"You cannot have democracy without a public domain," says Tracy Mitrano. She clarifies: "Where the issues that matter are part of what people think about every day and we express them to our representatives in a representative democracy."
As commentators, campaigners, and observers keep pointing out, copyright policy hasn't been like that. A key part of the street protests over the Anti-Counterfeiting Trade Agreement (ACTA) was the secrecy of the negotiations over its contents. Similarly, even if there had been widespread content with the provisions of the Digital Economy Act, the way it was passed would be disturbing: on the nod, revised at the last minute with no debate, in the wash-up before the election with many MPs already on the road to their constituencies. If these are such good policies, why do they need to be agreed and passed in such anti-democratic ways?
My conversation with Mitrano is partly an accident of geography: when you're in Ithaca, NY, and interested in the Internet and copyright she's the person you visit. Mitrano is the director of IT policy at Cornell University, one of the first academic institutions where the Internet took hold. As such, she has been on the front lines of the copyright battles of the last 15 years, trying to balance academic values and student privacy against the demands of copyright enforcement, much like a testbed for the wider population. She also convenes an annual computer policy and law conference on Internet culture in the academy.
"Higher education was the canary in the coal mine for the enforcement of copyright and intellectual property on the Internet," she says.
We don't generally think of universities as ISPs, but, particularly in the US where so many students live in dorms, that is one of their functions: to provide high-speed, campus-wide access for tens of thousands of users of all types, from students to staff to researchers, plus serving hundreds of thousands of alumni wanting those prestigious-sounding email addresses. In 2004, Cornell was one of the leaders of discussions with the music industry regarding student subscription fees.
"To have picked on us was to pick on an easy target in the sense that we're fish in a barrel given our dependence on federal funding," she says, "and we're an easily caricatured representation of the problem because of the demographic of students, who care about culture, don't have a lot of money, are interested in new technology, and it all seemed to be flowing to them so easily. And the last reason: we were a patsy, because given that we care about education and we're not competing with the content industry for profits or market share, we wanted to help."
The result: "The content industry paid for and got, through lobbying, legislation that places greater demands on higher education ISPs than on commercial ISPs." The relevant legislation is the Higher Education Act 2008. "They wanted filtering devices on all our networks," Mitrano says, "completely antithetical to all our values." Still, the industry got a clause whose language is very like what's being pushed for now in the UK, the EU, and, in fact, everywhere else.
"After they got what they wanted there, they started in Europe on "three strikes"," she says. "Not they've come back with SOPA, ACTA, and PIPA."
Higher education in the US is still paying the price for that early focus.
"Even under the least strict test of the equal protection clause, the rational basis test, there is no rational basis for why higher education as an ISP has to do anything more or less than a commercial ISP in terms of being a virtual agent of enforcement of the content industry. Their numbers prove to be wrong in every field - how much they're losing, how many alleged offenders, what percentage of offenders the students are alleged to be in the whole world in copyright infringement."
Every mid-career lawyer with an interest in Internet policy tells the story of how tiny and arcane a field intellectual property was 20 years ago. Mitrano's version is that of the 15 students in her intellectual property class, most were engineers wishing to learn about patents; two were English students who wanted to know why J.D. Salinger's biography had been pulled before publication. By the time she finished law school in 1995, the Internet had been opened up to commercial traffic, though few still saw the significance.
"Copyright, at that moment, went from backwater area to front and center in US politics, but you couldn't prove that," she says. "The day it became apparent to most people in American society was the day last month when Wikipedia went black."
Unusually for someone in the US, Mitrano thinks loosening the US's grip on Internet governance is a good idea.
"I'm not really willing to give up US control entirely," she admits, "it's in the US's interests to be thinking about Internet governance much more internationally and much more collaboratively than we do today. And there's nothing more representative than issues around copyright and its enforcement globally."