The most fundamental question in economics is not about math: It’s about philosophy and morality. And how you answer the question takes you down a path that is not only economic, but also philosophical and moral.
(Please bear with this brief economics discussion)
So what is this question? Whether the general public benefits from private ownership (and control) of capital.
Marx, of course, famously answered this “No” —the public does NOT benefit from private ownership of capital. In fact Marx, who coined the term “capitalism,” said that private ownership of capital leads to abuse of the public because capitalists use control of their capital to enrich themselves at the expense of the public. In this worldview, if private ownership of capital harms the public, it’s private ownership that is immoral, and theft becomes a moral, even heroic act. So Marxism does away with private ownership and control of capital and turns it over to the general public, in the assumption that the general public will better deploy capital in its own best interests.
But, of course, somebody has to make decisions to run an economy. In fact, it takes a LOT of decisions to run a large economy—like millions of decisions every minute, in real time. This happens automatically in a capitalist system when people get to own and control their own property. It’s easy to make economic decisions when ownership and control are easily identified. But if you’re going to eliminate private ownership and run things from the top-down, you have to create a new structure for making decisions, which Marxism does by setting up committees: Factory committees, committees of the proletariat, etc. Committees of the workers, who are appointed to represent the public.
Of course, we all know that this quickly devolves into control of the economy by a small group of elites and to the misery of just about everyone else. (Ironically, something much worse than Marx’s straw man criticism of capitalism.)
That’s an oversimplified but pretty unassailable explanation of the basis of Marxist economic thought. If I were writing “Marx for Dummies” today, I would subtitle it “Factories Want To Be Free.”
Of course, it doesn’t work, as 75 years of economic history makes clear. It turns out that you get far superior results from an economy where people own and control their own capital, property rights are clear and enforced, and people can easily contract or otherwise agree to terms for the purchase of products and services.
What’s this got to do with IP?
There are some folks, however, who seem to think that Marxism failed not because there was something wrong with Marxism, but rather because there was something wrong with the world—or at least there was something wrong with the analog world in which Marxism was applied.
When the digital revolution came along, these folks seemed to think that in this new, perfect digital realm, Marxism would finally work—people would work and create for free, they would share, you would no longer need nasty things like ownership, control and profit, and a glorious new digital world could finally bloom that didn’t rely on all those dirty capitalists. Out from under the tyranny of The Man, we would all blossom into what we always knew we could be.
So these folks have fought against ownership and control in the digital realm. Let me spell this out: They don’t believe capitalists should be permitted to own and control the means of production in the digital economy. So they reject ownership and control, and they’ve targeted the two major components of the digital economy—Ownership of content, and ownership of the networks themselves—as targets for their activism. And, for some of them, theft is a moral and even a heroic act, because it takes away from the evil capitalists who are trying to restrict access to knowledge and content and keep us from all being happy and luminous.
Yes, I went there. I said that it is a Marxist impulse that insists that ownership of the means of production in the digital realm is harmful to the public, and it is an exact parallel to what Marx advocated in the analog world.
Now, I’m NOT saying that everyone who advocates for reform in IP policy is a Marxist. I’ll be accused of saying that, of red baiting, but no, I’m not saying that. What I’m saying is that, in disputes and conflicts over IP policy, we have to beware of this Marxist impulse in some who make the Marxist arguments that the general public does not benefit from private ownership and control of the means of creative production, and that the public is harmed by such ownership and control. And we have to resist it.
The Medical R&D Treaty
A good example of the Marxist impulse in the patent world is the proposed Medical R&D Treaty, a scheme cooked up by my occasional nemesis Jamie Love with Knowledge Ecology International (KEI). Jamie shopped this around for years and could only interest Socialist Bernie Sanders in the idea in the U.S., but his skill in working with aggrieved developing and least developed countries among the Geneva institutions finally led to the Medical R&D Treaty being taken seriously at the World Health Organization (WHO), where it unfortunately seems to be making some plodding progress (PDF).
Jamie starts from a place of frustration with the pharmaceutical industry, because cutting edge drugs aren’t available for free or for dirt cheap prices in poor countries. Actually, “frustration” isn’t the right word—Jamie and his gang hate the pharmaceutical companies. Counterfeiters have actually been praised on his listserv, such is the moral confusion they’ve been driven to by hatred of the drug companies.
They hate the drug companies because they don’t think the general public benefits from private ownership and control of the means of production in the pharmaceutical industry. Better outcomes would come from control by the people, or by the people’s representatives—anybody but those who own the capital. But they recognize that SOMEBODY has to make drugs, and SOMEBODY has to innovate them, and SOMEBODY has to pay for R&D. They just doesn’t trust the capitalists to do it in a way that benefits the public.
So Jamie has an idea.
In Jamie’s treaty, you take away control of the means of production for the pharmaceutical industry, and you turn it over to a committee of the proletariat, which will determine which molecules should be explored, which diseases should be prioritized, and how much drugs should cost.
No patent rights, of course. Of COURSE. Because ownership and control are the cause of the problem, remember?
So how do we fund pharmaceutical innovation once we’ve eliminated property (patents) and letting capitalists control the means of production? Tax dollars, voluntary contributions from countries, prize systems—ANYTHING other than letting capitalists fund pharmaceutical innovation through property and profits. ANYTHING but that.
Oh, and guess who is on the committee that determines how the capital of the pharmaceutical industry should be deployed? Heads of NGOs, like Jamie. Odd how the revolutionaries who tear down the capitalist system end up being the elites who get to run things in the Marxist paradise, isn’t it?
It’s so parallel to Marxism that it would be funny, except that it isn’t.
And Especially in Copyright
We find the same thing going on today in copyright, where it is being commonly asserted that the rights of users trump the rights of those who just inconveniently happen to have created the content or who own the content. The public is being harmed, you see, by the private ownership of the means of production over creative goods. And the extensive fair use exceptions that are continually being carved out of copyright by courts and the Copyright Office are not sufficient—no, we have to turn fair use exceptions into a fair use RIGHT big enough to drive a fiber optic cable full of pirated material through. Because, again, the public doesn’t benefit from private ownership of the goods in question. And the greatest animus in the copyright world is reserved for the (venture) capitalists themselves—the record labels and movie studios that front the money that funds the creation and the promotion of creative works.
It’s those capitalists they hate. They’re just certain that the music and movie world would be filled with wonderful, creative, cheap works if we could just turn it all over to the people (user generated content) and cut out those greedy capitalists. Because they don’t believe the public benefits from private ownership and control of capital.
There’s something of that same attitude in the celebration of the amateur over the professional, such as we see at Wikipedia (don’t get me started). Because we’re going to get better results for the benefit of the public if we can cut out those nasty capitalists who own encyclopedia companies and just turn it over to the people.
And the ISPs
It’s not a coincidence that the IP-haters also hate the cable and telecom network companies. It all comes from the same place. They’re just certain that something is going terribly wrong with the Internet, despite the lack of any evidence, because things just can’t be good when capitalists own the means of production—in this case, the networks themselves.
Free Press is one of the major activist organizations that consistently attacks the private ownership and control of networks, as well as copyright. It’s no coincidence, just as it’s no coincidence that the founder of Free Press, Robert McChesney, is former co-editor of a Marxist journal. McChesney self-identifies as both a Marxist and a socialist. In the case of Free Press and McChesney, it literally does come from a Marxist impulse.
What I’m Not Saying
I’m not saying that every critic of intellectual property protection is a Marxist. They’ll say that’s what I’m saying, but it’s not. There are any number of critiques of current, status quo IP policy that come from a different place than the Marxist impulse.
For one thing, there is that subset of libertarians who don’t like intellectual property because it’s a creation of government, and they don’t like government. They don’t like government and they don’t like monopolies, so they really don’t like IP rights. Now, I very much do not agree with this critique of IP by some libertarians, but it’s a legitimate discussion, and it’s not Marxism.
And, of course, it’s not Marxism to argue that there are things about current IP policy that need to be changed or improved. As someone who is cynical about government in general, of course I don’t think there is such a thing as a perfect law, and so I’m not going to position myself simply as a knee-jerk defender of the status quo. There are any number of areas where current IP policy can be legitimately critiqued within a capitalist framework that respects the rights of owners and creators to own and control the result of their creation, and that does not seek to trump the rights of owners with the demands of the users.
So if you want to argue for shorter duration of copyright term, or for changes in patent law, I’m not saying that makes you a Marxist. Those are legitimate discussions, and depending on the details I might either agree or disagree. We can have those conversations, and I don’t want to simply be a caricature, knee-jerk defending the status quo of IP law.
But if your arguments always end up coming from an assumption that the public does not benefit from private ownership and control, and that we just can’t trust those who own and control, I’m calling you out.
Conclusion
Back in early 2005 Bill Gates, then of course still at the helm of Microsoft, gave an interview in which he correctly identified much of the philosophy driving critics of copyright as communism. He later walked it back for PR reasons, but Gates was right the first time.