Date: Wed, 07 Mar 2001 14:45:22 +0000
Subject: Re: Rebuttal to Eric and Mary's earlier comments (3-6-01)


TDV

Interesting arguments. I would like to add a slight tangent to the discussion.
Copyright and intellectual property emerged as a form of codification of class
interest and class force, but it is slightly more complicated than that. I am
thinking of the work of Bernard Edelman and Pashukanis both of whom were legal
theorists.

Edelman attempted to produce a general theory of the nature of legal categories
and their social function. He wrote against the orthodox marxist treatments of
law  which have often been simplistic and reductionist, law as representative of
class interests. He used the work of Althussar (and co...) especially along the
lines of the marxist theory of production and the work on ideology and used them
to interrogate the theory of law and especially reworked the law related to
intellectual ownership of photography and photgraphic images. Photography is
especially interesting and relevant because of the way in the 19thC property
rights were initially constructed on the basis of literary property rights -
these were denied that the camera did involve any creative expression from the
subject and was a simple mechanical reproduction (an argument long since
discarded). But at the time the appropriation of relaity through creative labour
of the artist, creator could not apply. The technology superceded it was proposed
the right of the artist. Reality was considered common property. This was changed
through the requirement of the film industry, photography changed from a craft to
an industrial sector, (as is happening to the internet technologies). The
technology of the cinema industries enable the expression of the artistic subject
and not simply a mechanism in which it has no place. Hence the legal protection
of copyright being assigned to photography and the artist.... Edelman says '....
The advance of capitalist forces  is concretely realised in the site of the
subject in law. And the realistion takes the form of the subject. All production
is the production of a subject, meaning the subject the category in which labour
designates all man's production as production of private property....' The
ideology of property derives its properties from the bourgious subject.... The
subject which is effective in this relationship is the producing subject,
property right through the creative action is identified and the interest of
capital is advanced.... (It is worth noting that copyright is an anglo-saxon
construction and the relation seems different in mainland european law. Copyright
in UK law for example is not actually defined against notions of authorship.)

Modern copyright began as a part of an attempot to protect the publishing
industry (18th C) and not to secure the rights of authors. There is no
substantial difference created by the development of the new technologies rather
it makes the use of copyright more important as it aims to work to protect both
economic instituions (Microsoft, Faber & Faber and the Workers Educational
Institute) and also as a comparativly recent innovation the producing artist from
(Sting, Beckett to Lyotard). In the UK cinematic production was not brought under
copyright as a whole until the late 1950s. Intellectual property rights are
granted equally to Cricket clubs through the heroines of modernity and
post-modernity...Where this feels especially relevant is in the necessary
recognition that copyright as a legal practice has always existed to protect
institutions and creative subjects from technological based piracy, it was not
created in the UK at least to protect artists and authors. Recent changes in
capitalism have enabled some authors/artists to gain control over there work in
an unprecedented fashion - the artist owning their own copyright.... Personally I
think this is an interesting ideological turn... because of the shift towards the
acceptance of the subject having a stake in the issue of copyright.

To suggest that the laws of commodity circulation (cf Hayek I suggest a return to
Marxists may be more useful as a starting point for analysis) can make a claim to
freedom and equality is wrong. What does it matter if the producer is the owner
only of its labour power. He is simply the owner of labour not the product
produced. What does it matter if the sale of the product produced, information
perhaps, is freely circulated through the auspices of capital itself? It is
actually freedom itself at stake. The starting point for the issues related to
intellectual ownership is humanity. The human subject as constitted as a subject
in law. The problematic point is the necessity of refinding the human subject in
the legal arena. Is this possible given the predominance of the ideologies
surrounding private property - almost a telology there methinks...

enough - bye


best
sdv
TODDVANNOY-AT-aol.com wrote:

> This is in response to Eric and Mary's arguments concerning Napster:
>               They make a series of arguments, rejecting the notion of
> intellectual property rights as monopolistic and obsolete.
>               Furthermore, they invoke libertarian economists who question
> the efficacy and legitimacy of any regulatory framework ( Freidman's advocacy
> of the legalization of drugs, Posner's opposition to anti-trust statutes,
> etc.). These economists are influenced by Smith, with his libertarian,
> laissez-faire conception of the market economy, as if the market economy is a
> naturally occurring phenomenon, which can only be adulterated by outside
> intervention. I take issue with this conception, which is incredibly naive
> and simplistic. Could an economy exist without printed currency, interest
> rates, federally-insured banks or the legal bureaucracy, which enforces
> contracts? How could the economy exist without the physical infrastructure;
> the roads, ports, freight lines, hydroelectric dams, electrical grids, etc.?
> All of these things are provided by government appropriations. Also, these
> theorists seem to believe that if people are unregulated, then they will
> naturally do the "right thing." Unfortunately, it sometimes requires the
> regulatory state to force people to do the "right thing," for example - the
> legalization of labor unions, women's suffrage, school desegregation,
> environmental protection,  etc.  The regulatory state is not perfect, but
> would you want to live in a world without air-traffic controllers from the
> FAA, or want to invest in the stock market without quarterly corporate
> financial disclosures mandated from the SEC, or consume meat products that
> hadn't been inspected by the FDA? The regulatory state is not perfect, but it
> is necessary.
>       Another argument that they made was the technological inevitability of
> copyright infringement. However, I do not believe that this is inevitable, or
> that regulatory agencies or litigants should simply concede their copyrights.
> Admittedly, the enforcement and implementation will be more difficult, but
> the partial implementation
> is still possible. There are many cases where database access requires a
> monthly subscription, such as magazines and legal databases, for example (
> incidentally, the model for the new Napster format). So, I oppose this sense
> of false inevitability.
>          In addition, this quote of theirs intrigued me," 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." Could this be in reference to the Chinese crackdown on the
> pirating of Microsoft products? Are you defending international piracy? You
> also suggest that any substantial regulation of information is grossly
> ineffective, leading to a police state. Isn't this a classic "slippery slope"
> fallacy? Don't gun control opponents constantly apply this logic, that any
> form of gun control will necessarily lead to the abolition of all firearms?
>          In short, they seem to suggest that intellectual property cannot be
> totally enforced, so the laws should simply be repealed. Or they suggest that
> the burgeoning technology requires the creation of a new statutory
> codification, which very well might be the case, eventually. However, at this
> juncture I would advocate the good faith enforcement of intellectual
> property, even if the laws can only be imperfectly enforced.
>                          TRV
>
>