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To dissolve, submerge, and cause to disappear the political or governmental system in the economic system by reducing, simplifying, decentralizing and suppressing, one after another, all the wheels of this great machine, which is called the Government or the State. --Proudhon, General Idea of the Revolution

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Tuesday, September 13, 2005

Vulgar Libertarianism Watch, Part XII (but this ought to count for two or three, at least)

What to make of this?
The expansion of human creativity, wealth and liberty made possible by the digital revolution will best be accomplished in a world respectful of property rights, writes The Progress & Freedom Foundation President Ray Gifford. In the Progress on Point "The Place for Property and Commons," Gifford cites the agricultural and industrial revolutions of the 18th and 19th centuries, and in particular the "enclosure movement" in England in the 18th century, to demonstrate that progress and societal well-being can result from a greater emphasis on property rights and the return those rights give to producers....

The digital revolution, writes Gifford, is leading to massive increases in wealth and productivity, as well as changes to the social and political structures of our age, just as the agricultural and industrial revolutions did in their time. But those in the commons movement are mistaken in arguing that the digital revolution threatens to foreclose knowledge or innovation. When English common land was enclosed for more efficient private farming, this shift to a property rights model created a manifold increase in food production, as well as a new labor force that fueled the industrial revolution.

The "return... to producers" bit is especially hilarious, by the way. The enclosures were aimed precisely at reducing the return to producers to the smallest amount feasible--a fact that Gifford can verify for himself by a simple survey of the contemporary pro-enclosure literature. The employing classes of that day did everything but twirl their moustaches, chortle "We are evil, heh heh," and tie Little Nell to the train tracks.

In his speech itself, Gifford facilely describes the enclosures as "stronger property rights in land"--as opposed to "the old rules of peasants eking out a living on the commons." Now, some backward-thinking folks might say that those "old rules" were property rights, and that enclosures were a violation of those property rights. It resulted in "stronger property rights in land," all right: stronger property rights for the thief over his stolen loot.

And naturally, Gifford can't resist defending the robbery on the grounds that the thieves made better use of the property (supposedly scientific farming would never have come about, otherwise). Hmmm.... that's pretty much what the state of Connecticut was saying in the Kelo case, I believe.

What Gifford calls "property" in the digital sphere is an example of what Hodgskin called an "artificial," as opposed to a "natural," right of property. Property in tangibles and land is rooted in the fact of physical reality that two objects cannot occupy the same space at the same time. My wallet cannot be in my pocket and yours at the same time. And when I occupy a piece of ground, and homestead it with my labor, it precludes your doing the same. By the very fact of maintaining my occupancy, I am at the same time excluding others. And I can call on my neighbors, if necessary, to support me in maintaining my occupancy against any attempt to dispossess me.

"Intellectual property" [sic], on the other hand, is a state-granted monopoly on something that is not finite by nature, and can be used by an unlimited number of people at the same time. And unlike tangible property, I cannot defend intellectual "property" rights by the mere fact of possession. In fact, I have to call on the state to invade someone else's space and coercively prevent him from arranging his own tangible property in a configuration, or using it to organize information in a configuration, over which the state has granted me a monopoly. Would-be enforcers of "intellectual property" find that there's always a way around their measures, requiring ever more intrusive forms of surveillance to control what we can do with our own stuff. The intrusive measures haven't yet reached this level of absurdity--but give it time.

Intellectual property, in other words, is theft. Gifford comes close to admitting as much himself:

What do I mean by “legislative regulation?” Of course, in one sense, all rights are contingent upon their enforcement by the state. However, in the digital sphere, these rights are acutely the prerogative of the legislative sphere, and its extension, the administrative sphere. Thus, property rights for network owners are contingent upon their construction by the FCC and the state utility commissions. Can you, as a network owner, exclude certain content or uses of your network? That is a question for the FCC to answer. And then there is copyright and patent law, which constitutionally are matters for legislative regulation. The Congress gets to define the parameters of these intangible property rights, and their terms too.

In other words, they're just some shit somebody made up.

I contrast this “legislative regulation” with “rule of law regulation.” Though admittedly a matter of degree and not kind, “rule of law regulation” as experienced through common law norms of property and contract and enforced through the formalism of courts is more stable and, well, normative than the less fixed legislative regulation.

This fact of legislative regulation in turn means there is intense pressure and grand incentives to seek definitions of the rights favorable to a given interest. There is, in other words, an enhanced incentive in the world of legislative regulation for rentseeking. Furthermore, there is less stability in the rights defined under legislative regulation, because they are always contingent upon the next session of congress or the next meeting of the regulatory commission.

You don't say! "Rentseeking"... could you describe that for us, Mr. Gifford? You wouldn't have heard of something called the RIAA, would you, Mr. Gifford?

There really is a parallel between the enclosures and digital copyright law: both are cases of privileged interests acting through the state to rob people of genuine property rights.

Shameless apologetics for the rich and powerful, wrapped up in faux populism. Isn't one Tom Friedman enough?

Hat tip to Jesse Walker, who forwarded the link and suggested it might be just the thing for another "Vulgar Libertarianism" piece.

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6 Comments:

Blogger Bill said...

Back at home I have a stack of Bernard Shaw plays. Many of them written around the mid 1890's.

General advice to Librarians is that you're usually safe on copyright for works over a hundred years old. However, Shaw didn't die until 1950. Given that copyright is 75 years after the authors death over here, a play written in 1896 is still in copyright today....

September 14, 2005 8:25 AM  
Blogger Kevin Carson said...

Gifford's reference to "legislative regulation" ought to indicate to everyone that the jig is up (except maybe for unreconstructed Galambosians, who think we ought to be paying royalties to the heirs of the guy who invented the alphabet).

As Lincoln said of "property" in slaves, who ever heard of a Fugitive Horse Law, or a Horse Code regulating the rights of unowned horses? That's pretty strong evidence there's something a little odd about "property" in human beings.

Likewise, the fact that the legislature sets a term of expiration on copyright, and that it's enforced administratively or civilly rather than criminally, indicates that it's "property" in a very unique sense.

September 14, 2005 10:12 AM  
Anonymous Wild Pegasus said...

Likewise, the fact that the legislature sets a term of expiration on copyright, and that it's enforced administratively or civilly rather than criminally, indicates that it's "property" in a very unique sense.

I'm not sure what the big deal about the length of the term is. I own my apartment in fee term ending on May 31, 2006. There's nothing bizarre about that time limit expiring.

That it's civilly enforced says nothing. Criminal laws were civilly-enforced for much of English and American history.

Moreover, that intellectual property is unique is no argument against it. Personal property and real (estate) property have different rules. It stands to reason that intellectual property would have different rules from either of them, as well.

In other words, they're just some shit somebody made up.

Actually, that's not what he's saying. He's pointing out that intellectual property is governed mostly by statute and regulatory bureau instead of the common law and state-level enforcement. That judges instead of commissioners developed the common law makes it no more natural than the civil code. Nor does it say anything about its justice.

- Josh

September 14, 2005 10:49 AM  
Anonymous BillG said...

Gifford wrote:
"the "enclosure movement" in England in the 18th century, to demonstrate that progress and societal well-being can result from a greater emphasis on property rights and the return those rights give to producers...."

the landlord's monopoly on economic rent rewards "profits WITHOUT production" at the EXPENSE of labor-based property rights (wages) to those excluded...

Gifford wrote:
"When English common land was enclosed for more efficient private farming, this shift to a property rights model created a manifold increase in food production, as well as a new labor force that fueled the industrial revolution."

and as a result historical it has spawned imperialism from the over accumulation it produced and of course all of those workers were willing to voluntarily give up living off the land...

In his essay, "The God's Lookout," Albert Jay Nock (author of Our Enemy, the State) explains:

"This imperfect policy of non-intervention, or laissez-faire, led straight to a most hideous and dreadful economic exploitation; starvation wages, slum dwelling, killing hours, pauperism, coffin-ships, child-labour -- nothing like it had ever been seen in modern times....People began to say, perhaps naturally, if this is what state absentation comes to, let us have some State intervention.

"But the State had intervened; that was the whole trouble. The State had established one monopoly, -- the landlord's monopoly of economic rent, -- thereby shutting off great hordes of people from free access to the only source of human subsistence, and driving them into the factories to work for whatever Mr. Gradgrind and Mr. Bottles chose to give them. The land of England, while by no means nearly all actually occupied, was all legally occupied; and this State-created monopoly enabled landlords to satisfy their needs and desires with little exertion or none, but it also removed the land from competition with industry in the labour market, thus creating a huge, constant and exigent labour-surplus."

September 14, 2005 2:26 PM  
Anonymous P.M.Lawrence said...

Creditwhere it's due. There is some truth here, distorted by preconceptions. Enclosure did mean an increase in agricultural production - but of cash crops, not food as such. At first, in England, that meant more wool and less food (as after the Highland Clearances). Later, that meant more fine wheat - but not for the displaced, rather for the new middle classes, and for gin etc. Free trade was about the mercantile/industrial party preferring to sideline the landowners, so that they could underpay yet not starve their workforce by letting in foreign food; in the end, the wheat production didn't help its owners so much, and foreign poor people couldn't afford a peasant lifestyle and were forced into their own wave of exploitation and

September 15, 2005 8:32 PM  
Blogger Kevin Carson said...

josh,

There's a big difference between a term established contractually, and a term that's set as part of the state's act of fiat in manufacturing a property right in the first place. And the different enforcement mechanisms indicate that tangible property has been recognized as "natural," and enforced in part by mutual consensus, for a long, long time--something that's not true of "intellectual property."

Peter,

Of course, the success of "scientific farming" after enclosure compared to the methods in earlier use is an unfair comparison similar to what you remarked on when defenders of agribusiness compare it to the efficiency of "actually existing" subsistence farming. To the extent that the state preempted the channels of cooperation and voluntary association, there was probably a "crowding out" effect where advance of technique in capitalist farming displaced a similar advance that might otherwise have taken place within peasant farming.

September 16, 2005 10:42 AM  

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