Once More: ‘Intellectual Property’ Breeds Confusion; Drop it

Rarely, if ever, does the term ‘intellectual property’ add clarity to any debate of substance–very often, this is because it includes the term ‘property’ and thus offers an invitation to some dubious theorizing. This post by Alex Rosenberg at Daily Nous is a good example of this claim:

Locke famously offered an account of the justification of private property, one that Nozick brought to our attention in Anarchy, State and Utopia. The account worked like this: morally permissible private property begins with original acquisition, and that happens when you mix your labor with nature, and leave as good and as much for others. Alas, this “Lockean” proviso is impossible to satisfy. Or at least it is in every original acquisition other than the case of intellectual property. Here one mixes one mental labor with nature—empirical facts about reality, including social reality. Since there are an infinite number of good ideas, the creator of intellectual property leaves as much and as good for others, and therefore has an unqualified right to what he has created.

Brian Leiter’s ownership of the PGR satisfies the most stringent test of private property I know. It’s his creation and he excluded no one else from mixing his or her labor with nature to produce a substitute for or for that matter a complement to his creation.

In light of this fact, the effort to separate him from his intellectual property owing to disapproval of his emails and posts seems rather preposterous.

It has often been proposed–most notably by Richard Stallman, free software‘s most fiery proponent-that the term ‘intellectual property’ be junked in favor of more precise usage. That is, when you are tempted to use the term ‘intellectual property’ use ‘copyright,’ ‘patents,’ ‘trademarks,’ or ‘trade secrets’ instead. Doing this would enable immediate grappling with the precise nature of the issue at hand–in each named domain there are separable legal and policy issues at play.

For instance, the granting of copyright is not the recognition of an abstract property right. It is a utilitarian policy decision–to allow the collection of monopoly rent for a limited period of time–with a very specific objective in mind: the creation of more artistic works. If someone’s copyright rights have allegedly been violated, we may begin by trying to identify the concrete expression that was supposedly copyrightable, the identification of the nature of the infringement–unauthorized reproduction or the production of derivative works–and so on. Incidentally, matters become a tad confusing because Rosenberg talks about ‘mixing mental labor with nature.’ Locke did not have ‘nature’ in mind, rather he had in mind fallow land. Which is precisely not the nature of artistic creation, where the creator does not interact with ‘fallow land’ but mixes his ideas with the ideas of others to create a new work.

In the case of the Philosophical Gourmet Report, it relies for its content on the availability of a great deal of openly available material; collation, processing, and analysis turns this into a new work–the PGR, the new concrete expression. There is indeed a copyright in the particular concrete expression of the PGR–the individual blog pages and the material in them–its author’s commentaries, analysis, and summaries. The unauthorized copying of the content of these is indeed prohibited, as is the production of derivative works–for instance, an unauthorized abridgment of his explanation of the rankings. But the current proposals aimed at changing the ‘management’ of the PGR aim to do nothing of this sort. Prof. Leiter’s concrete expressions–the current content of the PGR–remain his; he could continue to produce them, retain his copyright, and proceed as before. And indeed, an entirely new set of rankings may be produced, using the same ‘raw material’ available to the current authors of the PGR, subjected to new analysis and commentary, and thus resulting in a new concrete expression, a new set of rankings. Also copyrightable.

Analytic philosophers–who are so proud of their claims to provide conceptual clarity–shouldn’t continue to traffic in a term as obfuscatory as ‘intellectual property.’

2012’s Top Five Posts (Here, Not Elsewhere)

2012, the year that was (or still is, for a few more hours), turned out to be a busy one for blogging at this site. I wrote three hundred and twenty-four new posts, bringing the total for this blog to three hundred and fifty-five. The blog finally crossed fifty thousand views. (A humbling figure, if you think that major blogs receive those many hits in a day.)

The five most popular posts in terms of views were the following. (I don’t think these are necessarily the best pieces I wrote, which is a judgment I find hard to make in any case, but they definitely attracted some attention.)

  • David Brooks Went to a Springsteen Concert, And All I Got Was A Stupid Op-Ed: I wrote this post in response to a typical display of asinine, pseudo-profound commentary by a columnist who is an integral component of the embarrassment that is the New York Times Op-Ed page.  It was a bit silly, and I suppose could be described as satire, but really, it was a pretty straightforward reaction to idiocy. Among others, Brian Leiter linked to it, as did Bradford DeLong, and Corey Robin, and that brought in many viewers. Many thanks to you all. (In particular, Leiter and Robin have brought many readers to this site, so I owe them multiple thanks.)
  • Bill Keller Needs to Drop the Snark and Do Serious Journalism: This was an angry reaction to a New York Times Op-Ed that I found profoundly politically offensive. I have grown increasingly depressed by the state of political journalism in the US and Bill Keller’s writing on WikiLeaks at the nation’s premier newspaper summed it up for me. As a public display of confusion about the responsibility of the journalist, and the relationship they should maintain with those in power, Keller’s piece has few parallels. Glenn Greenwald and Corey Robin linked to this post.
  • On The Lack of Women in Philosophy: The Dickhead Theory: This post grew out of a long-held concern of mine that the academic practice of philosophy often betrays what should be its guiding principles, among which should be the creation and maintenance of an atmosphere conducive to open and unfettered inquiry. I find the lack of women in philosophy appalling, and remain convinced that the way male philosophers run the profession has a great deal to do with it. This post was prompted by articles by Jennifer Saul and Helen Beebee.
  • Occupy Wall Street And The Police: Why So Estranged?: In this post, I wondered why the police, who should be on the side of those protesting the 1%, are instead, so committed to doing the bidding of those that would keep them in a state of economic and political deprivation. Again, Brian Leiter cited this post.

I wrote three hundred and nineteen other posts of course (check ’em out!). Most of them sank into obscurity, but that’s quite all right. I’m still amazed that anyone bothers to read anything posted out here.

So there you have it folks. Another year awaits, and while I’m not quite sure that I will blog at the same rate as I did in 2012–primarily because I two new book projects planned (besides a newborn!)–I will continue to write as often as I can. Do stick around.

Note: I also owe thanks to all those folks on Facebook and Twitter who linked to, and shared my posts. Much appreciated.

Occupy Wall Street And The Police: Why So Estranged?

Last year, as OWS kicked off, and as New York’s Finest (and later California’s) began their usual heavy-handed crackdown on any dissent that might threaten the ruling classes, I was struck by the absurdity of it all. Once again, the plutocratic class had found a sub-class of workers–underpaid and overworked–who ostensibly should have been in sympathy with protesters of those economic and political realities that conspired to keep them in a state of perpetual economic and political subjugation, and had them do the dirty work of repressing them. Once again, a comfortable protective barrier had been built around the privileged enclaves of the rich and fatuous, manned and patrolled by those whose best interests lay in dismantling it. The best and most enduring political parlor trick was on display again, and it didn’t seem to have lost its effectiveness over the years.

No matter how long one theorizes about it, to see the game in action, to see its visceral absurdity on display is something else. There they are, the working class sons and daughters of working class men and women, clubbing, gassing, and shooting (rubber bullets at UC-Riverside, anyone?) those that have taken up cudgels on their behalf, those whose struggles, if successful, would ensure the clubbers, shooters, and gassers would be politically and economically empowered, and perhaps be able to ensure a better life for their future generations. Five months after OWS kicked off, five months after discourse about economic inequality has bubbled up in possibly more prominent spaces and forums than ever before, there is no sign America’s currently serving police have shown any inclination to hear, pay attention, and possibly join, a political struggle in their best interests.

Tragedy, farce, or some combination thereof, I think.

Last October, when I joined several thousand others in marching through Wall Street and its surrounding confines, I would often yell out to the wary and skeptical New York City policemen that stood close by, “What was your last contract like?” or “You should be marching with us” or “Wall Street won’t stand up for you” and so on. I’m not sure if any policemen heard me or cared. But that’s no way to be heard, of course. The need for communication with the police, for outreach directed at them, for the discourse surrounding OWS to be funneled directly at the police, written somehow, in a form that makes it relevant to their lived realities is greater than ever.

In a recent interview with 3AM, Brian Leiter said,

An important strategic question for the Occupy movement concerns the police. The police are, themselves, members of the 99%, indeed the 99.9%. Police labor unions remain strong, despite a three-decade long campaign against labor unions in the United States. As unionized workers, the interests of police lie with the Occupy Movement, not the plutocrats. On the day the police refuse to clear “Occupy” protesters from their sites, that will be the day the game is up for the plutocracy in America. It would behoove the Occupy activists, indeed any opponents of the plutocracy, to remember this.

This is close to being as absolutely and totally correct as any contemporary political statement could be.