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

[Michel Bauwens]

ok, I understand a lot better where your claim comes from, and a lot of the
intricate argument gets lost in your summaries.

here is how I understand it,

the FSF reject property on intellectual 'goods' and frame this as an
opposition to property and an interpretation of copyright as policy

for me this means they reject property as applied to information things

and they do this because they are actually believe that property is a
natural right for objects , but not for information ..

this may prove that they are inconsistent, since as you cite mossof, if it
is policy for the one, it must be for the other

and it proves they are liberals

thus, the FSF is actually in favour of property!!

I stress this because in   your summaries when you say they are vehemently
rejecting property it is not necessarily clear that this means only for
informational goods

all this being said, I have used the concept of peer property since 2005,
especially as concerns the GPL and free software .. ; I
have given many lectures with free software advocates in the audience, and I
have not once got an objection on it

so I'm not sure if I would read so many things into that tactical stance,

but in any case, I don't think we are so far apart in our thinking of
software as property ,..

On Mon, Jan 3, 2011 at 9:33 PM, j.martin.pedersen <
m.pedersen at lancaster.ac.uk> wrote:

>
>
> 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
>
> =============================================
>
>
> 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.
>
>


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