[p2p-research] Repurposing Profit for User Freedom

[Michel Bauwens]

Thanks for your thoughtful comments Ryan, appreciated as usual, even when I
disagree some of the time.

answers in-line

On Mon, Feb 8, 2010 at 10:55 PM, Ryan Lanham <rlanham1963 at gmail.com> wrote:

>  On 2/7/10, Michel Bauwens <michelsub2004 at gmail.com> wrote:
>
>> Hi Ryan,
>>
>> concerning China, they are obviously vestiges of the state socialist
>> system, i.e. state ownership, the one party state, and more ..
>>
>> however, I think the primary factor should be the logic of accumulation,
>>
>> the state owned enterprises are no longer in the game of central planning,
>> but are capitalist enterprises following market rules (however distorted, as
>> they are everywhere), so the logic of accumulation is no longer 'state
>> capitalist' (as some would argue really existing socialism was in effect,
>> since it was about accumulation of state assets, with privileged
>> distribution to the nomemclatura, and without overriding 'market capitalist
>> logic), but 'capitalist' in the traditional sense.
>>
>> It is in my view important to distinguish the core logic of accumulation,
>> from the surrounding formal characteristics ...
>>
>> Again, we must be talking to very different people, because for the
>> progressive ip lawyers I talk too, and mainstream people like Lessig,
>> diminishing the  artificial scarcity in digital distribution is not
>> controversial ... they are all fighting for lessing copyright, patents, and
>> abolishing DRM and software patents, and creating tools for people to escape
>> it, such as the creative commons licensing ... They were quite a few lawyers
>> in the barcelona meeting I attended some months ago, and they were all on
>> board on opening up IP and abolishing limits to sharing knowledge, code, and
>> designs.
>>
>
> Michel, exactly!  Fighting to reduce it and creating tools to avoid it--a
> side I freely and willingly join.  *Not* dismissing its existence and
> ignoring it.  Everyone I know of...even the most hardened capitalists, are
> staunchly in favor of open systems existing.  Where is the argument against
> open and free?  IBM has built a business model on it...so did SUN
> Micro.  Many other firms do as well.  It doesn't mean they deny the
> existence of IP...far from it.
>

You are right Ryan, and please not that copyleft, creative commons, and the
like, all recognize copyright, they are, as if often said, a 'hack' on it,
but they take as its base its existence, then reform/transform it to
something different, that protects the common and shared ownership .. they
do not deny IP (though stallman dislikes the term because he makes stark
distinctions between copyright and patents)


>
> Creative Commons (and nearly everything else) is predicated on strong IP
> laws...protections.  It is also predicated on voluntary participation.  I
> would argue (as I have all along) that you conflate the desire of people to
> have an open and free set of alternatives with the idea of doing away with
> IP.  Nothing could be further from accurate.  Of course open and free
> alternatives are good.  They simply cannot be unilaterally ASSUMED.
>


I've never conflated this, and again, I'm not a abolitionist, but a
'moderatist', i.e. bringing IP protections back to reasonable levels they
once had, giving people new freedoms to choose open instead, and finding
solutions for creators income



>
> I too (as I have said numerous times) am for reduced copyright burdens of
> time, against patents used as weapons (submarine patents) etc.  These are
> abuses.  But there is a wide difference between that and disregarding law
> where people want protections.
>
>
> Being for p2p and at the same time wanting to criminalize sharing are in my
>> view incompatible and contradictory views,
>>
>> but who ever said peope were coherent <g> (including me)
>
>
> Michel, I am grateful for the civility.  I hope it is perceived as
> returned.  I mean it to be and if it appears not so, I apologize for my poor
> communications.
>
> Again, this isn't about criminalizing sharing and never has been.  This is
> about criminalization of taking without permission--counterfeiting.  I am
> entirely for sharing.  It is a push AND then a pull...not a pull-on-demand
> technology against the will of an owner and against the democratically
> enacted laws of a jurisdiction.  The "puller" simply cannot decide what is
> shared unilaterally.  That is what everyone I have talked to...now into the
> tens of people, clearly recognize and agree to.  If someone thinks
> differently (outside the realm of anarchists) I'd surely love to hear it.
> Corey Doctorow, from my readings of his statements, clearly agrees with me.
>

Ryan, I fully understand your stressing the difference between sharing for
use, and counterfeiting for profit. This may surprise you but not only do I
not fileshare, I even very very rarely have bought counterfeit music and
movies, for the same reason as you, I respect legitimate legislation in
democratic countries, but I can understand people who do not. But I think it
is also important to understand why counterfeiting arises in conditions of
artificial scarity, with a huge differential between production price and
asking price, the latter only determined by the state protection. Poorer
countries can hardly act differenty, and it presents a huge economy. This is
why many progressive lawyers in this part of the world defend piracy.



>
> This failure to acknowledge a difference between push and pull is our
> difference.  I call it coercive and I associate it with states that refuse
> to enforce market rules.  Those have almost universally been state socialist
> nations.  It is clear that massive counterfeit operations are busted in Hong
> Kong, Thailand, etc. regularly.  In China and the Soviet Union, North Korea,
> Cuba, etc. they are state policy.
>
> If you believe people may simply take what they want when they can take it
> and no one loses a physical item, you ought to say that.  That means any
> item is simply free for all that can be copied.  All trademarks, copyrights,
> patents, etc. are entirely meaningless.  To me it seems clear that such a
> world is not feasible and would quickly lead to collapse...and not social
> justice.  That, to my mind, is pure capitalism...not socialism.  It is the
> idea that people can act completely without regulation to do whatever they
> want.
>

I am saying that laws that cannot be enforced because large majorities of
people find it illegitimate, are not good laws, and should be adapted. It is
for me a great evil to enforce feudal property rights on digital material,
to sabotage equipment, and to jail grandmothers and accuse babies. Something
is wrong there and needs to be changed. Law cannot go against the
fundamental aspects of a new technology and widespread social practice, that
follows naturally from it. You cannot legislate against sharing and
efficiency, it's counterproductive.

>
>
> I may be wrong about IP in 'socialist' countries, but I can only tell you
>> that in staunchly capitalist but poor and developing countries, IP
>> violations are massive, they are the rule, not the exception, and the
>> transgression, i.e. commercial piracy, is mostly capitalist; and most of
>> filesharing is probably similarly inspired not by altruism but by the
>> self-interest so cherished by neoliberalism.
>>
>> As for China, again we are reading different sources, I can only see
>> continuous happy writings of how capitalism has saved china and lead to
>> great progress ... we definitely operate in different worlds
>>
>> Michel
>
>
> Treaty IP violations are as massive in the Cayman Islands as anywhere.  I
> can walk three blocks and buy any tape or movie for 3 dollars that costs 25
> in the US.  I choose not to do that even though it is completely within the
> law here.  Few care about such things...even the DRM executives get bad
> press almost universally when they press such things.
>
> What I am talking about is a nation copying an aircraft...or a mode of
> building a refinery, or making a drug, when clear patents exist.  Or China
> or Cuba taking a US textbook, copying it, and then printing it industrially
> for their engineers.  Or Soviet Russia copying the Vax computer down to its
> name engraved on circuit boards for their own defense systems.
>

I would make some exceptions on this ... textbooks are widely and massively
copied in most countries in the South, and there is no affordable
alternative, otherwise millions have to abandon their education; similarly
when medicines can save millions of lives, it is ethical. But there is often
no need to go outside the law, since even WTO rules permit such exceptions
for medicines, and there also educational exceptions in national copyright
legislations.


>
> If some lady with a sowing machine in Chiang Mai thinks she can make a Dior
> scarf, I care little...frankly Dior cares little.  Everyone knows the
> differences except the lady with the sowing machine.  It is the guy in Hong
> Kong who runs a factory making Dior scarves with the same boxes, etc. that
> is a criminal and plainly so because it is against Hong Kong law, against
> French law and against numerous international treaties.  To defend that
> person is very odd to me...even bizarre.  To say he is "removing artificial
> scarcity" is simply counter-factual.  If that were the case, he would never
> produce the item in the first place...he is clearly free riding on someone
> else's brand and quality and design investment--which is entirely scarce.
> That's the whole point of his copy.  If it weren't scarce, he wouldn't do
> it.  No one mixes salt with water to make sea water.  It isn't scarce.  It
> is the "artificial" term which is clearly meant to distort facts and
> circumstances.
>


you probably know how this works. the same companies which produce
'officially' for dior during the day, produce the counterfeit items at
night; 99% of these items are bought by people who could not afford the real
thing, and it creates millions of jobs. That does not make it ethical, but
understandable, and it explains the reluctance of southern governments to
fight it, except for PR stunts, as they know it would only benefit the
western multinationals. As for media, they make them affordable to millions
of people who would otherwise not have access to it. These are dfficult
issues, but can be easily solved by diminishing the artificial IP rents to
reasonable levels, so that piracy would be discouraged, because essentially
not profitable. Of course, I do not care for the dior scarves, but I do for
affordable medicines and  educational materials, which should not suffer
from monopoly pricing. The current pharmaceutcal regime is rotten to the
core, does not serve 99% of medical needs, and should be reformed according
to the lines of the Stiglizt proposals; educational and scholarly
publication models are similarly rotten to the core, and need to be reformed
in the direction of open access to knowledge, in wayys that produce income
for their creators.

enough comments for the day,

Michel


>
> I completely agree with your characterization of who is doing the
> copying...capitalists...not free marketers.  Free marketers want regulated
> protections.  The marketplace is a series of institutions...mostly legal
> institutions...like enforceable contracts.  It isn't a free for all.  Free
> for all is exactly (and exclusively) what I am arguing against.
>
> As to Neoliberal, if you define it coherently, I may well accept the
> epithet.  If it means believing in human rights, fair access to make a
> living (and equal protection), fair access to markets and trade under the
> democratically enacted laws of a jurisdiction, then, yep, I am one.  Nothing
> in that line that isn't in the declaration of human rights.  Just as soon as
> IP is made illegal in a just society, I'll be on board with universal
> copying at will.  For now, I guess I am a neo-liberal and not an
> anarchist...if those be the choices when one supports the idea that
> counterfeiting is wrong.  Again, I return to Article 17, no one shall be
> ARBITRARILY deprived of his property.  If the law says we should have
> property rights, then a person deserves due process...not a arbitrary
> taking.  The idea of artificial scarcity intends to obfuscate this
> distinction not elucidate it.
>
> If the law of a place says that someone has the right to IP protection, to
> say they cannot defend that right, and that the state should not enforce
> that right or privilege, it is, in my opinion, a very clear violation of the
> UN Universal Declaration of Human Rights.  Again, I cannot begin to see how
> it can be argued otherwise.  Piracy and counterfeiting, when done against
> the laws of the governing jurisdiction, are simply wrong.
>
> Regarding theft...this from Wikipedia:
>
> The key distinction generally drawn, as indicated above, is that while
> copyright infringement may (or may not) cause *economic loss* to the
> copyright holder, as theft does, it does not *appropriate a physical
> object,* nor deprive the copyright holder of the use of the copyright.
> That information can be replicated without destroying an original is an old
> observation,[55]<http://en.wikipedia.org/wiki/Copyright_infringement#cite_note-54>and a cornerstone of intellectual
> property <http://en.wikipedia.org/wiki/Intellectual_property> law. In
> economic terms, information is not a *rival good<http://en.wikipedia.org/wiki/Rival_good>
> ;* this has led some to argue that it is very different in character, and
> that laws for physical property and intellectual property should be very
> different.[56]<http://en.wikipedia.org/wiki/Copyright_infringement#cite_note-55>
>
> A British Government's report, Digital Britain<http://en.wikipedia.org/wiki/Digital_Britain>,
> characterizes online piracy as a form of theft: "Unlawful downloading or
> uploading, whether via peer-to-peer sites or other means, is effectively a
> civil form of theft."[57]<http://en.wikipedia.org/wiki/Copyright_infringement#cite_note-56>
> ___
>
> As someone in a British law jurisdiction, I'll call it what it is...theft.
>
> Ryan
>
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