Free Software vs Free Pharma

Wasn't it Marx who said that, rather than me?

Moglen then addresses the same counterargument that N. Stephen Kinsella explains in Against Intellectual Property, which is that “wealth is optimized, or at least increased, by granting copyright and patent monopolies that encourage authors and inventors to innovate and create.” Moglen points out that according this argument, “there ought to have been no music, art, technology, or learning before the advent of the bourgeoisie, which alone conceived of subjecting the entirety of knowledge and culture to the cash nexus.

Are you sure that wasn't Marx?

Faced with the advent of free production and free technology, with free software, and with the resulting development of free distribution technology, this argument simply denies the visible and unanswerable facts. Fact is subordinated to dogma, in which the arrangements that briefly characterized intellectual production and cultural distribution during the short heyday of the bourgeoisie are said, despite the evidence of both past and present, to be the only structures possible.”

That was I.

You can make this better by keeping three considerations firmly in mind:

1. The phrase "intellectual property" not only wraps up incommensurable legal arrangements such as copyright and patent together, by doing so it creates a metaphorical relationship to real property that is deceptive;
2. Bitstreams, which have zero marginal cost, are distinctively unlike the goods traditionally considered by economics, which have non-zero marginal cost. The theory of the firm correctly predicts that at equilibrium in a competitive market, price equals marginal cost. "Intellectual property" in digital information is a way of preventing a free market; and
3. The alternative you are looking for already exists in the commons-based sharing economies: free software and creative commons.

Property Rights and Transcendental Nonsense

-- By CamilaTapernoux - 16 Feb 2012

Introduction

Rousseau famously said that “the first man who, having enclosed a piece of ground, bethought himself of saying this is mine, and found people simple enough to believe him, was the real founder of civil society. From how many crimes, wars, and murders, from how many horrors and misfortunes might not any one have saved mankind, by pulling up the stakes, or filling up the ditch, and crying to his fellows: Beware of listening to this imposter; you are undone if you once forget that the fruits of the earth belong to us all, and the earth itself to nobody.”

I have been trying to wrap my mind around the Eben’s and his academic peer’s approach to property rights. I came to law school because I was interested in IP law, so naturally I have been intrigued by the arguments against IP in our readings and in Eben’s scholarship.

A (Very Small) Sampling of the Arguments

The first criticism I came to was that of Felix Cohen in his consideration of What’s In a Trade Name? He provides the rhetoric of courts in enforcing unfair competition laws (through trademark protection) as an example of circular reasoning, of transcendental nonsense. Trademark law, he says, “purports to base legal protection upon economic value, when, as a matter of actual fact, the economic value of a sales device depends upon the extent to which it will be legally protected.” He boils the problem down to the existence of property rights at all, and contends that the actual effect of unfair competition is to “create and distribute a new source of economic wealth or power…through establishing inequality in the commercial exploitation of language.” Professor Moglen’s dotCommunist Manifesto extends Cohen’s wealth redistribution argument beyond trademark law to Intellectual Property law as a whole. He says that the existence of Intellectual Property “is solely due to its non-existence in the hands of everyone else,” that “the necessary condition for [its] existence is the non-existence of any such property for the immense majority of society.”

Moglen then addresses the same counterargument that N. Stephen Kinsella explains in Against Intellectual Property, which is that “wealth is optimized, or at least increased, by granting copyright and patent monopolies that encourage authors and inventors to innovate and create.” Moglen points out that according this argument, “there ought to have been no music, art, technology, or learning before the advent of the bourgeoisie, which alone conceived of subjecting the entirety of knowledge and culture to the cash nexus. Faced with the advent of free production and free technology, with free software, and with the resulting development of free distribution technology, this argument simply denies the visible and unanswerable facts. Fact is subordinated to dogma, in which the arrangements that briefly characterized intellectual production and cultural distribution during the short heyday of the bourgeoisie are said, despite the evidence of both past and present, to be the only structures possible.”

Complementing this practical take on the illegitimacy of the utilitarian argument, Kinsella provides a more theoretical criticism: “Wealth maximization is not the goal of law; rather, the goal is justice—giving each man his due. Even if overall wealth is increased due to IP laws, it does not follow that this allegedly desirable result justifies the unethical violation of some individuals’ rights to use their own property as they see fit.” Reading this immediately brought to mind our discussion of the law treating the rich man kindly and the poor man justly. Among the myriad of arguments against IP that I have come across the past few days, some coherent, some too dense for me to understand, and some too unsubstantiated to hold my attention, perhaps this is the one from which all the others stem.

A World Without Private Property

Yet as convincing as the impassioned critiques of IP law, or of property law in general, may be, they are functionally useless without an accompanying solution. And I wonder if grouping three distinct forms of property rights under the uniform umbrella of “intellectual property law” does more harm to the movement for their abolition than good. Through reading criticisms of these systems I’ve begun to feel that they are more different than they are similar, and that a comprehensive plan to overhaul or abolish all three systems would be like using the same strategy to stage revolutions in North Korea, China, and Thailand. I similarly question if desiring a revolution of the IP system necessitates advocating a revolution of property law entirely. Does being against socialism or monarchy require opposition to any and all forms of government?

Perhaps this question stems from the fact that I find it easier to accept rhetoric against intellectual property rights because they rely more on transcendental nonsense than defenses of private property rights for real property. As a result, the IP system can lead to results entirely in conflict with the traditional property system. For example, one of the first things we learned in Property last semester was the a property right meant the right to do whatever you want with your property so long as it did not harm others. Yet, as Kinsella explains, intellectual property rights can allow the holder to do exactly that. If I hold a patent on a procedure to test for genetic predisposition for a type of cancer, I can prevent you from using your own labor and materials to build the machine and carry out the test, even if you independently learned how to build the machine and perform the test yourself. And there we have yet another instance of the rich man being treated kindly, benefitting from advances in technology and receiving preventive treatment, while the poor man is treated justly, if justice in such a situation is allowing nature to take its course. But all this tells me is what is wrong. I am much more interested in how to fix it.

• #Set ALLOWTOPICVIEW = TWikiAdminGroup, CamilaTapernoux
• #Set DENYTOPICVIEW = TWikiGuest

Note: TWiki has strict formatting rules for preference declarations. Make sure you preserve the three spaces, asterisk, and extra space at the beginning of these lines. If you wish to give access to any other users simply add them to the comma separated ALLOWTOPICVIEW list.