Subject: Re: The term "intellectual property" considered useful
From: Thomas Lord <lord@emf.net>
Date: Wed, 24 May 2006 08:56:50 -0700

David H. Lynch Jr. wrote:
> Thomas Lord wrote:
>   
>> Mr. Rose does more than recount history.  He begins and ends
>> with trying to problematize those very questions: what is an
>> author?  Exactly what is literary property?   With
>> disappointingly little argument he begins to wind up with:
>>
>>  "[Copyright] is also an institution built on intellectual
>>   quicksand: the essentially religious concept of originality,
>>   the notion that certain extraordinary beings called authors
>>   conjure works out of thin air."
>>     
>
>     Actually, I think that might be an astute observation.
>
>   
It may or may not be but that is not the point.

The quote is part of the conclusions of the book.  It is supposed
to follow not from general principles or external knowledge
but from the arguments laid out in the book.   The arguments
in the book show problems with the concepts of originality
and the author, but not problems so deep as to justify terms
like "quicksand" and "religious".


>     The development of technology - printing presses and publishing
> broke the artificial limitations previously limiting the spread of
> knowledge and information.
>     The Law stepped in to create a replacement for the previous physical
> impediments to copying.
>     Technology today has made another order of magnitude shift reducing
> copying and dissemination costs to near zero.
>     And the Law is once again trying to step in to restore the status quo.
>
>   
More precisely, at least as I see it (in part based on Rose's "Authors and
Ownership"):

The printing press was invented, giving rise to a new commodity
(the printed word).

Censorship was implemented in the form of licensing a
particular guild of printers, who colluded, thereby immediately
creating a cartel that was engaged in price fixing for the new
commodity.   Book selling became a very lucrative business.

As censorship was relaxing a bit, appreciation of market economics
was growing in sophistication.   So while the cartel was successfully
challenged and lost some pricing power, nevertheless, the state saw
fit to grant limited monopolies for particular works in order to
ensure economic incentives to book sellers (ultimately via a construction
of authorial rights).

Now we have digital information and the net.   And suddenly,
in many domains, the printing press and latter day variants like
the CD factory cease to be the choke points of the production
of the original commodity.

Many current debates (esp. DRM, net-neutrality, fair-use) seem
to me to be about this question:  is the digital network simply
the next generation press?  or is it something else?   Is the net
just the ultimate factory for reproducing the commodity?  Or
is it the end of certain forms of commodity?

Those who see (or wish to force) the net to be the ultimate
factory are naturally pro-DRM, anti-net-neutrality, and
quite happy to throw elements of fair-use overboard to
achieve those aims.   They want (somewhat ludicrously)
to seize that factory and partition its productive capacity
among owners in such a way as to preserve some aspects
of the limited monopoly.


>     It is also interesting to note that in its original incarnation
> copyrights were intended to protect authors from publishers to the
> benefit of the public.
>   
In both literal and realpolitik forms, that's just false.   I do suggest
reading "Authors and owners: the invention of copyright" by
M. Rose.   The author comes into it, eventually, yes.

>     Now for the most part it is publishers using copyrights to protect
> themselves from the public - though that is a simplistic analysis, there
> is still some important truths in it.
>
>   
It started as the state protecting itself from publishers (while
encouraging the ones it liked).

Then it was publishers protecting themselves from one another.

Now, with the net and digital technology, are we not all publishers?
Do we not need the state to be prepared to deploy its monopoly
on violence at every point in which any one of us might communicate
with any other?   For our mutual protection, of course :-)

>     The original (or atleast to the extent that the concept of a
> copyright existed at all) right resided with the sovereign. Not the
> author or publisher. The historical flow with the evolution of
> representative governments was to the people.
>   
And that has everything to do with the invention of authorial rights
*as a supporting logic* for the economic rights of presses/book sellers.
Of course, some authors looked at this logic and quickly realized
that there's gold in them thar hills...

M. Rose, in the quote you found astute, wishes to attack that logic
but he really risks engaging in the worst kind of "post-modern lit-crit"
in the context of his otherwise very good book.   Foucault would
never have been so incautious (imo) :-)

-t