Keith Hart on Sat, 9 Oct 2004 13:39:58 +0200 (CEST)

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Re: <nettime> Reflections on Dan Hunter's Culture War

Patrice Riemens wrote:

>A very good and useful paper, immo, which has attracted some controversy I
>fail to understand. Of course, some criticism is possible, and I will
>attempt to share mine here.

It may be that patrice was referring to an exchange on Sarai's commons-law 
list under the heading 'culture war article', extending into October.

I wish criticism included saying what is good about a piece of work and 
not just what is wrong with it. But Patrice made some interesting points. 
That the 'IP madness' is not just a result of the contemporary prevalence 
of 'intanglibles', but rather of firms' increased confidence that they can 
protect their assets without resorting to internal markets (Coase). His 
finds a parallel with the privatisation of public goods, such as transport 
services, and takes issue with Hunter's (or the neo-cons'?) view of the 
public domain as what is left over when private interests have been 
allocated. Hunter is accused of the usual Anglo-Saxon ignorance of what is 
going on with French copyright, but Patrice doesn't say how this should 
alter the conclusions of this 'good and useful' paper. He wants to 
substitute 'proprietary knowledge' for 'intellectual property' and 
'corporate/corporatisation' for 'private/privatisation', believing that 
this will eliminate much fruitless controversy and incidentally save 
Lawrence Lessig from the charge of being 'reformist'.

I found these arguments pretty hard to follow and I had read Dan Hunter's 
article in commenting on it for the thread listed above. Here too the 
question of the scope of 'private property' was raised, with one 
contributor arguing that the growth of corporate capital after Marx's 
death made his analysis of what were still then largely individual 
enterprises irrelevant today. I argued that we need to understand how what 
was originally a means of guaranteeing personal autonomy could have 
evolved to the point of being an instrument of corporate global 
domination; and I endorsed Macpherson's view that states, corporations and 
individuals can all exercise private property rights (held exclusively 
against the world) whose antithesis is and always was common property 
(allowing for the many particular forms that is manifested).

The attacks on Hunter's 'inconsistency' launched by Jamie King and Felix 
Stalder left me gobsmacked. referring to the "Marxist-Lessigist' tendency 
is a joke, perhaps not a very good one, but it made me smile. talk about a 
hammer to crack a nut... Hunter's argument is quite straightforward. The 
right thinks Lessig is a Marxist because he wants to limit the power of 
corporate capital, but he is very insistent on defending private property 
and would use the logic of competitive markets against the corporations. 
This makes him a reformist when it comes to capitalism, whereas the open 
source movement (however defined) is the truly revolutionary path aiming 
at replacing private with common property. No-one who reads th earticle 
with an open mind could be in any doubt about this argument, however 
commonplace or irritating they may find it. Inconsistent it is not. The 
paper was co-produced by lessig's outfirt at stanford Law and th eman 
himself is referred to throughout as Larry, so I doubt if Hunter is 
offering any more than than an ironic take on the guru's politics, even if 
his advocacy of the contemporary relevance of classical Marxism is 
serious. incidentally, he cites with approval another attempt to digitise 
Marx by Eben Moglen's The dotCommunist Manifesto which may be new to some 

Like many people, I suppose, I have been profoundly educated by lawrence 
lessig's work. But it can be accused of being excessively legalistic and 
US-centric. Dan Hunter certainly avoids the first trap, but not the 
second. he makes some desultory comments about developing countries, but 
does not address the global character of the class struggle unfolding 
under a regime of corporate IPR. The last WTO meeting at cancun revealed 
what can happen if big hitters like China and Brazil join a co-ordinated 
lobby of the poorer countries. Hunter pointed out how India has stood up 
to the US-EU juggernaut. Next year will see the fateful issue of 
pharmaceuticals patents settled there. "Piracy' of copyright material is 
largely an Asian phenomenon. And, as Lessig makes clear, the US stands in 
danger of endorsing a pro-business regime that is so rigid and expensive 
it will accelerate the transfer of production elsewhere. The case is also 
made forcefully by, of all people, Pat Buchanan in Where the right went 
wrong. But he too misses the global character of the problem.

Keith Hart

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