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Locked Out

With roots in the laws of seventeenth and eighteenth-century England, intellectual property protections go back to the beginnings of capitalism itself.

Illustration by Tiffanie Tran

Illustration by Tiffanie Tran

In late June, soul musician Stevie Wonder flew to Morocco to perform at a diplomatic conference for the World Intellectual Property Organization. Conference delegates were signing a treaty granting small exceptions to international copyright protections, improving access for blind and visually impaired persons. Wonder said the treaty was important because it helped “information to be accessible forever,” and it demonstrated “that it is possible to do business and do good at the same time.”

Business leaders disagreed with this “Ebony and Ivory” vision of harmony and social justice. For months, organizations like the Intellectual Property Owners Association had urged American trade representatives to reject the treaty because, “despite substantial differences between copyrights and patent protection,” allowing this exception might open the door to needy countries or people pleading exceptions for clean energy technology or pharmaceuticals. It would “threaten to upset the fundamental balance on which our US and global IP system is based.”

The reference to “balance” here demonstrates that while piracy may occasionally be radical (see Gavin Mueller’s “Gimme the Loot,” from Jacobin, 7-8), copyright as a system is largely reactionary. Though “balance” can refer to the more utilitarian emphasis copyright is given in the US Constitution — a limited-term monopoly to “promote the useful arts and sciences” — in the mouths of the propertied elite, “balance” generally means that while they are willing to consider marginal tweaks to these arbitrary protections, they basically want to maintain the status quo in terms of property and power.

This reactionary position can be traced back to John Locke, whose ideas about labor, property, and inequality serve as the uncited moral inspiration for many of today’s maximalist copyright advocates. While Locke felt that labor was the source of all improvement and the fundamental justification of property rights, he thought laborers themselves were best kept in a state of “bare subsistence” lest they “forget respect” for the owners of the property on which they labored. Locke was referring to agricultural laborers, but the analogy to the contemporary precariat is far from accidental. In the end, private property and intellectual property are born of the same womb.

Many recent scholars of copyright trace its origins to the Statute of Anne, a mandate passed by the English Parliament in 1710. With this statute, copyright was vested in authors rather than publishers, privileging the “creative individual” purported to be the font of all innovation. Beginning the history of copyright here makes a certain amount of sense, especially if your goal is to hearken back to a time when copyright could be seen as a just, pragmatic alternative to its feudal predecessor. Lawrence Lessig, in Free Culture, says the statute was written to curb the power of “monopolists of the worst kind — tools of the Crown’s repression, selling the liberty of England to guarantee themselves a monopoly profit.”

As with the free-floating ideas of “culture” or “balance,” Lessig and others have no interest in clarifying the exact terms of the “repression” enabled by previous licensing acts, in part because it helped set up the system of private property they must rhetorically defend as they nibble around the edges of modern IP law. All we need to know is: Culture good, repression bad. In this light, the Statute of Anne almost seems reasonable. But the bulk of the repression had already taken place before it was enacted.

England’s separation from Rome in the sixteenth century was not a clean break. Henry VIII opened a serious can of worms when he decided to split with the Catholic Church. After all, without the Pope, the only endogenous narrative legitimating royal power involved — in the words of Dennis the peasant — strange women lying in ponds distributing swords. Breaking with Rome had its advantages: it facilitated the king’s divorce, suggested royal instead of papal supremacy, and allowed the expropriation of the common lands and monasteries owned by the church. But upending the medieval political order led to widespread insurrection.

Henry VIII’s son, Edward VI, continued the Reformation, but his rule was short: when Edward’s sister, the Catholic queen “Bloody Mary,” issued the first licensing acts in 1556, she was clearly motivated by what we would call the repression of political dissent. She authorized a single company to manage all the legitimate printing in England. The royal issue of monopolies (for a price) quickly became an economic means of supporting the English state. In the recent coda to the SSRC’s “Media Piracy in Emerging Economies” report, Bodó Balázs points out that this had the now-predictable effect of creating a massive black market in pirate publishing.

By the time the licensing acts were renewed again in 1662, they were reactionary in the modern sense. They served to protect the semi-revolutionary project of the English Civil War from radical fringes like the Levellers and Diggers who threatened the system of property, primitive accumulation, and wage-labor the state had spent the previous decades engineering.

During the war, pirate publishers like John Lilburne and Richard Overton promoted the Leveller cause in religious terms that posed a direct threat to the fragile Anglican legitimacy of the English state. Saying, “God is no respecter of persons,” the Levellers insisted that everyone, regardless of whether they owned property, be allowed to elect members of Parliament. The Diggers, calling themselves the True Levellers, went beyond constitutional mechanisms, simply occupying a swath of land, St George’s Hill, outside London and declaring the earth a “common treasury for all.”

These ideas were in stark contrast to the nascent capitalist civilization the United Kingdom was becoming. They were a radical response to the dramatic project of nation-building and primitive accumulation that had taken place before the war. In The World Turned Upside Down, Christopher Hill describes the threats of state terror (execution, colonial servitude, or the workhouse — Locke’s personal favorite) targeting so-called “masterless men”: people able to subsist on their own by hunting, fishing, or raising animals or crops on common lands. Forced to work on infrastructure projects, they effectively produced themselves as wage laborers — enclosing the commons, draining swamps, cutting down forests, and otherwise eliminating areas where they could have existed outside the wage system.

As Jacobin editor Peter Frase put it last year, “constructing a world of private property entails both state violence and ideological propagandizing.” Locke, Hobbes, and most other political theorists of the era agreed that religion was one of the best ways to keep the teeming masses in line. Pirate publishers threatened not only the power of the crown and the profits of monopoly publishers, but the emergent political economic system itself. Hill maintains that after the resistance had been thoroughly crushed and the spirit of capitalism infused in the culture, “the Licensing Act could be allowed to lapse in 1695 — not on the radicals’ libertarian principles, but because censorship was no longer necessary. [The] opinion formers of this society censored themselves.”

At this point the Statute of Anne was window dressing on an already-established bourgeois order. As Balázs mentions, John Locke was an ardent supporter of eliminating the licensing act because as a scholar and book collector, he was appalled by the expensive and badly printed books legally published in England. He preferred the illicit good stuff they were making in Amsterdam.

But despite this brief flirtation with utilitarianism, Locke’s is a philosophy of natural law. As Frase points out, this makes his arguments perfectly suited for the moralizing copyright reactionaries of our time. His anonymously published (and rampantly pirated) Two Treatises of Government laid out the germinal philosophy of today’s neoliberals. Locke’s unique justification for the capitalist-democratic state, at once radical and reactionary, was founded on a version of the labor theory of value. Property rights were “natural rights,” preceding any political arrangement. These rights were justified by the fact that people used their labor to improve the property they were taking out of the common treasury. Contrary to the “divine right of kings” or other religious foundations, Locke said the state’s legitimacy was to be found in its unequivocal defense of property rights.

However, not all labor is equal: in Locke’s explicitly class-oriented argument, large landowners were justified in owning the rights to property that had been improved by laborers they had paid. This increased the amount of land any one individual could hold and mirrored the practice of contemporary corporations — like movie studios — that contract “works for hire,” thus owning the copyright to the works created. For Locke, the only moral downside of this would be that the increased yields of improved land might produce more than the landowner could use, creating waste. Locke contended that large landowners were still justified because they sold the increased yield and were able to store it in gold, which never spoils!

Our contemporary culture is infused with Locke’s basic reactionary premises, particularly when it comes to intellectual property. In mainstream discourse, the current owner of a copyright or patent is presumed to be the agent of the labor, the “creative individual” behind any invention or cultural product. In reality, movie and music collections, journals of scholarly societies, trademarked properties, and patent libraries are often acquired, traded, and licensed by organizations who had no connection to the labor involved in their creation other than the ability to buy it. Our current discourse defends copyright as if it were the vital protection of the creative endeavor itself, rather than a bulwark of primitive accumulation in an age of cognitive capitalism.

There are certainly cultural workers who enjoy a lavish lifestyle: you can find many actors, musicians, and songwriters among the current and former residents of St George’s Hill. It is now a private estate, with home prices averaging £3 million. But most artists, programmers, and scholars scramble to patch together a living. The industries themselves, on the other hand, enjoy record profits and unprecedented protections. Jonathan Band’s recently updated report on the profitability of copyright-intensive industries found them more profitable than construction, transportation, and mining and metals industries. Copyright profit margins grew substantially over the past decade while those of the other industries declined, meaning the current level of protection is more than adequate.

This conclusion is lost on the Obama administration, as it has been on all that preceded it. While the judicial branch has issued some recent rulings in favor of fair use and the public domain, the executive has become even more vigilant. The relentless pursuit of Aaron Swartz is only the most visible and upsetting case. In February, the Department of Justice asked the Supreme Court to ignore a petition from Jammie Thomas-Rasset, who claims that the arbitrary $220,000 penalty she received for sharing twenty-four songs on a peer-to-peer network is excessive to the point of being unconstitutional. The DOJ has remained consistent, saying the original award of nearly $2 million was legitimate at the time. For good measure, Obama hired one of the prosecuting attorneys in the case as Associate Deputy Attorney General.

Even with their current profitability, tax benefits, and taxpayer-subsidized protection, holders of intellectual property continue to press for an even more reactionary copyright regime, particularly on the global stage. In addition to resisting the World Intellectual Property Organization treaty over exceptions for the blind and vision-disabled, trade representatives of major industrialized nations fought for months at the World Trade Organization against an extension of intellectual property waivers to less developed countries.

Here, the contemporary defense of copyright emerges as what it really is: a defense of property rights more generally. Intellectual property rights help corporations maintain a social division of labor and power on an international scale, relying on profits derived from complex commodity chains. Make it abroad; repatriate the product to be sold at a higher price, safe in the knowledge that foreign contractors (and their low-paid, rights-free employees) will transmit all the trademarked, copyrighted, or patented items they produce to legit-
imate markets; all profits back to the home office.

It also helps them shuffle those profits into offshore tax havens, using the façade of transfer pricing and cost-sharing arrangements. As in Locke’s time, transnational capitalists need the state to protect their property rights, but they have little interest in paying for it. Tax scholar David Cay Johnston argues that one of the key mechanisms for tax avoidance on the global scale is to move a piece of corporate IPR to an offshore haven, and then pay it significant royalties. Apple has used this mechanism to avoid billions in taxes, as a recent US congressional hearing revealed. Apple products are “Designed in Cupertino, Made in China,” and taxed nowhere — all thanks to intellectual property rights.

Copyright, like property rights in general, is most often used by those in positions of economic or political power to maintain their place in the hierarchy. But with few exceptions, piracy is a marginal answer to this overarching system. It is also largely concerned with distribution, rather than production. By focusing solely on IP, piracy avoids tackling the messier material political economy that makes IP a profit center in the first place — namely, entrenched interests holding the dominant means of production and distribution. Most of us still have to work in order to eat. This creates a web of conflicting interests among workers that can’t be undone by simply making information free.

For instance, Cary Nelson, the former head of the American Association of University Professors, recently recommended that faculty secure their copyrights in order to prevent course content from being appropriated by their university for Massive Open Online Courses or other online ventures. Yet this relies on individual contracts between faculty and universities — contracts which may already specify that anything produced by faculty is a “work-for-hire.” Without some form of collective bargaining at the university or national level, it is unlikely that individual faculty will have the power to make this demand. And with three quarters of US college courses taught by precariously employed adjuncts who often have little to no power in contract negotiations, it is hard to see copyright as anything other than conservative — even if we believe, overall, in the institutions being preserved and the work being done.

But even content producers aided by collective bargaining can support reactionary copyright trends. During the 2007 Hollywood writers’ strike, union activism, public appeals, and collective bargaining helped the writers (who, like faculty, produce their content as works-for-hire) secure a bigger piece of the digital royalty pie in their contract negotiations. But in the Stop Online Piracy Act protests, many Hollywood unions — including the WGA West — were on what we might think of as the other side, claiming copyright as a force that protects the lives and careers of their workers. Since they rely on copyright-intensive industries for their employment, any laws or practices which threaten the idea of commodity culture (or commodified culture specifically) have the potential to threaten their livelihood.

These conflicts will remain until we target the broader system of property, commodity culture, and wage labor. In the hands of the current global elite, copyright is used as a reactionary cudgel most of the time. But only the most extreme pirates will claim that this is always the case. For instance, while it is imperfect, the Creative Commons project relies on copyright and the above enforcement mechanisms. At its root, many of us still believe the idea that a creator should have some say over how his or her product is exploited, particularly if there is money being made from it.

Would we recover from this Lockean hangover if we lived in a society where all resources flowed more freely and our life was less reliant on being paid for our work? There seems to be a growing interest in finding out, and in that we might find some hope.

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