[p2p-research] [Commoning] Information sector: a qualitative different mode of production?

[j.martin.pedersen]

On 03/01/11 05:03, Michel Bauwens wrote:
> just rereading your two paragraphs on FSF and property, and realising they
> can be interpreted not as a general rejection of property, but only as a
> rejection of property of software code, in this case of course, that fits
> with my experience of them,

I had an exchange with Richard Stallman about his and the FSF's position
on property. I sent 44 emails between May 12, 2007 and January 30, 2008.
Stallman responded with 58 emails between May 13, 2007 and January 18,
2008. I asked for his permission to publish parts of the exchange with
the essay and also gave him a chance to review and edit his side, which
he did, but only some minor cosmetic changes and a bit for clarity. We
profoundly disagreed.

I paste it below, but to answer your first question: the FSF and leading
Free Culture advocates want to see and conceptualise copyright as
policy, not property. I argue against that.

Also, I have posted the exceprt here for easier reading and access to
original text with footnotes and page numbers:
http://commoning.wordpress.com/2011/01/03/is-copyright-policy-or-property-a-critique-of-the-fsfs-position/

-martin

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1.3.2 Property and the tangible/intangible divide: a policy of what?

In this section I examine the reasoning behind the particular framing of
the intangible realm that characterise information exceptionalism.
Siva Vaidhyanathan, prominent cultural environmentalist and professor of
Media Studies and Law at the University of Virginia, writes that “[i]t
is essential to understand that copyright in the American tradition was
not meant to be a “property right” as the public generally understands
property” (2001: 11) and “[c]opyright should be about policy, not
property” (ibid: 15) and “[c]opyright is not property as commonly
understood. It is a specific state-granted monopoly issued for
particular policy reasons” (ibid: 253). Moreover “[c]opyright was a
matter of policy, of a bargain among the state, its authors, and its
citizens” (ibid: 23) and “Jefferson even explicitly dismissed a property
model for copyright” (ibid.).

That copyright is a matter of policy, not property might sound strange
to a lawyer or a philosopher trained to understand copyright as a
particular instance of property relations with a temporal limit and who
understands property as a matter of policy. Some things do not quite add
up. Nevertheless, that copyright is a matter of policy, not property, is
a point that the founder of the Free Software Foundation, Richard
Stallman, together with other advocates of “Free Culture”, wants us to
accept1.

Essentially, the Free Software and Free Culture movements reject the
concept of property and instead choose to frame issues pertaining to
ideas, information and knowledge - or the intangible realm - in terms of
freedom, liberty, human rights, policy, intervention, and regulation.
Anything but property, but preferably “policy”.

Two mediate questions arise from this position: (i) What is policy? (ii)
Why should we choose to adopt one term instead of another? I will answer
them in turn.

What is policy? Is there something in the word that clearly delimits it
from property? What does policy actually mean and where does the term
come from? It is term that is etymologically compounded by two roots.
The Greek “polis” - πόλις – which means “city” or “state” and also
“citizenship” or a “body of citizens”. In other words, a rather general
term suggestive of “political society” and those “who make up that
society”, either individually or collectively, or their status within
that political society. The second root of policy is the Latin
“politus”, which means “polished” in the sense of “refined”. In late
Middle English the compounded “policy” ambiguously referred to
“political sagacity” and “political cunning”, the former presumably the
meaning it had for those in power, while the latter likely reflects the
views of common people. Despite the ambiguity, or perhaps exactly
because of this ambiguity, policy referred to “what those in power are
doing, how they rule society”. The modern term policy, then, enters the
English language conveying the meaning of “a constitution”, which is now
rare or obscure, but in 18th century political science referred to
“government, administration”; or was equated with “polity”, which in
turn meant “civil order”, “administration of a state”, “civil
government” or “a particular form of political organization” (OED 1955:
1536-1537)2. In other words, policy is a broad term that we may say
refers to a variety of activities that a state performs as part of the
governance of its people.

In the context of capitalist democracy, therefore, the conventions that
institute its particular form of private property is a central part of
the state's policy. It is a policy that gives rise to certain laws, such
as “theft” codified into a statutory offence in the Theft Act 1968 in
the UK, where Section 1 reads “A person is guilty of theft if he
dishonestly appropriates property belonging to another with the
intention of permanently depriving the other of it; and “thief” and
“steal” shall be construed accordingly” (Theft Act 1968). Private
property is part of the state's policy and the Theft Act is an enactment
of that policy, which is necessary to secure the stability of
possessions as declared in the policy.

If we return to the claim that “copyright is policy, not property” it
becomes obvious that there is a conflation at play, which is deployed
for tactical purposes. The choice of policy over property is presented
as a matter of tactic, rather than analysis: tactically it is decided to
focus on “policy”, despite an analytical awareness that property can
take on many different forms. This tactic is chosen on the assumption
that the public cannot understand the term “property” in the way that
lawyers and philosophers are able to.

However, property is a form of policy – or it is a manifestation of
policy. We may say, for instance, that “private property is a central
ingredient in foreign aid policy in order to further entrepreneurship”
or that “private property was central to Thatcher's reasoning for the
policy to turn council housing tenants into house owners”. Or, expressed
differently:

“If it is true—as it must be—that copyright is policy, then it is
equally true that all property rights are policy” (Mossoff: 2005: 33).
The claim that copyright is a matter of policy, not property can also be
unpacked differently. Instead of arguing whether property means this or
property means that – in the context of what are essentially artifices
of justice at any rate – we can ask what debates around each of these
respective issues entail. What kind of questions are asked in
discussions about property relations and what kind of concepts are at
play in discussions about copyright. Here it “is easy to see that every
tangible property entitlement has arisen from a crucible of moral,
political, and economic analyses, and thus implicates the same questions
about utility, personal dignity, and freedom that now dominate the
debates over digital copyright. The preeminent property cases that every
law student studies in the first year of law school are exemplars of
this basic truth” (ibid.). Nevertheless, investigating the claims of the
“information exceptionalists” further will be instructive3.

As part of the tactic to substitute policy for property in the context
of understanding copyright, Free Culture advocates claim that copyright
understood as property is a modern invention carried out by scheming
corporations using the rhetoric of (natural) property to distort the
public perception of the underlying and original policy of copyright
(Stallman 2004)4.
However, the

“...story supposes that a multilateral treaty would be written and an
international agency established with a wholly new name that no one was
familiar with. In fact, WIPO's predecessor international agency was
called the “United International Bureaus for the Protection of
Intellectual Property.” It was commonly known by its French acronym,
BIRPI. BIRPI was formed in 1893, as a combination of two small agencies
that had been established to administer, respectively, the Berne and
Paris Conventions. Thus, “intellectual property” was a conscious,
nineteenth-century category created to subsume both “literary property”
(Berne) and “industrial property” (Paris).” (Hughes 2006: 1005-1006)
Further good evidence for the tradition of understanding copyright and
patents as property has been provided recently as a response to these
seemingly misleading claims:

“There can be little question today that intellectual property assets
are forms of “property.” The Patent Act expressly declares that “patents
shall have the attributes of personal property” and the Supreme Court
acknowledges them as such. The Copyright Act states that “ownership of a
copyright may be transferred in whole or in part by any means of
conveyance or by operation of law, and may be bequeathed by will or pass
as personal property by the applicable laws of intestate succession.”
(Menell 2007: 37)
Consider also a publication that pre-dates cultural environmentalism and
Free Culture:

“English law has considered copyright a form of property. An 1842 decree
asserts that "Copyright ... shall endure for the Natural Life of Such
Author and shall be the Property of Such Author". In other decrees the
terms "the owner of the copyright," "ownership of copyright" and
"proprietary rights" are mentioned“ (Matuck 1993: 406; see also Mossof
2005, 2007).

There is no evidence to suggest that intellectual property is a new
term, on the contrary. To understand why Free Culture and Free Software
advocates are rejecting the term, we need to understand their perception
of the public imagination and the public's capacity to understand issues
concerning property and social organisation. Lessig explains:

“If you're a lawyer, it's OK to think of intellectual property as
property, because we're trained to use the word property in a careful
way. We don't think of it as an absolute, perpetual right that can't be
trumped by anybody. We understand property rights are constantly limited
by public-use exceptions and needs, and in that context we understand
intellectual property to be a very particular, peculiar kind of property
-- the only property constitutionally required to be for limited terms.
It's clearly established for a public purpose and is not a natural right
… The real problem is when people use it in the ordinary sense of the
term property, which is "a thing that I have that nobody can take,
forever, unless I give it to you." By thinking of it as property, we
have no resistance to the idea of certain great companies controlling
"their" intellectual property forever. But if we instead use terms like
monopoly to describe the control that companies like Disney have over
art objects like Mickey Mouse, it's harder to run naturally to the idea
that you ought to have your monopoly right forever” (interview in Walker
2002).
Copyright, then, is property, for a lawyer and a philosopher, and
property for a lawyer and a philosopher is not simply private property
based on a natural right that requires no justification. For the
“public” and in “ordinary” usages, on the other hand, property is a
natural right according to Lessig; Stallman agrees:

“I, along with most people, consider property rights as natural rights,
something people are simply entitled to. They don't need any specific
justification; rather, exceptions need justification” (Stallman 2007:
email)5.
Do most people really think that, I wonder? However, it is not a
question that is really relevant here. Two principles prevent us from
entering into such questioning. Firstly, this is an academic and
scholarly exercise, to the best of my abilities, and secondly, we are
certainly not in the business of misleading “the public” on the basis of
the assumption that “the public” is unable to understand property
properly. If anything, a very careful explanation to “the public” of
what property means for lawyers and philosophers would be called for,
rather than a misleading, non-factual deviation. Such a careful
explanation will be provided in Chapter 2. Let us here disentangle the
confusion, which will reveal a different effect of the “framing effect”.

Stallman uses the term “framing” to strengthen the Free Culture claim
and justify the tactic to treat the public as too unwitting:

“Bringing the word "property" into contact with this issue in _any_
fashion frames the issue in favor of whoever is the "owner" of the
"property".  Everyone can sympathize with "Keep off my property!  I can
use my property any way I like."  And that is the basis that
non-philosophers will use to respond to your statement … In the "network
neutrality" debate, that framing favors AT&T.  In copyright issues, that
framing favors the author or publisher.
The issue here isn't the history of Western modern ideas of property
rights.  (Property rights existed before 1700.)  It's about what people
(other than philosophers) think today. I agree with you that, at the
fundamental level, property rights are conventions set up by society,
and that these conventions could be set up in various ways, and that we
can present arguments in favor or against various proposals.  None of
these conventions is beyond the domain of questioning, and although I
accept the idea of property rights as the default for physical objects,
I can consider the question. I think you will find that a large part of
the public won't go that far. Merely to call patents a "property right"
will make it difficult for many people even to entertain opposition to them.
You're probably aware of the effect that the way of framing an issue has
on people's thoughts.  Perhaps philosophers have trained their minds to
the point where they can overcome this effect -- but not most people.
If we frame copyright issues in terms of "property", that is in practice
a terrible handicap” (Stallman 2008: email)6.
There is good reasoning and cogent argumentation behind the tactical
choice to not frame the politics of Free Culture and Free Software in
terms of property. However, I am wary of discussing legal and
philosophical concepts in a way defined and determined in scope by
popular opinion, especially in the context of the free flow of
information, ideas and knowledge - and a Free Culture in general. I lean
toward sharing knowledge and skills with “the public”, rather than
simply assuming their ignorance.

Indeed, I argue that framing Free Software in terms of property has
great potential. Imagine what would happen if Free Software was
understood as property and the public came to learn that copyright, as a
form of property, could take very different and shared and collective
forms and be temporally limited. The concept of property would be
relativised, so to speak, and no longer take the particular form that
appears to be tattooed onto everyone’s mind, namely the kind of private
property that characterises capitalist democracy. For Ayn Rand,
subverting the understanding of one intellectual property right means
nothing other than the dissolution of “all other rights”:

“Patents are the heart and core of property rights, and once they are
destroyed, the destruction of all other rights will follow
automatically, as a brief postscript” (Rand 1966: 128).
Currently, property is understood in what Stallman and Lessig so
cogently noted was an incorrect manner: a natural, absolute, perpetual
right to do whatever you please. Free Software, however, is very
differently configured and if understood as property would force upon
that concept substantial reorientation. If indeed framed in terms of
property, Free Software might constitute a threat to capitalist
property, because it reveals that capitalist property is only one of
many possible ways of configuring property. Viewed upside down, then,
the tactical framing (i.e. not in terms of property) that is central to
Free Software politics, serves to protect Free Software from public
misunderstanding, just as much as it serves to protect private property
from public understanding.

Understanding Free Software as property potentially provides a fresh
view on property that is not alien to lawyers and philosophers and which
would be enlightening to “the public” (whoever that may be). It opens a
door to the politics of property, which, according to the Free Software
and Free Culture movements, is suffused with misunderstandings. A lack
of information, I claim, is a signal to open up the black box of
property and let insights circulate freely; and not a signal to keep the
black box of property closed. Yet, Stallman disagrees:

“Our goal is to establish relations about software which are not
property relations.  There are rules, yes; but these rules are not like
property rights (unless you stretch that term so far it will snap)”
(Stallman 2007: email)7.
Snapping property is precisely what I am aiming at. The institution of
property is a core element in political thought. Revisiting it, revising
it, and understanding property in new contexts in the same way that you
re-read a novel to grasp dimensions that you had previously failed to
notice, is a recurrent political task. In times of change, when the
technological, cultural and social circumstances change around us, we
need to address the core rules and laws that typify society to ensure
that they fit and are sensible in the new context. One such core rule or
law is property and it is necessary to continuously redefine its
boundaries. That is my claim, but that is also where my view diverges
from Stallman’s:

“I think the "institution of property" is an overbroad idea, not useful
for thinking about political issues … If [redefining the boundaries of
property] is your goal, it seems that we are fundamentally opposed”
(Stallman 2008: email)8.
Because of this divergence, the “policy approach” that defines Free
Software and Free Culture is irreconcilable with an anti-capitalist
position. That incommensurability is clearly reflected as Lessig states
his position with regard to private property:

“I [do not] condemn “proprietary culture.” Proprietary culture has been
with us from the start and for most of our history has served creativity
and culture well. What I do condemn is extremism—the shift from the
standard view to an extreme version of “proprietary culture” that could
easily become embedded in the digital economy” (Lessig 2005: 63).
Given that Lessig primarily sees property as referring to the tangible
realm only, the statement that proprietary culture serves us well must
include reference to exclusive ownership of land, the means of
production and distribution. In short, Lessig refers to the very heart
of the capitalist economy, which social movements all over world have
resisted for hundreds of years. Lessig thus defends the industrial
machinery that has landed humanity in an unprecedented ecological crisis
and a relatively profound and prolonged economical crisis. Private
property rights are embraced uncritically – except for in cyberspace –
in submission to the invisible hand with the violent fist. The
uncritical view on existing property regimes is here confirmed by Benkler:

“This is not to say that property is in some sense inherently bad.
Property, together with contract, is the core institutional component of
markets, and a core institutional element of liberal societies. It is
what enables sellers to extract prices from buyers, and buyers to know
that when they pay, they will be secure in their ability to use what
they bought. It underlies our capacity to plan actions that require use
of resources that, without exclusivity, would be unavailable for us to
use” (Benkler 2006: 23-24).
The market is a useful and integral element of a liberal society of the
kind that Benkler is advocating, because it facilitates contractual
relations between rational agents that enable them to plan actions and
produce things. The market is good for humanity, as long as it behaves
nicely in cyberspace. The point of Free Culture “is not to rethink real
property but to explain the ways in which the economic theory of real
property falls short when applied to the rather different world of
intellectual property” (Lemley 2005: 1097). When it comes to the
economic theory of “real property” as they call it, there is nothing to
question, because we can “say with some confidence that a right of
physical exclusion works as a legal matter because its benefits exceed
its costs” (Lemley 2005: 1099):

“Real property rights do in fact serve two valuable goals. First, they
prevent rivalrous uses by multiple claimants to a particular piece of
property and therefore avoid the tragedy of the commons. Second, they
allow their owners to invest in improving or developing the property”
(ibid: 1098).
For the Free Software and Free Culture movements, we have seen,
(mis)understanding property is a matter of tactic, not analysis. The
overall strategy, it has been revealed, does not include a critical
perspective on ownership in the tangible realm. The analysis of this
chapter, on the other hand, will show that this tactical approach at the
expense of a thoroughgoing, critical engagement leaves Free Software and
Free Culture eternally vulnerable to enclosure. That is because
exclusive ownership of the technostructural underpinning of cyberspace –
the materiality of cyberspace, as it were – permits those owners to seek
rent in and prioritise traffic on their network: exclusive, private
ownership in the tangible realm permits an extraction of wealth from
activities that unfold in the intangible realm. There is no such thing
as a purely immaterial mode of production or circulation, not even
dreaming or telepathy come close. Nothing in cyberspace exists without a
material foundation, as we shall see in the next section. For that
reason, Free Culture must appeal to the state to ensure that capitalists
play ball in cyberspace and do not extract wealth in the manner to which
they are accustomed.

By implication, then, Free Culture requires a strengthening of the state
– and an always strong state – while the problems of private property
rights in the tangible realm remain unquestioned. Consequently, the
novelty of the social relations for which protection is sought are
instead conceptualised in terms that rather permit for market forces to
profit from them, than provide protection in a substantial sense. From
an anti-capitalist perspective the celebrated co-productive relations
are hence lost in the sense that they are not applied to that province
of our knowledge and legal systems called property. It is, however, a
desolate province in urgent need of cultivation. Understanding Free
Software as property and commons-based peer production as a new mode of
production that instantiates a non-capitalist space in society on the
basis of novel property configurations, I argue, will cultivate an
understanding of property that is very instructive.