Saturday, July 28, 2012

Jenny d'Hericourt vs. the Double Standard

[Proudhon took a beating when he challenged her. What chance would a mere abstract inconsistency have against the power of Jenny P. d'Hericourt? This is enough fun to merit a full cross-post from Black and Red Feminist History. And d'Hericourt continues to rise in my list of sharp and entertaining radical writers.]


MORALITY ACCORDING TO THE SEXES

BY JENNY P. D’HERICOURT

Dear reader, let us for a moment listen to a conversation between wife and husband:
Wife—“Men continue to be absurd, and to affirm the contrary of facts. The New York Nation writes thus:” (She reads.)
Society refuses to treat men’s licentiousness with the same severity as women’s, because the consequences to the family, to children, and to property are less serious.
Husband.—“But that is true, wife, and,” (He reads.)
A woman must be taught to take care of her honor, and to bear unsupported the loss of it.
Wife.—“Then, if I can prove that the consequences of men’s licentiousness are more ‘serious to the family, to children and to property’ than women’s, you will feel yourself obliged to treat it more severely?”
Husband.—“You cannot prove that.”
Wife.—“I will try. If a wife is untrue to her husband, she does not spend her money for her paramour, but the contrary. But an unfaithful husband has sometimes two households, and always spends much for his paramour. Men’s licentiousness, therefore, has more serious consequences than women’s relatively to the family property. This is a fact, not a mere affirmation.
“An untrue wife can introduce illegitimate heirs in the family. These children are taken care of, loved, and no stain is on them. An untrue husband introduces illegitimate heirs in another family, or they are borne to him by an unmarried woman. If he takes care of them, he robs his wife and legitimate children, if he abandon them, they swell the population of prisons and brothels. Men’s licentiousness, therefore, in this respect, has more serious consequences to children than women’s.
“An untrue wife carefully conceals her bad conduct. She loves her children, is mild and amiable with her husband; no trouble is in the family. Too often an untrue husband is cold, rough, angry, does not conceal his behavior, and gives bad examples to his children; he dissolves the family physically and morally.
“Through men’s licentiousness women are wholly corrupted and enfeebled; first, mentally, by seduction and prostitution; second, physically, though the awful disease which is the fruit of license, and which, transmitted to children, tends to the destruction of the race. Idiocy, dumbness, deafness, blindness, scrofula, are the physical gifts of a father’s licentiousness to his children. And moral tendencies and weakness of self-control are his gifts in a moral point of view. Never can a serpent be the father of a dove, my dear sir; never can a thorn produce roses; the daughters of an impure man cannot have chaste tendencies. So, as to the health and dignity of our species, you see that men’s licentiousness has pretty serious consequences.
“And if your daughter, taking her standpoint on your utilitarian ground, will follow your masculine rule, what can you object? The beauty of chastity? But if it is beautiful in a woman, why not in a man? The necessity to control her appetites and instincts? ‘But, father,’ may she not ask, ‘why have you not controlled yours? Why have you given me those awful tendencies and your weakness of controlling them?’ The fear to be despised? She is smart enough to dissemble. And, after all what matters to her the opinions of foolish people, blaming in her, what they admit and tolerate in her brother? Girls compare and reason, to-day, you know, my dear husband. The risk to become a mother? But the advertising pages of any masculine journal will indicate thousands of remedies against this risk, and besides, hundreds of physicians are ready to help her avoid it. her life and health are endangered by these criminal practices? But why have you not the same uneasiness about the health of her brother, who not only endangers his life and health, but makes a provision by which disease and vice may be entailed on his future children?
“On you own utilitarian ground, my dear husband, you can perceive that it is easy to best you in argument. In the point of view of family, children, race and property, facts prove that men’s licentiousness has consequences more serious than women’s, and all the sophistry invented by your immense selfishness, you blind ignorance of natural laws, your incredible weakness in self-control cannot transform your affirmations to facts and rules. Simple good sense says, as women cannot be pure unless men are so, the rule of morality is the same for the two sexes.
As when a woman sins a man sins too, both are equally guilty, and the public opinion which makes a distinction between their culpability is absurd and despicable. Besides it has the ferocity of the tiger and the injustice of the devil, if it condemn the weak, led astray by the strong seducer and suborner. Such a public opinion gives nausea to a just and reasonable soul, and makes one ashamed to be shut up in a body, belonging to a species of animal so cruel and so illogical.
Chicago, June 21 1869.

Source: The Agitator, 1, 16 (June 26, 1869) 1.

Meanwhile, elsewhere in the blogosphere...

Things have been a little quiet on this blog, due in part to offline concerns, but I've been puttering away, and regular readers here may find material of interest among the newish posts to some of my other blogs. I'm particularly happy to have completed the translation of An Account of a Voyage from the Arctic to the Antarctic Pole by way of the Center of the Earth, a 1721 French "imaginary voyage" involving a passage through the center of the earth.

At Black and Red Feminist History:
At Splendors of the Combined Order:
At From the Libertarian Library:
At Possible and Impossible Worlds:


Tuesday, July 24, 2012

Notes on "the disposition of intellectual products"

I get asked about my views on "intellectual property" fairly often these days, and it's generally assumed that I am in some sense "pro-IP." The bottom line is that, like my other work on property and as part of that general exploration, my thoughts about abstract property is a work-in-progress. But I definitely do find myself—despite being an early adopter of copyleft sharing—somewhat underwhelmed by most of the debate. The notes that follow address a slightly different issue, "the disposition of intellectual products," and should be read with an eye to the fact that 1) they were written on the fly under less than ideal circumstances, 2) they are a part of my larger, already heretical examination of property theory, and 3) I've replaced the definition of mutualism on this blog in February with the slightly expanded and clarified version I posted recently. They are drawn from my side of a debate on the Forums of the Libertarian Left in February, 2012.

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I'm not terribly thrilled about being called to account for myself on this issue twice in a few days, particularly since the IP question seems to give rise to a particularly ugly mix of high-horsin' and sloppy thinking, but...

There are very few people on the planet who are actually pro- or anti-property in any simple way. The question isn't simple, so the responses that seem simple are as often as not inadequate or inconsistent. Anarchists who insist that "property is theft," and that that's the end of the story, just demonstrate that they weren't following Proudhon's argument very closely. Communists tend to be clear in their opposition to exclusive individual domain real property, but uncertain about "personal property" and about whether or not they believe in some form of collective domain. Communists who really believe in some radical alternative, where circulation takes over decisively from accumulation, have been pretty rare since the times of Déjacque. Non-proviso "lockeans" seem to have an entirely opposite notion from Locke about the conditions under which individual domain can arise. Contemporary mutualists seem to be following Kevin Carson's lead—which boils down to figuring that we'll work something out, locally—rather than taking any of the cues from the tradition. And, frankly, having spent the last five+ years writing about mutualist property theory, my sense is that there aren't more than a handful of people on the planet who care enough to make much sense of Proudhon's "New Theory" or my "gift economy of property." When I get called out for loose talk about people having rights to the product of their labor, even if those products are intangible, it's pretty clear to me that it's not about me. When someone claims I am "simply pro" any sort of "property," I honestly don't know whether to laugh or cry. Actually, since I spend about 60 hours a week working to increase access to public domain materials, translating, etc., and since the vast majority of my scholarly work over the last twenty years has been released under copyleft or attribution licences, well... my inclination is less patient or friendly than either of those.

When I'm looking at arguments for any sort of property theory, my chief concern is that the arguments be consistent and grounded in some realistic sense of the real-life stakes. Anarchist/libertarian property theory tends, imnsho, to be a trainwreck in those regards, at least the majority of the time. But it's not hard to work out what, in general, liberty-oriented people want from a property theory, and what a property theory would have to contain to be adequate to those wants.

To be clear, I consider property theory one way to approach social and economic relations under anarchism, and I am explicitly open to the possibility that it is not ultimately a workable approach. Following cues in Proudhon, I've been exploring the "synthesis of community and property" that he proposed in 1840, with a heavy emphasis so far on the property side of things—in part because so many people have been so eager to force that synthesis into one of the convenient ideological boxes (communism, capitalism, etc.) One of the things you learn quickly, if you going to try to follow Proudhon's lead, is that you can combine principled and consequentialist analyses, move from real to chattel property, or from resource-appropriation to disposition of products, but you had better keep the individual elements straight in your head.

When anti-IP folks argue against IP as property by saying that it isn't necessary, then I expect them to take some consistent position with regard to real property (as it relates to resource appropriation), tangible products of labor, and "personal property" (as it relates to all that sticky stuff involving liberty, "ongoing projects," and the like.) At the same time, I expect them to be clear about the differences between tangible and intangible resources, and between tangible and intangible products. I certainly expect them to be as careful about what they lump together as "the same thing" as they would be with other sorts of property. The tendency seems to be to make no principled differentiation between the questions of appropriation and disposition, and no practical distinction between painfully clear examples of rent-seeking, legislative approximations, and the simple facts about how compensation for intellectual labor works in the real world. Staunch individualists on questions of other sorts of property seem to appeal to the "greater good" when it comes to the circulation of ideas. So, while the practical advantages of sharing seem clear enough in all areas of property, I see very little consistency with regard to principles and alternatives.

Property theory actually seems pretty simple to me: You need a theory of just appropriation of resources, and you need a theory of just disposition of products. If we're talking about individual appropriation and disposition and our goals are genuinely anarchistic—if we would like to leave individuals free to act, as much as possible, without the mediation of systems of permission or prohibition—then it seems to me that one very attractive standard for appropriation is the virtual non-rivalry of Locke's appropriation proviso. We can have the "good draught" from the river, as long as it leaves "a whole river." We can make property as long as it is not theft. We can drink the water, or make other productive uses of it, within the constraints of the proviso. If we produce lemonade with it, then there is a long tradition, spanning right and left, that says somebody ought to be able to bring that product to market without being waylaid on the road. (We disagree with the capitalists about who should profit, but everyone seems to be on the "fruits of one's own labor" bandwagon, as long as the fruits are tangible.) In terms of the appropriation of natural resources, that involves respecting natural circulation ("the universal circulus") so that, within some tolerable time-frame, renewable resources can renew, biocapacity is not significantly reduced, etc. Within the realm of intangible resources, of course, things are considerably simpler in this particular respect: drawing intellectual resources from the public domain does not diminish the public-domain resources available to others. Now, it also seems to be the case that protections for actual intellectual products do not diminish the public domain in any way. Silly stuff, like trying to patent naturally occurring patterns, is silly, and at odds with the basic principled justification for patents, which is to encourage the growth of public-domain knowledge by easing the process of bringing ideas to market in tangible form. If I am attempting to monopolize elements of the public domain, that's out of line, and should be opposed by most consistent proponents of IP. Even the "perpetual property in creative works" types have generally not argued for anything of that sort. But I can't monopolize elements of a public domain that I cannot actually diminish, except through legal redefinition of that domain—and copyright and patents don't really do that, if they remain temporary protections for the period necessary to bring goods to market. Believing that protections of this sort are 1) of practical advantage in encouraging intellectual workers to contribute to the public domain, 2) consistent with the sort of protections we normally afford other sorts of products, and 3) consistent with the sort of culture of mutual respect without which anarchism of any meaningful sort will probably be impossible, does not commit me or anyone else to any of the proposed remedies for violations, or the demands for compensation for further improvements based on ideas we have allowed to pass into the public domain. I have very little sympathy for Lysander Spooner, who played fast and loose with principle and the public domain on a variety of occasions. I am "pro-IP" is the very precise sense that I think anarchism will be impossible in practice without some serious engagement with the question of the "mine and thine"—so I am, in that precise sense, "pro-property"—and I don't suddenly change my whole approach when we move from widgets to inventions or songs or essays, etc.

The main question for me is whether others are going to simply assume that the fruit of my labor is going to automatically become part of the public domain, if I am so indiscreet as to perform or display that labor in public. I expect consistent capitalists, who show no hesitation denying my right to the fruits of my physical labor, to be consistent in denying me a right to dispose of the fruits of my intellectual labor. Those who are not bashful about taking advantage of the systemic advantages given to capital over labor are free to consistently use the excuse of systemic technological change for appropriating still more labor-value. But I'll be happy to point out that the sort of consistency involved there has little or nothing to do with just property theory or a consistent concern for liberty. It's half-assed opportunism. For non-capitalists, or anti-capitalists presumably concerned with all that old stuff about labor retaining its fruits, and for anarchists, who are supposedly concerned with respect for individual liberty, etc., I think it's a lot harder to justify the assumption that, say, these words, wrung out of me by a public challenge about my apparently very individual viewpoint, can be treated like air or water. And if the context was instead that I was in the process of bringing these words to market, it seems to me it would take a kind of collectivist thinking much more consistent than any I see around me to justify interference or appropriation by others.
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The notion that bringing other people's products to market is just "competition" is, frankly, capitalist talk. The situation anti-IP people propose is one where the lemonade seller is waylaid on the way to market, more lemonade is made without the application of the same labor, and then there is "competition." The "competition" piggybacks on the labor of the originator, without whom there would be no product in the first place, and enters the market with with lower costs, unless the competitors are particularly inept. That seems like a complete disaster, as far as rights and justice are concerned.

In terms of the three points: I regularly see people deny that #1 is even a part of current intellectual property theory, although I think it's hard to deny. The counter-narrative, that IP has always and everywhere been a "land-grab" (as often as not made by people who think land-grabs are just fine), seems all too riddled with the kind of nonsense Kinsella repeats about "letters patent" and piracy. In terms of incentive, do you think that we would have more and better intellectual production in a society where the default attitude was that intellectual labor was worthy of its hire or one where the assumption is that all your thoughts are belong to us? Trust me. I produce what I produce despite the disregard and ignorant contempt with which it is most often met. I'm pretty sure the Stakhanovite medals in most anarchist societies will go to the intellectual workers with most downloads—not the producers. I'll also admit that my own production decreased for awhile when everything I released in working translation was appropriated and "improved" by a communist collaborator. It seems pretty basic to me: nobody who is producing in any field wants to feel like their labor is going to create a capital for others without any thought to their compensation. And there lies the answer to a lot of questions about activist burnout, infoshop failure, etc.

The whole issue of "controlling the contents and activities of other people’s minds" seems bizarre to me. In what way is it actually a response to the core concerns of even conventional IP? Roderick Long's formulation reduces expressions to "information." Would we say that "you can't own matter"? That seems to me to be the analogous claim. We could say "you can't own matter, because it exists everywhere," but it wouldn't really address the question of property. The IP laws, even in the extended form that we see them these days, are still designed to protect particular arrangements and expressions of ideas. There are other claims that are needed to make an argument against IP—claims about the nature of property, enforcement, etc.—and I honestly can't quite make out what they are in Roderick's account. I can get some sense of how someone who accepts the (lack of) appropriation norms in neo-lockean theory, and thinks of ownership in terms of rights enforceable by violence, might be led to think of the issue in these terms, but, honestly, that seems all the more reason to not think about ownership in those terms. Unbundle the various sorts of ownership rights obviously in play in the consumption of media, or the incorporation of protected inventions, and the problem seems fairly simple.

In terms of #3, "mutual respect" is vague enough to cover a multitude of disagreements, some of which I've already raised. Personally, I do not want to live in Roderick Long's anarchy, or Kevin Carson's, any more than I want to live in Iain McKay's, while I might be inclined to give it a go with my (non-crank) egoist and nihilist comrades, precisely because I find the respect to be more genuinely mutual and not mediated by "natural rights" or "markets."

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 I want to make sure that this is clear: One of the things that I would like to articulate more fully in my own work is where the distinction between "property" and "products," which Proudhon leaned on various places, is important and where it isn't. But what's important here is that we can probably say that the "safe case" for appropriation of resources is similar, whether the result is supposed to be a homestead or the products of industry. But I don't see that we can extend that case beyond the appropriation of resources in the "commons" or the public domain. It's different to say "I can take bits of you because they'll multiply, or grow back, and you won't really lose anything." The spirit of the proviso seems to be much more solitary—if I can put it that way—a matter of what we can do unilaterally, without any concern about invasion or aggression. But, more importantly, unless we simply deny that intellectual production has a product—that it involves some sort of productive, shaping "mixing"—then we need an explanation for how intellectual products, which seem inoffensive at the point of appropriation, slip back into the public domain or become offensive if not shared. We can think of lots of circumstances under which invasive acts might not result in any clear loss to the party invaded (some of them harmless, some sinister, and some simply inconvenient for that party) but I doubt we would ordinarily consider them ethical, because of the invasive character. I would hope that there was no version of "anarchism" that considered any part of individuals that they did not specifically want to share as a part of some commons or public domain.

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The heart of Roderick's objection seems to be this: "But if owning an abstract object means owning all the instances, then it means my owning the copy of my poem in your brain. In that case, intellectual property is a form of slavery. If slavery is illegitimate, then so is intellectual property."

The most compelling argument in Roderick's post is that abstract objects can't be property because they are non-scarce. That at least is consistent with the neo-lockean property theory, and if it made any damn sense, it would be decisive. But Roderick is headed for this crescendo: "Either intellectual property means slavery, or it means nothing at all." And points for style and all, but, honestly, that's sort of silly.

My position on scarcity is that it cannot logically have much to do with Lockean property and that with regard to rivalry the neo-lockeans have things precisely backwards. The rest of Roderick's argument only makes sense if there was only one sort of property right, an unbreakable bundle, so to speak. If there is simply—logically or philosophically—no way to imagine a legitimate transaction in which use rights are transferred along with a copy, but not rights to reproduction, well... honestly, I just don't get it. It seems like an enormous number of extraordinarily routine and mundane practices involve property rights stipulations far more complicated than this.

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Roderick makes claims like this: "A patent is, in effect, a claim of ownership over a law of nature." But that doesn't even seem remotely correct. The claim that IP over a poem involves a "universal" just seems equally inapt and arbitrary. ... A fairly simple dictionary definition of a patent: "A grant made by a government that confers upon the creator of an invention the sole right to make, use, and sell that invention for a set period of time." Where is the ownership of a law of nature in that?

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Anyway, distractions aside, my general response to the "copying is not theft" argument is that the determination of "theft" is ordinarily not a question of whether or not someone suffered a net loss in their possessions, but whether or not their property was violated, with property relating to a sphere extending around the individual. "Copying is not theft" can only claim that there is no quantitative loss involved—the producer's inventory is not reduced. And that doesn't really get to "property." It doesn't speak to the issues that arise from "self-ownership" (or whatever you want to call the basic right not to have yourself and your own fucked with.) It doesn't speak to the consequences of copiers piggy-backing on the labor of producers. It doesn't speak to the respect issue. As a justification for appropriating intellectual products against the desires of the producers, the message seems loud and clear to me: "Hey, producer, it would be nice if you don't starve, but that's not really my problem. I have left you the possibility of recouping your labor costs, while contributing to a culture which treats your efforts to do so as selfish and unreasonable. What more do you want from me?" If that seems like a caricature, it seems to me downright mild compared to talk of "slavery" or the unilateral "keep your intellectual productions to yourself, or they're mine" stuff I regularly encounter.

Ultimately, "copying is not theft," according to the usual libertarian standards of property and theft, only if there is some justification for assuming that, whether the producers like it or not, every expression or publication of an intellectual product amounts to a contribution to the public domain. If the resources that a producer have used come from the public domain, and the labor comes from themselves, then where is the opening for consumers to demand, or just take, the product without any consideration of the labor involved? Any nominal "anarchist" or "libertarian" who believes that they have a right to something I have produced, without any consideration of my desires or the costs to me involved, falls pretty far short of the bar in my eyes.

There is perhaps a radically and genuinely anti-property alternative possible, which would emphasize circulation as the essential good, rather than any sort of property or even individual sovereignty, but I don't see any of those kinds of communists around.

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Well, as you might expect, I'll probably disappoint you if what you're looking for is a clear statement of "the standard of mutuality." As I think you know, I have zero taste for "anarchic common law," permission and prohibition, crime and punishment, etc. I don't think "rights" as such come with any "permission" for redress. Retributive violence is simply violence. Forced restitution is force. We do all that stuff on our own dime, and sometimes we will indeed have to do it, but there don't seem to be any permission slips available. I'm content to try to get clear on the principles and some of the foreseeable consequences of particular sorts of action. I've laid out my basic definitions on the blog:
Mutualism is not a specific social, political or economic system. It is—at its core—an ethical philosophy. We begin with mutuality or reciprocity—the Golden Rule, more or less—and then seek to apply that principle in a variety of situations. As a result, under mutualism every meaningfully social relation will have the form of an anarchic encounter between equally unique individuals—free absolutes—no matter what layers of convention we pile on it. To the extent that our conventions, institutions and norms respect that basic premise, we can call them “mutualist.” To the extent that we commit ourselves to viewing our relations through this lens, and exert ourselves in the extension of mutualistic freedom, we can call ourselves “mutualists.” We don't take anarchy lightly and understand that archic relationships and coercive force come in lots of varieties, and the exertion matters—if mutuality is reduced simply to an outcome of this or that system, mutualism as such almost certainly disappears.
And that's both conceptually pretty simple in its extreme individualism, and, of course, very difficult to put into practice. Where the IP question is concerned—and I've found this in other aspects of property theory as well—it seems to me enough, for now, to suggest that we may be headed in precisely the opposite direction from property conventions that seem likely to foster individual freedom, and specifically the kind of freedom necessary to grow into a more fully developed mutualism. As long as the responses to this assertion about intellectual products remain largely angry "you're not on our team" stuff, it's hard to get a lot clearer about the practical aspects. But it really seems to me like there isn't much complexity involved in unbundling creator's rights and use rights.

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A product is the output of a process involving resources and labor. Products can be tangible or intangible, and sometimes tangible products are attached to immovable resources and we call them improvements. If we're anywhere in the Lockean/self-ownership/ongoing projects universe, then we know that mixing resources and labor, in such a way that something of the laborer's personality is given to the result, creates property. And the strong feelings attached to the defense of property come largely from the sense that it is an adjunct of the defense of self. I see no compelling reason, given the self-ownership/labor-mixing metaphor for the mechanism of appropriation, to suggest that property can only apply to scarce or rivalrous goods, though obviously the most important resource allocation problems relate to those goods. That seems to be grafted onto Locke's theory later, as the provisos were stripped away and the focus generally shifted away from homesteading to exchange, which has no clear mechanism and the virtues of which are largely taken on faith. Staying close to the original lockean formulation poses all sorts of potential problems for ownership of tangible goods, as resource use diversifies, making "enough and as good" hard to judge a priori, as the development of technology means that an individual's "good draught" of a resource is now likely to be considerably more than human-scaled, which puts additional strains on potentially renewable resources hit hard by increases in population, pollution, etc. and making alternative proviso-standards, like "no net reduction in biocapacity," considerably harder to maintain as well. Some days I'm pretty sure that tangible property appropriated by Lockean proviso terms may indeed have become impossible. But if it's a question of intangible resources drawn from the public domain, my "good draught" can be as big as you please without the appropriation impoverishing anyone. This is where "copying is not theft" is a truly compelling argument, in the spirit of Locke's primary proviso. The public domain is where we might want to talk about your "universals," although it just seems simpler to say that even fairly precise and novel arrangements of words and ideas have a natural tendency to become mixed promiscuously enough that nothing more than temporary protection would be consistent with the rest of our model. So far, the only differences between intellectual products and others is that the raw material are somewhat different, and there seems to be a natural decay of proprietorship, because unlike tangible products, the materials of intangible products can mix widely and simultaneously.

The capacity of the best intellectual products to mix beyond their original context means that there are social tensions created by the extension of protections, but that doesn't seem like an argument to throw their creators under the bus. Quite the contrary. Brilliant ideas ought to be able to find compensation at the same rapid speed as they mix with the populace, and the more brilliant and popular the idea, the better distributed, and thus presumably cheaper for individuals, the compensation should be. A rapid speed of compensation means, at least potentially, a rapid entry into the public domain. If creators were mutualists, with some notion of a cost-principle in play, then that would clearly be the case.

In terms of unbundling rights, it seems like we make things harder than they are. When we look out over a beautiful landscape, although associations may form within us, we don't assume that anything has changed hands. We don't own a place because it moves us. We can't plow a field because it looks like that farm we've always wanted. If we hear a poem, we know it didn't come from us, and if we care about it, it is probably because of some successful mixing of familiar material and individual stamp of personality. We know better than to plagiarize the work, because that would involve both a misrepresentation of the work and of ourselves. If we buy a physical copy of a work, then it is conventional (despite some attempts at prevention) that we gain a property in the physical object, which we can then dispose of at will. But that right is obviously different than a right to republish for commercial purposes, and it seems entirely reasonable to expect that people can differentiate between those rights and their rationales. There are also sometimes perfectly rational reasons to defy legal restrictions, but it seems to me that we take those actions on our own say-so, without any hint of permission. Disfunctional markets and a disfunctional IP system mean that intellectual goods can be held out of the market despite the wishes of their creators or despite the fact that they have gone through that natural cycle of mixing and de facto abandonment. Defiance of particular IP conventions is sometimes part of the struggle for better ones as well. Context obvious matters. Personally, I think it's better to be clear when you're sticking it to the man and when you're simply disregarding the situation of the creator.

This all seems pretty straightforward to me, despite my minor heresies with regard to interpreting Locke.

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I guess perhaps the most interesting claim in all of that is this: "The anti-IP argument is not that such information should be THEN "made" a part of the public domain, it's that ALL possible information is and has always been in the public domain." And it strikes me that it's convenient, but just not true. Because "IP" is such a scattershot mess, "anti-IP" arguments have been all over the map as well, from the purely practical considerations that led some authors not to claim legal rights to "information wants to be free," with lots more in the mix. Like the claims that I obviously "don't understand" something important, when it's pretty obvious we disagree about the implications, it's the sort of thing that's hard to respond to, short of suggesting that in our increasingly cyborg world, the distinction between the information and material is something we might consider from a variety of perspectives. The disagreements about practical concerns no doubt arise mostly from very different visions about the future of practice. I could be wrong about all of this, but it's certainly not a given.

Anyway, just so it's all clearly on the table again: I'm not particularly fond of rights-talk myself, and much of the rest of the language in the argument is obviously conventional. I would rather be talking about "attractive industry" and "the universal circulus" than spending any more time with this sort of debate, and this last broadside makes that other stuff even more attractive, but it would not help right now as an intervention in the debate about property. I've made a conscious decision, for this particular project, to talk a kind of pidgen mix of the dialects present when we started the ALLiance, with a slow infusion of other material. If you want to look for my character flaws in my language, then pay closer attention to the borrowings from Fourier, Dejacque, Pierre Leroux, Proudhon and Walt Whitman. Beyond language, to proposed institutions, I don't give a damn about enforcement or "securing IP." I do care about clear thought about the theoretical issues.

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Short-term protection, with a natural decay towards the public domain that's likely to be speedier the more desire there is for the intellectual product; producer "entitlement," rather than consumer "entitlement," coupled with a cost-principle; an emphasis on consciousness over any sort of institutional enforcement: if the obvious cases of IP abuse withstand all of that, then maybe they're not so obviously abuse.

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 Truth is, I have no recollection of ever, in all of my days as an anarchist, proposing any sort of "protection" that wasn't either "we protect one another, on the basis of shared principles," unless is was instances where "we protect our interests, in the absence of shared principles, on the basis of our own principles, but without any presumption of ethical sanction." And I wouldn't present the second as anarchism, but as what we have when we strip out all of the unconscious, non-voluntary conventions—"mere anarchy," if you will. If we're to do the same thing with "the commons" or "the public domain," we have resources without any mechanisms for judging whether our intake or ingestion of them ought to be recognized as appropriation in the social/ethical sense. We have no "commons" or "public domain." We have stuff and no rules. An important part of the quarrel between neo-lockeans and neo-proudhonians or contemporary proviso types revolves around the right of appropriation, which in non-proviso lockean theory seems to sneak in a "commons" without the god that originally justified it. The anti-IP position seems to do the same with the "public domain." As in the debates about tangible property, my argument is that we have to construct our property conventions, and that the hardest work will be constructing appropriative conventions that are not simply arbitrary or throwbacks to "the will of god/the gods." You're begging my basic question, so, naturally, no sale. Your move does not seem to address my real-life concerns, protect my individual liberty or security, etc., so it is a consequentialist no sale. I'm already sold on the practical advantages of sharing information. In that regard, my practice over decades is far more eloquent and consistent than that of a lot of my communist comrades. But that's not what I'm talking about right now, and it is necessary to at least try to talk about one thing at a time, because there has been so much talking about everything at once in our property debates. I'm certainly not "pro-IP" in any way analogous to the crusading of the IP-abolitionists. The whole "property" thing is an experiment for me, which I quite explicitly believe only makes sense in the context of a culture of sharing. My position since the fall of 2008 has been that "property" can probably only emerge as a consistently anarchistic institution if it emerges in the context of a certain kind of mutual "sharing" ("gift economy of property," and all that...)

"Censorship" and "freedom of speech" are rights-talk, and pretty much beside the point. For the sorts of protections I've talked about (which I haven't actually advanced as anything but mutual self-restraint) to count as "censorship," a range of other assumptions have to be added to the existing mix. Having already given away the farm, as far as any really hard form of IP is concerned, by suggesting that intellectual products naturally socialize themselves, to the extent that they are successful, the problem really ought to be resolved—assuming that people aren't dicks about the support of the producers. If the labor of producers remains uncompensated by the time that consumption of intellectual products makes them de facto part of the public domain, then—set aside the question of crime, or cops and judges, for which I have no taste at all—we have failure. Using the language of labor struggle, we have—descriptively, and you can decide how incensed or indifferent that leaves you—exploitation.

I suppose there is some possibility of constructing our treatment of intellectual resources and products on a more-communist-than-communism basis, emphasizing free circulation above all. Compelling arguments for free circulation as a principle are the crescendo that communist theory never quite seems to reach—and the next thing I really want to consider in my work. But if we take that approach only in the realm of intangibles, I'm afraid that the difference between matter and information will come back to haunt us, since our increasingly cyborg existence has not lifted the requirement of making production in the more abstract realm provide for the needs of the meat. 

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"All my talk of 'exploitation'" amounts to one use of the term, in the context of intellectual goods that are in high demand, so "mud pies" must have achieved some new vogue. The rest of the objections seem to boil down to broader questions about market exchange which only assume any specific importance in this discussion because you are responding to some part of what I'm actually saying + some "obligation to respond" that you seem certain would have to lean in a "draconian" direction. Let me be completely fucking clear: If people are unwilling to engage in the sort of mutual protection that I have proposed, then I'll be disappointed, but certainly not surprised. I will be so bold as to consider it a basic ethical failure, and I won't be too disappointed if I never live in an "anarchy" where this weird sort of tangible-workerism holds sway. I don't mind toting barges and lifting bales when necessary. In fact, the thing I miss most about bookselling was the combination of physical and intellectual labor. But there doesn't seem to be anything necessary about this. If people are willing, then there seems to be no difficulty in making the system work, without any danger of the "draconian." Exchange will always be what it is, an approximate process within which "real values" are shadowed by risk and the possibility of remorse. If you want to solve those problems, then you probably need a more thoroughgoing reform than taking intellectual property out of the market. I know that the usual mutualist bag of tricks (equitable commerce, etc.) don't play for you, but they do play for some, and for those people will simplify the value-of-labor issue considerably.

Personally, I think one of the logical responses to the elements of subjectivity and incommensurability that will always haunt exchange is to emphasize the utility of circulation, hijack a lesson from the commercial big boys of the present day and make up in volume of interaction what we lose in precision of valuation. I have my own futuristic fantasies, peopled with swarms of nano-enterprises and the chaos of a market that's been saturated with the spirit of a gift economy. But that seems well outside the scope of what I've been asked to explain. 
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People seem to have been curious how an anarchist could have anything good to say about "intellectual property." I've tried to show how there is a fairly limited, but potentially useful, defense possible, consistent with the fairly limited defense of real and chattel property I've been engaged in for the last several years, and with the conditions of a stateless society. For me, that defense was a somewhat unexpected outcome of the other work on property. I would like to think that for anyone really concerned with principles of property—and that may, in fact, be a fairly limited audience—the whole package, with its inversion of some widely held notions about what ought to be justly appropriable, ought to at least be a provocative curiosity. I would like to think that at least part of the reason that I got called out in particular in this forum was because of that larger work, though I'm sure it remains as alien to lots of folks as neo-lockean appropriation norms and anarchist common law do to me.

Anyway, I feel like the debate has run aground on issues substantially deeper than "intellectual property," however broadly construed, and I'm not sure that there's any hope of treating the foundational questions satisfactorily.

Sunday, July 15, 2012

Notes on Occupancy & Use (The Infamous Summer House Thread)

The question of occupancy and use is one which seems particularly difficult to address in a way which escapes a constant return to the same questions. There are certainly logical reasons for that: There are arguably two different models for this sort of land tenure in Proudhon, one based on simple possession and the other on simple property. Questions of "use" quickly lead into questions about "rent," and we are not always particularly careful to distinguish between "economic rent," "rent" as a form of "increase," and "rent" as payment for services directly rendered. As long as we stick close to abstract concepts, and the concepts aren't that well defined, we have all sorts of problems. 

I have yet to gather together my thoughts on the various aspects of occupancy-and-use property, though I plan to do so soon in a series of posts at Mutualism.info. But back in 2008, we did engage in a very interesting debate at the Forums of the Libertarian Left about the thorny question of "summer homes." In the interest of simply archiving my contributions to that conversation with the rest of my work, here is a first helping of mostly-unedited highlights. (The usual cautions about forum-dumps apply: this is all heat-of-the-moment stuff.)
Mutualism is, at base, an experimental approach, with reciprocity and evolving justice as its criteria. The standards for occupancy and use are going to be local and conventional. The straw-man "mutualists will move in if I go out for groceries" stuff is pretty obviously wrong, since this can hardly emerge as a just and mutual strategy, but treating a summer house as absentee ownership seems to me to suffer from much the same misunderstanding. My retired parents have a house on the west coast and a one-room cabin in the east. Both require considerable upkeep to remain habitable and look lived-in, and they still provide most of that upkeep, including some pretty heavy beating-back-the-forest work at the cabin. They hire a neighbor to mow the lawn in the west for the summer, but lots of folks do that who live there year-round. The neighbors in both locations recognize the properties as domiciles belonging to my parents, and there are neighborly relations established both places. Indeed, the summer place has a 50-year history of ownership by my mother's family. They are "summer people," but they are the sole occupants. Use is more complicated in an area where the locals hunt, snowmobile, etc., and multiple use rights are recognized. Contrast this with other properties in the same area: there's a rich guy down the hill from us who has closed off access to his property, interfered with traditional/conventional right of ways, etc., and generally set himself up apart from locals. Then there are the investment holding companies that own the surround land, which used to be actively managed by the paper/timber companies, but which now is untended, except for occasional logging by jobbers, and which is not even for sale to locals at anything but rather unrealistic priced-for-large-scale-development prices. The investment companies have no local stake at all. The timber companies had some, and were willing to allow multiple uses. The rich guy teeters on some complicated edge: his occupancy is probably legitimate by local standards, but his use, or threat of use, of the legal system and of his wealth to interfere with the use of others properties is hard to fit into a just and reciprocal framework. 
 *  *  *
Property systems, of whatever form, wherever they exist, are going to impose some obligations on newcomers. That doesn't seem to be any objection. Homesteading requires exertion, and a mixing of the self with the land to be homesteading. Property in mutual societies will naturally involve some investment of time, energy and self. Some places, that might be as simple as conducting the equivalent of a title search, or asking around fairly thoroughly. In others, it might not be possible to enter into mutual relations without some time spent becoming part of a community. Property systems or conventions will not be mutualist because they take this or that form, but because they answer to a particular stage in an ongoing social evolution, within which property conventions have, and will, occupy a particularly important place. As a standard, immanent justice will deliver different sorts of results than either natural or statute law.

There have, of course, been attempts to lay out more precise mutualist conventions, but I would be inclined to treat such works, like those by Swartz and Tandy, as "approximations" of the sort that Proudhon engaged in, in works like "The General Idea of the Revolution" -- good indicators, perhaps, of the lines mutualist societies might follow, but not blueprints.

One reason for downplaying some of these earlier approximations is the relative unsophistication of their property theory. Proudhon himself never really teased out the implications of his mature work with regard to property, though his work is full of enormously suggestive stuff. And his most prominent heirs, people like Greene and Tucker on the one hand, and various schools of social anarchism and syndicalism on the other, were much more concerned with issues of credit and industrial organization than with the development of an adequate theory of property. It's largely been left to modern generations of mutualists to pick up those dropped threads.
 *  *  *
It isn't clear to me, based on the definitions given, why a landlord who continued to maintain [a] second house, while renting it out, would not maintain ownership. I think, too, that a number of contemporary mutualists, including Kevin Carson (and myself), have stated that honoring voluntary contracts is of some importance. Against the absentee landlord whose ownership is purely a legal matter (the holding company in my discussion above, for example) occupation seems an appropriate strategy, precisely because they will not enter into any sort of mutual relations. But where landlord and tenant can agree to divide rights and responsibilities voluntarily, there is absolutely no principle necessary to mutualism that interferes, and it would be, it seems to me, against the principles that are necessary to mutualism to attempt to forbid or void in an a priori manner the voluntary rental contract.
 *  *  *
Lockeanism, with the provisos intact, isn't obviously absurd, although it probably isn't practicable without some elaboration. But since mutualism is largely going to be locally elaborated, that's not necessarily any big deal for us. But the thing that seems to come our of Lockeanism with the removal of the provisos is a concern for reciprocity. I'm sympathetic to the "ongoing projects" approach, because I think it answers to the needs of contemporary societies, but the core concern for the mutualist really is mutual justice.

It is likely, too, that mutualist property theory is still fundamentally incomplete, even in principle. Although Proudhon's analysis of "economic contradiction" started with his critique of property, and despite all that he wrote about the topic, he never really integrated his property theory with the rest of his social philosophy, as far as I can tell. There is still a good deal of hard, exciting work to be done in order to flesh out his late work on property and incorporate the insights of his work on Justice.
  *  *  *
...failure to honor a genuinely voluntary contract ought to be considered a pretty serious failure in a mutualist society. Mutualism has consistently emphasized practical projects that work to make any such contracts truly voluntary, but how could the breaking of a voluntary contract be construed as anything but a failure of reciprocity?
   *  *  *
 it's hard for me to see how a failed contract of any sort can be much of a victory for reciprocity. It certainly may involve a gain in power on one side of an uneven balance, and thus a nearer approach to justice. And perhaps, under given circumstances, the ability to render "an eye for an eye," meeting the robbery of usurious rent with that of breaking a contract, is as reciprocal as things can get for the time being. But that's a pretty low bar, and seems to relate to circumstances very far removed from the rental of a second home.
 
 [to be continued...]

Sunday, July 08, 2012

A couple of notes on "The Molyneux Problem"

Just so that it is not necessary to reconstruct this every time the question of the adequacy of Universally Preferable Behavior arises, I'll just place these comments (originally from Reddit) here for the benefit of posterity:

[To see the problems with the book] you might look at the beginning of the section "UPB: Five Proofs," where he lays out the supposed logical proof from UPB. When he lays it out as a syllogism, the key proposition is that: "Arguing against the validity of universally preferable behaviour demonstrates universally preferable behaviour." Now, that's not the clearest of sentences, but here's the explanation he gives: "if I argue against the proposition that universally preferable behaviour is valid, I have already shown my preference for truth over falsehood – as well as a preference for correcting those who speak falsely. Saying that there is no such thing as universally preferable behaviour is like shouting in someone’s ear that sound does not exist." Now, the power of the argument rises or falls on the assumption that arguing against something always demonstrates the preference for truth and correcting error. And there's nothing self-evident about that claim. The analogy between "universally preferable behavior" and sound doesn't help anything either, since if sound did not exist, no amount of shouting in someone's ears could prove otherwise. The logic of the argument depends on the action demonstrating a particular preference, and always the same preference, but if you had never heard of UPB and had to derive its existence from the fact that I oppose the notion, well... I think there are a variety of explanations which present themselves as at least as likely.
and
The question of "implicit intent" is a tough one, particularly since Molyneux places intent as such outside the realm of what we can study. So if we are going to make a "universal argument" rest on conclusions we draw about something which we've started off by saying we can't draw any direct conclusions about, then we had better have a strong argument that a given action must demonstrate a constant preference. Market anarchists might compare their assumptions about the dynamics of action in the market with those that Molyneux brings to the table in the UPB argument. Might we not just as easily speculate about the marginal utility of arguing, are about certain kinds of arguments (for or against, in good faith or not, etc.)?
The point about shouting when there is no sound is that it is not logically contradictory, but bizarre, futile and physically impossible. On the other hand, if there is no UPB, one can still argue, can still prefer truth under the given circumstance, can still attempt to correct others, prefer to correct others under a given circumstance, etc. The analogy is pretty misleading, part of the enormous amount of stuff in Molyneux's book which is not particularly to the point, but maintains this barrage of ridicule against any opposing position. And Molyneux does like his ridicule, even when it stretches logic and truth -- so what does that sort of argumentation imply for the UPB?
 There is, no doubt, more that could be said, but I think anyone who looks at the book, and particularly the passage in question here, can pretty quickly figure out what they think about the whole issue.

Thursday, July 05, 2012

Possible & Impossible Worlds

For those who enjoy early science fiction, imaginary voyages, and utopian narratives, I'm sharing some of my favorites at Possible and Impossible Worlds. I've been playing around with some non-political translation, including the 1721 "Account of a Voyage from the Arctic to the Antarctic Pole by way of the Center of the Earth, with the description of that perilous Passage, and of the marvelous and astonishing things that were discovered beneath the Antarctic Pole" (which ought to be complete within the next week or so) and some work on a couple of incompletely translated Jules Verne novels. And I occasionally do publish small editions of this sort of material in Corvus Editions. But I haven't had a place to share the stories online, and many of them are delightful.

Many of them also have some political edge to them, in one way or another, but I won't tell if you don't...

Wednesday, July 04, 2012

Mutualism.info blog

With the contemporary mutualist revival a complex, more or less divided work-in-progress, there are very few easy introductions to mutualism. And there are lots of folks asking to be introduced. It is certain that this blog has become very deep waters. So, with some fear and trepidation, I have begun condensing material from here into a substantially more manageable size and shape, and have begun to post them to a new blog: Mutualism.info.

Angels and Fallen Angels Quarrel over Proudhon

I've posted working translations of a pair of pamphlets published in 1848/9: "The History of Mr. Proudhon and His Principles," by "Satan," and "Response to Satan on the Subject of Mr. Proudhon," by "The Archangel Saint Michael." The author of the first was Georges Dairnvaell, and the second was published by the "Society for the Mutual Education of Women," the organization, founded by Jeanne Deroin and Désirée Gay, which published Politique des femmes. The author of the second pamphlet does not appear in any of the sources I have been able to find, but the sentiments are certainly in line with those expressed by Gay in l'Opinion des Femmes, the later paper published by the Society.

There are some amusing moments in Dairnvaell's account, not the least of which is his claim that Proudhon's ideas were derived in part from 18th century sex manuals. I'm hoping to get a little time to write up an analysis of his arguments in the near future. But, regardless of the accuracy of the response, I think this pair of pamphlets gives us an interesting window in on the reception of Proudhon's work, both among those who claimed to be sympathetic to the general goals of socialism, but rejected Proudhon's work on property, and among the women with whom he would quarrel about issues related to gender and the family.