Property and Theft

The overthrow of all intellectual property leaves unanswered the question of how to control the exploitation of the cultural commons by digital capitalists.

Illustration by Tiffanie Tran

The state’s current approach to intellectual property has come under scrutiny of late, as its disconnect from anything that might have once legitimated it has become more and more obvious. The activities of rent-seeking patent trolls, who accumulate patents solely for the purpose of filing lawsuits, have been highlighted by National Public Radio’s “Planet Money” program. And the absurdities of strict copyright enforcement are apparent in the life-destroying legal judgments leveled against small-time downloaders — $220,000 against Mille Lacs Band of Ojibwe employee Jammie Thomas-Rasset for twenty-four songs, $675,000 against college student Joel Tenenbaum for thirty.

Faced with these outrages, it’s tempting to demand the immediate destruction of the entire edifice of patent and copyright protection. All the more since intellectual property compounds the general socialist discomfort with private property, because the right it encodes is such an expansive one. No longer just the right to control a particular physical space or object, it abstracts the property form into the control of patterns and processes, wherever and whenever they appear. Instead of owning a book or a factory, the intellectually propertied class controls all copies of the book, and all implementations of the production process within the factory.

This issue of Jacobin includes a pair of essays that explain the origins and implications of this new property form. Sean Andrews traces IP to the laws of seventeenth- and eighteenth-century England and the ideas of John Locke, showing how intellectual property protections go back to the beginnings of capitalism itself. It is the scope of these laws, and their relative economic importance, that has changed in recent years.

Anne Elizabeth Moore gives a more contemporary reading, as she describes the patent and copyright regimes in detail and explores their spread around the world. She makes the point that intellectual property, no less than the material kind, supports a system of class power that is both bourgeois and patriarchal. Gendered conceptions of credit and reward are written into the structures of the property laws themselves, from the range of things that can be covered by it (novels, but not recipes) to who can claim control over it.

Both of these essays demonstrate the absurdities and injustices of a strengthening IP regime. Yet each, in a different way, shows that simply denouncing all intellectual property is inadequate, as are the political battle lines that are often drawn today. On one side, we find pirates and free-culture advocates, insisting that “information wants to be free” and that any attempt to enclose the copying of patterns within legal restrictions is an affront and an inanity. This view unites a sort of Left-Right coalition that can encompass the libertarian economist David K. Levine and the amorphous rebellion of Europe’s Pirate parties. Arrayed against them are those who may acknowledge the corporate corruption of the patent and copyright systems, but who nevertheless hold up a reformed IP system as a bulwark against the depredations of a “sharing economy” that all too often amounts to a handful of Internet monopolists profiting from the uncompensated labor of creative workers. Jaron Lanier, author of the recent Who Owns the Future?, is one of the more strident proponents of this view.

We have here something a bit like the old “reform or revolution” dichotomy, which arrays the advocates of smashing the existing system against the timid meliorism of those who only want to make it more humane. But the contrast fails here just as it did in the larger drama of twentieth-century socialism, where revolution and reform both ultimately led back to capitalist restoration and neoliberal retrenchment. We need another path — one that recognizes the necessity of reformist struggles within capitalist institutions, while still attempting to move toward a break with the system and the creation of a fundamentally new kind of economy and society. André Gorz called this the “non-reformist reform”: a project of “reforms which advance toward a radical transformation of society” by making a “modification of the relations of power” which could “serve to weaken capitalism and to shake its joints.”

What would constitute a non-reformist reform of intellectual property? The revolutionary overthrow of all intellectual property, even if it were possible, leaves unanswered the question of how to ensure that those who create knowledge and culture are provided for, and how to control the exploitation of the cultural commons by digital capitalists. The anarchist championing of online piracy only allows for some resistance around the edges, without posing a fundamental challenge to the system. And yet the idea of reforming IP into something better and more egalitarian, something that truly rewards all who participate in the work of creation, seems like another iteration of the naïve dream of a just and democratic capitalism.

Anne Elizabeth Moore and Sean Andrews approach this bundle of contradictions in different ways. For Moore, the central point is that IP is now and has always been gendered, and therefore any path toward its transformation and abolition must explicitly work toward addressing inequities that are embedded in our notions of culture, even if that sometimes means more IP rather than less. “An across-the-board loosening of IP protection,” she fears, would “lead to the increased piracy of those cultural productions already less protected, worsening the economic gender gap.” The task is to “correct for generations of cultural misogyny,” which entails fundamentally rethinking what counts as IP, beyond an isolated male inventor in his study, the image of whom forms the explicit or implicit basis of much of our current regime.

Insofar as the socialist perspective is taken to be hostile to the existence of intellectual property and private property more generally, Moore’s argument might be taken as a challenge to it. But this is to confuse a socialist approach with a libertarian one. The libertarian absolutist case against IP is consistent with the movement’s anti-statist trappings, and depends on the inference that because intellectual property is a debased, false form of property, it therefore does not fall within the purview of the state’s property-defending mission.

A socialist, however, can recognize that law and the state are contested terrain, and that replacing the regime of capitalist private property requires erecting, at least in the interim, an alternative form of socialized property, in order to defend the commons against the persistent efforts of the capitalist class to enclose and appropriate it. The struggle over traditional physical property provides many examples of this. Land trusts that are available to the public are an alternative to private ownership. Worker coooperatives and B Corporations, which are dedicated to a social purpose rather than only maximizing profit, are being pursued as alternatives to the traditional corporate form.

This is an appealing model for a potentially non-capitalist approach to the cultural commons that isn’t simply hostile to the legal system, but attempts to use it as a mechanism for contesting the narrow capitalist definition of property. But as we attempt to forge new property forms, new contradictions and unintended consequences will arise. In embracing a superficially appealing new licensing model, we could end up accidentally imprisoning ourselves in something just as bad as or worse than what we have now.

Take, for example, a project that Andrews mentions, the Creative Commons license. This is, as he notes, a legal property form just as much as traditional copyright. However, where copyright gives an owner the right to keep knowledge closed, Creative Commons is designed to facilitate creators who want to ensure their creations remain open, while at the same time making sure that they receive credit for them. One of the more common versions is the CC BY license, which allows unlimited distribution and repurposing as long as the original creator receives credit in any new version or copy. Another, CC BY-SA, adds the provision that those who redistribute or remix something must “license their new creations under the identical terms,” a provision with the potential to virally spread Creative Commons protection to other non-covered work. Going further in a superficially anti-capitalist direction, CC BY-NC-SA also prohibits commercial use, while CC BY-NC-ND also prohibits the creation of modified and derivative works.

These licenses might seem like a promising ways to protect the rights of creators and keep work out of the hands of corporate content monopolists. But they also pose contradictions and compromises for those who would like the commons to be as open and accessible as possible, but who recognize that a short-run strategy of total IP rejectionism is susceptible to exploitation by capitalist interests. Creative Commons demonstrates this, as does the simpler GNU Public License (GPL) for software.

The attribution and share-alike components of Creative Commons are the least problematic, since they enforce an ethic of author credit and mutual sharing that is fundamental to the operation of a non-capitalist commons. The non-commercial and no-derivatives provisions, however, turn out to have some problematic unintended consequences, as explained in a set of two critiques published by the Free Culture Foundation. Marking a work for non-commercial use sounds like just a way to draw a line between capitalist exploitation and socialist sharing, and the no-derivatives clause can be defended as a way of protecting the integrity of a creator’s work. But NC licenses don’t distinguish between a small-time DJ sampling a song and a massive streaming service making millions from advertising. Moreover, they replicate traditional copyright’s grant of a commercial monopoly to the original creator. The ban on derivative works, meanwhile, is only justified if IP law is regarded as a safeguard on the natural rights of the creator, rather than a utilitarian and pragmatic mechanism for ensuring a free and open cultural commons.

Another issue is that new licenses and property forms may not take into account all of the people who have a need for rights with respect to a given cultural object. Several years ago, a Texas family sued the Creative Commons Corporation along with Virgin Mobile Australia, charging them with libel and invasion of privacy. Virgin had found a CC-licensed image taken by a youth counselor, which included an image of the family’s teenage daughter, and used it in an advertising campaign without the family’s permissions. In this case, the CC license replicated a problem that Anne Elizabeth Moore identifies in traditional copyright: the rights of (disproportionately male) creators of images are protected, while the (more often female) people who become the content of the image are not.

The tensions inherent in new intellectual property forms are closely related to a tension running through all discussions of intellectual production — and indeed, production generally — between the rights of the producer and the rights of the user or consumer. In a recent essay on the tech guru Tim O’Reilly, Evgeny Morozov explains how this distinction plays out in the world of software development, in the late-nineties split between the free software concept developed by Richard Stallman and the Free Software Foundation and the rival notion of open source software promoted by the libertarian Eric Raymond. Stallman was and is preoccupied with the rights of users to examine and modify the software they use; Raymond, in contrast, was more interested in protecting the rights of developers to control the terms on which their software is distributed.

The distinction between the rights of the user and the rights of the developer resembles, but does not neatly map onto, a more traditional political distinction between the rights of consumers and the rights of producers. The analogy is not exact, because users who modify and repurpose software can also be thought of as producers, and because the category “developers of software” is ambiguous between the software engineers who actually write the code and the capitalist enterprises that frequently employ them and retain the licenses to the software they produce. A similar ambiguity exists in the contrast between the creators and consumers of cultural objects like books or songs.

In considering various “copyleft” alternatives to the existing IP regime, there is a danger of being seduced by a facile identification with the moral priority of creators over consumers. It’s the same impulse that leads to the slippage between emancipatory critiques of capitalism and a more politically ambiguous producerism, which attempts to divert society’s bounty away from unproductive parasites and toward those who are allegedly the direct producers.

But the point of defending the commons isn’t that producers and creators are better than users and consumers — a moral economy more suited to Ayn Rand than Karl Marx. Rather, it is that we are simultaneously creators and consumers, and that we should strive for legal forms that keep us from being exploited or manipulated in either role.