Phantom Tollbooths

In February 2012, a bill called the Research Works Act was abandoned by its two sponsors, one Democrat and one Republican, and its major private backer, the scientific publisher Elsevier. The act, had it been passed, would have barred the U.S. government from mandating, as some federal agencies now do, that researchers supported by government funds make their publications freely accessible online. While researchers themselves generally support open access, private journal publishers like Elsevier depend on the protection of copyright in order to make money, which they do by selling very expensive journal subscriptions to university libraries.

This business is quite profitable, as monopolies often are — Elsevier has a profit margin of 36 percent, according to a May 2011 Economist article. And the company is not averse to engaging in various shady practices to inflate that level, pressuring academics to cite articles in other Elsevier publications (thereby increasing their “impact factor”) and even taking money from Merck to publish journals full of favorable articles about the drug company’s products.

Elsevier’s behavior is so egregious that it has provoked a boycott from academics who refuse to write or review papers for its journals. But to focus on one malefactor elides a larger question: Why should academic knowledge — largely produced by academics at public and nonprofit universities and often with government grants — be turned into private property and kept from public dissemination?

This was the question raised by activist Aaron Swartz, who was arrested in 2011 and charged with the unauthorized downloading of thousands of articles from JSTOR, an online journal database. The case was disturbing for a number of reasons, not least that Swartz was authorized to access JSTOR and was seemingly charged only with downloading too many articles. But the way the case was discussed also revealed a deeper confusion about the basic nature of intellectual “property.”

In a press release announcing Swartz’s arrest, the U.S. Attorney proclaimed that “stealing is stealing whether you use a computer command or a crowbar, and whether you take documents, data, or dollars.” As Swartz’s defenders quickly pointed out, there is a qualitative difference between taking someone’s belongings with a crowbar and making copies of documents. Yet the analogy between stealing and copying has become so ingrained that even tech-savvy publications like Ars Technica and Wired repeated the nonsensical report that Swartz had subsequently “returned” the documents he had downloaded. Since copies of the documents never ceased to reside on JSTOR’s servers, the only way to make this statement comprehensible is to assume that Swartz deleted his copies of the articles. In this funhouse-mirror economy, where to destroy something is to return it to its owner, we see the strange mutations and contradictions that afflict the definition of property in post-industrial capitalism.

Though the internet and the digitization of the economy did not create the struggle over the property form, they have reopened the issue by problematizing exactly what property is and why we ought to respect it. Beneath its frontier rhetoric of individualism and autonomy, capitalism is founded on the exercise of state power to defend the institution of private property. Its model of generalized commodity exchange presupposes a novel world in which everything is parceled into discrete chunks and tagged with the name of its owner. This way of seeing things does not come automatically to human societies; constructing a world of private property entails both state violence and ideological propagandizing.

Respect for private property undergirds the atomized ethos of capitalism, what political scientist C.B. Macpherson called “possessive individualism.” This ethos insists that a person’s talents and achievements are due to their efforts alone and that their property is a just and natural consequence of those achievements. Yet the institution of property, and the individualism it licenses, has always been deeply contested. Most famously, the English enclosure acts passed mainly in the 18th and 19th centuries uprooted a long tradition of shared and common lands and turned them into the fenced-off domains of individual landlords. Such processes of turning a social commons into a private possession are more than just capitalism’s original sin; they recur again and again over the system’s history. That’s why David Harvey proposed that Marx’s term “primitive accumulation” be traded in for “accumulation by dispossession,” a strategy that the capitalist can return to again and again.

Today, critics of intellectual property speak about copyright law by making an analogy with the enclosure of the commons, regarding it as an unjust appropriation of our shared culture. Defenders of copyright, meanwhile, denounce file sharers and downloaders as parasites and pirates, depriving hard-working creators of their belongings and their livelihood. This fight recapitulates capitalism’s endemic struggle over property, but gives it a new form, as the property in question is an immaterial rather than a material good. Copyright holders and their advocates like to speak of unauthorized copying as “theft” of “intellectual property,” but both theft and property are concepts that apply to information in a metaphorical way at best. To take a physical object out of someone’s possession is clearly not equivalent to making a copy for oneself while leaving all other copies untouched. If the right of physical property grants the right to control a particular copy of an object — a particular pair of Nike shoes, for example — the right of intellectual property instantiates the far broader power to control all copies of an idea or a software program or a work of art. Whether this extension is valid and justified, and whether it should fall within the same legal and rhetorical purview that addresses physical property, is ultimately a matter of cultural norms and political struggle.

The rhetoric of property rights has always run along two parallel tracks: the utilitarian and the moral. Utilitarians may acknowledge the arbitrariness, even the injustice, of private property while holding that it is nevertheless our best guarantee of freedom and prosperity. They might invoke the specter of Soviet collectivism, along with the “tragedy of the commons” — the depletion of resources held in common because no one holds the property rights that might encourage conservation. For the moralist, however, such arguments are beside the point: Whatever the political or economic efficiency of private property, it must be held inviolable because of the immorality of infringing on another person’s property. When the economy was mostly based on the production of physical commodities, the utilitarian argument tended to have the upper hand. For while the moralists must fall back on tendentious metaphysics (such as Locke’s contention that we take ownership of the common by “mixing our labor” with it), the utilitarian could simply point to propertarian capitalism’s manifest ability to deliver a world of material wealth, however inequitably distributed.

With intellectual property, however, the situation is reversed. There is, to be sure, a utilitarian case for it, one enshrined in the U.S. Constitution: “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” But the actually existing regime of intellectual property (IP) law has long outstripped that justification. Maintaining Disney’s perpetual copyright on Mickey Mouse has no discernible benefits to the progress of anything, and even when unauthorized copies of works undermine the profits of the culture industry, as has happened most obviously to the music business, this does not seem to translate into a shortage of music being produced. Serious studies — that is, those not funded by the copyright cartels themselves — tend to find that IP is an impediment to economic growth rather than a driver of it. An intellectual-property regime that hewed to its utilitarian roots would thus be a much less expansive one than what we have today, which is why the utilitarian arguments about IP tend to come from its critics. The liberal economist Dean Baker, for example, while conceding that copyrights provide an incentive for creative work, dismisses them as “an extremely inefficient mechanism” for achieving ends that could be better accomplished through direct government support of creative work.

IP defenders are then left to fall back on the moral defense: Intellectual property is just because it protects creators, who have an inalienable right to control the disposition of their creations and to reap any revenue that they generate. This is the strategy adopted by former Billboard editor Robert Levine, whose recent book Free Ride excoriates the “digital parasites” whom he accuses of undermining the culture industry. In an interview with Salon, he acknowledges that Anglo-American intellectual-property law conceives “a limited monopoly and a balance between the author and the public interest.” But he speaks favorably of the alternative French tradition in which “copyright is a fundamental right,” one that could potentially confer not only a right to prohibit copying but even “a right not to be remixed.”

This moral case for IP can be attacked on multiple levels — most fundamentally because it is so mired in possessive individualism. It portrays ideas and artworks as appearing sui generis via their creators, as if from the head of Zeus, rather than acknowledging that those creators invariably build on previous works and feed on creative communities. But the moral case’s absurdity, and its inadequacy to the rapacious appetites of the corporate interests that really drive IP law, is laid bare by the Swartz case and debates over academic knowledge more generally. Swartz was accused of “stealing” work that was largely created by academics. And it was not the academics who sought to guard access to their work — attention, after all, is the currency of academia, and most professors want nothing more than to disseminate their research to the widest possible audience. Swartz was attacking a gatekeeper that had managed to install itself between the producers and consumers of academic knowledge and secure a stream of rents.

There are those who want to defend an order based on intellectual property out of a desire to protect the livelihoods of working writers, artists, and other immaterial laborers. In a world where the likes of Google and Facebook are increasingly adept at extracting creative work for free, this defensive attitude is understandable. But if it comes at the cost of empowering a class of corporate rentiers and imposing pervasive surveillance on the internet, protecting a few meager royalty streams will hardly have been worth it. Novelist Harlan Ellison’s injunction to “pay the writer!” is commendable, but digital production calls out for new ways of doing it, lest we all find ourselves trapped in the dead metaphor of a previous era’s property form.