Expanding the Critique of Intellectual Property to Physical Goods

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* Article: Atoms Want to Be Free Too! Expanding the Critique of Intellectual Property to Physical Good. By Johan Söderberg, Adel Daoud. Triple C.

URL = http://www.triple-c.at/index.php/tripleC/article/view/288


“Atoms are the new bits”. That is the latest buzz arising from the Californian trade press. What do we get when this dictum is sampled with the old rallying cry: “Information wants to be free”? We suggest that the predominant, bounded critique of intellectual property is thereby destabilised. Constitutive of that critique was the exceptionality attributed to information goods (bits) vis-a-vis tangible goods (atoms). It was thus intellectual property could be presented as something altogether different from private property. We recognise that this way of framing the issue has had tactical advantages, but contend that it has stood in the way of a deeper understanding of what intellectual property is. When the critique of proprietary software is expanded by an emerging movement for open hardware development, however, the boundary between intellectual property and property as such crumbles. This enables us to renew our critique of the political economy of information."


Johan Soderberg and Adel Daoud:

"Thus we align ourselves with a theoretical school where studies of new media and communication technologies are placed within a larger social whole of production, commodification, power relations, etc. In other words, an approach, which builds on Marx’s critique of the political economy and which today, is upheld by a strand of heterodox economists (Mosco 1996, 71-72, 172; Mansell 2004). With a few notable exceptions, such a line of reasoning has been absent from the predominant critique against the intellectual property regime. In the first half of the article, we will suggest why that might be. In brief, the predominant critique is made up of an amalgam between, one the one hand, the limited self-understanding of free software/open source advocates, and, on the other hand, the limited theoretical presumptions of the classical and neo-classical economic paradigm. As a direct result hereof, intellectual property is portrayed as some-thing radically different from private property.

In the section, which follows, we will investigate how this separation is anchored in a more fundamental, not to say “ontological”, assertion about the otherness of the virtual realm. Its corollary assumption is the exceptionality attributed to informational resources vis-à-vis physical goods. Dan Schiller has named this idea the ”information exceptionalism” hypothesis. We will argue that this hypothesis has been constitutive for framing the predominant critique of the intellectual property regime. Hackers, geeks, self-acclaimed pirates, and quite a few legal scholars too, are engaged in ”boundary work”. In other words, they are setting up a boundary between information and physical goods in order to exclude private property and free markets from their critique of intellectual property. This approach has advantages when trying to sway policy makers or seeking to unite the many, warring fractions within the hacker scene behind a common stand against intellectual property. Unfortunately, tactical considerations of the sort have stood in the way of a deeper analysis of the intellectual property regime. We contend that such an analysis must be grounded in a political economy of information approach.

To the extent that the information exceptionalism hypothesis builds on the practices of computer hacking, the experiences now made in the Rep-rap project can be called upon to question the same hypothesis. The Rep-rap project has introduced a new narrative element to the predominant critique of intellectual property. Namely, the idea that free copying can be extended to the realm of physical goods. Having said that, it is important to note that this narrative element is not merely expressed on a discursive level. Through the expenditure of their labour, the hobbyists are striving to bring their dreams to fruition. The fact that they have developed a 3D printing technology to the stage of proof-of-concept is significant for the creation of a new imaginary. When hacker-hobbyists shift their attention from proprietary software to closed hardware, the industrial economy as a whole is implicated in their critique against the intellectual property regime.

In the third section of the article, we outline our own alternative critique of the intellectual property regime. It is a critique where intellectual property is put on an equal footing with private property. In both cases, the legal protections arise from the same need to safe-conduct commodity production/circulation. In the concluding section, we plot a possible scenario from our earlier reasoning. The fact that the adversaries of intellectual property are moving “away-from-keyboard” might be indicative of where the (intellectual) property regime as a whole is heading next. That is to say, some of the more controversial aspects of the current intellectual property regime, for instance, the use of digital rights management technology, will not be restrained to the realm of information goods for much longer. What the future has in store for us might be something even more sinister than anything dreamt up by Cory Doctorow: a future of “augmented property”.


This far into the argument, it is time to close the bracket in which we initially put the question, if the information exceptionalism hypothesis is an outright false proposition. Our tentative answer is that the exceptionalism attributed to information is not incorrect, as much as it is partial and one-sided in its portrayal of the world. It holds out the wrong end of the rope when we are about to start an inquiry into intellectual property and information commons. If this seems like a minor correction, hardly worth the entire stir previously made in the article, then we contend this different tilt of the research program leads to an altogether different result, both analytically and politically. When we set out to question the exceptionality of information, what we want to bring attention to is the orientation of the whole inquiry, which gives raise to this peculiar phenomenon. The crux is the notion of scarcity, the alpha and omega of the economic science which gives raise to its Other: inexhaustible abundance of informational resources.

An implicit assumption of the information exceptionalism hypothesis is a matter-of-factness assertion about the positive existence of scarcity in the physical world. This point of departure can be contrasted with a historically and sociologically informed approach, according to which scarcity (both of information and tangible goods) always is inscribed in prevailing social relations. It is the historical transformation of those social relations as a whole, which must be put under scrutiny in the first place. This claim might come across as counter-intuitive. A non-believer will not be approachable to this kind of argument without first having suspended her sense-certainty about the prevalence of scarcity in the physical world. This is a lot to ask for, because the certainty is grounded in everyday experiences of shortage and want. When she lifts herself above this immediate experience, however, scarcity can be interpreted with new eyes, now looked at from the view-point of society as a whole. Such a horizon is offered in the anthropological approach of Marshall Sahlins. In his study of archaic societies, he made a lucid comment about the condition of life in modern society: "The market-industrial system institutes scarcity, in a manner completely unparalleled and to a degree nowhere else approximated. Where production and distribution are arranged through the behaviour of prices, and all livelihoods depend on getting and spending, insufficiency of material means becomes the explicit, calculable starting point of all economic activity" (Sahlins 1972, 4)." (http://www.triple-c.at/index.php/tripleC/article/download/288/347)


On Information Exceptionalism

Johan Soderberg and Adel Daoud:

"The setting apart of information from the material substrate in which it inevitably is inscribed should be recognised as a major cultural invention. It has given rise to, among other things, notions about ”cyberspace” and ”virtual reality”. In the 1990s, the Internet was customarily depicted as a disembodied realm of information flows. The attractiveness of this idea can partly be explained by that it drew strength from a millennial-old dualism in philosophical thinking, sometimes spoken of as an opposition between form and matter, other times as mind and body, and so on (Hayles 1994; Fuchs 2003). In the new media studies literature, variations upon this dualism have been equally prolific. For instance, the same opposition tends to resurface when the ”virtual community” is contrasted with real, geographically bounded communities (for a critique: Proulx and Latzko-Toth 2005). Among legal scholars, a parallel discussion has raged if the virtual worlds constitute a separate jurisdiction requiring unique laws (Lastowka and Hunter 2004). The picture of cyberspace as a disembodied realm of information has come under sustained scholarly critique in the last decade. Indeed, in some quarters, expelling any trace of dualistic and/or transcendental thought has be-come the highest cause an academic writer can aspire for. If we hesitate to go down this road, it is because the history is full of counter-examples of how the idea of a transcendental Beyond has served as a point from which the positivity of empirical existence could be opposed. Some examples from different ages include a kingdom of heaven, natural rights, or the declaration of independence of cyberspace. The now infamous declaration by Perry Barlow would have been point-less if he had thought that cyberspace was otherworldly in an absolute sense. While cyberspace allegedly was out of reach from the states of the industrial world, Barlow hoped that a wind of change would blow from this virtual Beyond and transform the old into something new and better (Barlow 1996). The lesson is the following: The moment something (information, cyberspace, etc.) is posited as separate from its surroundings, it has already spilled over that boundary and begun to affect the ”outside”. Indeed, was it not this spilling-over effect Barlow longed for? The same strategy is adopted by the adversaries of the current intellectual property regime when they build their argument around the information exceptionalism hypothesis." (http://www.triple-c.at/index.php/tripleC/article/download/288/347)

Atoms Want To Be Free To!

Johan Soderberg and Adel Daoud:

"Without necessarily endorsing the many claims made on the behalf of the Rep-rap project, we recognise its importance for introducing a new imaginary. This imaginary suggests that there can be no stable demarcation lines between commons (in which informational resources can circulate freely) and free markets (in which property ownership over tangible goods are duly respected), ultimately grounded in the nature of the resource in-itself. Hence, where to draw the line between the two will be decided in a test of strength between opposing forces. This is essentially a political struggle, although for most part it will be mediated through technological innovation. In fact, the opportunity has already been spotted by conservative think tanks. In a re-examination of the old debate about lighthouses and public goods, one economist has observed that light is now being replaced with radio signals as a means for assisting navigation. The latter technology is designed in such a way that rent can easily be extracted from the service. The writer rejoices: Due to techno-logical change, there are no such things as natural public goods anymore. It is only institutional inertness, which holds back the relentless expansion and intensification of markets (Foldvary 2003). Indeed, with information technology, the granularity of private property can be made infinitely small. Examples hereof abound in the new markets, which have flourished on the Internet for some time. Infinite are the ways to parse up information and provide it on a pay-per basis. And atoms are the new bits. Herein lies the truth of the expanded conflict over intellectual property. It signals a future where goods and services in “meat-space” can be charged for with the same surgical precision, as is already the case on the Internet. From the perspective of the economist of to-morrow looking back at the present situation, it will appear as if the coarse way in which we are now being charged for our goods and services amounted to an endless long tail of market failures. The opportunity to close those failures, again and again and again, will drive the expansion of Digital Right Management systems to new areas. Intellectual property and traditional property converge into what might be called “augmented property”. In the up-coming conflict over augmented property, piracy will be generalised to every corner of society. And everywhere we will hear the battle cry: atoms want to be free too!" (http://www.triple-c.at/index.php/tripleC/article/download/288/347)