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Property, and theft
September 7, 2013 10:10 AM   Subscribe

With roots in the laws of seventeenth and eighteenth-century England, intellectual property protections go back to the beginnings of capitalism itself. The online magazine Jacobin recently featured a three-part series tracing the history of property law and its contemporary manifestations.

For at least a decade, legal scholarship on gender bias in intellectual property rights has acknowledged the engagement of almost no one. Every academic paper published notes how small the field is; each researcher cites the two or three others they can; conferences feature the same key figures annually. Intellectual property rights is not a policy area to which women have paid much attention; nor have their cheerleaders, feminists.

Widespread feminine disinterest in this particular form of law is matched nearly equally by its disinterest in women. Current and historic protection under intellectual property legislation has restricted access to economic and cultural viability along gender lines. In recent decades, similar bias has been found and corrected in civil rights, family and employment law, and domestic violence legislation. IP laws sit at the crux of several debates raging right now: concerns regarding women in the literary arts, for example, and the wage gap. The paucity of strong female roles in TV and film. Gender bias in post-recession job hiring. The skimpy costumes of female characters in comic books. The global economic condition of women.

Degendering Value: Gendered conceptions of credit and reward are written into the structures of intellectual property law

The state’s current approach to intellectual property has come under scrutiny of late, as its disconnect from anything that might have once legitimated it has become more and more obvious. The activities of rent-seeking patent trolls, who accumulate patents solely for the purpose of filing lawsuits, have been highlighted by National Public Radio’s “Planet Money” program. And the absurdities of strict copyright enforcement are apparent in the life-destroying legal judgments leveled against small-time downloaders — $220,000 against Mille Lacs Band of Ojibwe employee Jammie Thomas-Rasset for twenty-four songs, $675,000 against college student Joel Tenenbaum for thirty.

Faced with these outrages, it’s tempting to demand the immediate destruction of the entire edifice of patent and copyright protection. All the more since intellectual property compounds the general socialist discomfort with private property, because the right it encodes is such an expansive one. No longer just the right to control a particular physical space or object, it abstracts the property form into the control of patterns and processes, wherever and whenever they appear. Instead of owning a book or a factory, the intellectually propertied class controls all copies of the book, and all implementations of the production process within the factory.

Property and Theft: The overthrow of all intellectual property leaves unanswered the question of how to control the exploitation of the cultural commons by digital capitalists

In late June, soul musician Stevie Wonder flew to Morocco to perform at a diplomatic conference for the World Intellectual Property Organization. Conference delegates were signing a treaty granting small exceptions to international copyright protections, improving access for blind and visually impaired persons. Wonder said the treaty was important because it helped “information to be accessible forever,” and it demonstrated “that it is possible to do business and do good at the same time.”

Business leaders disagreed with this “Ebony and Ivory” vision of harmony and social justice. For months, organizations like the Intellectual Property Owners Association had urged American trade representatives to reject the treaty because, “despite substantial differences between copyrights and patent protection,” allowing this exception might open the door to needy countries or people pleading exceptions for clean energy technology or pharmaceuticals. It would “threaten to upset the fundamental balance on which our US and global IP system is based.”

The reference to “balance” here demonstrates that while piracy may occasionally be radical (see Gavin Mueller’s “Gimme the Loot,” from Jacobin, 7-8), copyright as a system is largely reactionary. Though “balance” can refer to the more utilitarian emphasis copyright is given in the US Constitution — a limited-term monopoly to “promote the useful arts and sciences” — in the mouths of the propertied elite, “balance” generally means that while they are willing to consider marginal tweaks to these arbitrary protections, they basically want to maintain the status quo in terms of property and power.

Locked Out: With roots in the laws of seventeenth and eighteenth-century England, intellectual property protections go back to the beginnings of capitalism itself
posted by whyareyouatriangle (9 comments total) 30 users marked this as a favorite

 
A Throng of angry Ghosts that next drew near,
Large as a Persian army did appear;
Each to the rest show'd Envy in his Looks,
Some Writings in their Hands, some printed Books.
The learn'd Contents of which they knew no more,
Than the Calves Skins their sundry Volumes wore,
Down from the bulky Folio to the Twenty-Four.
As they press'd on, confus'dly in a Crowd,
Piracy, Piracy, they cry'd aloud,
What made you print my Copy, Sir, says one,
You're a meer Knave, 'tis very basely done.
You did the like by such, you can't deny,
And therefore you're as great a Knave as I....
Printers, their Slaves, b'ing mix'd among the rest,
Betwixt 'em both arose a great Contest:
Th'ungrateful Bibliopoles swoln big with Rage,
Did thus their servile Typographs engage:
You Letter-picking Juglers at the Case,
And you Illit'rate Slaves that work at Press,
How dare you thus unlawfully invade
Our Properties, and trespass on our Trade.


E. Ward, A Journey to Hell (Part II) (London: n.p., 1700), Canto VII
posted by fifthrider at 10:16 AM on September 7, 2013 [2 favorites]


Here, the contemporary defense of copyright emerges as what it really is: a defense of property rights more generally. Intellectual property rights help corporations maintain a social division of labor and power on an international scale, relying on profits derived from complex commodity chains

I wonder if currency itself is perhaps one of the historically oldest copyrights, albeit State-owned, where the State essentially grants itself a monopoly on all the intellectual property involved with the design, metallic content and minting/manufacture of coins.

While it caused inflation, counterfeiting was allowed during the Roman Empire in order to keep trade and the economy going. According to this article, other commercial products like bricks and tiles were stamped with their makers' marks, and copying was punished by others in the market, instead of by the Roman government.

Interesting to contrast with today, where most counterfeiting and other copyright violations are punished on the level of violent crimes, but a subset remain outside the law, like in the fashion industry, where copying designs will only very rarely land you in court, where you will likely instead get labeled a hack and punished commercially by others within the trade.
posted by Blazecock Pileon at 11:02 AM on September 7, 2013 [1 favorite]


I wonder if currency itself is perhaps one of the historically oldest copyrights, albeit State-owned, where the State essentially grants itself a monopoly on all the intellectual property involved with the design, metallic content and minting/manufacture of coins.

I think the critical difference there has to do with the purpose of money, whether fiat currency or specie, in the economy. US currency is often marked with the notation that it constitutes "legal tender for all debts, public and private." This proclamation reflects not only the notion that currency enjoys a privileged position in terms of its recognition by the government, but the fact that each amount of money, no matter what smaller notes and coins make it up, is expected to be treated as facially equal to each other equal amount of money.

If you were to erode that, for instance by returning to a crude precious metal standard where the government did not enjoy a monopoly on currency, but rather minted coins purely for the purpose of stating a guarantee of their weight and chemical content, you'd experience a concomitant return of the woes of premodern monetary systems.* Coin debasement, for instance, only works because the ultimate value of the coin is based on its content, rather than its face value. In fact, because of shifting metal prices and increased industrial demand for copper, we're already starting to see problems with our lower-denomination coins exceeding their face values.

In short, mess with the notion of currency as a monopoly good and people begin to stop taking your currency at face value - instead, it becomes another ordinary good, with a far less stable value. This impedes the efficient transaction of business and trade by introducing information inequalities between consumers and metal traders. Moreover, each transaction gains a second side: in addition to negotiating the value of the good in question, you also have to negotiate the value of the currency. That's just a bad scene all around.

tl;dr: Some things deserve vigorous IP protection because that IP protection preserves a public good. Money is one of these things. MP3s probably aren't.

*In addition to the other, better known problems of inflexibility and volatility associated with metal-standard currencies.
posted by fifthrider at 1:28 PM on September 7, 2013 [2 favorites]


Not a lot of comments for a post that requires reading something subtle first.

So this is to say thanks for the interesting post!
posted by spitbull at 3:38 PM on September 7, 2013 [1 favorite]


Hey this might be a good place to ask. I recall reading an article online years ago, about the origins of copyright in France. It discussed how pirate publishers copied and republished whole books with impunity, and then mentioned how copyrights were applied to songs to prevent other performers from using them. This far pre-dates the Statute of Anne. Does article this ring a bell with anyone? I have been searching for this article for years, I can't find it.
posted by charlie don't surf at 9:00 PM on September 7, 2013


I'm not familiar with the specific article you're referring to, but if you want to read about the origins of piracy, Adrian Johns' monograph on the subject is the most comprehensive and entertaining source I've found to date. (It's where I got the blockquote I borrowed upthread from.)
posted by fifthrider at 9:26 PM on September 7, 2013


I wonder if currency itself is perhaps one of the historically oldest copyrights, albeit State-owned, where the State essentially grants itself a monopoly on all the intellectual property involved with the design, metallic content and minting/manufacture of coins.

This seems a bit nonsensical to me.

The states role in creating money was as a guarantee of its value and the ability of an individual to pay taxes using the state minted coin. Originally Banks were free to print their own coins (and later notes) but there was no guarantee that these would be accepted for "payment of taxes" to the state.

You also had this huge problem where banks would print a bunch of notes and then run off with all the deposits. (ie look at history of the proliferation and chaos of Banking in the USA before the Federal Reserve).

This is a completely different notion to copyright in a work of art as far as I see it.
posted by mary8nne at 2:40 AM on September 8, 2013


The Surprising History of Copyright and The Promise of a Post-Copyright World
posted by Noisy Pink Bubbles at 8:54 AM on September 8, 2013 [1 favorite]


tl;dr: Some things deserve vigorous IP protection because that IP protection preserves a public good. Money is one of these things. MP3s probably aren't.

No disagreement, in principle. Just questioning the history this article presents and noting with interest how the legal situation has become, perhaps, more punishing.
posted by Blazecock Pileon at 12:20 PM on September 8, 2013


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