Dr. Robert Sapolsky
Also see: Why Hierarchy Creates Clusterfucks
There’s a lot I like, and dislike, about Richard Wolff.
What I don’t like is that Wolff falls into the same trench a lot of people on the so-called left do, mainly that they want to use the State to fix disasters that are a function of the State itself. He also fails to see or acknowledge an alternative to his Statist approach, that of free market anti-capitalism. He’s really anti-market, like Micheal Albert, and from what I can see thus far, like Albert, promotes a bureaucratic machine though Wolff says otherwise regularly in his Economic Update radio program.
It has become fashionable to toss copyright, patents, and trademarks—three separate and different entities involving three separate and different sets of laws—plus a dozen other laws into one pot and call it “intellectual property”. The distorting and confusing term did not become common by accident. Companies that gain from the confusion promoted it. The clearest way out of the confusion is to reject the term entirely.
According to Professor Mark Lemley, now of the Stanford Law School, the widespread use of the term “intellectual property” is a fashion that followed the 1967 founding of the World “Intellectual Property” Organization (WIPO), and only became really common in recent years. (WIPO is formally a UN organization, but in fact represents the interests of the holders of copyrights, patents, and trademarks.) Wide use dates from around 1990. (Local image copy)
The term carries a bias that is not hard to see: it suggests thinking about copyright, patents and trademarks by analogy with property rights for physical objects. (This analogy is at odds with the legal philosophies of copyright law, of patent law, and of trademark law, but only specialists know that.) These laws are in fact not much like physical property law, but use of this term leads legislators to change them to be more so. Since that is the change desired by the companies that exercise copyright, patent and trademark powers, the bias introduced by the term “intellectual property” suits them.
The bias is reason enough to reject the term, and people have often asked me to propose some other name for the overall category—or have proposed their own alternatives (often humorous). Suggestions include IMPs, for Imposed Monopoly Privileges, and GOLEMs, for Government-Originated Legally Enforced Monopolies. Some speak of “exclusive rights regimes”, but referring to restrictions as “rights” is doublethink too.
Some of these alternative names would be an improvement, but it is a mistake to replace “intellectual property” with any other term. A different name will not address the term’s deeper problem: overgeneralization. There is no such unified thing as “intellectual property”—it is a mirage. The only reason people think it makes sense as a coherent category is that widespread use of the term has misled them.
The term “intellectual property” is at best a catch-all to lump together disparate laws. Nonlawyers who hear one term applied to these various laws tend to assume they are based on a common principle and function similarly.
Nothing could be further from the case. These laws originated separately, evolved differently, cover different activities, have different rules, and raise different public policy issues.
Copyright law was designed to promote authorship and art, and covers the details of expression of a work. Patent law was intended to promote the publication of useful ideas, at the price of giving the one who publishes an idea a temporary monopoly over it—a price that may be worth paying in some fields and not in others.
Trademark law, by contrast, was not intended to promote any particular way of acting, but simply to enable buyers to know what they are buying. Legislators under the influence of the term “intellectual property”, however, have turned it into a scheme that provides incentives for advertising.
Since these laws developed independently, they are different in every detail, as well as in their basic purposes and methods. Thus, if you learn some fact about copyright law, you’d be wise to assume that patent law is different. You’ll rarely go wrong!
People often say “intellectual property” when they really mean some larger or smaller category. For instance, rich countries often impose unjust laws on poor countries to squeeze money out of them. Some of these laws are “intellectual property” laws, and others are not; nonetheless, critics of the practice often grab for that label because it has become familiar to them. By using it, they misrepresent the nature of the issue. It would be better to use an accurate term, such as “legislative colonization”, that gets to the heart of the matter.
Laymen are not alone in being confused by this term. Even law professors who teach these laws are lured and distracted by the seductiveness of the term “intellectual property”, and make general statements that conflict with facts they know. For example, one professor wrote in 2006:
Unlike their descendants who now work the floor at WIPO, the framers of the US constitution had a principled, procompetitive attitude to intellectual property. They knew rights might be necessary, but…they tied congress’s hands, restricting its power in multiple ways.
That statement refers to Article 1, Section 8, Clause 8 of the US Constitution, which authorizes copyright law and patent law. That clause, though, has nothing to do with trademark law or various others. The term “intellectual property” led that professor to make false generalization.
The term “intellectual property” also leads to simplistic thinking. It leads people to focus on the meager commonality in form that these disparate laws have—that they create artificial privileges for certain parties—and to disregard the details which form their substance: the specific restrictions each law places on the public, and the consequences that result. This simplistic focus on the form encourages an “economistic” approach to all these issues.
Economics operates here, as it often does, as a vehicle for unexamined assumptions. These include assumptions about values, such as that amount of production matters while freedom and way of life do not, and factual assumptions which are mostly false, such as that copyrights on music supports musicians, or that patents on drugs support life-saving research.
Another problem is that, at the broad scale implicit in the term “intellectual property”, the specific issues raised by the various laws become nearly invisible. These issues arise from the specifics of each law—precisely what the term “intellectual property” encourages people to ignore. For instance, one issue relating to copyright law is whether music sharing should be allowed; patent law has nothing to do with this. Patent law raises issues such as whether poor countries should be allowed to produce life-saving drugs and sell them cheaply to save lives; copyright law has nothing to do with such matters.
Neither of these issues is solely economic in nature, and their noneconomic aspects are very different; using the shallow economic overgeneralization as the basis for considering them means ignoring the differences. Putting the two laws in the “intellectual property” pot obstructs clear thinking about each one.
Thus, any opinions about “the issue of intellectual property” and any generalizations about this supposed category are almost surely foolish. If you think all those laws are one issue, you will tend to choose your opinions from a selection of sweeping overgeneralizations, none of which is any good.
If you want to think clearly about the issues raised by patents, or copyrights, or trademarks, or various other different laws, the first step is to forget the idea of lumping them together, and treat them as separate topics. The second step is to reject the narrow perspectives and simplistic picture the term “intellectual property” suggests. Consider each of these issues separately, in its fullness, and you have a chance of considering them well.
And when it comes to reforming WIPO, here is one proposal for changing the name and substance of WIPO.[Towards a
“World Intellectual Wealth Organisation”
Supporting the Geneva Declaration
The Geneva Declaration is an impressive step towards the creation of a broad coalition of people, organizations and countries1 demanding that the international community re-think the goals and mechanisms for awarding monopoly control over different kinds of knowledge. It offers many constructive, concrete suggestions for changes in WIPO goals, policies and priorities, and provides ample and insightful arguments for redesign of the copyright and patent bargains to better serve the public interest of all of humankind.
We are convinced that new answers sometimes require new questions, not more careful repetition of old questions. A World Intellectual Property Organization will always, understandably, lean towards applying the pre-selected tool-set of monopolization that it refers to as Intellectual Property; a term that we find to be ideologically charged and dangerously oblivious to the significant differences that exist between the many areas of law that it tries to subsume.
While it may look at better, possibly more socially sustainable ways of granting ownership-like monopolies over different forms of knowledge, WIPO will not have an easy time looking for alternative solutions. WIPO is not what we need.
We need a World Intellectual Wealth Organization, dedicated to the research and promotion of novel and imaginative ways to encourage the production and dissemination of knowledge. Granting limited monopolies and limited control over some kinds of knowledge may be part of this new organization's tool-set, but not the only one, and maybe not even the most important one.
We endorse and support the Geneva Declaration, and invite its drafters, signatories, and the United Nations to start thinking now not only about what the role of WIPO should be, but rather what kind of organisation we need in its place.]
Countries in Africa are a lot more similar than these laws, and “Africa” is a coherent geographical concept; nonetheless, talking about “Africa” instead of a specific country causes lots of confusion.
What happens when there is no leader? Starlings, bees, and ants manage just fine. In fact, they form staggeringly complicated societies — all without a Toscanini to conduct them into harmony. This hour of Radiolab, we ask how this happens. http://www.radiolab.org/story/91500-emergence/
Swarm Theory and Swarm Intelligence are essentially what’s covered in the Radiolab piece, both related to Spontaneous order and scale-free networks. For more on spontaneous order see these onsite posts: this and this.
Elinor Ostrom explored this as well to some degree with a different angle.
- Clearly defined boundaries (effective exclusion of external un-entitled parties)
- Rules regarding the appropriation and provision of common resources that are adapted to local conditions
- Collective-choice arrangements that allow most resource appropriators to participate in the decision-making process
- Effective monitoring by monitors who are part of or accountable to the appropriators
- A scale of graduated sanctions for resource appropriators who violate community rules
- Mechanisms of conflict resolution that are cheap and of easy access
- Self-determination of the community recognized by higher-level authorities
- In the case of larger common-pool resources, organization in the form of multiple layers of nested enterprises, with small local common pool resources at the base level.
Also see: PDF- Coping With the Tragedy of the Commons
“The most dangerous man in government is a man with a conscience.”
Well said Snowden.
It’s not an argument for no government from Snowden, but Conscience lacking in many people, perhaps it is an argument for no government. The Constitution is great, but at the same time it isn’t. Constitutions can breed constitutional tyrants, “conscience” or no conscience, as Snowden, Ellsberg, and almost any rational ‘citizen’ will attest.
Abraham Lincoln was rational enough to get it half right in this regard, but at the same time he was also a fool, as this statement shows “…no man is good enough to govern another man, without the other’s consent.” He got it because “no man is good enough to govern another man.” He should have stopped there. However, in the same breath, Abe slips into unconsciousness like a fool because he’s dumb or just didn’t get it. That, or he agrees with Robert Nozick and the idea that you can sell yourself into slavery– meaning once you consent to be governed you are a slave to the “good” men as Abe says. Josiah Tucker puts Abe’s stupidity in this context: The consent theory of government is “The universal demolisher of all governments, but not the builder of any.” Wake up Abe, you essentially said government is slavery. Not a very honest way to express this…did you doze off?
Unlike Abe, Thoreau got it, “government is best which governs not at all.” (1) Elsewhere he says this Abe, listen up…“Even voting for the right is doing nothing for it. It is only expressing to men feebly your desire that it should prevail. A wise man will not leave the right to the mercy of chance, nor wish it to prevail through the power of the majority.”
That’s because as Edward Abbey said, “Anarchism is democracy taken seriously.”
HL Mencken: “It takes a special sort of man to understand and enjoy liberty — and he is usually an outlaw in democratic societies.”
How can we avoid the pitfalls of democracy (discussed here)? We can’t. We can soften them, but the ills will remain. There are two other options: consensus, and contracts. Democracy is the third best means, but its dangerous. I’m partial to Jeffersonian democratic-republicanism, but a step closer to the individualism of Benjamin Tucker, and Proudhon. I don’t think liberty is safe by way of representative democracy and centralized power.
A State monopoly breeds privilege, the power to trump individual liberty/autonomy, and as noted earlier a range of systemic issues in the means of that power: the vote itself, and the separation of actor and director once the acting begins. Furthermore, being that humans are by nature self-interested actors there is little hope that putting power in the hands of a representative will reap rewards for the so-called directors/voters sitting at home with interests different than those acting in government. Consider Snowden’s “conscience” quote again.
How do we “self-manage” interactions on a larger scale, i.e. society? How do we have a more horizontal framework? How do we balance individual and collective sovereignty when they can be at odds? The freedom to abstain? The freedom to withdraw from outcomes that impact the individual that must suffer them? How do we limit oppression, exploitation, and domination? We have four options to play with to address these questions:
- submit to the will of others (slave)
- subject others to your will (authority)
- socialize (associate)
- mix and match 1, 2, 3 (vote).
- 1 and 2 are obviously related.
- Representative democracy is 4, 2, 1, with little 3 other than casting a ballot.
- Direct democracy is 4 and 3, and less 2, 1.
- Consensus is 3 (not immune to 1, 2).
- Contract is 3 (not immune to 1, 2).
No human system trying to balance freedom, or equality in freedom, will be without fault and defection, but to institute a centralized system with authority/hierarchy as the centerpiece will produce just that for the masses–conscience or not. Likewise, the masses are not going to make things better by returning the favor and imposing their will from the bottom onto others either. That’s tyranny too.
Long ago a man in France with conscience got it:
“To be GOVERNED is to be kept in sight, inspected, spied upon, directed, law-driven, numbered, enrolled, indoctrinated, preached at, controlled, estimated, valued, censured, commanded, by creatures who have neither the right, nor the wisdom, nor the virtue to do so . . . To be GOVERNED is to be at every operation, at every transaction, noted, registered, enrolled, taxed, stamped, measured, numbered, assessed, licensed, authorised, admonished, forbidden, reformed, corrected, punished. It is, under the pretext of public utility, and in the name of the general interest, to be placed under contribution, trained, ransomed, exploited, monopolised, extorted, squeezed, mystified, robbed; then, at the slightest resistance, the first word of complaint, to be repressed, fined, despised, harassed, tracked, abused, clubbed, disarmed, choked, imprisoned, judged, condemned, shot, deported, sacrificed, sold, betrayed; and, to crown it all, mocked, ridiculed, outraged, dishonoured. That is government; that is its justice; that is its morality.” Pierre-Joseph Proudhon, General Idea of the Revolution, p. 294
“When fascism comes to America, it will be wrapped in the flag and carrying the cross.” Sinclair Lewis
“…any man who takes the liberty of another into his keeping is bound to become a tyrant, and that any man who yields up his liberty, in however slight the measure, is bound to become a slave.” HL Mencken “Why Liberty?”, in the Chicago Tribune (30 January 1927)
Darian Worden expands on some of this here.
1.Possible reference to “The best government is that which governs least,” motto of the United States Magazine and Democratic Review,1837-1859, or “the less government we have, the better” – from Ralph Waldo Emerson’s “Politics”, 1844, sometimes mistakenly attributed to Jefferson – back
In the ‘Roaring 20′s’ Elizabeth (Lizzie) J. Magie Phillips created the game Monopoly, actually called The Land Lord’s Game. She was a Georgist, an anti-capitalist, that wanted to teach Georgism to the public.
She created the game, as she said, because:
“We must do something about it [the rentier class, or capitalism,] on a large scale if we are to make headway. These are critical times, and drastic action is needed. To make any worthwhile impression on the multitude, we must go in droves into the sacred precincts of the men we are after. We must not only tell them, but show them just how and why and where our claims can be proven in some actual situation….”
See this Georgist site for more info.
Anarchists have some things in common with Georgists. The anarchist Leo Tolstoy admired Henry George, for example. Perhaps because Henry George got something right, like Locke, mainly that capitalism is foul because it robs people of what they create, and that natural resources, including land, belong equally to all because they are not made by anybody. Lizzie’s focus was to have people focus on what was, and still is, called the “rentier” class, i.e. capitalists, who like parasites gain profit by the monopolization of access to property (physical, financial, or intellectual). The Land Lord passed Go to become Monopoly, ironically by theft, both of which Lizzie was trying to expose. see Harper’s Monopoly is Theft | more on Georgism here