McKenzie Wark on Mon, 20 Jan 2003 00:57:17 +0100 (CET) |
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[digested @ nettime] "McKenzie Wark" <mckenziewark@hotmail.com> Lessig's Last Stand Lessig on Supreme Court IP Ruling - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - From: "McKenzie Wark" <mckenziewark@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 privatized. 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 world. 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 class. 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 formation 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 http://www.nytimes.com/2003/01/18/opinion/18LESS.html ___________________________________________________ http://subsol.c3.hu/subsol_2/contributors0/warktext.html ... we no longer have roots, we have aerials ... ___________________________________________________ _________________________________________________________________ The new MSN 8 is here: Try it free* for 2 months http://join.msn.com/?page=dept/dialup - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - From: "McKenzie Wark" <mckenziewark@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 By LAWRENCE LESSIG New York Times, January 18, 2003 http://www.nytimes.com/2003/01/18/opinion/18LESS.html 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 respond. Lawrence Lessig is a professor at Stanford Law School. New York Times http://www.nytimes.com/2003/01/18/opinion/18LESS.html _________________________________________________________________ The new MSN 8: smart spam protection and 2 months FREE* http://join.msn.com/?page=features/junkmail - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - # distributed via <nettime>: no commercial use without permission # <nettime> is a moderated mailing list for net criticism, # collaborative text filtering and cultural politics of the nets # more info: majordomo@bbs.thing.net and "info nettime-l" in the msg body # archive: http://www.nettime.org contact: nettime@bbs.thing.net