[p2p-research] Repurposing Profit for User Freedom

[Kevin Carson]

On 2/6/10, Ryan Lanham <rlanham1963 at gmail.com> wrote:

> I agree with the spirit of this criticism.  However, I disagree with the
> approach to implement it...which should be systematic, legal and
> enforceable.  There are bad laws in bad systems and bad laws in good
> systems.  It is also true that some systems become increasingly corrupt--the
> US system threatens this in banking, etc.  I also disagree that people
> should not have the right to enforce protection of their property.  I
> disagree with fundamental views, but I am very near to fundamental that an
> idea is property than can and should be protected with the force of social
> law.

The root of our disagreement is probably our different attitude toward
the law.  In my view, the only legitimate things law can accomplish
involve enforcing what would be morally binding even without positive
law, or what would be a pragmatic set of rules that people would
likely follow without a state.  As Joe Alexander, a local member of
Fayetteville's aging hippie community, put it, "Everything genuinely
criminal--murder, assault, robbery--was already illegal over a century
ago." And it would have been criminal even without positive law.
Likewise, driving on the right side of the road and following the
first-come-first-move rule at a 4-way stop are common sense social
rules that would exist in civil society even without traffic laws.

But a law that violates my right to apply my labor to my tangible
property to support myself in any way I see fit, so long as I commit
no aggression against other people or their tangible property, is no
law at all.

Everything in the state's law which is not superfluous is immoral.

> I'm not sure what you are saying.  Corporations are associations of persons
> created to act in a legally orderly way.  They are a legal device.  The
> overwhelming majority of legal and rights scholars would see the capacity to
> incorporate as an excellent social innovation.  I would agree with them.  I
> know of no major legal scholar left, right or libertarian who would not
> defend the idea of corporations.  They serve a huge number of useful
> purposes...e.g. spreading liability.

When I refer to corporations, I use it as shorthand for large,
powerful firms that dominate the economy and are specially privileged
by the state.  My concern is with oligopoly firms in cartelized
markets, the main beneficiaries of government subsidies and artificial
rights.

> You are misinterpreting me.  I see no perfection in laws.  As a pragmatist,
> I see no movement toward fundamentals or ideals.  Everything for me is
> practical.  I have no gods, no fundamental rights, no perfect orders.
> Everything is about what works and what can work to make people satisfied.
> I cannot determine those parameters, so I rely on markets.  I admit markets
> are imperfect.  I wish aspects of them didn't exist.  Same with states.
> Right now, I see no superior feasible alternatives.  I would characterize
> your views, as I understand them, as being fundamentally rather than
> pragmatically anti-state.

They are indeed fundamentally anti-state.  But your statement of your
own views confuses me, because to date you've framed the obligation to
obey positive laws in terms that seem very strongly to imply moral
obligation.

> > Of course the laws universally in force would reflect the interests of
> > the dominant class universally in the seat of power.

> This is a different interpretation of history than mine.  I believe laws are
> technology.  Technologies simply exist largely through memes of innovation
> and learning.  They are replace when they are no longer helpful if the
> forces of society (democracy and liberty) are allowed to prevail.  What
> scares me most about the present is that the externalities of continued
> operation of locally satisfactory systems can destroy the whole.

I'm not sure how much we disagree on this.  I do believe that the
dominant memes reflect, in Gramscian terms, a dominant class's view of
what is "helpful."  There is such a thing as "forces of society"
evolving in an objective direction, with technology playing a large
role in the evolution.  But the tendency of that movement is
complicated by contested, class-based ideas of what is "helpful," with
the positive law tending to reflect the interests of a dominant
extractive class.

The dominant class's ideological hegemony is imperfect and prone to
internal contradictions, and the cultural reproduction process is
imperfect indeed.  For example ruling class concepts are appropriated
and contested by the rules, and their force is turned against the
ruling class (what Saul Alinski called "political jiu-jitsu").
Percieved internal contradictions in the ruling class's own ideals
also operate as glitches in the Matrix (the ideas of "democracy" and
"liberty" used by one class in its fight against feudalism are
amenable to used, in all sorts of inconvenient ways, against the
interests of that very class; and the neoliberals' "free market" and
"free trade" rhetoric is quite useful as a foil for the privileged
reality of corporate welfare queens).  What's more, the develop of the
Internet and network culture have undermined the technological basis
of ideological hegemony.  When one can "own a printing press" for
under a thousand dollars, the media environment assumed by people like
Frank McChesney and Noam chomsky, with a handful of unidirectional
broadcast media controlled by big corporate players, is obsolete.

> > And I don't
> > believe the peasant would be morally obligated to keep paying rent to
> > his feudal overlords, out of respect for "the law," until he could
> > persuade the landlord that society would be better off if he stopped
> > living off rents.  The peasant would be fully entitled to break down
> > enclosures, squat on vacant land, and stop paying rent, etc., to
> > whatever extent he could get away with it.  The state and its laws,
> > then as now, was not some neutral force reflecting the collective
> > understanding of society.  It was a weapon in the hands of an enemy,
> > used to promote his interests at everybody else's expense.

> Feudalism was stable and effective until technology rendered it not so.  I
> hold no fundamental view as to its good or evil.  In today's world of
> learning, it would be evil.  When it prevailed, it was simply the best idea
> available.

So do you believe the peasants were obliged to pay feudal rents,
because of the laws on the books?  Were people like the Diggers on St.
George Hill, tearing down enclosures and cultivating the common, at
fault for doing so?

> > > For now, we have IP.  People who undermine IP are criminals.
> >
> > Well, of course.  That's true by definition.  But I don't genuflect at
> > the word "law," nor do I shy away from the term "criminal" when the
> > law and the people who create it are evil.

> No do I.  But I believe in the rule of law.  Do you?  If not, what do you
> propose in a stateless alternative?  Contracts?  Does a person have an
> ability to kill someone else at will in a stateless society?  If not, why
> not?  At some level, we institute governance.  You may prefer a different
> level of governance than me, but we both prefer governance I suspect.

If not, why not?  Because I believe in a standard of objective
legality that's prior to and superior to the state's positive law.
And the central standard is nonaggression.  All forms of voluntary
organization and cooperation that follow consistently from
self-ownership and nonaggression are morally permissible.  This
includes community associations for the purpose of mutual defense
against aggression, for voluntary mutual aid, etc.  The only things
not permitted are 1) the claim of a "police power" by some
institution, acting as "representative of society," to initiate force
against nonaggressors, and 2) the enforcement of privileges and
illegitimate property claims that violate real, tangible property
rights.  Of course the definition of "nonaggression" presupposes a
consensus on property ownership rules, before the aggressive and
defensive parties can be identified.  And a variety of such
consensuses are consistent with the principle of self-ownership:
individual property in land, residual communal rights to land by the
clan or village (like the English open field system, the Russian mir,
or Israel under the Judges), etc.  But I believe there are limits to
what can pass as a legitimate property right.  And property titles
that create scarcity where it doesn't exist, rather than simply
dealing with real scarcity, are on the outer side of that limit:
absentee titles to vacant and unimproved land, property in ideas,
restriction of market entry through licensing requirements, etc.

> > And "we" also have the technical means of circumvention, and millions
> > of people who use them.  The law doesn't have any magical effect on
> > reality, and isn't automatically carried out by virtue of being law.
> > IP is a contested issue, and "the law" is a stronghold of one side.
> > What real people do in everyday life is a stronghold for the other
> > side.  The law will be the last stronghold to fall when IP has been
> > defeated in physical reality by actual people in the way they live
> > their daily lives.

> Individual piracy and DRM are small issues.  I think they go away soon.  Not
> sure how, but it doesn't upset me regardless.  There are big problems with
> commercial grade violations of IP.  Those are big problems.

I think individual "piracy," on whatever scale, is a key part of the
environment in which DRM and proprietary content rents are becomiing
obsolete.

> I disagree.  Not a strawman, but the essence of the point.  I agree with
> your conclusion however.  DRM does work. I think where we disagree is in the
> meaning of free.  You want free to meant he right to take.  I do not so mean
> it.  Neither do most people and most legal systems (nearly all).  The wave
> in fact is strongly toward what I am saying...  Still, we envision similar
> outcomes...the triumph of free.  You seem to think it will happen by the
> decline of enforcement by it being overwhelmed.  I know that happens quite
> rarely in free states.  What I anticipate is the market innovating more and
> more toward what people want...which is lower marginal costs approaching
> free.

We'll have to agree to disagree on whether unauthorized copying, or
restrictions on unauthorized copying, can more justly be described as
force.  We also disagree on the extent to which DRM works, I think.
Even when a small minority of people take advantage of the
availability of pirated content on torrent sites, the very fact of its
availability limits how much content owners can gouge, and pushes
prices toward Free (including legitimate rents on convenience and
authenticity, of course).

And I still insist that the "wave" includes not just laws on the
books, but the technical means of circumventing those laws.  In fact
I'm far more interested in direct, stigmergic action to build a
society in which those laws are irrelevant, than in changing the laws.
 The transaction costs of the latter are much, much higher, and one of
the advantages of network culture is the possibility of direct action
on Eric Raymond's model without waiting for permission or
painstakingly getting everybody on the same page.

> > Once again, there is no such thing as "IP theft."  Even that sacred,
> > majestic "law" that you hold in such high regard does not literally
> > treat it as theft.  The only place you see it described as "theft" is
> > in polemics by supporters of proprietary content.  But in terms of the
> > law, it is explicitly the conferral of a monopoly for a limited term
> > in order to promote a utilitarian end.  Surely you, who hold the law
> > in such sacred esteem, should refrain from referring to unauthorized
> > copying as "theft."

> This is characterizing my argument.  I hold no law sacred.  I do hold the
> rule of law as a best ideal for now.  I do hold law in esteem.  It is one of
> the best human technologies ever devised.
>
> I accept I should say criminal instead of theft.  It is, nevertheless,
> criminal.  To my mind it is semantics, but if theft offends, I'll be more
> careful.

Well, I'll certainly agree that it's criminal--by definition--as a
violation of positive law.

And I'll agree, with strong stipulations, to the value of rule of law.
 *Given* a state which is executive committee of a ruling class, and
*given* a set of laws that primarily reflect the interests of that
class, it's good to have a system of due process that regulates the
ways in which the state can enforce those laws.  That doesn't mean I
recognize the laws themselves as legitimate; I'm just glad I can have
access to a defense attorney and demand to see a search warrant, etc.,
when the state tries to enforce them.

> > By definition duplication cannot be theft, because there is no party
> > that ceases to have the item in question.  The only "loss" is loss of
> > the state-enforced right to a return on it, even at the price of
> > suppressing competition.  Nobody should have a right to a guaranteed
> > return on anything that comes from forcibly preventing other people
> > from entering the market and competing.

> Semantics, but I agree.  What a person "loses" is the right to value
> creation they are responsible for..you argue they have no such right or
> privilege.  Few would agree with your characterization of the facts in legal
> terms.  If they would, you would serve the world hugely by doing a survey
> that showed this.  It would be instructive to many if not most of us.

Few people in the 19th century southern U.S. would have shared my view
of slavery--even those who didn't own slaves.  I don't believe I would
be obligated to respect the slave-owners' law until I could convince a
majority they were wrong.  I do, however, appreciate the value of
outreach efforts to counteract and undermine the hegemonic view, and
demonstrate to people the extent that their ideas of what's
objectively or self-evidently right reflect the interests of a
dominant class.

> In my own personal inquiries to many lawyers and those who have worked in
> related areas around me, I have found universal rejection of what you are
> saying in terms of the idea that IP laws are not justified and should not be
> enforced.  I would be curious of any sorts of people who systematically
> think otherwise.  I know of none.  I would be particularly interested in
> legal scholars who hold such views.  There are many very radical views held
> by law school faculties of all sorts all over the world.  Maybe such views
> exist.  In my small survey, no one knew of anyone who held such views.

You might check out Kinsella, or Boldrin and Levine.  But of course I
consider it perfectly natural that a majority of the legal profession
accepts the rationale behind the laws in force.

> As I have said, I don't think artificial scarcity is a valuable term or
> idea.  It is far from a "fact" as Michel claims.  That's my opinion.  Others
> I bring it up to tend to sympathize with the idea that some economic
> vehicles stifle consumption, but that has always been true.  And I agree.  I
> think labeling something as artificial scarcity simply hides the
> foundational legal and rights argument.  That is, does a person have the
> right to protect their intellectual product from unlimited copying?  I
> believe they do.  You believe they don't.  Your view goes against most if
> not all legal systems now, as you recognize.  So your burden is to either
> change the law or to convince large numbers to ignore their own
> laws--including law enforcement persons.  I doubt that will happen soon...it
> will not happen before other mechanisms--probably market mechanisms, make
> the discussion moot.  That's my guess.

You may be right about the relative weight of such efforts, I don't
know.  But I believe they'll be *part* of the overall market mechanism
by which the discussion becomes moot.  Absolute numbers are less
important than the marginal effect of Free being part of the
competitive mix.

You're also right that "artificial" has normative implications.  But
it's still descriptively useful, I think, in comparing the rents that
prevail under one set of conditions to those which prevail without
them.

-- 
Kevin Carson
Center for a Stateless Society http://c4ss.org
Mutualist Blog:  Free Market Anti-Capitalism
http://mutualist.blogspot.com
The Homebrew Industrial Revolution:  A Low-Overhead Manifesto
http://homebrewindustrialrevolution.wordpress.com
Organization Theory:  A Libertarian Perspective
http://mutualist.blogspot.com/2005/12/studies-in-anarchist-theory-of.html