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It is theft! Such is the (in)famous response of P.J. Proudhon to the question What is property?. This catchy summary of the critique against property is unfortunately often misunderstood, out of context. Indeed, sometimes Proudhon is purported to have proclaimed property is theft … and property is freedom … therefore, property is impossible. Admittedly, at least such an undercurrent may be noted in his writings, although confusion of definitions is more likely source of this quote. But what does this mean? What are the conclusions of such a statement? How does this reflect in intellectual property issues? While there presently exists considerable opposition to the notion of intellectual property, even from the right end of the political spectrum, much of the critique tends to suffer from "not seeing the forest from the trees" in the form of the uncritical and uninformed support for physical property, out of both social conditioning and vested interests. Even the term "intellectual property" is criticised, with claims that it is not really "property". This essay will try to place intellectual property issues in a wider context, namely the conflict between absolute and permanent (capitalist) property rights, and other less extremist notions of rights to matter and information.
This essay is split in two parts. In this first part, I concentrate on the question of property in general, while Part 2 will be centred around the question of intellectual property in particular.
First of all, before I scare everybody off, I have to define what is meant by property in an axiomatic manner and not only by its inexorable nature. This is necessary because the opposition to (private) property is often confused with advocation of public (state) property, and possession is mistaken as synonym for property thanks to widespread right-wing propaganda (as well as some authoritarian leftist propaganda) and sometimes simply uninformed usage. We will then see that private and public property are simply two sides of the same coin, but that there are other alternatives as well, namely the rights of possession, usufruct, or occupancy and use – a dear child has many names and flavours. In the words of Proudhon,
it is proper to call different things by different names, if we keep the name 'property' for the former [individual possession], we must call the latter [the domain of property] robbery, repine, brigandage. If, on the contrary, we reserve the name 'property' for the latter, we must designate the former by the term possession or some other equivalent; otherwise we should be troubled with an unpleasant synonym. [What is Property?, p. 404]
Proudhon's axiomatic definition of property was a right of increase; the right to demand something from nothing. We do not have to go into such economic definitions, however. In accordance with the observation that occupancy and use are facts of the material world, and property merely an idea[^1] manifesting as ways to control these facts, we define property as a right of government over the user and the occupant, in relation to anything the proprietor has claimed as its own. This is what is inevitably meant by property, for it would otherwise be worthless to the proprietor who does not possess the resource. Clearly this definition includes intellectual property, as would include Proudhon's right of increase. Proudhon:
The proprietor is a man who, having absolute control of an instrument of production, claims the right to enjoy the product of the instrument without using it himself. To this end he lends it. [What is Property?, p. 310]
Recognised right of possession, deriving from the physical fact of possession as established occupancy or use, may then be contrasted as a right of self-government. Shedding some light on the proclamations quoted in the introduction, Proudhon goes:
Individual possession is the condition of social life; five thousand years of property demonstrate it. Property is the suicide of society. Possession is a right; property is against right. Suppress property while maintaining possession, and, by this simple modification of the principle, you will revolutionize law, government, economy, and institutions [What is Property?, p. 285]
Of course there can be and is healthy disagreement on what are valid forms of possession, the extent of such rights over others, and what constitutes abandonment of one's former possession, and thus the associated rights. At one extreme end of this latter scale, there is the extremist notion of right of property, where disuse never constitutes abandonment, and at the other extreme end the right of possession ends when one stops clinging to something with one's teeth. Both of these extremes have undesirable characteristics – both of which can be called "theft" – the former facilitating concentration of wealth and power, and the latter being potentially very unstable. Somewhere in between, conceptually closer to the latter, should lie more equitable settings that still provide some stability. How to best balance the needs of the individual and the society (should) have to be worked out individually in every distinct case.
Theists and other philosophical idealists of course regard ideas more important to the conditions of the material world, justifying tyranny by evading the question, deferring to religion and ideology. M. Bakunin put it well when he proclaimed that
[philosophical] materialism starts from animality to establish humanity; idealism starts from divinity to establish slavery and condemn the masses to an endless animality. Materialism denies free will and ends in the establishment of liberty; idealism, in the name of human dignity, proclaims free will, and on the ruins of every liberty founds authority. [God and the State]
Such idealism can be seen in the religion of "natural rights", popular (although not universally followed) among right-"libertarians" as justification for property. But if there is such a thing as a natural right, it is the right of might. Now, if these capital's apologists acknowledged that the right to property rests on might, we'd immediately see their moral hypocrisy, and could start talking. But talk of property itself as a fundamental natural right is evading the question.
Another common ideological justification, or an attempt at a basis for the former, is the Lockean idea that labour creates property; that the fruits of the labour of one become property of one. But most labour in a convoluted society is social; most of the time the original owners of a work or a thing can not be named as the sole productive force behind it, and always the society at large has had an influence on the outcome. Thus, if we accepted that labour justified property, property would have to be public. That is not what most proponents of such ideas want, and of course that is also not the reality, because labour is powerless against existing property, and thus has to accept whatever wages it can get as a substitute. As Proudhon at times more and at times less succesfully demonstrates, labour as justification of property destroys property. Labour as a basis for property would also trivially justify intellectual property.
We are thus led to denounce such mysticist justifications for property, turning on themselves. Rights are simply social constructions, and might equals right. But a pen has might comparable to a sword, and it might be possible to find a practical justification for property.
The question then becomes whether property "works"? That it indeed does and "efficiently", is the most popular justification today. But the question remains, works for whom and how? It can be said that dictatorship is efficient, as there's no need for discussion. But does dictatorship allow efficient dissemination of dissident ideas? Usually, no. Something "working" and being "efficient" without more specific qualifiers is always highly subjective. As property "working efficiently" for one person can be quite nefarious towards others' well-being (which is too often judged only by economic factors), proponents of property seldom spell out their selfish motives (only wrong is in claiming otherwise!) and instead resort to such dogmatic measures as "economic growth" and "creation of jobs" – something that are certainly to be found in the area of intellectual property rights enforcement. Even if we accept such highly suspicious measures, we are still left with the question whether such an extremist institution as private property is necessary to reach those goals, and wouldn't some form of right of possession, for example, suffice in unprejudiced circumstances? Remarkably, or perhaps not, some of the arguments attempting to demonstrate the necessity of property are infact arguments for the right of possession, as in the uninformed claim that "if physical property didn't exist, thugs would have the right to oust you from your home" – for the right of possession suffices towards this end, and what is the landlord but a thug? Besides, for finding out what works towards reaching some set of goals (that not always can survive the light of day), it is not sufficient to derive justifications for the status quo or its more right-extremist versions from highly imprecise god-given models, as is popular in economics. Experimenting with a variety of alternatives is necessary, although, in the social sciences, indoctrination of course affects the validity of models, and thus there's no objective experiment.
In summary, even any practical justification for property is always highly subjective, and the institution of property rights is simply a social construction of balance in physical might (to which economic and influential might reduce in the end), which is needed to maintain such an extremist institution. But taking might as the basis of property rights, intellectual property rights naturally follow (at least for megacorporations and other powerful entities) if the mighty so desire.
Continue to Part 2…
[^1]: Given the somewhat materialist philosophical outlook in this essay, it may seem a bit strange to call something "merely" an idea, ideas also being configurations of atoms, or perhaps something not yet known to physics. The point, however, is that the atoms expressing the idea of property do not manifest as some distinct macro-physical structure known as "property", unlike possession.