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 na´ve 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.
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