“Intellectual property” as commodification

The concept of so-called intellectual property (hereafter intellectual monopoly) is often claimbed by capitalists to have opened a new phase of development, the “information society”. I consider both these ideas to be somewhat incoherent, and, in fact, the idea of information society couldn’t even begin to be formulated in the rich countries without a huge productive industrial base. Intellectual monopoly is justified on at least three different grounds: natural rights (Locke), utilitarianism (Mill), and some form of romantic mystification of authorship (Fichte). Note I only know the two first lines of argument in sufficient detail, so take my third suggestion with a grain of salt. At any rate, these justifications are ideological in nature (in the technical meaning of the word) whereas the actual grounds for the existence of state-sanctioned intellectual monopolies are found in material conditions, and more concretely material conditions around the production and distribution of intellectual products. When we consider these products, we can quickly determine that they lack some of the characteristics that are found in commodities, and which subject them under bourgeois conditions of production to the law of value. The clearest and most relevant difference is the fact that intellectual products are what economists tend to call non-rivalrous, that is, an intellectual product can be perfectly reproduced without reducing its original in any way, and this reproduction can be automated. Because of this, the potential exists for making an unbound number of copies with a marginal cost of near-zero, which even bourgeois economists acknowledge should make these products have about a zero cost per copy. As it happens, capitalists try to commodify the production of all things, to bring them into the sphere of action of the law of value, so that they can be judged by their exchange value and melt into the universal flow of commerce, equalized to other things by their price in money.

Because these things are not commodities after all, though, state monopolies had to be created to make them function in a similar manner, monopolies which forbid people to copy certain things, or even to construct products which embody certain properties (patent claims). This way, the production of intellectual monopoly commodities can proceed within the prevailing norms of production, giving rise to the “music industry”, “software industry”, and so forth. As the costs of production of the goods are roughly near-zero to their producers, superprofits can easily be extracted.

The most important change in relation with intellectual monopoly lies in the widespread use of computers–essentially automated and automatable machines for manipulating and copying bits. Together with the “digitalization”–that is, the conversion into binary–of such things as sound (music), video, even hardware (FPGAs), it becomes much harder to suppress the people’s natural tendency to treat these products as their economic nature best fits–as infinitely reproducible products which can be possessed by everyone without a diminishing in their possession by anyone–in simple terms, to share. This leads to the imposition of draconian sanctions, useless because of the impossibility of prosecuting breaches which amount to the rule and not the exception. As Eben Moglen shrewdly points out on an excellent talk by the title “Die Gedanken Sind Frei”: Free Software and the Struggle for Free Thought:

And so we found ourselves confronting a system of power based upon ideas of property relations that the technology of the owners was already making obsolete.
It is not possible for industrial organizations to do a better job of distributing music than 12 year-olds can do. Hence the world in which the music industry confronts the children on the barricades, attempts to jail them, fine them, control them, and loses. The same is true for all the other forms of art given to us by the 20th century and being freed by the very technology that the controllers of artists hoped would control art even further. This, like the adoption of movable type printing at the end of the 15th century, constitutes a moment at which the powers of control have adopted technology which transforms their conditions of existance, will they, nil they. They do not will it but it happens to them anyway. And the technology that they have freed, like the sorcerer’s apprentice, finds itself overwhelmed by its own implications.

Naturally, the capitalists keep pushing onward and mounting rhetorical campaigns in favour of intellectual monopoly, trying to exploit the sympathy with which arguments based on private property are often received, and this is the reason why a state-granted monopoly over certain particular behaviours (copying, performing, translating…) is conceived as a property right (which is, fair enough, another state-granted monopoly, but of a very different character). As it happens, the capitalists are forced by the play of competition to push even beyond the original demarcations of these monopolies, to the point of nullifying the original safeguards therein conceived in order to protect a necessary bourgeois concept (and conceit): the “open society”. Thus we can read how the Associated Press engages in an ultimately futile struggle against fair use, an ancient concession designed to guarantee the chance of criticism and research. As Hayden observes:

The New York Times, an AP member organization, refers to this as an “attempt to define clear standards as to how much of its articles and broadcasts bloggers and Web sites can excerpt.” I suggest it’s better described as yet another attempt by a big media company to replace the established legal and social order with with a system of private law (the very definition of the word “privilege”) in which a few private organizations get to dictate to the rest of society what the rules will be. See also Virgin Media claiming the right to dictate to private citizens in Britain how they’re allowed to configure their home routers, or the new copyright bill being introduced in Canada, under which the international entertainment industry, rather than democratically-accountable representatives of the Canadian people, will get to define what does and doesn’t amount to proscribed “circumvention.” Hey, why have laws? Let’s just ask established businesses what kinds of behaviors they find inconvenient, and then send the police around to shut those behaviors down. Imagine the effort we’ll save.

On this basis I oppose intellectual monopolies. I think of them as new enclosures of the commons, new ways to extend the sphere of application of the law of value to things that even by purely economic criteria–even in bourgeois terms–should not be so included. This intuition is so clear that we can find one of its most eloquent expressions even before the Middle Ages, by Augustine of Hippo: Omnis enim res quae dando non deficit, dum habetur et non datur, nondum habetur quomodo habenda est, which translates as follows: for all things which are not diminished in their giving, if owned and not given, are then not rightly owned.

Tags: commodification, commons, conditions of production, copyright, english, fair use, free culture, information society, intellectual monopoly, intellectual property, IP, property relations