Control_Shift_Commons

James Boyle, professor of law at Duke Law School, has provided footsoldiers in the war on escalating intellectual property (IP) rights with some explosive weapons. His crucial comparison of IP to that other precious commons – the environment – has spread with viral speed. But if an ‘intellectual commons’ was to find formal recognition, would it then be best left running out of control? Here, Nettime co-moderator and net critic Ted Byfield talks Boyle into nailing his political and philosophical colours to the mast.

LAW AS AN ACTIVIST FRAMEWORK

Ted Byfield: I have two general lines of enquiry. The first has to do with your ideas about ecology and the environment as an analogy for informatic politics; the second with your practice within the framework of US law, a field that many people view as itself a hegemonic threat. Does it offer the best overarching forms of analysis for what’s going on?

James Boyle: Well, no claim there – it’s not the best. Important battles are being fought through there, but sadly, much of what we’re doing is slowing down train wrecks. Still, the US legal framework has more resources than people give it credit for: it’s a complicated, multifaceted, philosophical-political tradition with lots of abandoned pathways to be explored. But the best? That would be silly.

TB: Is that why you adopt, in some cases, an explicitly Marxist or Marxian analytical framework? It does come as a bit of a shock to see a US legal theorist doing that.

JB: Certainly, there are a lot of ideas from Marxist, neo-Marxist, or post-structuralist work that are incredibly useful. How could anyone who thinks about social theory and property systems, or the relationship of ideology to social structure, not be influenced by these ideas? They’re some of the richest traditions we have in social theory. And a lot of mainstream work is simply a version of Marxist or neo-Marxist ideas with normative indicators turned from plus to minus – or from minus to neutral!

TB: Well, I agree, as would lots of others. But isn’t the role these sorts of ideas play within the practice of US law limited at best?

JB: Well, if I was working on an amicus brief <1> , I certainly wouldn’t be citing the Grundrisse or An Analysis of Alienated Labour, so, yes, there are limitations on what kinds of political theory you can overtly bring into work directed towards a court. But American legal academia is surprisingly broad and open to a variety of viewpoints; if it has a problem, it’s not one of simple exclusion but of omnivorousness – everything is grist for its mill.

As to American legal practice, there’s the legal system in the sense that people outside of law think of it: rules, courts, expectations about how officials behave, and so forth. But even there, there are very explicit arguments which appeal to different visions of the ways that societies can malfunction: “We need to worry about majorities tyrannising minorities,” or “No, we need to worry about powerful elites pursuing factional ideals,” and so forth. These ideas form a large portion of American law, which tends to be much more explicitly policy-oriented and politically regarding than other common law systems. And people do fairly quickly appeal to them.

But I won’t romanticise it: there are lots of ideas that don’t get discussed, and overall it does t end to focus on the dangers of rampant populist majorities more than on the dangers of disenfranchised, alienated, and passive majorities. It’s not a completely open field.

TB: How has that field changed, in your experience?

JB: During the 1980s and 1990s there was a revival of a republican – with a small ‘r’ – tradition, which no longer spoke of a constitutional tradition devoted to a liberal image of a State envisioned simply as a neutral and transparent framework in which atomistic individuals pursue their own individual value preferences without any possible rational assessment. Rather, this other tradition holds that the goal is to build a well-functioning republic, which depends on democratically active citizens; and that, in turn, implies many other things – for example, state intervention to shape the media and responsibilities to fund education.

Now, that’s a different rhetorical tradition than the Democratic Socialist tradition in Europe, although it shares themes with it: the belief that well-functioning citizens are not completely cut off from their economic circumstances, that the republic does not function very well with massive wealth disparities, that there are certain material requirements for things to work, and that the State sometimes needs to intervene to produce something which is affirmatively seen as good – in this case a democracy-enhancing, participation-enhancing politics.

That’s a theme or a strand in American law: you can see cases here, lines of thought there. When you make an argument, both academically and to a court, which plucks on those themes, it’s not alien: you won’t hear, “What on earth are you talking about?!” It may not win the day, but it’s not seen as completely beyond the pale. So my own view of law is that there’s a lot of room for making arguments like that, even narrowly, to decision-makers, that is, to courts or legislatures – although always acknowledging the massive constraints there!

More broadly, though, legal ideas have so permeated political space in the United States. Often this is not a good thing. For example, the idea of viewing politics as ‘rights’– there are real problems with this. But one works from where one is; and in a political sphere which has been ‘legalised’, so to speak, legal arguments can have influence far beyond their actual domain of applicability.

As an example of that, you’ll often hear people complain, “That company can’t tell me what to say when I work there because I have a First Amendment right!” Well, of course you have no First Amendment right against a private actor. Nevertheless, the idea has floated free of its narrow legal incarnation and become a more general notion that speech ought not to be regulated by powerful entities – which is far from the actual legal rule.

TB: OK, so legal practice is very heterogeneous: legislatures that craft laws, various courts in different kinds of jurisdictions, and all manner of relations within a broadly based legal community. But isn’t theoretical work influential only at the highest levels? How does one go about presenting a provocative idea, for example, ‘ecology’ or ‘environmentalism’ as an analogue or homologue for the digitalisation of culture? Where does the rubber meet the road?

JB: At every level. It would be a huge mistake to concentrate one’s energies merely on making clever arguments to Appeals Court judges or to court clerks. One of American liberalism’s dead ends has been the notion that if we just come up with a really great rights theory, all we have to do is convince five out of nine people in a building in Washington, D.C., and we win automatically, we win ‘everywhere’. <2>

THE ENVIRONMENT: A POWERFUL PARALLEL

This is why I think the environmental movement is a good analogy. If you look at the kinds of ideas produced by the environmental movement, you’ll find people arguing at quite high levels of discourse: discussing the extent to which ecology, or our understandings of ecology, shows how limited is our ability to map changes to a physical system which rapidly become quite chaotic – and how this prevents us from predicting consequences very far down the road.

Say you start by clearing out a harbour, and it turns out to cause a parasite population to explode, which in turn destroys shellfish, which in turn undermines otters...fairly quickly, the whole thing spins out of control. Now, these are arguments made at one level, a very ‘fancy’ level, to people in the [US] Environmental Protection Agency. But the argument also functions on a very common-sense level. People who are considering whether, for example, a new power plant should be constructed may say, “Well, they claim such-and-such, but they don’t really know, do they?” That’s hardly an elitist argument.

One of the many things to learn from the environmental movement – not just the environment but the environmental movement – and one of the reasons I picked it as an analogy is that it didn’t locate itself at any one level. But nor did it fantasise some set of powerful policymakers and make highly idealised arguments to them in the belief that one day someone would read an article and translate it into State policy. Both of those approaches strike me as dead ends.

And, after all, there’s a lot of stuff between those extremes: mid-level policy analysis, or purely technocratic economic arguments, to mention only two examples. I’m making the latter kind of argument for a reason, namely, that the economic discourse doesn’t capture it all; you can point out that even on its own terms this makes no sense.

TB: What’s a good example of an environmental idea that’s undergone such a development?

JB: Take Pigouvian externalities – the notion that unless you’re forced to internalise the cost of your actions then you won’t make optimal use of resources, and frequently will exploit them in ways that will despoil your environment. Sixty or seventy years later, we hear this on talk shows: somebody will say, “Well, shouldn’t gun manufacturers, or tobacco manufacturers, or producers of acid rain be forced to pay for the related costs? If they don’t, they’ll just get away with doing it for free!” Well, that’s the Pigouvian idea brought to a level where it makes sense to many people. If you’d said in 1920 or 1930 that this idea, then being presented in a highly abstract economic argument, would one day be a sort of a commonplace in popular culture, people would have said that was ridiculous.

However, it’s not just a question of producing accessible versions of fancy ideas; there’s movement both ways. Popular fights over Love Canal, over burning rivers and so forth, produce the policy discourse needed to articulate these ideas.

ENVIRONMENT AND THE COMMONS -COMPATIBLE CONCEPTS?

TB: You’ve written about the commons, on the one hand, and environmentalism, on the other. Historically, these two ideas are quite distinct: they arose in different regions with dramatically different social and political conditions. Do you see any contradictions between the notion of an ecology and a commons?

JB: Contradictions? Well, one of the most exciting things about these analogies are the multiple parallels.

Take the Enclosure Movement and viewing our current circumstances as a kind of second enclosure movement. In both cases, private groups appeal to the State, saying, “Help us to fence this off, and change the property rules to allow us to do it – only thus can we move to higher, more efficient form of production.” So many dimensions of the Enclosure Movement have been written about: what it did in terms of social structure, of future politics, of concentrations of wealth, how it disrupted our relationship to the land, with attendant changes in meaning and semiotics. All these dimensions seem to be applicable to our current condition: questions about our relationship to our own genes, to cultural changes as culture becomes commodified...

Some contemporary economic historians have argued – and it’s a very important point – that the Enclosure Movement saved lives and helped to build contemporary democracy by producing groups no longer tied in a feudal way to the land. And it did, by vastly improving the productive power of inefficiently run land systems. Now, this is the kind of claim being made by big pharma: private property saves lives. It’s extremely important to take that argument seriously; what’s more, it may actually be right in some cases. If one could grant a monopoly right to someone for twenty years on a drug which cures a disease affecting millions, there are worse things than having to pay through the nose for it –if, after twenty years, it will be available for pennies. It doesn’t quite work that way, of course: we end up with more stuff for obesity and male pattern baldness than we do for sleeping sickness or malaria – and then the drugs get evergreened. But, still, we must at least take claims of this kind seriously.

We tend to think about the commons mainly in terms of the tragedy of the commons – the claim that it fosters inefficient resource use. That notion has driven a lot of remarkable environmental scholarship: there’s a counterweight of scholarship arguing that commons can run quite well. For example, Carol Rose at Yale has written a great article called ‘The Comedy of the Commons’ <3> arguing that, in some cases, a commons may in fact be more efficient. However, that speaks only of efficiency terms; it leaves aside many other values. Another example is Elinor Ostrum, who has written about management of the commons, examining whether it’s true that we must move to a neoliberal model in which everything is commodified. n=4 Neoliberals say that the problem is there aren’t enough property rights, that we’ve gone only halfway – and that once we go all the way the market will clear. Ostrum and others like her have argued that it’s not true that all commons are tragedies: they develop interesting, complicated mechanisms, both informal and formal, for governing themselves – and sometimes they work better than formalised, top-down control systems marked by a single controller of the resource in question.

Now, Ostrum isn’t writing about the free software movement; she’s writing about the management of traditional water systems, air rights, and so forth. But it’s a very interesting notion that, in the free software movement, we effectively have a management of a kind of commons. Clearly, it has lots of rules: some are legal – the GPL – some purely contractual, some are customary, like prestige or shame-based economies.

So, to return your question, if there is a line between the Enclosure Movement and the commons and the fights of the fourteenth century through the nineteenth century, on the one hand, and the environmental movement, on the other, it’s not a straight line.

The story of the Enclosure Movement is retold by economists as the story of the tragedy of the commons; and the tragedy of the commons, in turn, is at the heart of many environmental problems that have produced all kinds of possible solutions.

TB: So it sounds as though ‘importing’ ideas – the commons – into American law as ‘alien objects’ is a fairly powerful way of generalising US law. At the same time, though, that kind of generalisation is happening anyway for other reasons: say, absurd situations in which the proverbial Inner Mongolia are concerned about the ‘First Amendment rights’ because ideas like that have become so predominant on the Net.

JB: Oh, and in other ways, too. There’s been some remarkable historical research that breaks these ideas down inside the United States as well. For example, Betty Mensch at the State University of New York at Buffalo has written about colonial property regimes in New York. As it turns out, the colonists assumed that we all own the land, and they divided it into private parcels; but contrary to what we may have thought, when new arrivals came, it was re-subdivided to account for the new arrivals, lest they be excluded. So, as is always true when you step up the power of the microscope, apparently homogeneous things aren’t so homogeneous.

Another example – with a very different normative valence – is the open range, and the fights between the ranchers and the farmers. There are a few different notions at work here: one holds that the land is infinite, so it doesn’t matter how big a claim someone stakes, the other is that it’s not owned by anyone. Each reflects a different kind of romanticism. And these romanticisms aren’t the same as that associated with the lovely commons, where we all play around the maypole – though it does have similar features. So it’s certainly good to import ideas in order to shake things up a bit; but you also need to look closely at indigenous traditions.

OUT OF CONTROL OR TOO MUCH CONTROL?

TB: These constellations of issues are largely drawn (or forced) together by ‘technology’, or at least by theories of technological determinism, which are very hard to evaluate. Several years ago there was a spate of books about how things are ‘out of control’ – Kevin Kelly, Manuel De Landa, and so on – which presented the condition as an extremely fruitful and creative; but now we seem to be more retrospective, or at least willing to consider whether it’s instead a dangerous condition. In part, these evaluations are defined by how we periodise our circumstances. When and how does one ‘stop’ a system in order to assess its dominant dynamics? And don’t those initial choices determine the outcome of one’s analysis?

JB: Well, funny enough, at least half of the libertarian-anarchist types I’m aware of – Kevin Kelly, the Cato Institute, the Progress and Freedom Foundation, and so forth – totally agree with my work. In their view, a wonderfully chaotic, spontaneous, decentralised system was forming until the State came along and mucked things up by imposing regulations like copyright, patent, etc. These, in their view, were just the same old things the State’s been doing badly – massive rents being handed over to moneyed interests – messing up processes of beneficial competition. Yet we gave these expansive property rights, along with many others – for example, to polluters – without forcing them to pay for the costs of their pollution. This could be seen as the result of control rather than the result of lack of control. It’s up for grabs whether things like copyright and intellectual property are seen as sacred property, as the foundation for a spontaneously operating decentralised market, or, rather whether the danger is that the absence of any regulation tends to push things out of control.

TB: So perhaps the question of periodisation as such has become a battleground and we’ve ended up in a systemic situation where there’s no consensus about ‘when’ we are.

JB: If so, I see that as a good thing. A lot of the bad things going on now rely on triumphalist neoliberalism, with its beliefs that we’re at the end of history, that market democracy has won, and so forth. It irritates me immensely that not only do a lot of people accept this story blindly, but that they haven’t even looked back to the extremely good arguments made about market triumphalism the first time it appeared: the response to the Gilded Age, the contributions of welfare economics, and so forth. These responses still make a lot of sense; it's amazing how they’ve dropped out of popular consciousness. Part of my work, then, is simply a rediscovery of the work of people like the Legal Realists and the institutional economists of the 1930s.

It’s easy to see doom and gloom in intellectual property and the march of commodification; there are certainly lots of negative things going on. And yet there’s also an amazing openness in these debates. People are actually asking if it’s better to have property or not. And seventeen-year-olds are saying, “No, you probably end up with better stuff in the absence of property rights” – and not because they’ve been reading Kropotkin. They’ve been reading Richard Stallman or Linus Torvalds. That’s important, and not because free software is important, although it is; rather, it suggests that there is not any inexorable historical logic to this particular moment – and that our particular ideas about property are very much up for grabs. The Internet, the Ensemble Project <4>, the Human Genome Project may represent a story in which we end up better off with less centralised control, one in which strong property rights might actually be bad.

TB: These shifts sound as though they’ll present some serious predicaments for the Left, or political liberals, or progressives, or whatever one wants to call them.

JB: Well, it’s pushing the Left if not exactly toward a libertarian position then towards a position which is more sceptical of these technologies of control, whether imposed by governments or by private parties. How often do you find yourself agreeing with libertarian ideas? I find myself agreeing with libertarians more often in terms of the Net much than in terms of other communications media. And why is that? It could be that I’ve been completely taken over by the power of the discourse – in fact, that probably is part of it. But another reason is that arguments about regulation often take the form of a normative, conceptually driven slippery-slope argument: “If we start by doing this, then that will inevitably lead to doing other things.” Technology doesn’t change everything in the way the techno-fantasists believe it does; but Larry Lessig’s <6> work is absolutely right with regard to the Net and the universalising power of code. With the Internet, the slippery slope isn’t so much a normative slippery slope anymore: A is conceptually like B, so if you do it to A you must do it to B. Rather, it’s a technical slippery slope. The technology that would give us the power to enforce, for example, municipal ordinances related to what some regard as ‘pornography’ would also allow the Taliban to filter extremely effectively for women’s education. And that tends to make you wonder if the game’s worth the candle.

However, we also need to ask what this does to traditional libertarianism. Libertarians argue, “Well, we’ll hand over to you an absolute property right, and whatever you want to do within that property right is your thing and we can’t interfere.” But intellectual property rights are the problem case for that view, because they make it very clear that these rights are not ‘natural’, and that they have powerful impacts on what others can do – in all kinds of contentious ways. And there are no clear lines demarcating harm.

TB: How else is this affecting the political landscape?

JB: Well, for example, through most of the 1980s and 1990s, I agreed that the US Federal Communications Commission (FCC) should be able to exercise some pathetic little fragment of control over broadcasting in the United States – to impose, for example, requirements that some kind of non-commercial children’s television should be available. Their justification, both practical and constitutional, was that broadcast was based on scarcity: spectra are scarce, and they have to be allocated on the basis of scarcity. But with new techniques like frequency-hopping, that argument becomes problematic: what scarcity are we talking about?

Yochai Benkler <7> has pointed out that now liberals and conservatives are both lining up to support privatising and propertising – selling, not just issuing temporary licenses for – the airwaves: liberals because they like the prospect of the government getting the money, conservatives because they like the idea of everything being turned into private property. The FCC agrees that they can sell it off, but they still maintain their belief in scarcity and insist on acting as the boundary police. Well, should we support that, or should we instead acknowledge all the new possibilities f or building something like the Internet in the wireless spectrum? Such a system would probably include smart terminals acting as senders and receivers, using packet switching and allocating spectrum dynamically. In effect, we’d all have our own little radio station: no one entity would have 93.5 on the radio dial.

Now, that’s going to lead to a lot of Rush Limbaughs. But is this a vision which might lead us to say we need less control? Or should we maintain the last pathetic gasp of a role for the interventionist State in seeking to regulate this allegedly scarce resource? Now suddenly, we’re sounding rather libertarian, which is not the position that the Left has always taken. It’s not that the State has no role; the State has a very important role – but it’s a different role than it had in the static, finite-spectrum, one-to-many communications. These questions pose challenges to the ideologies of both Left and Right. I have no easy answer; but we cannot just go on finding arguments to support the positions we took last year.

Ted Byfield <tbyfield AT panix.com> [http://www.nettime.org] co-moderates Nettime, teaches at the Parsons School of Design and wrote ‘Exporting the Apocalypse’ on Lawrence Lessig’s work in Mute16. His new ‘boy scout pledge’ is Mute’s objective – as diagrammised in ‘ceci ne’st pas un magazine’ (Mute19).

James Boyle [http://www.law.duke.edu/boylesite/boylebio.htm]

>> Photography by Daniel Jackson