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.
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.
----------
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.
"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.
----------
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.
