The modern state is not purely captured

Yet it is also the case that, as regards intellectual property law and

information policy, the modern state has not revealed itself only to be captured

by interest groups. The most striking recent example came in the 2012 campaign

against a proposed new law called the “Protect-IP Act.” That campaign

emerged swiftly, instigated by nonprofit groups and netizens, and managed in a

few short weeks to derail a bill that had already passed through Committee and

that was seen as a fait accompli because it was strongly backed by Hollywood

and other powerful industry groups.42 Another recent example comes from the

transnational campaign against the Anti-Counterfeiting Trade Agreement, a

campaign that very significantly shaped the Agreement’s provisions and

ultimately led the treaty to be rejected by one of its main proponents, the

European Union.43 Activists have also moved beyond a defensive agenda,

successfully pushing the World Intellectual Property Organization to pass the

Marrakesh Treaty, the first-ever treaty dedicated to defining mandatory

exceptions and limitations to IP law, thereby promoting access to copyrighted

works for the visually impaired.44

The point is not to recommend optimism about the power of democratic

engagement on questions of information policy or to suggest that the extensive

evidence of industry influence in this domain has been wrongly construed.

Rather, it is to suggest that we miss something if we characterize the modern

state as only corrupt and vulnerable to capture. If we can see people as having

both “unattractive human traits fueled by individual fears and ego,” and as

“capable of self-organization and cooperation” as well as capable of “a concern

for fairness and social justice,”45 what prevents us from seeing the state in the

same way?