Notes on “the disposition of intellectual products”

I’m always surprised by the lasting (and often false) impression that this bit of off-the-cuff theorizing has left in certain circles. But I’m also generally pleasantly surprised, when I am reminded of its existence that, despite being the product of a very different place in my theoretical development than I occupy at present, it’s fairly solid stuff. It was very specifically part of a series of attempts to determine just how far, and in what directions, fairly conventional property theory would stretch when applied in anarchistic contexts. So it has to be read as a series of speculations, aimed at the creation of an economic milieu in which intellectual labor would be supported and its fruits would flow freely, but at the same time engaging with what seem to be weaknesses in existing critiques of intellectual property.

These days, my questions are much different than they were in 2012, but perhaps my sense of the utility to putting our theories to this kind of test remains intact.

I get asked about my views on “intellectual property” fairly often these days, and it’s generally assumed that I am in some sense “pro-IP.” The bottom line is that, like my other work on property and as part of that general exploration, my thoughts about abstract property is a work-in-progress. But I definitely do find myself—despite being an early adopter of copyleft sharing—somewhat underwhelmed by most of the debate. The notes that follow address a slightly different issue, “the disposition of intellectual products,” and should be read with an eye to the fact that 1) they were written on the fly under less than ideal circumstances, 2) they are a part of my larger, already heretical examination of property theory, and 3) I’ve replaced the definition of mutualism on this blog in February with the slightly expanded and clarified version I posted recently. They are drawn from my side of a debate on the Forums of the Libertarian Left in February, 2012.

I’m not terribly thrilled about being called to account for myself on this issue twice in a few days, particularly since the IP question seems to give rise to a particularly ugly mix of high-horsin’ and sloppy thinking, but…

There are very few people on the planet who are actually pro- or anti-property in any simple way. The question isn’t simple, so the responses that seem simple are as often as not inadequate or inconsistent. Anarchists who insist that “property is theft,” and then that’s the end of the story, just demonstrate that they weren’t following Proudhon’s argument very closely. Communists tend to be clear in their opposition to exclusive individual domain real property, but uncertain about “personal property” and about whether or not they believe in some form of collective domain. Communists who really believe in some radical alternative, where circulation takes over decisively from accumulation, have been pretty rare since the times of Déjacque. Non-proviso “Lockeans” seem to have an entirely opposite notion from Locke about the conditions under which individual domain can arise. Contemporary mutualists seem to be following Kevin Carson’s lead—which boils down to figuring that we’ll work something out, locally—rather than taking any of the cues from the tradition. And, frankly, having spent the last five+ years writing about mutualist property theory, my sense is that there aren’t more than a handful of people on the planet who care enough to make much sense of Proudhon’s “New Theory” or my “gift economy of property.” When I get called out for loose talk about people having rights to the product of their labor, even if those products are intangible, it’s pretty clear to me that it’s not about me. When someone claims I am “simply pro” any sort of “property,” I honestly don’t know whether to laugh or cry. Actually, since I spend about 60 hours a week working to increase access to public domain materials, translating, etc., and since the vast majority of my scholarly work over the last twenty years has been released under copyleft or attribution licenses, well… my inclination is less patient or friendly than either of those.

When I’m looking at arguments for any sort of property theory, my chief concern is that the arguments be consistent and grounded in some realistic sense of the real-life stakes. Anarchist/libertarian property theory tends, imnsho, to be a trainwreck in those regards, at least the majority of the time. But it’s not hard to work out what, in general, liberty-oriented people want from a property theory, and what a property theory would have to contain to be adequate to those wants.

To be clear, I consider property theory one way to approach social and economic relations under anarchism, and I am explicitly open to the possibility that it is not ultimately a workable approach. Following cues in Proudhon, I’ve been exploring the “synthesis of community and property” that he proposed in 1840, with a heavy emphasis so far on the property side of things—in part because so many people have been so eager to force that synthesis into one of the convenient ideological boxes (communism, capitalism, etc.) One of the things you learn quickly, if you going to try to follow Proudhon’s lead, is that you can combine principled and consequentialist analyses, move from real to chattel property, or from resource-appropriation to disposition of products, but you had better keep the individual elements straight in your head.

When anti-IP folks argue against IP as property by saying that it isn’t necessary, then I expect them to take some consistent position with regard to real property (as it relates to resource appropriation), tangible products of labor, and “personal property” (as it relates to all that sticky stuff involving liberty, “ongoing projects,” and the like.) At the same time, I expect them to be clear about the differences between tangible and intangible resources, and between tangible and intangible products. I certainly expect them to be as careful about what they lump together as “the same thing” as they would be with other sorts of property. The tendency seems to be to make no principled differentiation between the questions of appropriation and disposition, and no practical distinction between painfully clear examples of rent-seeking, legislative approximations, and the simple facts about how compensation for intellectual labor works in the real world. Staunch individualists on questions of other sorts of property seem to appeal to the “greater good” when it comes to the circulation of ideas. So, while the practical advantages of sharing seem clear enough in all areas of property, I see very little consistency with regard to principles and alternatives.

Property theory actually seems pretty simple to me: You need a theory of just appropriation of resources, and you need a theory of just disposition of products. If we’re talking about individual appropriation and disposition and our goals are genuinely anarchistic—if we would like to leave individuals free to act, as much as possible, without the mediation of systems of permission or prohibition—then it seems to me that one very attractive standard for appropriation is the virtual non-rivalry of Locke’s appropriation proviso. We can have the “good draught” from the river, as long as it leaves “a whole river.” We can make property as long as it is not theft. We can drink the water, or make other productive uses of it, within the constraints of the proviso. If we produce lemonade with it, then there is a long tradition, spanning right and left, that says somebody ought to be able to bring that product to market without being waylaid on the road. (We disagree with the capitalists about who should profit, but everyone seems to be on the “fruits of one’s own labor” bandwagon, as long as the fruits are tangible.) In terms of the appropriation of natural resources, that involves respecting natural circulation (“the universal circulus”) so that, within some tolerable time-frame, renewable resources can renew, biocapacity is not significantly reduced, etc. Within the realm of intangible resources, of course, things are considerably simpler in this particular respect: drawing intellectual resources from the public domain does not diminish the public-domain resources available to others. Now, it also seems to be the case that protections for actual intellectual products do not diminish the public domain in any way. Silly stuff, like trying to patent naturally occurring patterns, is silly, and at odds with the basic principled justification for patents, which is to encourage the growth of public-domain knowledge by easing the process of bringing ideas to market in tangible form. If I am attempting to monopolize elements of the public domain, that’s out of line, and should be opposed by most consistent proponents of IP. Even the “perpetual property in creative works” types have generally not argued for anything of that sort. But I can’t monopolize elements of a public domain that I cannot actually diminish, except through legal redefinition of that domain—and copyright and patents don’t really do that, if they remain temporary protections for the period necessary to bring goods to market. Believing that protections of this sort are 1) of practical advantage in encouraging intellectual workers to contribute to the public domain, 2) consistent with the sort of protections we normally afford other sorts of products, and 3) consistent with the sort of culture of mutual respect without which anarchism of any meaningful sort will probably be impossible, does not commit me or anyone else to any of the proposed remedies for violations, or the demands for compensation for further improvements based on ideas we have allowed to pass into the public domain. I have very little sympathy for Lysander Spooner, who played fast and loose with principle and the public domain on a variety of occasions. I am “pro-IP” in the very precise sense that I think anarchism will be impossible in practice without some serious engagement with the question of the “mine and thine”—so I am, in that precise sense, “pro-property”—and I don’t suddenly change my whole approach when we move from widgets to inventions or songs or essays, etc.

The main question for me is whether others are going to simply assume that the fruit of my labor is going to automatically become part of the public domain, if I am so indiscreet as to perform or display that labor in public. I expect consistent capitalists, who show no hesitation denying my right to the fruits of my physical labor, to be consistent in denying me a right to dispose of the fruits of my intellectual labor. Those who are not bashful about taking advantage of the systemic advantages given to capital over labor are free to consistently use the excuse of systemic technological change for appropriating still more labor-value. But I’ll be happy to point out that the sort of consistency involved there has little or nothing to do with just property theory or a consistent concern for liberty. It’s half-assed opportunism. For non-capitalists, or anti-capitalists presumably concerned with all that old stuff about labor retaining its fruits, and for anarchists, who are supposedly concerned with respect for individual liberty, etc., I think it’s a lot harder to justify the assumption that, say, these words, wrung out of me by a public challenge about my apparently very individual viewpoint, can be treated like air or water. And if the context was instead that I was in the process of bringing these words to market, it seems to me it would take a kind of collectivist thinking much more consistent than any I see around me to justify interference or appropriation by others.

The notion that bringing other people’s products to market is just “competition” is, frankly, capitalist talk. The situation anti-IP people propose is one where the lemonade seller is waylaid on the way to market, more lemonade is made without the application of the same labor, and then there is “competition.” The “competition” piggybacks on the labor of the originator, without whom there would be no product in the first place, and enters the market with with lower costs, unless the competitors are particularly inept. That seems like a complete disaster, as far as rights and justice are concerned.

In terms of the three points: I regularly see people deny that #1 is even a part of current intellectual property theory, although I think it’s hard to deny. The counter-narrative, that IP has always and everywhere been a “land-grab” (as often as not made by people who think land-grabs are just fine), seems all too riddled with the kind of nonsense Kinsella repeats about “letters patent” and piracy. In terms of incentive, do you think that we would have more and better intellectual production in a society where the default attitude was that intellectual labor was worthy of its hire or one where the assumption is that all your thoughts are belong to us? Trust me. I produce what I produce despite the disregard and ignorant contempt with which it is most often met. I’m pretty sure the Stakhanovite medals in most anarchist societies will go to the intellectual workers with most downloads—not the producers. I’ll also admit that my own production decreased for awhile when everything I released in working translation was appropriated and “improved” by a communist collaborator. It seems pretty basic to me: nobody who is producing in any field wants to feel like their labor is going to create a capital for others without any thought to their compensation. And there lies the answer to a lot of questions about activist burnout, infoshop failure, etc.

The whole issue of “controlling the contents and activities of other people’s minds” seems bizarre to me. In what way is it actually a response to the core concerns of even conventional IP? Roderick Long’s formulation reduces expressions to “information.” Would we say that “you can’t own matter”? That seems to me to be the analogous claim. We could say “you can’t own matter, because it exists everywhere,” but it wouldn’t really address the question of property. The IP laws, even in the extended form that we see them these days, are still designed to protect particular arrangements and expressions of ideas. There are other claims that are needed to make an argument against IP—claims about the nature of property, enforcement, etc.—and I honestly can’t quite make out what they are in Roderick’s account. I can get some sense of how someone who accepts the (lack of) appropriation norms in neo-lockean theory, and thinks of ownership in terms of rights enforceable by violence, might be led to think of the issue in these terms, but, honestly, that seems all the more reason to not think about ownership in those terms. Unbundle the various sorts of ownership rights obviously in play in the consumption of media, or the incorporation of protected inventions, and the problem seems fairly simple.

In terms of #3, “mutual respect” is vague enough to cover a multitude of disagreements, some of which I’ve already raised. Personally, I do not want to live in Roderick Long’s anarchy, or Kevin Carson’s, any more than I want to live in Iain McKay’s, while I might be inclined to give it a go with my (non-crank) egoist and nihilist comrades, precisely because I find the respect to be more genuinely mutual and not mediated by “natural rights” or “markets.”

I want to make sure that this is clear: One of the things that I would like to articulate more fully in my own work is where the distinction between “property” and “products,” which Proudhon leaned on various places, is important and where it isn’t. But what’s important here is that we can probably say that the “safe case” for appropriation of resources is similar, whether the result is supposed to be a homestead or the products of industry. But I don’t see that we can extend that case beyond the appropriation of resources in the “commons” or the public domain. It’s different to say “I can take bits of you because they’ll multiply, or grow back, and you won’t really lose anything.” The spirit of the proviso seems to be much more solitary—if I can put it that way—a matter of what we can do unilaterally, without any concern about invasion or aggression. But, more importantly, unless we simply deny that intellectual production has a product—that it involves some sort of productive, shaping “mixing”—then we need an explanation for how intellectual products, which seem inoffensive at the point of appropriation, slip back into the public domain or become offensive if not shared. We can think of lots of circumstances under which invasive acts might not result in any clear loss to the party invaded (some of them harmless, some sinister, and some simply inconvenient for that party) but I doubt we would ordinarily consider them ethical, because of the invasive character. I would hope that there was no version of “anarchism” that considered any part of individuals that they did not specifically want to share as a part of some commons or public domain.

The heart of Roderick’s objection seems to be this: “But if owning an abstract object means owning all the instances, then it means my owning the copy of my poem in your brain. In that case, intellectual property is a form of slavery. If slavery is illegitimate, then so is intellectual property.”

The most compelling argument in Roderick’s post is that abstract objects can’t be property because they are non-scarce. That at least is consistent with the neo-lockean property theory, and if it made any damn sense, it would be decisive. But Roderick is headed for this crescendo: “Either intellectual property means slavery, or it means nothing at all.” And points for style and all, but, honestly, that’s sort of silly.

My position on scarcity is that it cannot logically have much to do with Lockean property and that with regard to rivalry the neo-lockeans have things precisely backwards. The rest of Roderick’s argument only makes sense if there was only one sort of property right, an unbreakable bundle, so to speak. If there is simply—logically or philosophically—no way to imagine a legitimate transaction in which use rights are transferred along with a copy, but not rights to reproduction, well… honestly, I just don’t get it. It seems like an enormous number of extraordinarily routine and mundane practices involve property rights stipulations far more complicated than this.

Roderick makes claims like this: “A patent is, in effect, a claim of ownership over a law of nature.” But that doesn’t even seem remotely correct. The claim that IP over a poem involves a “universal” just seems equally inapt and arbitrary. … A fairly simple dictionary definition of a patent: “A grant made by a government that confers upon the creator of an invention the sole right to make, use, and sell that invention for a set period of time.” Where is the ownership of a law of nature in that?

Anyway, distractions aside, my general response to the “copying is not theft” argument is that the determination of “theft” is ordinarily not a question of whether or not someone suffered a net loss in their possessions, but whether or not their property was violated, with property relating to a sphere extending around the individual. “Copying is not theft” can only claim that there is no quantitative loss involved—the producer’s inventory is not reduced. And that doesn’t really get to “property.” It doesn’t speak to the issues that arise from “self-ownership” (or whatever you want to call the basic right not to have yourself and your own fucked with.) It doesn’t speak to the consequences of copiers piggy-backing on the labor of producers. It doesn’t speak to the respect issue. As a justification for appropriating intellectual products against the desires of the producers, the message seems loud and clear to me: “Hey, producer, it would be nice if you don’t starve, but that’s not really my problem. I have left you the possibility of recouping your labor costs, while contributing to a culture which treats your efforts to do so as selfish and unreasonable. What more do you want from me?” If that seems like a caricature, it seems to me downright mild compared to talk of “slavery” or the unilateral “keep your intellectual productions to yourself, or they’re mine” stuff I regularly encounter.

Ultimately, “copying is not theft,” according to the usual libertarian standards of property and theft, only if there is some justification for assuming that, whether the producers like it or not, every expression or publication of an intellectual product amounts to a contribution to the public domain. If the resources that a producer have used come from the public domain, and the labor comes from themselves, then where is the opening for consumers to demand, or just take, the product without any consideration of the labor involved? Any nominal “anarchist” or “libertarian” who believes that they have a right to something I have produced, without any consideration of my desires or the costs to me involved, falls pretty far short of the bar in my eyes.

There is perhaps a radically and genuinely anti-property alternative possible, which would emphasize circulation as the essential good, rather than any sort of property or even individual sovereignty, but I don’t see any of those kinds of communists around.

Well, as you might expect, I’ll probably disappoint you if what you’re looking for is a clear statement of “the standard of mutuality.” As I think you know, I have zero taste for “anarchic common law,” permission and prohibition, crime and punishment, etc. I don’t think “rights” as such come with any “permission” for redress. Retributive violence is simply violence. Forced restitution is force. We do all that stuff on our own dime, and sometimes we will indeed have to do it, but there don’t seem to be any permission slips available. I’m content to try to get clear on the principles and some of the foreseeable consequences of particular sorts of action. I’ve laid out my basic definitions on the blog:

Mutualism is not a specific social, political or economic system. It is—at its core—an ethical philosophy. We begin with mutuality or reciprocity—the Golden Rule, more or less—and then seek to apply that principle in a variety of situations. As a result, under mutualism every meaningfully social relation will have the form of an anarchic encounter between equally unique individuals—free absolutes—no matter what layers of convention we pile on it. To the extent that our conventions, institutions and norms respect that basic premise, we can call them “mutualist.” To the extent that we commit ourselves to viewing our relations through this lens, and exert ourselves in the extension of mutualistic freedom, we can call ourselves “mutualists.” We don’t take anarchy lightly and understand that archic relationships and coercive force come in lots of varieties, and the exertion matters—if mutuality is reduced simply to an outcome of this or that system, mutualism as such almost certainly disappears.

And that’s both conceptually pretty simple in its extreme individualism, and, of course, very difficult to put into practice. Where the IP question is concerned—and I’ve found this in other aspects of property theory as well—it seems to me enough, for now, to suggest that we may be headed in precisely the opposite direction from property conventions that seem likely to foster individual freedom, and specifically the kind of freedom necessary to grow into a more fully developed mutualism. As long as the responses to this assertion about intellectual products remain largely angry “you’re not on our team” stuff, it’s hard to get a lot clearer about the practical aspects. But it really seems to me like there isn’t much complexity involved in unbundling creator’s rights and use rights.

A product is the output of a process involving resources and labor. Products can be tangible or intangible, and sometimes tangible products are attached to immovable resources and we call them improvements. If we’re anywhere in the Lockean/self-ownership/ongoing projects universe, then we know that mixing resources and labor, in such a way that something of the laborer’s personality is given to the result, creates property. And the strong feelings attached to the defense of property come largely from the sense that it is an adjunct of the defense of self. I see no compelling reason, given the self-ownership/labor-mixing metaphor for the mechanism of appropriation, to suggest that property can only apply to scarce or rivalrous goods, though obviously the most important resource allocation problems relate to those goods. That seems to be grafted onto Locke’s theory later, as the provisos were stripped away and the focus generally shifted away from homesteading to exchange, which has no clear mechanism and the virtues of which are largely taken on faith. Staying close to the original lockean formulation poses all sorts of potential problems for ownership of tangible goods, as resource use diversifies, making “enough and as good” hard to judge a priori, as the development of technology means that an individual’s “good draught” of a resource is now likely to be considerably more than human-scaled, which puts additional strains on potentially renewable resources hit hard by increases in population, pollution, etc. and making alternative proviso-standards, like “no net reduction in biocapacity,” considerably harder to maintain as well. Some days I’m pretty sure that tangible property appropriated by Lockean proviso terms may indeed have become impossible. But if it’s a question of intangible resources drawn from the public domain, my “good draught” can be as big as you please without the appropriation impoverishing anyone. This is where “copying is not theft” is a truly compelling argument, in the spirit of Locke’s primary proviso. The public domain is where we might want to talk about your “universals,” although it just seems simpler to say that even fairly precise and novel arrangements of words and ideas have a natural tendency to become mixed promiscuously enough that nothing more than temporary protection would be consistent with the rest of our model. So far, the only differences between intellectual products and others is that the raw material are somewhat different, and there seems to be a natural decay of proprietorship, because unlike tangible products, the materials of intangible products can mix widely and simultaneously.

The capacity of the best intellectual products to mix beyond their original context means that there are social tensions created by the extension of protections, but that doesn’t seem like an argument to throw their creators under the bus. Quite the contrary. Brilliant ideas ought to be able to find compensation at the same rapid speed as they mix with the populace, and the more brilliant and popular the idea, the better distributed, and thus presumably cheaper for individuals, the compensation should be. A rapid speed of compensation means, at least potentially, a rapid entry into the public domain. If creators were mutualists, with some notion of a cost-principle in play, then that would clearly be the case.

In terms of unbundling rights, it seems like we make things harder than they are. When we look out over a beautiful landscape, although associations may form within us, we don’t assume that anything has changed hands. We don’t own a place because it moves us. We can’t plow a field because it looks like that farm we’ve always wanted. If we hear a poem, we know it didn’t come from us, and if we care about it, it is probably because of some successful mixing of familiar material and individual stamp of personality. We know better than to plagiarize the work, because that would involve both a misrepresentation of the work and of ourselves. If we buy a physical copy of a work, then it is conventional (despite some attempts at prevention) that we gain a property in the physical object, which we can then dispose of at will. But that right is obviously different than a right to republish for commercial purposes, and it seems entirely reasonable to expect that people can differentiate between those rights and their rationales. There are also sometimes perfectly rational reasons to defy legal restrictions, but it seems to me that we take those actions on our own say-so, without any hint of permission. Disfunctional markets and a disfunctional IP system mean that intellectual goods can be held out of the market despite the wishes of their creators or despite the fact that they have gone through that natural cycle of mixing and de facto abandonment. Defiance of particular IP conventions is sometimes part of the struggle for better ones as well. Context obvious matters. Personally, I think it’s better to be clear when you’re sticking it to the man and when you’re simply disregarding the situation of the creator.

This all seems pretty straightforward to me, despite my minor heresies with regard to interpreting Locke.

I guess perhaps the most interesting claim in all of that is this: “The anti-IP argument is not that such information should be THEN “made” a part of the public domain, it’s that ALL possible information is and has always been in the public domain.” And it strikes me that it’s convenient, but just not true. Because “IP” is such a scattershot mess, “anti-IP” arguments have been all over the map as well, from the purely practical considerations that led some authors not to claim legal rights to “information wants to be free,” with lots more in the mix. Like the claims that I obviously “don’t understand” something important, when it’s pretty obvious we disagree about the implications, it’s the sort of thing that’s hard to respond to, short of suggesting that in our increasingly cyborg world, the distinction between the information and material is something we might consider from a variety of perspectives. The disagreements about practical concerns no doubt arise mostly from very different visions about the future of practice. I could be wrong about all of this, but it’s certainly not a given.

Anyway, just so it’s all clearly on the table again: I’m not particularly fond of rights-talk myself, and much of the rest of the language in the argument is obviously conventional. I would rather be talking about “attractive industry” and “the universal circulus” than spending any more time with this sort of debate, and this last broadside makes that other stuff even more attractive, but it would not help right now as an intervention in the debate about property. I’ve made a conscious decision, for this particular project, to talk a kind of pidgen mix of the dialects present when we started the ALLiance, with a slow infusion of other material. If you want to look for my character flaws in my language, then pay closer attention to the borrowings from Fourier, Dejacque, Pierre Leroux, Proudhon and Walt Whitman. Beyond language, to proposed institutions, I don’t give a damn about enforcement or “securing IP.” I do care about clear thought about the theoretical issues.

Short-term protection, with a natural decay towards the public domain that’s likely to be speedier the more desire there is for the intellectual product; producer “entitlement,” rather than consumer “entitlement,” coupled with a cost-principle; an emphasis on consciousness over any sort of institutional enforcement: if the obvious cases of IP abuse withstand all of that, then maybe they’re not so obviously abuse.

Truth is, I have no recollection of ever, in all of my days as an anarchist, proposing any sort of “protection” that wasn’t either “we protect one another, on the basis of shared principles,” unless is was instances where “we protect our interests, in the absence of shared principles, on the basis of our own principles, but without any presumption of ethical sanction.” And I wouldn’t present the second as anarchism, but as what we have when we strip out all of the unconscious, non-voluntary conventions—”mere anarchy,” if you will. If we’re to do the same thing with “the commons” or “the public domain,” we have resources without any mechanisms for judging whether our intake or ingestion of them ought to be recognized as appropriation in the social/ethical sense. We have no “commons” or “public domain.” We have stuff and no rules. An important part of the quarrel between neo-lockeans and neo-proudhonians or contemporary proviso types revolves around the right of appropriation, which in non-proviso lockean theory seems to sneak in a “commons” without the god that originally justified it. The anti-IP position seems to do the same with the “public domain.” As in the debates about tangible property, my argument is that we have to construct our property conventions, and that the hardest work will be constructing appropriative conventions that are not simply arbitrary or throwbacks to “the will of god/the gods.” You’re begging my basic question, so, naturally, no sale. Your move does not seem to address my real-life concerns, protect my individual liberty or security, etc., so it is a consequentialist no sale. I’m already sold on the practical advantages of sharing information. In that regard, my practice over decades is far more eloquent and consistent than that of a lot of my communist comrades. But that’s not what I’m talking about right now, and it is necessary to at least try to talk about one thing at a time, because there has been so much talking about everything at once in our property debates. I’m certainly not “pro-IP” in any way analogous to the crusading of the IP-abolitionists. The whole “property” thing is an experiment for me, which I quite explicitly believe only makes sense in the context of a culture of sharing. My position since the fall of 2008 has been that “property” can probably only emerge as a consistently anarchistic institution if it emerges in the context of a certain kind of mutual “sharing” (“gift economy of property,” and all that…)

“Censorship” and “freedom of speech” are rights-talk, and pretty much beside the point. For the sorts of protections I’ve talked about (which I haven’t actually advanced as anything but mutual self-restraint) to count as “censorship,” a range of other assumptions have to be added to the existing mix. Having already given away the farm, as far as any really hard form of IP is concerned, by suggesting that intellectual products naturally socialize themselves, to the extent that they are successful, the problem really ought to be resolved—assuming that people aren’t dicks about the support of the producers. If the labor of producers remains uncompensated by the time that consumption of intellectual products makes them de facto part of the public domain, then—set aside the question of crime, or cops and judges, for which I have no taste at all—we have failure. Using the language of labor struggle, we have—descriptively, and you can decide how incensed or indifferent that leaves you—exploitation.

I suppose there is some possibility of constructing our treatment of intellectual resources and products on a more-communist-than-communism basis, emphasizing free circulation above all. Compelling arguments for free circulation as a principle are the crescendo that communist theory never quite seems to reach—and the next thing I really want to consider in my work. But if we take that approach only in the realm of intangibles, I’m afraid that the difference between matter and information will come back to haunt us, since our increasingly cyborg existence has not lifted the requirement of making production in the more abstract realm provide for the needs of the meat.

“All my talk of ‘exploitation'” amounts to one use of the term, in the context of intellectual goods that are in high demand, so “mud pies” must have achieved some new vogue. The rest of the objections seem to boil down to broader questions about market exchange which only assume any specific importance in this discussion because you are responding to some part of what I’m actually saying + some “obligation to respond” that you seem certain would have to lean in a “draconian” direction. Let me be completely fucking clear: If people are unwilling to engage in the sort of mutual protection that I have proposed, then I’ll be disappointed, but certainly not surprised. I will be so bold as to consider it a basic ethical failure, and I won’t be too disappointed if I never live in an “anarchy” where this weird sort of tangible-workerism holds sway. I don’t mind toting barges and lifting bales when necessary. In fact, the thing I miss most about bookselling was the combination of physical and intellectual labor. But there doesn’t seem to be anything necessary about this. If people are willing, then there seems to be no difficulty in making the system work, without any danger of the “draconian.” Exchange will always be what it is, an approximate process within which “real values” are shadowed by risk and the possibility of remorse. If you want to solve those problems, then you probably need a more thoroughgoing reform than taking intellectual property out of the market. I know that the usual mutualist bag of tricks (equitable commerce, etc.) don’t play for you, but they do play for some, and for those people will simplify the value-of-labor issue considerably.

Personally, I think one of the logical responses to the elements of subjectivity and incommensurability that will always haunt exchange is to emphasize the utility of circulation, hijack a lesson from the commercial big boys of the present day and make up in volume of interaction what we lose in precision of valuation. I have my own futuristic fantasies, peopled with swarms of nano-enterprises and the chaos of a market that’s been saturated with the spirit of a gift economy. But that seems well outside the scope of what I’ve been asked to explain.

People seem to have been curious how an anarchist could have anything good to say about “intellectual property.” I’ve tried to show how there is a fairly limited, but potentially useful, defense possible, consistent with the fairly limited defense of real and chattel property I’ve been engaged in for the last several years, and with the conditions of a stateless society. For me, that defense was a somewhat unexpected outcome of the other work on property. I would like to think that for anyone really concerned with principles of property—and that may, in fact, be a fairly limited audience—the whole package, with its inversion of some widely held notions about what ought to be justly appropriable, ought to at least be a provocative curiosity. I would like to think that at least part of the reason that I got called out in particular in this forum was because of that larger work, though I’m sure it remains as alien to lots of folks as neo-lockean appropriation norms and anarchist common law do to me.

Anyway, I feel like the debate has run aground on issues substantially deeper than “intellectual property,” however broadly construed, and I’m not sure that there’s any hope of treating the foundational questions satisfactorily.

About Shawn P. Wilbur 2703 Articles
Independent scholar, translator and archivist.