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<nettime> warkogram [x2]: wark on lessig on supreme court
McKenzie Wark on Mon, 20 Jan 2003 00:57:17 +0100 (CET)

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<nettime> warkogram [x2]: wark on lessig on supreme court

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"McKenzie Wark" <mckenziewark {AT} hotmail.com>
     Lessig's Last Stand
     Lessig on Supreme Court IP Ruling

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From: "McKenzie Wark" <mckenziewark {AT} hotmail.com>
Subject: Lessig's Last Stand
Date: Sun, 19 Jan 2003 15:47:51 -0500

The Supreme Court just decided not to intervene in the enactment
by Congress of copyright legislation that is contrary to the
Constitution's stipulation that copyright be of limited duration. All
that is really surprising about this is that Lawrence Lessig, esteemed
law professor at Stanford Law School, should be all that surprised.*

Lessig argued before the court on behalf of a group of publishers and
creators who depend on work falling out of copyright and entering
the public domain. As Justice Breyer notted in his dissenting argument,
only 2% of works copyrighted between 1923-42 continue to be used
commercially. Tp protect the value of that property, an enormous
amount of material is locked away from free use by artists, curators,
historians and others who might use it if it came into the public
domain as the original framers of the Constitution, and of early
copyright legislation, intended.

What is surprising is that Lessig would expect the Supreme Court to
arrive at a rational decision in the public interest. Copyright law is not
a neutral component of a common social fabric, a compromise
between individual incentive and public good. Copyright is now a
component of a regime of intellectual property that forms the basis
of an emergent kind of class power.

The class power that relies on intellectual property to secure its
interests is a new class power, what I would call a vectoralist class.
Legislative changes enacted in the 90s, in communication and
intellectual property policy, create a platform in which information
and the vectors by which its value is realised has been effectively

Intellectual property law is no longer substantially about providing
incentives to creation, or protecting the rights of individuals. Rather
it secures the rights of corporations whose main assets are the
capacity to realize the value of information through their control
of its means of distribution.

This is not the first time in then history of the commodity economy
that the legal apparatus of the state has created the formal rules
within which a new class interest claims its power on the basis of
the abstraction of property.

Commodity production has already been through two such phases.
The abstraction of property begins with agriculture. Through the
destruction of common rights to land, a pastoralist or landlord class
emerged, which threw peasants of their land, denied them their
traditional rights and made of them a class of dispossessed farmers.
This process of dispossession is still going on in much of the
'underdeveloped' world today.

Property reached a new threshold of abstraction when it was extended
to fungible assets and to more complex forms of possessing subject.
Or in other words, a transformation of the law made possible the creation
of a capitalist class, in possession of the means of production, which
confronted a working class deprived of any working asset other than
its own labor. This regime is now being extended to the underdevloped

The pastoralist and capitalist classes did not co-exist quietly, but were
-- and in many parts of the world remain -- in constant conflict via the
state for legal and policy inititatives that might favor one interest over
another. Trade and taxation policy, for example. But one thing they
were united on was the value of a liberal regime of copyright and
patent that encouraged the development and adoption of innovations
in farming and manufacturing technique and the free exchange of
ideas among tangible property holders. This common interest is
expressed in the Constitution of the United States and in early
approaches to copyright and patent.

But times have changed, and a new class arises which exploits a
further extension of the abstraction of property -- to information.
Just as the value of the assets held by the pastoralist and capitalist
classes are maintained within a framework of private property
rights, so too the vectoralist class now demands the same rights.
Even if that extension of the privatization of property is contrary
to the 'common interest' -- the interest of the other dominant classes.

As with the two previous phases of the abstraction of property, this
one too meets a counter movement. In the underdeveloped world,
the privatization of land meets vigorous resistance from peasant
movements who want to retain communal practices of land
management. In the 'overdeveloped' world, the working class has
long sought the partial socialization of the means of production
through the creation of the welfare state.

This resistance is as yet somewhat unfocussed. It has not really
canvassed the range of options it has before it, which might range
from the liberal to the radical. The recent Supreme Counrt decision
must surely be seen as a setback for the liberal or moderate
position, which rests on the assumption of a neutral arbitrator that
upholds the public interest, in this case the courts.

One should be under no illusion how high the stakes are. A more
radical approach, which attacks the technical means by which
digital information is secured against duplication, has already been
anticipated by the evctoralist class. The Digital Millennium Copyright
Act axtually criminalizes attempts to hack digital security code. This
remarkably punative law is surely a clear indication of the new class
interest that the state now expresses, sometimes in conjuction,
sometimes in conflict with pastoralist and capitalist interests.

The impediment to thinking through resistance to the commodification
of the information common lies in identifying the other pole of class
interest that such a transformation creates. The privatisation
of land creates a farmer interest out of those it disposseses.
The privatisation of the means of manufacturing creates a worker
interest out of those it dispossesses. So too I would argue that the
privatization of information creates both a vectoralist class, who
control the means of commodifying information, and a 'hacker' class,
the actual creators of new information, who stand to loose their
common rights to the sum total of human knowledge and creativity.

Some may quibble about the extension of the name 'hacker' from a
narrow useage to describe coders and programmers. Some may be
sucked in by the already well advanced -- and not disinterested --
criminalization of that term. It really doesn't matter what one calls
them (us), what matters is the attempt to abstract from the particulars
of the division of labor and see a common interest in the information
commons that unites all producers of information -- the hacker

The 90s was an era in which this class was induced to see all its
interests in terms of commodification, in terms of the IPO that would
make every computer geek and culture freak rich. We all know what
happened. The ideas ended up in the hands of the corporate world.
A lucky few sold out their hacker interest and joined the vectoralist
class. But the very nature of a this class relation prevents the majority
from attaining private wealth in this manner. Not to mention the fact
that the privatization of information directs all creative energy toward
the production of exchange value. It sets a narrow limit on what
counts as creativity.

So while one might mourn the loss Lessig suffered before the court,
and pay a tribute to the tireless work of this campaigner -- one need
not be all that surprised at the result. From the point of view of a liberal
calaculation of individual rights against social values, the Supreme
Court's actions look illogical. From the critical perspective of the 
of class interests through legislation and law, it makes perfect sense
-- for the emergent class interest that benefits.

*Protecting Mickey Mouse at Art's Expense
New York Times, 18th January, OPED page


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From: "McKenzie Wark" <mckenziewark {AT} hotmail.com>
Subject: Lessig on Supreme Court IP Ruling
Date: Sun, 19 Jan 2003 14:59:57 -0500

Protecting Mickey Mouse at Art's Expense

New York Times, January 18, 2003

The Supreme Court decided this week that the Constitution grants Congress an 
essentially unreviewable discretion to set the lengths of copyright 
protections however long it wants, and even to extend them.

While the court was skeptical about the wisdom of the extension, seven 
justices believed it was not their role to second-guess "the First Branch," 
as Justice Ruth Bader Ginsburg put it. As I argued the opposite before the 
court for my clients, a group of creators and publishers who depend on 
public domain works, I won't say I agree. But there is something admirable 
in the court acknowledging and respecting limits on its own power.

Still, missing from the opinion was any justification for perhaps the most 
damaging part of Congress's decision to extend existing copyrights for 20 
years: the extension unnecessarily stifles freedom of expression by 
preventing the artistic and educational use even of content that no longer 
has any commercial value. As one dissenter, Justice Steven G. Breyer, 
estimated, only 2 percent of the work copyrighted between 1923 and 1942 
continues to be commercially exploited (for example, the early Mickey Mouse 
movies, whose eminent entry into the public domain prompted Congress to act 
in the first place).

But to protect that tiny proportion, the remaining copyrighted works will 
stay locked up for another generation. Thus a museum that wants to produce 
an Internet exhibition about the New Deal will still need to find the 
copyright holders of any pictures or sound it wants to include. Or archives 
that want to release out-of-print books will still need to track down 
copyright holders of works that are almost a century old.

This is a problem that the First Branch could fix without compromising any 
of the legitimate rights protected by the copyright extension act. The trick 
is a technique to move content that is no longer commercially exploited into 
the public domain, while protecting work that has continuing commercial 
value. The answer is suggested from the law governing patents.

Patent holders have to pay a fee every few years to maintain their patents. 
The same principle could be applied to copyright. Imagine requiring 
copyright holders to pay a tax 50 years after a work was published. The tax 
should be very small, maybe $50 a work. And when the tax was paid, the 
government would record that fact, including the name of the copyright 
holder paying the tax. That way artists and others who want to use a work 
would continue to have an easy way to identify the current copyright owner. 
But if a copyright owner fails to pay the tax for three years in a row, then 
the work will enter the public domain. Anyone would then be free to build 
upon and cultivate that part of our culture as he sees fit.

None of the supporters of the copyright extension act should have any 
complaint about such a provision. All of them argued that they needed the 
term increased so they could continue to get revenue from their works that 
supported their other artistic endeavors. But if a work is not earning any 
commercial return, then the extension is pointless. Of course, there may be 
people who want to keep their work from passing into the public domain, even 
if it is not commercially exploited. That's why the tax should be low, and 
should apply only to work that was published. The privacy and control that 
copyright law gives authors would thus be assured for as long as Congress 
deems proper.

This compromise, of course, puts much less work into the public domain than 
my clients believed that the framers of the Constitution envisioned. But it 
would nonetheless make available an extraordinary amount of material. If 
Congress is listening to the frustration that the court's decision has 
created, this would be a simple and effective way for the First Branch to 

Lawrence Lessig is a professor at Stanford Law School.

New York Times

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