Bernie Roddy writes:

"Notes on Creative Property"
Bernie Roddy

According to a popular theory of property, you ought to receive the results of your labor, and those results are new property, your profits. For people who create things that can be sold such as movies, scripts, programs, or music, it makes sense to insist that any beneficiary of its sale be someone who invests labor toward the item’s creation, or perhaps toward its distribution. But someone who invests capital does not invest labor. Stockholders in a company do not have a claim to profits generated by new creations. An entrepreneur often does contribute labor, as does an artist. Both might persuade someone to provide capital, but any commitment to return some profit is not backed up by this conception of property. At best, it is based on a contractual relationship.Now, this labor theory of property recognizes intellectual property, but the theory is typically developed by means of examples in which the product is itself sold. For example, in old-fashioned farming the person who works the fields ought to receive the profits at the market. With intellectual property, there is not simply a product sold, but rather an idea copied, and then a product made and sold. To sell corn that one has not harvested is to take something belonging to the farmer, but to copy something one has not created leaves the original in its owner’s possession. Such duplication and sale may eliminate a market demand for the owner’s product, but competition does that, too, and any complaint cannot simply appeal to the labor theory of property. You have a right to be the beneficiary of any return on your labor, not a right to ensure that there is such a return. Whatever might justify protecting a market against the free exchange of music, it can’t be the labor theory of property.

The corporate strategy is: Own it, control its distribution, charge for its use. This motivates creative thinking designed to obtain private gain from public resources. Price is controlled by controlling distribution rather than by competitive creativity. But the distribution of goods that are held in common cannot be controlled. Thus, they are converted into private property and protected by copyright. The creator’s strategy, however, is different: Create it, protect it from theft, control its distribution, share or sell as desired. Here the labor and ingenuity are productive. The creation calls for compensation from any revenues generated and weighs against others’ profiting from it. Bare ingenuity in the manipulation of the creative work of others – whether by legal maneuver, the elimination of competition, or market savvy — does not justify compensation.

There are, moreover, legal infringements of copyright, often called “fair use” but stretching the limits of such use. According to U.S. law, whether a use of copyrighted material is fair depends on the purpose for which it is used, the creative nature of the copyrighted material, the extent and significance of the portion used, and the impact the use has on the market for the copyrighted material. But you can fail on every one of these counts and still claim fair use. Courts have ruled in favor of software companies that design emulators. An emulator produces the result of copyrighted material but in more convenient form, say by permitting you to play a video game on your computer instead of buying the console to play it on. To create such an emulator a company may have to copy the hardware code to be used in writing the software. The hardware is often that of an industry competitor. It is therefore a commercial purpose and a case of wholesale copying of code. It also introduces software the hardware maker might have developed and sold. Yet it has received legal defense on the grounds that it fosters innovation.

So let’s compare. A fair use defense by pre-trial Napster against the charge that it violates copyright was precluded for the reason that the recording industry’s market is adversely affected by such file sharing. But if the emulator for a video game is an innovation sufficiently valuable to justify infringement, why isn’t the creation of a network of music enthusiasts? The reason is that by “innovation” courts have in mind commercial competition, not democratization. No social innovation or expansion in cultural expression seems sufficient to outweigh an interest in fueling the profit motive.

Now consider the artists represented by the recording industry. They should receive compensation for their labor. What’s more, profit provides an incentive to create and share additional content. But what’s a reasonable economic incentive? What expectations of gain should be respected, and what expectations need not be? An industry answer might say that any possible financial gain expected by the artist is justified and to be protected. This subordinates the public good of communication and sharing to any economic interests. Such interests naturally include those who have no incentive to create. We need to distinguish between creation and control. Innovation in writing copyright law to control distribution does not merit the respect that innovation in creating new cultural productions does. We also need to weigh the value of a public resource against the nature of the economic interests that are threatened. An interest in financial advantage resulting from the restriction of a public good, even if it is the artistic creator who expresses this interest, need not automatically outweigh the value of the public good. I suggest we factor in the expense incurred by production or distribution to determine the limitations on how deeply into the public good a private interest in financial gain can cut. If distribution is cheap and expenses low, financial compensation need not be great. Let’s keep in mind that the underlying motive for the labor theory of value has something to do with what people deserve.

The recording industry argues that lost revenues are a result of copyright infringement. But to justify the protections it desires it has to make such losses significant, and not just in numbers. If the industry is becoming a superfluous middleman in a changing economy, the losses are comparable to companies that have to undergo restructuring or downsizing. In this light it is difficult to see such company losses as worthy of attention, much less changes in property law. The means of production are merely being redistributed, and like the steel companies two decades ago who invested in insurance or real estate, you can bet that record companies are looking for ways to turn a faster profit than by the control of intellectual property.

The industry can suggest ways to protect against abusers of copyright, but it is important to note that its proposals are subject to limitations. Consider the conflict between free speech and the protection of minors from porn. The liberty to share pornographic material cannot be restricted by just any means. Accomplishing protection does not guarantee a measure’s legitimacy if, for example, there are less invasive solutions. Parents and filters can protect children from premature exposure to adult content, and the value of discussing controversial materials in an open exchange of ideas outweighs the value of any guarantee against harm to a child. The courts have recognized this. But protections against copyright infringement face the same obstacle. We should ask: How do they affect the freedom of speech? What other means are available? What is the value of what is protected? In the 1984 court decision, Sony v. Universal City Studios, Sony was permitted distribution of VCRs in the U.S. despite the threat that consumers would use the VCR to circumvent copyright. Yet in 1998 Congress passed the Digital Millennium Copyright Act prohibiting the creation, distribution, or use of tools to circumvent copyright protection systems. Why didn’t protection against infringement justify barring the VCR? Imports of VCRs could be taxed to compensate the revenue losses suffered by content providers due to infringement. But it must not be forgotten that prohibitions on copying and sharing are themselves costs that call for “compensation”. This compares well to the idea that downstream fisheries ought to receive compensation from paper companies that pollute their streams. Today copying and sharing is not a luxury, but more like a basic liberty comparable to private library access.

Obviously, a lower market price for a product can result from innovation in production techniques, a more attractive product, or a design with functional advantages. But what if the lower price results from the nature of what is patented and its uncontrollable availability? When Monsanto patents a gene to produce a seed for corn that survives herbicides, there is an innovation and labor that would merit protection against theft. But whether this labor demands compensation from violators who use the seed depends on whether it is an innovation worthy of patenting. Would it be a patent we can reasonably ask people to respect? Compare a eugenics research program based on a human gene engineered to protect from diseases. This would not be worthy of patenting, even if worth developing. And if someone were found in violation because her child carried the gene, we would not support a suit charging patent violation. If this gene were distributed around the world free of charge, enforcing the patent protection would be absurd, not because theft of intellectual property is acceptable, but because what has been patented is not subject to reasonable measures of control.

And yet, the industry is devoting great resources to digital rights management technology. These efforts include exploring encryption technologies to control online access on the model of “pay per view” cable television. Meanwhile, telephone companies that enter the video programming market are lobbying for legislation that would open local television markets to content providers without the requirement that companies sign licensing agreements with local government. Such licenses have traditionally enabled local officials to require cable companies to underwrite cable access stations and facilities that the local community could then use to broadcast programming addressing local concerns. Such programs are produced and broadcast by citizens in the absence of a profit motive, and broadcast use serves democratic principles rather than market mechanisms.

The new broadcast legislation is intended to eliminate this role played by public interest representatives, who are portrayed as illicit private enterprises providing the same, though more limited, content without the need to respond to changes in demand. Local authorities, as representatives of private corporations with an unfair advantage, are represented as not having to work under the constraints that are imposed by competition. The various licensing agreements that have to be signed to reach different local markets are perceived as an unfair advantage for the local provider. This removal of local public interest as a mere obstruction to the expansion plans of large media corporations is consistent with the reduction of online access to the pay per view model. It takes a public resource – the television airwaves – and converts it to private property in order to control distribution and charge for access. The fate of the Internet closely resembles that of television in this respect.

Of course, to obtain capital sufficient to foot the bill of producing competitive video content, a corporation has to control distribution. Competitive content requires large allocations of resources, as any movie budget will attest. But the reason such content is competitive is not that it is more worthy of distribution. And it is important to realize that where the Internet and music are concerned, the production expenses and the standards for quality no longer support control of distribution. No large production expenses need to be recovered, and any such expenses now derive heavily from advertising and promotional costs, or even from licensing to toymakers or shoe manufacturers. So the grounds for restricting distribution of copyrighted material rest heavily on recuperating the expenses of promoting the material in the first place. None of this has anything to do with receiving the fruits of one’s creative labor as a musician or filmmaker.

It is important to remember that there is a segment of society in the U.S. where rights other than those of private property are recognized. A public servant is protected from arbitrary dismissal and prohibited from striking because the labor of someone working in the public interest has a different status than that of labor in the private sector. In the private sector labor is said to mix with private resources, the means of production being privately owned. So an employer can withhold these resources without explanation, effectively terminating the employee’s position. Here employment is sometimes called “employment at will.” In the public sector termination is not the employer’s prerogative. The labor is considered public and subject to public review.

This opens the door to inversions along the lines of rtmark.com, which embraces the value of competition in a free market, but banks on the marketability of ideas for sabotaging corporate profit that have traditionally arisen in legislative bodies. Directed at stockholders if anyone, sabotage projects do not undercut legitimate property claims, but invite an expansion of the market to include the full range of competitive ideas so that it includes those that qualify as “in the public interest”. By forcing to the surface a confusion between a legitimate claim to the fruit of one’s labor with the claim of a large corporation to its bottom line, rtmark.com exposes the way market regulations conceal a monopoly on the public sphere, eliminating conceptions of the public interest that do not incorporate corporate profit. What the copyright protection industries are faced with is the challenge of claiming property rights over things we are not accustomed to seeing as privately owned – ideas. The success of this project will depend on how well we have been trained to see corporate claims as legitimate, and that will rest on the extent to which we confuse legitimate artistic concerns over control of creative work with the prerogatives of corporations and their beneficiaries.

There is, however, another context for infringement, this one drawing on the history of civil disobedience. Critical Art Ensemble has written on “electronic civil disobedience” from this perspective. In the political philosophy of John Rawls, for example, disobedience of a law (in a just system of government) is justified as a form of speech under circumstances in which the usual avenues for redress have failed. Merely being an unjust law does not justify disobedience. Once you accept the protections of the courts, it is reasonable that you also accept the unfavorable ruling as well. We can’t expect perfect procedural justice. Given that disobedience is a violation of law designed to exercise the moral conscience of citizens, such speech could include copyright infringement. For Rawls, writing several decades ago, such speech is justified only if the person conducting it treats it as an announced statement of conscience and accepts the legal consequences. Rawls thought this was necessary if the violation were to be understood by others as not being selfishly motivated. Today we might argue that direct actions like those conducted by the Animal Liberation Front or members of the radical environmental movement, in addition to advocating physical sabotage without human injury, are clearly not motivated by self-interest, making the injunction to evade arrest acceptable. (This debate over the effectiveness of nonviolence is currently being engaged by George Lackey, who conducts workshops in nonviolent direct action (trainingforchange.org), and Ward Churchill, the author scholar of radical resistance in the U.S., who sees nonviolence as ineffective.)

And yet, suspicion lingers that this disobedience model is unsuited for our purposes. Here’s another alternative. In a pair of essays,“The Originality of the Avant-Garde” and “Sincerely Yours,” Rosalind Krauss explores the relationship between originality and duplication. At one point she suggests that the value placed on an original work of art stems from the value placed on a perceived creative moment. The identification of such a moment is what distinguishes the vintage print, for example, from a print made from a negative years later by someone other than the photographer. A vintage is closer to the inspired moment of shooting a camera. But Krauss begins the “Originality” essay by reflecting on the status of Rodin’s sculpture, The Gates of Hell, a set of three identical figures poured from the same plaster cast and commissioned by the state of France. Never actually cast during the artist’s lifetime, decisions about the arrangement of the pieces had not even been finalized when Rodin granted the state the rights to pour originals. The first was produced several years after his death in 1918 and another was poured in 1978. In 1920 there was a scandal involving unauthorized bronze casts of another work by Rodin. The question then arises, what distinguishes a genuine original from a fake if each comes from the same cast? The state determines that only 12 originals can be poured and the 13th will therefore be an unauthorized “copy” of a nonexistent original. Suddenly “copyright” is a misnomer.

This peculiar case exposes the fact that a legal right to control the number and distribution of copies can also appear as a right to produce originals by proxy in arrangement with buyers. As a consequence, the role of property appears incidental to the more fundamental question of authorship. It may therefore make more sense to undercut, as Krauss does, the esteem placed on authorship and originality than to struggle over establishing rights to property. Such a shift replaces the rules of engagement preferred by business interests with others aligning artists with other activists, but it also strikes at the very heart of modernist creative sensibilities. On this approach, corporations can be said to be operating on the assumption that creativity is a renewable public resource, like water or air. And as in other areas in which this is the role of industry, there is a kind of pollution at issue, as well as a concern that available resources are being “exhausted.