Digital Horizons of Intellectual Property
Essay: Copyleft as Training Ground: The Digital Horizons of Intellectual Property. Zac Zimmer.
Draft version without footnotes and bibliography. For full original, request copy from zac.zimmer at gmail
Text
Zac Zimmer:
"This, then, will be a horror story. Garrett Hardin's 1968 diagnosis of the "tragedy of the commons" has structured much contemporary Western thought--with the notable exception of certain radical sectors--surrounding the concept of the commons. But today, the very definition of the commons has become a site of social, political and creative struggle. The concept--arguably as old as our species' relationship with the land itself--has been adopted and reconfigured to operate in the realm of intellectual property (IP), especially in connection with the architecture of the Internet and networked society, and in scientific advances in the control and manipulation of genetic material.
This conceptual reconfiguration is not unilateral or monolithic, but it is possible to generalize certain concerns that link the many and diverse thinkers who take the problem of enclosure in its technological guise as central to an understanding of contemporary cultural circulation and radical politics. These struggles adopt the language of anti-enclosure to the immaterial realm of ideas and the ever-problematic realm of the genome. Such terms as informational ecology, digital enclosure, and creative/informational commons connect contemporary concerns about the status of intellectual property with a longer tradition of questioning private property as such, even if these connections are not fully articulated. Indeed, the dominant name for alternative IP schemes is copyleft, a tacit acknowledgement that thinkers of copyleft dedicate their energies to constructing a progressive or radical alternative to copyright. In other words: copyleft embraces an approach that focuses on re-imagining the legal/juridical structure of copyright in a digital/networked age.
The history of the development of the concept of copyleft is well-documented; at this point, the Free Software narrative has become a kind of mythology. This paper will not retell that story; instead, it will attempt to do two needed and interrelated theoretical tasks: 1) connect the recent enthusiasm around alternative models of intellectual property regimes--broadly grouped under the general concepts of copyleft and the creative commons--to the ur-historical struggle centered around the idea of enclosure (simply: the process of erasing the commons); 2) to move beyond US Constitutional Law-based critiques of the contemporary IP regime--currently focused around competing interpretations of the meaning of Article 1 Section 8 Clause 8 --to an authentically global consideration of the implications of the contemporary enclosure of the immaterial world. The fundamental question is: what is the nature of human creativity, and what it can teach us about our concept of property, both intellectual and otherwise?
Asking this question will, I hope, create an opening through which the true history of the concept of the commons as a claim of radical inclusion can animate the current debate surrounding digital enclosures. What is at stake is NOT an attempt to create something like a 'zone of free play' or a 'creative sandbox' in the heart of the private property regime where artists and creative types can entertain themselves. The stakes are much higher: it is a demand for an inclusive right that may begin at the level of culture and information (against digital enclosures, say), but will expand to encompass a common, inclusive demand to the right to life, liberty and property.
Authorship and Ownership
The arguments in favor of a creative commons take several forms. The most prominent proponents within the United States--and an ever-growing network of global affiliates--are tied to the Creative Commons (CC) organization. As this organization grew out of efforts to protect and enhance publicly available creative works within the United States, its arguments regarding the status of intellectual property and the commons tend to rely heavily on the US Constitution and relevant case law. The main criticisms about the current IP regime in the United States fall into three broad and overlapping categories: fair use, antimonoply, and the evolving medium. "Fair Use" argues that there are certain exceptions to exclusive IP rights, and that current right holders are making unprecedented power grabs to regulate uses that were previously considered "fair." This argument also attempts to balance the rights of past and future creators: the current IP regime is biased towards contemporary creators of IP and prejudicial to future creators, since restrictive IP regulation denies future creators the very building blocks of any new creative works.
The "antimonopoly" argument recognizes that the Framers of the US Constitution were loath to grant any kind of limited monopoly, and that all reconsideration of the IP regime should work to minimize (not maximize, as rights holders such as Disney argue) the scope and duration of the noxious yet necessary monopoly. Each of these respective two positions emphasizes a different part of the IP Clause in the US Constitution: "fair use" emphasizes the State's role in promoting "Progress of Science and useful Arts"; "antimonopoly" emphasizes the State's conventional compromise to grant monopoly IP rights only for "limited Times".
Other arguments move away from the specifics of the US Constitution to make historically-supported global claims about technology. As the medium of expression evolves--a product, clearly, of technological change--our concepts of ideas and creativity, and whatever rights we might attach to them, need to evolve as well. Technology disrupts communication, and out of that rupture, users reconfigure society. Such thinkers appeal to other historical moments of disruptive technological advances (the most invoked moments tend to be the invention of the printing press and the rise of the Guttenberg Bible, and the video cassette recorder/VCR); they then try to think through the problems of IP from the perspective of the medium itself. Cory Doctorow summarizes this position: "Just as the industrial economy wasn't based on making it harder to get access to machines, the information economy won't be based on making it harder to get access to information."
In the service of these three points (the need to expand exceptions to exclusionary IP rights; the need to limit State-granted IP monopolies; the need to rethink the law to capture the democratic potential of new technologies), Creative Commons carves out a space for a public domain within the current copyright regime. This is the idea of some rights reserved. The CC license allows users to alienate specific rights from the "bundle of rights" implicit in copyright (for instance: future noncommercial use of a work; future derivative use of a work; attribution) to a general public-at-large of future creators. The Open Source software community has pioneered similar models. But again: these are not fully alternative models to copyright, but rather attempts to create something like a commons within a world of exclusionary and seemingly unlimited private IP rights.
Other branches of the loosely-defined copyleft family take a much more radical approach. Those who rally under the slogan "information wants to be free" tend to reject the validity of copyright as such, and they view tools such as the General Public License (GPL) as "legal hacks" that begrudgingly mobilize copyright to "counterfeit" the phenomena of anarchism. In this sense, the GPL still represents a "use of intellectual property rules to create a commons in cyberspace", but those in the Free Software movement affirm the moral imperative of a commitment to anarchist production, and they express optimism that anarchism will triumph in the digital age. These arguments tend to be nested in broader anarchist theories; they are at their least convincing when they ground their metaphysics in the "gift economy."
What all of these positions share is a deep suspicion of Romantic models of authorship and human creativity. In this connection, the thinkers of copyleft form part of a genealogy that passes near or through--in most instances--a specific debate about the status of the author in post-structuralist thought, a debate that centered around questions of the "death of the author", the "author function," or the author's "ghost-like" persistence. The suspicion of the genius author also found expression in much 20th century creative work: Borges, Pessoa, Dada, Pirandello in the first half of the century; and in fields as diverse as computer programming, scientific research (especially with multi-author collaborative work), visual art and music in the second half. What unifies the critique is a rejection of the "solitary genius" vision of human creativity. Computer programmers, musicians and legal theorists argue that the logocentric (i.e. focused on the author's written word) vision of authorship is inappropriate for a digital age of remix culture; literary theorists and philosophers argue that a logocentric vision of authorship is not even an appropriate model to think literary creation itself. All parties would agree, however, that these problems of authorship showcase the impoverished nature of our legal understanding of human creativity. But the reason dominant conceptions of IP gravitate towards the Romantic Genius model is because it--as an account of the creative process--most clearly maps onto the dominant modes of understanding property as rights to material land and things.
Ideas, Things and Rights
Intellectual property is, of course, a concept on metaphorical loan from our understanding of material property, or property as such. The status of ideas has always presented a challenge for the Western liberal conception of property, although the nuanced distinction between an idea and the expression of that idea (or the thing of the idea) in creative works has not been a historical concern of pressing social importance outside of narrow philosophical and legal circles. Whether an owner's IP rights referred to the pages of the book or to the particular pattern of ink on the paper didn't become a mainstream concern until the means of printing became commonly available; record labels did not worry about pirated vinyl. But as the immaterial world of ideas takes an ever-more material form--i.e. the ones and zeros of binary code--we find the traditional objects of IP forced out of their cozy metaphorical slumber and into the world of tangible things: the digital file, the sequenced genome, the archives of traditional knowledge. As ideas, these artifacts are non-rivalrous and non-excludable: as Jefferson famously said: "He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me." What the growth of digital technology and networks adds is that now--as things--these artifacts are also non-rivalrous and non-excludable: they can be copied for near-zero cost and distributed simultaneous to any user with capable technology.
Before the things of IP were digital--that rosy dawn when books were bound in leather--content producers liked the notion of a particular expression of an idea trapped in a material form. This allowed legal theorists to posit the object of intellectual labour: she wrote a book. This reasoning is analogous to that expressed in the sentence: he plowed this field. Both set up a workmanship model of production. As the Romantic Genius pours his labour over the seedling of his idea thus allowing it to flower, so the farmer tends the field to produce the melons he will harvest. Both farmer and Genius produce things--objects--that will ultimately be sold in a market.
As this model breaks down--when it is no longer possible to posit objects of IP as tangible things--two errors rise into our field of understanding. First, the workmanship model proves to be an uncomfortable fit with creative production: it is blind to processes of collaboration, the re-imagination of tradition, parody, and other such issues that emerge immediately when one considers the act of creative work. To return to our farmer: when he goes to the fountain to draw a pitcher of water (Locke's favorite example), the liquid in the fountain is common, but that captured in his pitcher is his own. But when our Genius dips his pen into the river of stories--mankind's common cultural patrimony--the case is not so clear: how does the story become his own? Now that creators manipulate the very material expression itself--the digital file in binary code--we see the creative process revealed as a web of connected iterations of reinterpretation. Thus the displacement of ideas by things is an awkward fit when talking about the objects of IP, given that these things are no longer singular objects invested with an "aura", but rather infinitely and simultaneously reproducible manifestations of creative work. Large content owners utilize this ambiguity to their advantage: when a consumer purchases an album, she is actually purchasing a license to use the content under exceedingly restrictive terms. One such term is that the work itself cannot--for all practical intents and purposes--enter into the commons or the public domain. As described above, any license that includes such terms is fundamentally incompatible with the human creative process, a process that is based on reuse and reinterpretation, not creation ex nihilo.
This brings us to the second problem that surfaces when we consider the property status of creative works. The record label that distributes their products under restrictive licenses highlights a prior confusion in the concept of property. The workmanship model itself conceals an earlier conceptual displacement: from rights to things. A "property" is actually a set of enforceable claim rights: my property rights in this land allow me to exclude others. When we equate property with things--as happens across the entire social spectrum, from water coolers to courtrooms--we miss the most foundational idea for the concept of property. Macpherson explains: "To have a property is to have a right in the sense of an enforceable claim to some use or benefit of something, whether it is a right to a shore in some common resource or an individual right in some particular things. What distinguishes property from mere momentary possession is that property is a claim that will be enforced by society or the state, by custom or convention or law." Thus, talk about IP is actually talk about rights claims in ideas. When we put the concept of intellectual property into question, we should not ask, "Who owns ideas?" but rather, "What kinds of right claims can we make about ideas?" When we talk about private property, we talk about exclusive rights; when we talk about commons, we talk about inclusive rights. That is the commons: the claim of an inclusive right. It is clear, then, that only when we start with a concept of property as rights (and not as things) can we begin to understand what something like a commons would look like. Otherwise, we are simply trying to carve out a public domain within a private property regime, instead of asserting an alternative concept of property: instead of saying "these exclusive things are held in common", we ought to say "we have an inclusive right to the commons." When we understand the commons not as a group of exclusive things, but rather a demand for an inclusive right, our language begins to sound a lot more like those radicals of the English Revolution from whom the copyleftists borrow their vocabulary. So it is fitting that the most potent conceptual tool in the resistance to new digital and biological enclosures is on metaphorical loan from an older and continuing critique of private property.
Inclusion or Enclosure?
As stated above, there are compelling arguments--mostly based on Thomas Jefferson's interpretation of Lockean property as it pertains to ideas--that signal the category error of applying a concept of tangible private property to the realm of ideas. I do not reject these arguments, but such arguments, as they rely on the contours of the US Constitution, positive law, and judicial decisions, do not provide a sound universal basis for the insistence on a natural right to the commons. A key fact that is often lost by those who appropriate Lockean language (labour mixing with commons and thereby subtracting the made object from the commons) to justify expansive IP laws is that John Locke--the key thinker of the Western liberal concept of property--developed his justification of private property during an intense moment of public concern over the enclosure of common lands. In fact, Locke's Second Treatise is first published in 1681, the same year that a third attempt to legalize non-consensual enclosure failed in the House of Commons.
Several of Locke's twentieth century readers attempted to historicize and contextualize Locke's concept of property. James Tully, for instance, states that we must read Locke in the context of the philosophical and legal battles surrounding defenses of enclosure produced by contemporaries like Filmer. By reinscribing Locke into this context, Tully produces a reading of the political philosopher's theory of property that insists on a natural inclusive community right that is prior to all exclusive rights of private property.
Tully's reading of Locke opens our conception of property beyond merely conventional "private property", thus affirming a common notion of property that is a natural right. Furthermore, it avoids the problems of a "sacred" interpretation of the author's inalienable and unlimited right over her creation (this is the main concern for those who criticize the Romantic conception of authorship). In both cases, this is because Locke denies any natural right to private property: private property is merely conventional. Due to its conventional (and not natural) status, private property cannot be the source of unlimited rights claims like those the Romantic Genius would make over his or her work.
According to Tully, Locke's exclusive rights come after inclusive rights: community is always prior to exclusion. Private property in a political society is a creation of that society; this convention serves a function that is regulated by civil law. Locke's account of how conventional private property comes into being moves in parallel with the development of money (a store of value that cannot spoil). Before the advent of money, hoarding was practically impossible, since property was asserted through use, and the natural phenomenon of spoilage set a bound to human accumulation. The use of money implies consent to unequal accumulation; this consent, in turn, implies that man surrenders his natural power to enforce natural law. Consensual civil law replaces natural law, but not unilaterally: "Entering political society consists in foregoing the natural power but not the right; legislators are entrusted to regulate this power in accordance with natural law (2.135). If they do not so regulate it, but abuse it arbitrarily, they transgress the law of nature, and men regain the natural power to exercise their natural rights (2.149)."
It is clear, then, that even within political society, natural rights-based claims have validity if the civil authority directly contradicts them. This is how Locke opens a path to revolution: "It is only with a natural standard of property to appeal to, that a radical can criticize and justify opposition to prevailing forms of property." Locke affirms two fundamental natural rights: the preservation of mankind, and the preservation of society. These natural rights create a natural property right, as man needs to use the things he makes to preserve both himself and society. In this sense, the natural property right is a means to an end: preservation. Other important elements of Locke's natural right to property: "It is a right possessed by all men...It is a right of use only, not of use, abuse and alienation...the right expresses common property, not private property...it is a right to something which belongs to all; a right to one's due rather than to one's own."
The "property" in Locke's "life, liberty and property" refers to an inclusive right to access the material goods necessary for the preservation of self and society. In other words: a right to the commons. This right--to a common property that is neither like State property nor like private property--is prior to all conventional private property rights. In society, we consent to civil law, but only in so far as civil law does not do violence to natural rights. Conventional exclusive rights may be created, as long as they do not trample the prior inclusive right.
Tully puts Locke firmly in the camp of the radicals of the English Revolution and finds the Two Treatises to be the ex post facto theoretical foundation for the views advanced by Lilburne and Overton in their Leveller tracts. Lilburne and Overton, to be sure, do not represent the most radical or communistic wing of the Revolution (Hill summarizes Locke's position: a "world in which kings ruled by the grace of God but could be turned out if they did not rule as the men of property wished"). Nonetheless, it is important to reinsert Locke in this historical moment because it grounds talk of Creative Commons and digital enclosures in the material struggles of land.
Copyleft as Training Ground
If we connect such ideas to contemporary calls for a creative commons, we can understand these calls as the demand for some prior inclusive right to culture. When commoners frame the question in these terms, it allows them to make claims that explode reformist negotiations about incentive structures that seek to balance competing exclusive claims; the power of the commons lies in its ability to put the question of property itself in relief. Furthermore, the commons--as concept--creates a natural linkage between critiques of authorship, which play out in the legal field of copyright, and critiques of biopolitical enclosures such as the human genome, which play out in the legal field of patent law. Those two critiques, in turn, find resonance in resistance movements that defend indigenous knowledge traditions from exploitation by, for instance, North American and European pharmaceutical corporations. In fact, we see the idea of commons bubbling up in some form or another in almost all critical investigations into the nature of IP. This understanding opens up a space for a more fundamental critique: that of property as such. The struggles surrounding IP, then, can be thought of as the training ground for struggles over property.
I take the idea of a "training ground" from Walter Benjamin's 1935 essay "The Work of Art in the Age of Mechanical Reproduction." Mobilizing Benjamin's "now of recognizability," we can--indeed, Benjamin would state that we must--connect contemporary struggles over the "creative commons" with historical struggles about the commons as such. Benjamin thought that mechanical reproduction, as a fundamental change in the means of artistic production, could provide a tool for, as he says, "neutralizing" the conceptual framework that makes something like an 'aura', or a 'genius creator', or a mythical valorization of art, possible. Film is what, to Benjamin, could serve as a "training ground" to teach human beings "that technology will release them from their enslavement to the powers of the apparatus" BUT "only when humanity's whole constitution has adapted itself to the new productive forces which the [...] technology has set free." Benjamin is interested in the emancipatory potential contained within the new developments of artistic production. His project is not, however, a simple affirmation that the medium is the message. It is rather the tracing of the constellation shining in the now of recognizability: ur-history colliding with current innovations that gesture towards the unfulfilled promise of human liberation. This constellation crystallizes in the "dialectical image:"
In the dialectical image, what had been within a particular epoch is always, simultaneously, 'what has been from time immemorial.' As such, however, it is manifest, on each occasion, only to a quite specific epoch--namely, the one in which humanity, rubbing its eyes, recognizes just this particular dream image as such. "That which has been from time immemorial" is nothing other than the common pool of human creative power. When we think critically about IP, when we arrive at copyleft, we are connecting our current practices with an ur-historical image that we reclaim through experience. That image takes the name of the commons, and thus humans can reappropriate what they never really gave away in the first place: the collective of human knowledge.
As we fill in the constellation, surprising new connections emerge. We have a term for this: the Many Headed Hydra.
As this constellation reveals itself in our contemporary moment, we find ourselves witness to a possible mental opening, a moment of imagination that grasps--childlike--at its hazy indeterminate form. This is the newness of copyleft: it lays bare the digital architecture of our informational ecosystem. Infrastructure decisions have always been political: they are made by political bodies and they determine the very fabric of social life. Those who insist on enclosing that ecosystem--those who insist on the priority of exclusive rights claims--are clearly unwilling to consider or critique the fundamental social and political infrastructure established by a private property regime. Yet there are moments in history when such questions have presented themselves in a manner impossible to ignore. That we are living such a moment further emphasizes the imperative that we activate the historical constellation beneath the fight against digital enclosures. Indeed, the common connection to land serves as a safeguard against technological fetishism: the dream of a true commons propels us forward, urging us ever closer to a practical critique of intellectual property and, in turn, property in general. Digital technology has not yet lived up to its promise; it is the mean to actualize the common dream, not the end itself. As Benjamin reminds us, the hour of full satisfaction, the hour of true reappropriation still remains elusive.
What will this moment look like when it arrives? Christopher Hill reminds us of the radical slogan of the English Revolutionaries: The world turned upside down. Marx sketched out what this would look like philosophically by flipping Hegel's system on its head. Today's "now of recognizability" allows us to complete the slogan. In the enclosing world, we must ask the question of what a world turned inside out would look like. The world can spin on its axis, and today's "right side up" will be tomorrow's upside down. Yet until we open that world--turn out the enclosures and rip down the fences--we will be no closer to realizing the commons.
Commoners, then, ought support the work of organizations such as CC; indeed, as creators, we should embrace open content licensing as the best practical solution for our own production. But we must recognize such work as the training ground it is. The theoretical, historical and philosophical task for which we train lies in connecting copyleft projects to other radical struggles that insist on an inclusive commons over and above exclusive private property rights. By insisting on the centrality of the commons, progressive thinkers--and we can all be thinkers--activate a secret history of struggle. But there is no need for this history to be secret. We must, as Benjamin so poetically demanded, bring this moment to a standstill. The struggle over intellectual property is the struggle over the very meaning of the concept of property. When we demand a commons, those who have fought enclosure in all of its forms march behind us. To keep their dreams and struggles alive, we must do what that most holy parodist of enclosure--Thomas More--did: imagine that other possible world."