On Imaginary Property

Last year, for one of my PhD classes, I ended up writing an essay1 where I criticised the notion of intellectual property. It ended up being published in Pirate Times2, which was nice, and that was—or so I thought—the end of the story. Fast-forward one year however, and some of my colleagues made the… ahem… “suggestion” that for one of the lectures of this school year’s edition of that class, I give a talk about that essay I had written.

And give the talk I did (slides). Because the students had the day filled with lectures, to avoid boring them I gave this one in a more provocative style than I might otherwise have done (and hence the name of this post—and of the talk’s unofficial title). The discussion was indeed very lively, and in fact, at times it became more heated than what I had expected. In retrospect though, I did one mistake. When arguing these things, it is usually necessary to systematically deconstruct a number of unexamined assumptions the audience naturally brings to the discussion. But because I accepted (and indeed posed) questions during the talk, that deconstruction got interrupted again again, severely derailing the course of the talk I had planned. In retrospective, I should not have allowed questions, except at the end.

Nevertheless, I am grateful for all the feedback I have received. One of most poignant remarks, was actually made by a colleague of mine, who also attended the lecture. He pointed out that I do not have all the details of how things should function if we ditch copyright in particular, or intellectual property in general (which is correct); and thus I should not outright dismiss them, at least not before being able to provide a suitable alternative. This last part however, is not correct, and here is why.

As far as I can tell, all individual rights are (or can be thought of as) restrictions on the behaviour of everyone else (other than the individual in question). Thus my right to life is a restriction on the behaviours of everyone else, prohibiting them from depriving (or attempting to deprive) me of my life. The same is true of freedom of speech—it is a restriction that prohibits behaviours from everybody else (historically this meant governments), aimed at silencing me whenever they don’t like what I am saying—freedom of religion, and so on.

Put another way, one individual’s rights are always abridgements on the liberty of others. But it falls on the proponents of a given right, to show that the corresponding abridgement of liberty is necessary. It is not those whose liberty is to be putatively abridged that need to show why it ought not to; or that have to provide “suitable alternatives”. Historically this has always been so; in fact J.S. Mill’s influential essay, On Liberty, which I quoted in the lecture, was written precisely to justify why the rights he supports should indeed be implemented. Just to mention one example, he defends the right to freedom of expression, not because the State—that in 19th Britain was the major threat to that freedom—had failed to show that it had any reason to suppress it, but rather because said freedom is vital to the full development of the individual, and that this is sufficient to justify limiting (restricting) the State’s actions in this particular regard.

Back to copyright and ilk, if they are to be construed as author’s rights, then it falls on the proponents of said rights to show why the rest of us should tolerate the corresponding abridgements of liberty—and most definitely not the other way round! Insofar as I know—and yesterday’s lecture seems to have confirmed it—that reason boils down to economics: how should authors make money, without the aid of copyright et al.? I attempted to show, on both the lecture and the essay, there’s mounting evidence that that would not be a problem at all. And thus there is no need whatsoever to abridge anything. But since we are talking about rights, I might as well address the deeper flaw afflicting that copyright-because-economics rationale.

“Author rights” such as copyright are, unlike their moral rights, established for the sole purpose of enabling (or easing) business transactions. But their effective enforcement can only be done by trampling over far more fundamental rights, two of which are the right to privacy and the right to due process (if the reader disagrees, please feel free to provide an effective counterexample enforcement mechanism; I know of none). The usual retort to this is to say that we need to find a “balance”, between the interests of authors and friends, and the rest of society that would like to maintain said fundamental rights intact. This is however, woefully misguided—and I can show so by recalling a similar, albeit far more extreme, example of the same reasoning, that took place in the Southern states of the U.S., in the early-to-mid 19th century.

Back then, the economy of those states was largely based on slave labour. When the Abolitionists began propagandising the, well, abolition of slavery, what did the defenders of the status quo (meaning slavery) replied? That «the sudden end to the slave economy would have had a profound and killing economic impact in the South where reliance on slave labor was the foundation of their economy. The cotton economy would collapse. The tobacco crop would dry in the fields. Rice would cease being profitable»3. This seems outrageous to us today, because we hold the right to freedom to be so fundamental, that it vastly outweighs any economic considerations. In other words, freedom comes first, and if that damns business, then so be it. But if, for some reason, one were to become convinced that freedom actually isn’t that fundamental, then the argument espoused by the Southerners suddenly becomes a lot more palatable.

And that is precisely the problem with the thesis of “finding balance” between authors and society at large. It seems palatable, only because most of us still do not realise how much the enforcement of those “IP rights” imperils rights that are far, far more fundamental. Maybe this is because the net and computers are still relatively new mediums; but be that as it may, those rights should not be sacrificed for the mere sake of economic convenience. And if that damns business, then so be it. In fact, even if that damns culture, so be it. Or just much cultural enjoyment do you think you will have when we are all living in a privacy-less 1984-style world?

Thankfully though, we need not face so bleak a choice. We can have both culture, and the freedom to enjoy it. To be sure, we seem to be going in a direction where cultural proliferation is increasingly less likely to yield good ancillary businesses (think selling copies of stuff). But that proliferation, that development of our collective culture, will continue, there is every indication, long after these intellectual property things have become but mere footnotes in the annals of history.

So, to sum up, I indeed do not have the complete picture of how the post-copyright-et-al world will look like; but that is no excuse for us not to ditch the bloody mess.

PS: If the reader is about to object that most of the objections I put forth above only apply to copyright, I concede as much. This is because, I suspect, as he was talking about intellectual property, my colleague whom I refer to above must have been thinking about copyright. Yet another folly that results from using the redundant and misleading notion of intellectual property… (and if you’re wondering where the adjectives come from, see footnote #1).

Late 2016.

  1. folliesIP.pdf

  2. https://piratetimes.net/intellectual-property-is-not-real-property/

  3. http://www.ushistory.org/us/27f.asp