Date: Tue, 06 Mar 2001 18:44:36 -0600
Subject: Re: The rearview mirror stage


TODD VANNOY,

When you say you completely disagree with my analysis, I'm not sure what
the level is you are referring to.  Are you saying you don't believe the
conflict constitutes a differend, in Lyotard's sense of the term, or
simply arguing with me because you believe in the inherent value of
intellectual property rights?   The latter seems to be the real point
because if the issue is simply a matter of litigation where the
Constitution, the 1976 Copyright Act and courts hold sway, then
certainly any question of justice outside of this rule of law becomes
merely a meaningless abstraction.  Politics becomes a genre (one of
terror) and not merely the linking of heterogeneous genres.

I assume you are familiar with some of the countervailing arguments that
can be made against intellectual property rights, even from a free
market libertarian position.  Any copyright or patent is usually
considered a state-imposed monopoly that tends to restrict the market. 
Such intervention on the part of the state can be justified to the
extent that it protects creative interests and thereby encourages
innovation. The situation changes dramatically, however, when "the work
of art in an age of digital reproduction" becomes defined by this very
reproducibility.  Art without the aura tends to function like
information in the marketplace and this unprecedented situation imposes
a new dynamic upon free trade and exchange.

Friedrich A. Hayek argued that the market operates as a kind of
self-organizing complex system, what he, borrowing from Adam Smith,
termed a spontaneous order.  Such a system is placed on the razor's edge
between order and chaos, and results from human action, not human
design.  In a manner similar to language such a system is too complex to
be completely understood by any single group or individual.  As a
result, Hayek argues that economic activity cannot be effectively
planned and coordinated from a central bureau.   On this basis he
critiqued the planned economies of his day, arguing that attempts by
government to regulate had a discoordination effect in the market and
also that such imposed information always lagged significantly behind
market information.

With regard to the changes brought about by the development of
information technologies, it becomes possible to stand Hayek on his head
and argue in a similar fashion against the restraint of trade in
connection with digital reproduction.   In today's new economy,
multinational corporations such as those found in the recording
industry, function as quasi-states which plan and intervene in the
market in order to manipulate it in ways that maintain and increase
their private profitability.  Nor do they act unilaterally in this
effort.  In order to succeed they must also enlist local government's
cooperation to monitor and regulate the flow and exchange of information
to ensure that illegitimate activities do not occur.  Furthermore, there
is always a lag between such intervention and the complex operations of
information systems so the corporate state will never succeed in
achieving its planned ends.  In short, the logic is such that such
controls from above can only lead us onto a new road to serfdom.  A
restricted information economy ends by becoming a police state. 

You will probably disagree with this analysis as well, but you must
realize that software which duplicates Napster's functionality is
already being disseminated as freeware and that the ultimate restriction
of copyright piracy probably has as much chance of succeeding as our
current failed war on drugs, and for very similar reasons.  To imagine
that this whole conflict will be brought to closure by a single court
judgment seems naïve at best - which was my basic reason for naming it a
differend.

PS - you also make the following comment:

"Why should a pharmaceutical company, for example, invest millions of
dollars in R&D, marketing, manufacturing and distribution if the patent
is not going to be enforced?" 

This is an issue for another day, but as a matter of fact you are wrong
about this particular issue.  The growing trend with drug research has
been for the government to publicly underwrite the cost of such research
either through research grants, subsidies or other venues at the state,
university or corporate level.  Once a breakthrough in the research
develops, the results are then handed over to the corporation to develop
them for private commercial application.