Property As Legal Construct

Property appears an abstract, transcendent, metaphysical concept from afar but on closer inspection reveals itself to be legally constructed. Like ‘person,’ property obtains its philosophical traction from a legal, economic, and social imperative to distribute resources, and thus, wealth and power.  As a canonical legal textbook puts it, the “property system” that results from a particular set of legal arrangements can “order relations”; it can “confer benefits and impose burdens.” The law describes how it is acquired by discovery, capture, creation, being found, adverse possession, and gift. These accommodations of property are so fundamental that property is written into our conceptions of ourselves, in claims that “every man has a property in his own person.”

This taxonomy of ways of acquiring property highlight particular modes of interaction with the world in terms of their property creation properties: ‘this way of interacting with the world counts as an acquisition of property if it meets the requisite legal conditions’; the workings of the common law of property are refinements, over an extended period of time, of these interactions. Law thus provides a specification of the conditions under which humans interact with the world to bring property into being, and how other humans should accordingly interact with a world in which property exists, if they are to avoid particular consequences arising from regulations that preserve the categorization of particular objects as property. (Computer software—in its binary and text forms—had to be legally demarcated as ‘ownable’ and ‘copyrightable’ before it could be termed ‘property’ of any kind.) These consequences could, for instance, interfere with ends and purposes served by the provision of private property. The law of property demarcates a range of possible actions and restrictions on our freedom; various pushings, proddings, and pokings of the world become illicit because they may constitute, for instance, ‘trespass on chattels.’ This categorization of the world into property and not-property acquires ontological significance: property becomes part of our socially constructed reality, reconfigurable if social needs change.

Property is not discovered; it is made, not by the act of mixing labor with supposedly ‘fallow land,’ as Locke would have had it, but by the scaffolding provided by the surrounding legal system. Property is a wholly positivistic legal concept; it makes a supposedly natural right ‘real’ and acquires its ontological weight from law. The legal conceptions of property are indifferent to the kinds of property system they create: different sets of rules create different systems, with different balances of power for owners and others; such allocations of property might lock in and preserve existing power relations.

The best justifications—philosophical ones—for system of property are pragmatic, outcome oriented ones. There is no ‘natural’ or ‘objective’ independent basis upon which to rest the ‘protection’ of property:

The property concept had no determinate meaning or positive content. It was a contingent decision whether the owner of the factory machinery should also own the products of the factory, or whether the owner also should control the management of the plant. [Gary Peller, The Metaphysics of American Law, 73 Cal. L. Rev. 1151 (1985)]


Apple’s ‘Code Is Speech’ Argument, The DeCSS Case, And Free Software

In its ongoing battle with federal law enforcement agencies over its refusal to unlock the iPhone, Apple has mounted a ‘Code is Speech’ defense arguing that “the First Amendment prohibits the government from compelling Apple to make code.” This has provoked some critical commentary, including an article by Neil Richards, which argues that Apple’s argument is “dangerous.”

Richards alludes to some previous legal wrangling over the legal status of computer code, but does not name names. Here is an excerpt from my book Decoding Liberation: The Promise of Free and Open Source Software (co-authored with Scott Dexter) that makes note of a relevant court decision and offers arguments for treating code as speech protected under the First Amendment. (To fully flesh out these arguments in their appropriate contexts, do read Chapters 4 and 5 of Decoding Liberation. I’d be happy to mail PDFs to anyone interested.) Continue reading

Descartes, The Planned City, And Misplaced Philosophical Desires

In Part 2 of Discourse on the Method of Rightly Conducting the Reason and Seeking for Truth in the Sciences Rene Descartes, as a prelude to his ‘clearing away’ of prior philosophy, writes:

[T]here is very often less perfection in works composed of several portions, and carried out by the hands of various masters, than in those on which one individual alone has worked. Thus we see that buildings planned and carried out by one architect alone are usually more beautiful and better proportioned than those which many have tried to put in order and improve, making use of old walls which were built with other ends in view. In the same way also, those ancient cities which, originally mere villages, have become in the process of time great towns, are usually badly constructed in comparison with those which are regularly laid out on a plain by a surveyor who is free to follow his own ideas….we understand how difficult it is to bring about much that is satisfactory in operating only upon the works of others.

Interestingly enough, as the examples of Chandigarh, Brasilia, and Canberra show, the planned city, built from scratch to purpose, the product of a singular architectural vision, is very often a counterpart to the bustling, chaotic, cosmopolitan cities whose growth has proceeded, at best, along an entirely haphazard trajectory.The ostensible beauty of the planned city’s design has not compensated for its lack of history, the absence of accretions of culture and lives lived within its precincts; the planned city gets off the ground with little interference from what came before, but it does not encourage riffs and improvisation. The planned city offers a gleaming surface and little else; it lacks the blemishes that speak of a rich interior. It has set itself apart, and there it shall stay. (No offense is intended to the residents of these cities; still, I think they would agree their city’s lack of a past, its ab initio origins, contribute in some measure to the contrast it offers to the great metropolises of the world.)

There is much that goes wrong with Western philosophy thanks to Descartes: the obsession with system building, the epistemic foundationalism, the quest for certainty, the alignment of philosophy with the sciences and mathematics, the appearance-reality distinction, the desire to ground truths in something beyond the human, the divorce of philosophy from history. (These sins cannot all be laid at Descartes door, of course; Plato is the original culprit for many of them.) Here, in the Discourse, we see the glimmerings of another problematic vision, one manifest in domains other than philosophy as well: that works made in splendid solitude are necessarily inferior to those made jointly with others, through acts of creative, even if sometimes clumsy and flawed, appropriation and improvisation. In doing so, Descartes reinforces–among other things–the fallacy of the lone creator, the solitary artist, the self-made man, the sole author.

Ironically, Descartes ended up generating a great deal of undergrowth that hasn’t been cleared yet (or alternatively, a foundation that still tempts too many of those who came after.)

Freud On Group Production (And ‘Intellectual Property’)

In ‘Group Pyschology’, (Standard Edition, XVIII, 79; as cited in Peter Gay, Freud for Historians, Oxford University Press, 1985, pp. 150), Sigmund Freud writes:

[A]s far as intellectual achievement is concerned, it remains indeed true that the great decisions of the work of thought, the consequential discoveries and solutions of problems, are possible only to the individual, laboring in solitude. But even the mass mind is capable of mental creations of genius, as proved above all by language itself, as well as by folk song, folklore and the like. Beyond that, it remains unsettled just how much the individual thinker or creative writer owed to the stimulus of the crowd among which he lives, whether he is more than the completer of mental work in which the others had participated at the same time.

The Grand Old Man of Psychoanalysis is, as usual, quite perspicuous here (As Gay notes in a parenthetical remark, his concluding ‘reasonable aside…joins, once again, individual and social psychology.’) His choice of examples of the works produced by ‘the mass mind’ are, in particular, telling: language, folk song, and folklore.  Without the first, there is no language to be used as the medium of expression by the novelist, the poet, the writer; no home, as it were, for them to set up safe camp and experiment, boldly, perhaps striking out where none dared have gone before. Idiosyncrasy must have an orthodoxy to pit itself against. Without the second a giant repository of sources for classical and popular music alike is inaccessible.  Bach, it must be remembered, drew heavily on German folk music for some of his most famous compositions; rock and roll owes its provenance to the blues etc. As in language, folk songs and music provide a foundation upon which many an impressive superstructure, sometimes radically different from its lower levels, may be built up. Without the third, similarly, the wellsprings of stories–long and short alike, plays, novels, dries up. The child hears these at her mother’s and grandparent’s knees; she learns them in school; and again, further sorties into territories visible, but not yet ventured into by them, are suggested.

The ‘individual, laboring in solitude’ is not denied any of the credit that is her due by her drawing upon these sources of inspiration. It is her particular and peculiar utilization and deployment of these source materials that is the cause of our appreciation and praise. Our acknowledgement of the genius’ work only tips over into fantasy–and counterproductive restraints on borrowing and creative amendment–when we imagine that her productions  issued as singular emanations from her, and only her, alone. Moreover, the true value of the genius’ contributions does not lie in the solitary splendor of her literary, visual, or musical creations; rather, it is that those creations, by being poured back into the collective cultural potlatch, become fecund sources of further artistic production for those who follow in her footsteps.

We are born into a made world; when we leave, we’ve laid a couple of bricks ourselves. With the mortar and materials of those who came before us.

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.’

Michael Ondaatje, Divisadero and the ‘Hidden Presence of Others’

Michael Ondaatje‘s Divisadero is a wise book, elliptical and allusive in his distinctive style, one replaying close, attentive reading to its many lovely, lyrical lines, too many to excerpt and note. Here is one that hones in on a truth already known to those who create:

Everything is biographical…What we make, why it is made, how we draw a dog, who it is we are drawn to, why we cannot forget. Everything is collage, even genetics. There is the hidden presence of others in us, even those we have known briefly. We contain them for the rest of our lives, at every border that we cross.

Not only are our creations the result of borrowings, imitations, outright thefts, our writings voice-overs of once-read texts, but we ourselves are composites and mosaics. We bear the impress of our encounters, the mark of those we meet; every lover, every friend, every enemy, every parent, every sibling, every teacher, leaves their stamp. Read a writer, you read everything he’s read; talk to a human, you talk to humanity.  We present a distinctive take on our encounters and our histories; we digest and assimilate and repackage–to get all industrial, just for a bit–all our inputs.  But peek around the corner of the persona presented to you and you see a long trail, stretching off into the distance, populated by people and events and markers of many kinds, literary, cultural, artistic, and sometimes even traumatic.

Sometimes these histories of ours are clearly visible; sometimes we carry them around on our sleeves, available for all to see; sometimes the scars are visible and worn with pride. But sometimes we are puzzled by the presence, within us, of something whose provenance seems mysterious. So we attempt to excavate: sometimes by writing, sometimes by looking for the nearest couch and an interpreter with a notepad.

We imagine ourselves self-made, creators of these living, walking works of art we embody. We are that to be sure. But we are aided and abetted by collaborators; those who, with their chisels, put in a touch or two here or there, or with their brushes, added a dab here, a flourish there. So there is accretion aplenty on us; layers and layers of deposited sediment, pushing down on those that came before, compressing and morphing them with their own distinctive pressures.

The texts we embody are not just read by many, they are written by many. And that couch and the interpreter can help us read it when we are confused by its contours, its plot developments; we might need a translation manual, a decrypting key. We imagine we are familiar to ourselves but precisely because of our complex histories, we might become unrecognizable in just that zone of presumed knowledge.

And thus this strangeness can be pleasurable too; we can surprise ourselves, find novelty in that which we imagined contemptuously familiar. Perhaps that is why we push ourselves into encounters with the novel, trusting that in our responses to it, we might find something else about our perfectly strange selves. 

Tim Kreider and the Problem of Too Many Writers

Tim Kreider has a very familiar sounding complaint in the New York Times. It is familiar because his article follows a well-worn template of talking about the Brave New Bad World of Free Content, and because the Times routinely publishes such Op-Eds. Like most screeds put out by what I have termed ‘the whining artist‘ it is incoherent.

This sentence is the heart of the complaint:

[In] our information economy..“paying for things” is a quaint, discredited old 20th-century custom.

You’ve heard it before: writers are being asked to write for free; no one values writing any more; writers won’t write any more if they don’t get ‘paid’. And so on. (Musicians often make similar complaints.)

This sentence though, does not inspire confidence that Krieder has the slightest clue of what he is talking about:

I spent 20 years and wrote thousands of pages learning the trivial craft of putting sentences together. My parents blew tens of thousands of 1980s dollars on tuition at a prestigious institution to train me for this job. They also put my sister the pulmonologist through medical school, and as far as I know nobody ever asks her to perform a quick lobectomy — doesn’t have to be anything fancy, maybe just in her spare time, whatever she can do would be great — because it’ll help get her name out there.

I’m guessing a pulmonologist is not in the business of producing intangible material that can be effortlessly copied and distributed at minimal cost. Furthermore, barriers to the market for pulmonologist are high: years of expensive education, apprenticeships etc. It’s a pity Kreider’s parents blew so much money on training him to be a writer; perhaps they didn’t realize that these days just about everyone and anyone thinks they can be a writer. And too many of them act on this belief.

That brings us to the heart of the matter. I too, would like everything, all the time, for free. I realize quickly enough that some things in this modern world are not free and yet others–depending on their relative scarcity–are almost free.

For instance, once I’ve paid my internet subscriber’s monthly fee, I can read unlimited amounts of political opinion; everyone has one, and everyone wants to share it with me. I can also read unlimited amounts of poetry, short stories, essays, and so on. There are, it seems, many, many writers around these days. What is it that makes the writing profession so attractive, that so many writers, according to Kreider, are giving their work away for free?

The answer, I thought, was obvious: for a while, thanks to a very particularly structured industry that grew up around it, writing made money and fame for some writers. These writers are cultural icons, giants who stalk the land. Their lives beguile us; we want to be like them. Their fame and riches made many people forget that they were exceptions, and that most writers still failed to make a living. Even the writing lifestyle began to seem glamorous: all that drinking and hanging out in cafes. And didn’t Arthur Miller hook up with Marilyn Monroe?

Writing seems easy. Why not just pull up a piece of paper and a pen and write? Or a typewriter? Or now, a word-processor? Perhaps if you get lucky, you could be admitted to a ‘writing program’ and tap into all the contacts your professors have with agents, editors and publishers?

Soon you find that many, many others have the same dream. And everyone is scribbling away furiously. So many tools to write with; so many publishing platforms; so many lives and things to write about. There’s too much to read; how will I get readers to notice me in this sea of well-crafted words?

Perhaps by ‘exposure’? Perhaps by using my writing as a ‘loss-leader‘ so that I can secure that paying gig, that big contract, that advance, that book tour, that glossy jacket photo, that writer’s cabin on a remote island? Or if not, perhaps I can get a job teaching writing at a writer’s program that turns out more writers? Or less glamorously, perhaps I could teach writing at a college to incoming freshmen? That way, my writing will have made some money for me. Not directly, but indirectly. And then I can get to hang out in cafes and call myself a writer.

Written content is not scarce; quality written content still is; writers need to get noticed. The situation that Kreider then complains about–content being asked for, and being given away for free, just to get ‘noticed’–is almost inevitable.

It would help if writers would stop thinking of themselves as God’s Gift to Mankind and instead began regarding themselves as just another species of creative ‘producers’ whose ‘content’ is not very scarce, and lends itself to easy distribution and reproduction. Interestingly enough, I don’t read too many Op-Eds by artists saying that people are asking them to make paintings for free; they never had a content industry grow up around them and hence have no reason to not think that things are just as they have always been: most artists don’t make money from their art.

Perhaps the fame and riches of the writers of days gone by was a blip in normal service, and not the norm?