Intellectual Property: What is it good for?
Not absolutely nothing; but getting there.
Peter Frase:
The rhetoric of property rights has always run along two parallel tracks: the utilitarian and the moral. Utilitarians may acknowledge the arbitrariness, even the injustice, of private property while holding that it is nevertheless our best guarantee of freedom and prosperity. They might invoke the specter of Soviet collectivism, along with the “tragedy of the commons” — the depletion of resources held in common because no one holds the property rights that might encourage conservation. For the moralist, however, such arguments are beside the point: Whatever the political or economic efficiency of private property, it must be held inviolable because of the immorality of infringing on another person’s property. When the economy was mostly based on the production of physical commodities, the utilitarian argument tended to have the upper hand. For while the moralists must fall back on tendentious metaphysics (such as Locke’s contention that we take ownership of the common by “mixing our labor” with it), the utilitarian could simply point to propertarian capitalism’s manifest ability to deliver a world of material wealth, however inequitably distributed. With intellectual property, however, the situation is reversed. There is, to be sure, a utilitarian case for it, one enshrined in the U.S. Constitution: “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” But the actually existing regime of intellectual property (IP) law has long outstripped that justification. Maintaining Disney’s perpetual copyright on Mickey Mouse has no discernible benefits to the progress of anything, and even when unauthorized copies of works undermine the profits of the culture industry, as has happened most obviously to the music business, this does not seem to translate into a shortage of music being produced. Serious studies — that is, those not funded by the copyright cartels themselves — tend to find that IP is an impediment to economic growth rather than a driver of it. An intellectual-property regime that hewed to its utilitarian roots would thus be a much less expansive one than what we have today, which is why the utilitarian arguments about IP tend to come from its critics. The liberal economist Dean Baker, for example, while conceding that copyrights provide an incentive for creative work, dismisses them as “an extremely inefficient mechanism” for achieving ends that could be better accomplished through direct government support of creative work.
Why it is difficult (impossible?) to smash capitalism
On the one hand, this identifies something real. There is a narrow consensus, which sharply defines the things that can or cannot be spoken of by Serious People. Coercion is of course, an important element of how the system survives. But the language here suggests a seamlessness, and a level of shared intention and planning on the part of the “rulers of the world” who have “constructed” and “designed” this system that seems to me implausible. Many of the most important features of modern capitalism have less to do with conscious coordination than with unconscious synchrony. Graeber, it seems to me, radically overestimates the extent to which monetary systems and debt arrangements are the product of conscious design. Furthermore, his apparent contention that the system rests on people’s fears, despair, and desire for conformity systematically ignores the possibility that many people like monetized relations, and that sometimes they have good reason to prefer them over the more embedded forms of interaction that Graeber thinks are preferable.
Henry Farrell, as part of a symposium reviewing David Graeber’s new book Debt: The First 5,000 Years. Bertram is right, and his analysis flies in the face of another participant in the symposium, Malcolm Harris, a smart young anarchist who believes The Revolution will come in the next 2 to 10 years. I think Harris is not alone in his optimism, but this strand of the left faces a simple problem – what does it mean to overthrow capitalism? Did capitalism “overthrow” feudalism? How can we smash and replace wholesale a web of uncoordinated social relationships that now span the globe?
To be aware that capitalism is largely uncoordinated and highly complex, with supporters up and down the chain of the hierarchy, is not to surrender to its inevitability or even suggest that gradual reform is the only answer. Sometimes capitalism did smash feudalism: nouveau riche mercantile interests jockeyed with landed aristocrats for power in politics and in bloody civil wars, and early modern European states “opened markets” in the Third World at gunpoint. But this isn’t the whole story: the rise of finance, joint-stock corporations, wage labor, and an exchange-dominant economy is also a story about changes in social and economic relationships growing in the interstices of the old order. Cities increasingly became sites of long-distance trade, and the finance institutions that necessarily accompanied them; manufacture emerged first in the home, and then in factories; laws and political formations changed to accomodate atomized citizen-workers rather than class-bound peasants, artisans and gentry.
All this is simply to state that leftists who envision the possibility of a better world must do more than agitate for the overthrow of the state. We must build, as well.
In 1820-1850 our courts felt in general a freedom and duty to move in the manner typified in our thought by Mansfield and Marshall. “Precedent” guided, but “principle” controlled; and nothing was good “Principle” which did not look like wisdom-in-result for the welfare of All-of-us. In 1880-1910, on the other hand, our courts felt in general a prime duty to order within the law and a duty to resist any “outside” influence. “Precedent” was to conrol, not merely to guide; “Principle” was to be tested by whether it made for order in the law, not by whether it made widom-in-result.
…
[I]t is plaint to see that the two earlier period-styles represent also two eternal types of human being. There is the man who loves creativeness, who can without loss of sleep combine risk-taking with responsibility, who sees and feels institutions as things built and to be built to serve functions, and who sees the functions as vital and law as a tool to be eternally reoriented to justice and to general welfare. There is the other man who loves order, who finds risk uncomfortable and has seen so much irresponsible or unwise innovation that responsibility to him means caution.
Karl Llewellyn, Remarks on the Theory of Appellate Decision
The Nature and Purpose of Resistance
We must continue to resist, but do so now with the discomforting realization that significant change will probably never occur in our lifetime. This makes resistance harder. It shifts resistance from the tangible and the immediate to the amorphous and the indeterminate. But to give up acts of resistance is spiritual and intellectual death. It is to surrender to the dehumanizing ideology of totalitarian capitalism. Acts of resistance keep alive another narrative, sustain our integrity and empower others, who we may never meet, to stand up and carry the flame we pass to them. No act of resistance is useless, whether it is refusing to pay taxes, fighting for a Tobin tax, working to shift the neoclassical economics paradigm, revoking a corporate charter, holding global internet votes or using Twitter to catalyze a chain reaction of refusal against the neoliberal order. But we will have to resist and then find the faith that resistance is worthwhile, for we will not immediately alter the awful configuration of power.
- Chris Hedges, Zero Point of Systemic Collapse
One of the Problems of the Media
What is interesting is that Davidson, like most reporters on the money beat–hell, like most reporters on most beats–has but the barest grasp of what the thing he reports on actually is; his Wall Street is just a sort of vague metonym for all things having to do with money; imagine a sports reporter conflating the Nordic combined with the NFL with the NCAA Men’s Basketball tournament with Formula One and you get some sense of how these pieces read to a person even marginally interested in the subject.
- IOZ, on Adam Davidson’s (muddled, error-ridden) puff piece on Wall Street.
The remaining question is: what accounts for Kickstarter’s popularity among the hip progressive left? How can we account for the strange coincidence of left countercultural values with a business model that would make all but the most hardened Objectivist blush? The short answer is that Kickstarter embodies what I want to call “Good™ values”, after the magazine, web site and infographic emporium that was founded in 2006 that describes itself in the following way:
“In a world where things too often don’t work, GOOD seeks a path that does. Left, right. In, out. Greed, altruism. Us, them. These are the defaults and they are broken. We are the alternative model. We are the reasonable people who give a damn. No dogma. No party lines. No borders. We care about what works–what is sustainable, prosperous, productive, creative, and just–for all of us and each of us.”
It’s no accident that this is the same Third Way center-left post-politics of the mid-90s. The founder of the magazine is 20-something Ben Goldhirsh, the son of the founder of Inc., a magazine that focuses on entrepreneurs and start-up companies. What this amounts to is progressive cultural politics married with neoliberal capitalist economic policy, but opposed to the bad (and boring!) corporate capitalism and instead favoring the dynamic, exciting capitalism of innovation and creative destruction.
The magazine has very positive and supportive coverage of Occupy Wall Street, because people with Good™ values have no problem with a certain kind of anti-capitalism, the kind that implies that the problems are not with the system itself, but with the people in charge. Those people have the wrong values — they’re greedy and selfish and have no goals in life except making money. They’re the problem. What we need are people who have a social conscience, people who live for meaning and beauty, people who care about Darfur and the environment; poverty and education and health care; vibrant communities and public transit.
On Kickstarter as an a model of parasitic capitalism, wearing the clothes of social justice.
The broader, and more important question: is it at all worthwhile to pursue a more humane capitalism? Is it too late?
The Relevance of Scholarship to Social Change
It can go in any direction – you can have horrible right wing fantasy utopias realised in some cultures, extreme patriarchal ones in others, and so on and so forth. But I think we need to start thinking about history. Radical social movements, revolutionaries, reactionaries and all those things we’re familiar with in contemporary politics weren’t invented two hundred years ago. We’ve been taught that they were – that right and left suddenly came into being, and that all these revolutions suddenly started happening, in the middle of the eighteenth century. But I think they’ve actually been happening for thousands of years, it’s just that we don’t have the language to describe them.
- David Graeber interviewed in the White Review: on anthropology, anarchism, and more. He touches on how his ethnographic investigation of the Malagasy people of Madagascar, his recent survey book on the history of debt and money across societies, and Occupy Wall Street are connected.
What Meaningful Survival Requires
Law students are threatened neither with death nor the whip, but modern society has imposed quite effective facsimiles in the form of competitiveness needed to get into law school, the ambition and determination to do well, and the sense that success will be aided by accepting attitude toward whatever does or doesn’t happen to you during the process of learning law.
The goal is to get a degree, to avoid all confrontations with persons of authority, and to defer service activities and good works until you are established in your practice. Of course, in most cases the avoidance and deferment become a life-time pattern that, as with slaves, continues naturally and without thought long after the original motiviation is forgotten.
Your fear is not of death but of failure. Your chains are forged, not of iron, but of the magnetic force of money, status, and professional acclaim. These fetters can be as effective a restraint on liberty as was the slave’s desire to live and avoid the lash. But wealth and recognition are not the modern equivalent of the freedom sought so fervently by African slaves. Meaningful survival – as slaves like Nat Turner, Harriet Tubman, Gabriel Prosser, and Frederick Douglass learned – requires risk, confrontation, and revolt.
- Derrick A. Bell Jr., The Law Student As Slave
Kinds of Left Practice
In the law school context, and more specifically in the U.S. law school context, because that’s the only place I have any idea of what might be possible, my sectarian thought is that there are two kinds of left practice to focus on. One is producing polemical but tightly reasoned analysis and alternatives that are clearly to the left of what American liberals are now willing to contemplate. The other is to help students resist and colleagues resist cooptation into the training machine of the American regime.
The first requires the analysis of the larger society’s political dynamics, which include things like the war but also like the incarceration rate for African Americans in the United States. It includes things like the fate of minimum-wage workers and illegals. Not just those things: absolutely every policy issue on which there is a division and as yet no well argued left position, or just one position where there should be several left positions.
At this level, the idea is to develop policy alternatives and classroom materials and teaching protocols that will reinforce the liberals, and also establish a presence on their flank to keep them honest. This is a classic left intelligentsia role, which we can play in the United States, and in a few other countries, just by virtue of the relative centrality of law schools in the policy apparatus of the regime.(Of course, there are many places where it’s not a meaningful option.)
We can play a second counter-hegemonic role, because we are situated not just within a policy generating apparatus, but also within a cadre training operation. The complexly oppressive American system, with its enormous power to draw people into it, is also based on the training of its elites. Law school is not a site for mass movements; law school is a training ground for the elites who manage and develop and produce the system that we are against. Law school is training for hierarchy; law school is a place where the Hessian mercenaries train to carry arms against the revolutionary forces. At the same time that it’s a source of policies, it’s a source of personnel.
It builds consciousness, a way of being that makes you a willing participant.
It makes you a bought-in person who is doing the work of the system and enjoying the rewards of rulership, administering disastrous policy for yourself as well as for other people. That is a psychological enterprise; it inculcates a way of being in relation to the state; a way of being in relation to power in general, and it’s taught in law school classrooms. Not today in the brutal Socratic mode of the 1960s but in a much more seductive, in fact, mind-numbing mode. The new, nicer mode is just as much a mode of recruitment, of intra-elite solidarity, as the old hazing mode was, and we can resist this one, too.
– Duncan Kennedy, Teaching from the Left in my Anecdotage
For Jobs AND Leisure (or, Against “Against Job Creation”)
Peter Frase comes to the defense of leisure and rebels against the idea that the left should be rallying around jobs. Although we share some commonalities that are worth noting, I think Frase is way off base. I think the case is clear, though somewhat counterintuitive, that we need to create jobs in order to achieve greater leisure.
Frase argues that the Left has placed too much weight on the value of work, and that we should orient ourselves toward promoting income for all irrespective of work. I think there’s a lot to this, actually, and he raises one good set of examples in describing the many arenas of socially valuable but unpaid work – from traditional categories like child-rearing, keeping house and taking care of the elderly to editing Wikipedia and working on community gardens. He suggests that the organized Left should bring back the call for a shorter work week and focus on promoting greater income security (he never explicitly proposes this, but I would suggest a small Universal Basic Income for everyone). I want those things too! Unlike Frase, however, I think the best way to protect socially valuable unpaid work and to create the conditions for demanding more leisure time is to get back to full employment.
One of the most important, and most frequently ignored elements of high unemployment is the suffering employed people experience during these periods. During high unemployment, the positional strength of management against workers is stronger, and they can squeeze higher productivity out of workers for the same pay. There’s a larger reserve pool of labor, so competition for even the worst jobs is fierce and this competition holds wages down. Workers who might otherwise be inclined to pressure their bosses for a raise or even strike over bad working conditions, will be disinclined from doing so due to the increased risk of debilitating poverty if they are (illegally) drummed out of the firm for doing so. People who are dissatisfied with their jobs will stay at jobs they hate longer, for fear of being unable to find a better job with ease.
These are not good conditions for securing greater leisure. Full employment can perhaps be understood as a kind of (metaphorical) income security – the more readily available jobs are, the less one has to fear total poverty as a result of leaving one’s current job. It means that there’s always a fallback, even if your new venture fails, or you get sick of your job and quit, or you get pressured to leave following an unsuccessful strike. If someone wants to take time off, demand a shorter work week, or detach themselves from traditional notions of success by starting a community garden, the best environment in which to do this is full employment. After all, what if the community garden doesn’t pan out? With unemployment at 4% or lower, you can always go work at Starbucks. With unemployment at 9% or higher, you’re fucked. No one will have the leverage to demand better wages and working conditions, unconditional income, or more leisure time if there’s always a desperately jobless person willing to scab at your job for less.
More on the precarious nature of life as a low-skill worker in times of high unemployment later.
