rules, the Civil Procedure Rules’ Pre-Action Protocol). So far as I know, this includes copyright, so what can be added? Why is it not working (if indeed it isn’t?)

Would a singular ADR mechanism be better than the free choice of ADR given to parties at the moment? I don’t think it will.

The copyright industries have so far proven themselves to be tremendously capable and ardent lobbyists. A single ADR ‘choke point’ is a wonderful opportunity for focused and (cost-) effective lobbying – especially when, as you suggested, it should be staffed by industry practitioners (and where are the representatives of institutions, academics and other noncommercial/non-market users?). This allows the straightforward corrupting influence of the ‘revolving door’ effect into an ADR process, whereas other ADR is usually overseen by barristers or off-duty judges. I can’t help but allege that other forms of corruption would also find purchase in this suggested system, all the more so because (presumably) the RCP would be protected from legal liability from its decisions, so systematic misrepresentations of the law would go unpunished.

–

Now, to return to the part about the UK’s overstrong copyright system. As I said, Google built a billion-dollar, 20,000-staff-strong business because it wasn’t overly restricted by intellectual monopoly. So pointing them to ADR doesn’t really help, when it says that such monopolies / IP rights are too strong in the UK.

But what ADR suggestions also totally, totally miss is the fact that the once-professional copyright arena is now swamped with millions upon millions of non-market participants. The digital era has made everyone with an email account or an iPhone a publisher. Copyright law *has* to evolve to match the revolution in who it binds. And only block exemption and DRM, not ADR, can meet that need.

I am not going to pay hundreds of pounds to ask a Pearson-staffed panel whether I can send my mum one paragraph or two of an FT article that talks about me. WhatDoTheyKnow is not a business – so it has no business model into which in can fit/attenuate the cost of ADR when a council relies on copyright to prevent WDTK from publishing/publicising FOI returns.

There is no conceivable way in which non-market copyright actors can stomach the cost of either ADR or full-on litigation. Either nonmarket uses are granted appropriate block exemption, or they must be asked to remove themselves from the copyright arena – hand in any device capable of copying text, images, sound or video (or have it taken from you after three strikes).