By Gordon Hull
In “Intellectual Property’s Leviathan,” Amy Kapczynski argues that both advocates of strong IP protection, and critics from the creative-commons (CC) side tend to view the state in the same way: “both those who defend robust private IP law and their most prominent critics … typically describe the state in its first instance as inertial, heavy, bureaucratic, ill-informed, and perilously corruptible and corrupt” (131-2). On the pro-IP side, neoliberal economic doctrine (she cites Hayek) view the state’s role as establishing markets and getting out of the way. The state otherwise lacks the information to decide winners and losers efficiently, and in any case, it would tend to be corrupted by political or other sectarian interests (ignore for the moment the corruptibility of markets). On the creative commons side, which Kapczynski identifies with Yochai Benkler and Lawrence Lessig, there is a tendency to adopt exactly the same view of the state: “the commons, they suggest, is a concept that seeks not only to liberate us from predatory and dysfunctional markets, but also from predatory and dysfunctional states” (137). As she points out, IP does present a number of obvious instances of regulatory capture, so the fear is not an irrational one. The irony behind this distancing, however, is that both views also require the state to be a functioning entity capable of creating and executing reasonably coherent policy. For the pro-IP camp, the state has to be able to administer a property regime (and a complex regulatory bureaucracy); for the commons camp, the state has to be able to do things like fund basic research through agencies like the NIH.
Kapczynski’s point is an important one, and I have only a couple of things to add. First, she notes that the commons theorists tend to treat infrastructural projects and commons-based private ordering systems in the same camp. As she notes, this is a strange move:
“Lessig and Benkler have both described public roads as critical aspects of contemporary infrastructure and also as exemplars of the commons. There is something odd about grouping public roads with Wikipedia and open-source software. Unlike these archetypal examples of the information commons, roads are funded by the state, governed by the state, and policed by the state. They are not created or maintained in any significant way through voluntary networks or decentralized social motivation” (142)
This point seems absolutely essential to me. Most importantly, it lets you distinguish between older, public-oriented biopolitics, and its newer, neoliberal variant. In an important way, and ot the extent that they conflate infrastructure with Wikipedia, the creative commons-based critiques of IP erase public biopolitics. This public biopolitics is part of what neoliberalism is trying to erase. In an earlier paper, Kapcyznski pointed to a debate between Harold Demsetz and Kenneth Arrow about IP. Arrow argued that the deadweight loss occasioned by monopoly pricing in IP suggested that IP regimes would tend to be inefficient; Demsetz argued that the incentives for innovation would outweigh the deadweight loss. Demsetz’s view has become widely adopted (a point that is also made by Brett Frischmann). This is an important transitional moment, and as we confront the relentless privatization of everything, it is important not to forget that the state was not always viewed as monolithically evil. Promoting that view has been a strategy of neoliberal biopower for a generation.
Second, both the commons-based and the pro-IP critique importantly depend on an aspect of old-fashioned juridical power: the contract. Here Kapcyzinski’s titular reference to Hobbes turns out to be theoretically fruitful, as it was arguably the irrationality of promises in the state of nature that drove social contract theory in its Hobbeisan variety from the outset. For example, Hobbes’s discussion of the foole and the distinction between in fore interno and externo behavior. The argument amounts to saying that it is rational to desire to perform a contract, but irrational to be a first-mover unless there is a state there to enforce performance (or at least, I make this argument in my Hobbes book). One might also read the games theory literature that characterizes the Hobbesian state of nature as a prisoner’s dilemma: cooperation is good, but in the state of nature, it is individually irrational. In other words, the state that protects property rights only really gets off the ground after turning promising into enforceable contracting.
That may be a bigger claim than you are comfortable accepting; for now, I just want to note that it’s generally possible to contract one’s way around property rules. Property rules function as default regulations on how we interact over goods; contract can specify how the contracting parties do so in a specific instance. In copyright, for example, there are various conditions under which a work that someone authors may not actually, legally, be considered as authored by them. Such “works for hire” are typified by those that occur during the normal course of employment: if you write code for Microsoft for a living, the odds are that Microsoft not only owns the rights to the code, but is legally its author. There is a complicated rubric that courts use to determine whether a contested work is a work for hire; the best way to get around that is to specify its status contractually. Closer to home for most people, when you “click here to accept” the restrictions on software, or DVD’s, there’s good reason to suspect that you are contracting away certain rights that you might otherwise have under IP law. This is a concern that Lessig articulated in Code, where he said that the fear shouldn’t be contracts per se, but the use of code and other ‘architectural’ features to enforce contractual or other end-runs around copyright. For example, one might imagine software that deleted itself if it sensed it was copied too many times, or (in Julie Cohen’s memorable example), a couch that disappeared if more people sat on it that was allowed by its EULA.
But the problem with creative commons is that it also uses contract to make an end run around default property rules. In so doing, it depends on both property and contract rules. After all, an author who uses a creative commons license is essentially binding herself not to enforce certain other enforceable property rights. More controversially, commons contracts both repeat the commodification of culture, and entrench a legally-questionable regime of downstream licensing. As Niva Elkin-Koren pointed out with regard to the first of these, “treating creative works as commodities protected by property rights strengthens the perception of informational works as commodities” (35). The risk to that is that creative commons might end up normatively reinforcing the regime it opposes. Elkin-Koren:
“Property rules do not merely define rights and duties. They further carry a normative message, announcing which values deserve protection and how. Therefore, reliance on property rights in creative works is likely to reinforce the belief that sharing these works is always prohibited unless authorized. To the extent this normative framework affect [sic] our behavior, it may distort our natural practices related to information” (36)
With regard to she second, the problem is that if I license a work as creative commons, I don’t want anyone bundling it back up and selling it, either the person who obtains it from me, or the person who obtains it from him. This third party is supposed to be bound by a contract to which he was not an original party. Here is Elkin-Koren:
“Enforcing legal obligation outside the scope of the property right against third parties, could subsequently lead to new forms of property. Owners could precondition the license upon behaviors that are neither related to the use of the work, nor to the use of copyright. Owners may wish to condition a license upon the purchase of another product, or license the work for non-competing uses only, or license a work provided that users would refrain from criticizing the work or exploring its innovative secrets. Should such restrictions hold against third parties?” (44)
The problem of binding third parties is that this is precisely the technique favored by digital rights management regimes, and so the legal vindication of binding third parties by contract might perversely vindicate the most egregious of DRM regimes. As Elkin-Koren says, “information cost analysis does not provide a sound basis for distinguishing between the two” (60).
Now it’s true that most users of creative commons and GPL licenses use them to signal that they are uninterested in stopping others from copying the work in question. But it’s also the case that they entrench a vision of the state and its role in establishing contracts. To step back for a moment and summarize, it seems to me that Kapczynski is onto something important here, that the role of the state generally assumed as a constant by both IP advocates and critics. If one supplements that observation with a Foucauldian power analysis, I think two further points emerge: first, that the move from IP to CC tends to further occlude the possibility of public biopolitics; and, second, that both IP and CC – but especially CC – rely on a contractual schema that is at the core of old-fashioned juridical power. At least in its Hobbesian version.*
* I think there are in Hobbes early traces of what becomes biopower. So the case is more complicated than that sentence suggests. However, the contractual mechanism is clearly at the heart of those aspects of the contract tradition which establish juridical power as a norm.
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