C. Beyond Property Rights

Thomas Streeter

12 December 2010

C. Beyond Property Rights: The Author and the Machine

¶ 1 Leave a comment on paragraph 1 0 Each of these theories continues to have its defenders. But, by the late 1970s, after two centuries of experience with theoretical property crystals repeatedly turning to empirical mud, it began to look wise in some circles to declare that property was nothing but a bundle of rights or, even, as law professor Thomas Grey suggested, that property was simply disintegrating.[17] Many academic schools of thought over the years had quietly expressed versions of this argument: the legal realists, some legal historians, some sociologists of law. The Critical Legal Studies movement―which appeared in the legal academy with a bit of storm and fury in the early 1980s―was for a while simply the best known and loudest proponent of the claim that things like property law had for the most part failed of their own accord. Legal rules, at least in the hard cases of the type that make up Supreme Court jurisprudence and thereby gain so much attention, are indeterminate, that is, logically interpretable any number of ways; what shapes ultimate legal outcomes is social context, culture, fashion, ideology―in short, people or, statistically speaking, men. This position had a strong logic to it and had a certain kind of intellectual daring, a sense of staring down difficult truths; while ignored by the vast majority of practicing judges, Critical Legal Studies gained a foothold in law schools. By the 1980s, then, there were several sophisticated and well-established schools of thought from whose point of view Nelson’s dream of crystalline property―not just in computer networks, but crystalline property of any sort―seemed like a naive fable.

¶ 2 Leave a comment on paragraph 2 1 For historians and sociologists, moreover, the iconoclastic idea that property was just a bundle of state-created privileges raised interesting questions. If property rights were not perfunctory, if they were arbitrary constructions of the state, then exactly how did they get constructed, and why did we continue to talk about them as rights at all? Bernard Edelman’s Ownership of the Image was one of the first works to tackle this question in the realm of communication technology, using the example of the late nineteenth-century encounter with the spread of photography.[18] In a world where copyright law was generally justified by reference to the labor and creativity of the artist―a writer or a painter deserved to own his or her work because of the labor and inspiration he or she put into it―photography introduced a series of quandaries. Was clicking the shutter of a camera really a kind of creative labor deserving protection, or was it merely a minor technical act, like switching on a light? Did the subject of a photograph have some kind of right to the image? Wasn’t it, after all, that person’s actual face and appearance that shaped the image on the film, not an artist’s interpretation of that face? If one believed, like Locke, that the rights were out there somewhere in nature and to locate them was the problem, or if one was an intellectual descendant of Bentham and assumed that one could somehow scientifically determine a social-welfare-maximizing distribution of rights, then the problem would be merely a technical one, a problem of working out how to design the law to take photography into account. But if, like Bernard Edelman, one believed that they were arbitrary, that there was no correct answer, then the question was an interesting historical one: what confluence of political, economic, and ideological forces shaped how property rights in photographs were defined?

¶ 3 Leave a comment on paragraph 3 0 Edelman’s analysis was significant because, instead of the standard easy and cynical answers to this kind of question―for example, the capitalist class or a coalition of interest groups simply gets what it wants―he granted that, in a specific way, ideas do matter. The law has to be meaningful in order to work, and the players in the game who made the law of copyright invoked the image of a laboring, creative individual getting his or her just rewards; in other words, coming up with an answer to copyright in photographs involved invoking a particular idea of the self or, in Edelman’s terms, a subject. That subject was both depicted in the law and in a certain way enacted by its enforcement. Edelman, borrowing from French poststructuralism, understood the subject/self, not as a thing that automatically inhered in a person, but rather as a cultural accomplishment, a contingent organization of language and social practices, along the lines of what John Frow calls “the imaginary forms of selfhood.”[19] (The argument is, not that selves do not exist, but that they are not their own explanation; when someone deeply feels, “this is who I truly am” or when they behave according to a certain definition of selfhood―”I am a citizen,” say, or “I am a businessperson trying to make a profit”―it’s not that those claims are untrue, but that they have their own cultural conditions and thus cannot be taken as fully self-explanatory.)

¶ 4 Leave a comment on paragraph 4 0 Applied to the phenomenon of copyright, this meant that a sense of ownership of one’s writings or efforts, a sense of responsibility for one’s creative compositions, had to be acquired historically and culturally. It was not something obvious to all people at all times, as Ayn Rand might have it, but rather, as legal historian David Saunders puts it, a habit acquired “much in the same way as late twentieth-century Westerners have acquired a reluctance and incapacity to spit in public.”[20] Part of Edelman’s unique contribution was to take the idea of cultural subject-construction beyond the realm of literary analysis into a realm where one could specifically see the intersection of power, culture, and the state, in the moment of creating capital.

¶ 5 Leave a comment on paragraph 5 0 Some years later, across the Atlantic in the American academy, a Critical Legal Studies-influenced law professor named Peter Jaszi became interested in similar intersections, resulting in a then-unusual collaboration between Jaszi and literary historian Martha Woodmansee. In the wake of their collaboration, a critical literature on copyright developed that discovered, with a kind of astonishment, the romantic notion of the author-genius buried away inside intellectual property law.[21]

¶ 6 Leave a comment on paragraph 6 0 Copyright, historically a response to the capacities of the printing press, is not about property in a physical thing such as an individual book.  It is about a text, that is, a sequence of words or an organization of colors, shapes, and sounds―something that can be reproduced across multiple instances, across the multiple copies of a book, a photograph, a film. But for this to make sense as something that can be owned, copyright needs to be granted to something the law can recognize as not a copy, something that is original, both in the sense of unique and in the sense of having an identifiable origin. That thing which is granted a kind of property status, then, has to be something that was not itself copied, something that had a moment of creation-from-nowhere. Beginning with printed books themselves, judges and lawyers, faced with legal squabbles and dilemmas, tended to imagine that original thing as something that sprang from a moment of inspiration inside the head of a unique individual, a genius. This, it turns out, was not a figure so much like Locke’s yeoman farmer cultivating land or Bentham’s calculating, profit-maximizing shopkeeper, but, both historically and phenotypically, it was something more like Goethe and Wordsworth’s inspired romantic artist―the model for the romantic form of selfhood.

¶ 7 Leave a comment on paragraph 7 0 As a result, inside legal cases concerned with decidedly unromantic topics such as computer databases and genetically altered cells from someone’s spleen, one can find invocations of something that looks very much like the shopworn literary figure of the romantic, isolated artistic genius working away in a garret. The literary critics and cultural historians found this interesting because they had been busy deconstructing the very notion of authorship. The signature essay, from their point of view, was Foucault’s “What Is an Author?” which famously concludes with the question “What matter who’s speaking?”[22] (Jaszi’s introduction of this notion to the legal academy was called “Who Cares Who Wrote Shakespeare?”)[23] The question has double implications. On the one hand, the question casts the common concern with specifying authorship into doubt: why should it matter who Shakespeare was as a person? What does that tell us about his works, about why they matter? But, on the other hand, it also raises a question of how the idea of the author as a genius-creator operates in history and society, the question of what Foucault called the author-function.

¶ 8 Leave a comment on paragraph 8 0 This approach opened the door to a great deal of fruitful scholarship that married the concerns of cutting-edge humanists and cultural critics with those of legal scholars. Film scholar Jane Gaines, for example, published a book demonstrating how an analysis of intellectual property can illuminate an understanding of films.[24] Law professor James Boyle analyzed trends in copyright law using insights borrowed from Foucault and other continental scholars.[25] Boyle in particular called attention to how the creation-from-nowhere assumptions associated with the concept of authorial genius, what he called the “author-ideology,” had the effect of obscuring the social conditions of creation, leading to questionable legal policies and obscuring various forms of collective cultural and intellectual production. Law professor and anthropologist Rosemary Coombe further elaborated on the problem, granting Boyle’s point but also noting the “double-jointedness” of the idea of authorship in law, the way it can go in multiple, sometimes unpredictable directions; if “author-ideology” generally functions to shift power over culture creation towards, say,  Disney or Time Warner, it also can sometimes support, say, Native American groups trying to protect their cultural heritage.[26]

¶ 9 Leave a comment on paragraph 9 0 While scholars were pursuing these interesting questions, however, the courts and legislatures of the United States, and to a large degree of the world, were pursuing a decidedly less skeptical line of reasoning regarding private property. Under the sway of neoliberal habits of thought, property relations were being extended ever more widely―to water, to highways, to genes, and, in the realm of intellectual property, to software patents, to business models, to the “look and feel” of software, to ever-longer copyright duration―and in the early 1990s this was generally presented as the only logical approach. A task force created by the Clinton administration in 1993 released a White Paper calling for strengthening intellectual property in the face of new digital technologies.[27] In 1994, the United States and European nations succeeded in making intellectual property law an element of the international system of trade in the TRIPS agreement, administered by the WTO. Property in the digital realm was clear, efficient, moral, and―as far as those in power were concerned―inevitable. The principle of “the more property protection the better” seemed inexorable.

¶ 10 Leave a comment on paragraph 10 0 On the other side of the intellectual fence, it did not help that Critical Legal Studies and its fellow travelers were vague when it came to solutions. Critical Legal Studies was generally thought to be a left-wing movement because it typically crossed swords with both legal moderates and conservatives inside law schools and because it seemed to make a case for relatively radical changes in legal interpretation. It was not, however, exactly the activist Left of the civil rights movement of the early 1960s, which, following Martin Luther King, Jr., couched its claims in terms of the ideal of rights; that earlier version of the Left proceeded largely by demanding that the United States live up to its own ideals, that it uphold, as King said, every citizen’s right to life, liberty, and the pursuit of happiness. Critical Legal Studies, in contrast, seemed to be saying, not that law was failing to live up to its own standards, but that it could not live up to those standards. Yes, this also meant that the law could in theory be changed any number of ways, but by itself the theory did not offer any basis for deciding what those changes should be. If this was true, moreover, what had happened to the rule of law? Were we just collapsing back into the rule of men, where judges settle disputes based on their own personal political views? Had we ever even left it? What was the alternative?

¶ 11 Leave a comment on paragraph 11 0 So, even for its enthusiasts, there was something disheartening about the Critical Legal Studies position. Once one had established, at least to one’s own satisfaction, the bankruptcy of the dominant ideas, what next? Perhaps a colorfully ironic take on legal ideals might be enough for those who relish the moment of iconoclasm for its own sake. But, as conservative law and economics theorists were wielding ever more influence on actual legal decision making, for those with important insight into the holes in the conservative positions, a list of much-discussed books and a few tenured law professors making elegant critiques seemed like small comfort. If you wanted to do more than just take apart other people’s ideas in front of your colleagues, if you wanted to be part of some actual positive change, if you wanted to do something that actually made a difference, where were you supposed to turn?

¶ 12 Leave a comment on paragraph 12 0 In this context, the surprising appearance of the internet presented an opportunity.

¶ 13 Leave a comment on paragraph 13 0 In March 1994, Wired published an essay by John Perry Barlow, which, in a dismissive sweep characteristic of both, was subtitled, “Everything You Know about Intellectual Property Is Wrong.” Here, suddenly, was something that looked like a Critical Legal Studies argument appearing in a hip popular magazine. The resemblance, to be sure, was mostly in the title. The article, about patents and copyright in the digital realm, asked,

¶ 14 Leave a comment on paragraph 14 0 If our property can be infinitely reproduced and instantaneously distributed all over the planet without cost, without our knowledge, without its even leaving our possession . . . what will assure the continued creation and distribution of such work? . . . The accumulated canon of copyright and patent law was developed to convey forms and methods of expression entirely different from the vaporous cargo it is now being asked to carry. It is leaking as much from within as from without. . . . Intellectual property law cannot be patched, retrofitted, or expanded to contain digitized expression any more than real estate law might be revised to cover the allocation of broadcasting spectrum (which, in fact, rather resembles what is being attempted here). We will need to develop an entirely new set of methods as befits this entirely new set of circumstances. . . . The source of this conundrum is as simple as its solution is complex. Digital technology is detaching information from the physical plane, where property law of all sorts has always found definition.[28]

¶ 15 Leave a comment on paragraph 15 0 For law professors and other intellectuals skeptical of the project of property, this looked like a friendly voice from an unexpected place. To be sure, for someone steeped in the critical and historical literature on intellectual property, many of Barlow’s specific claims were dubious. Digital technology was different, but once upon a time so was photography, and Edelman had shown how successfully the law had been adopted to that once-new and befuddling technology; historians could tell similar stories about broadcasting, film, and recorded music.[29] And Barlow’s idea that old laws were all based on “the physical plane” was peculiar; intellectual property has always been about intangible things. There was little new about the “virtuality” of digital property. (While it’s true that copyright has generally protected only things that “are fixed in a tangible medium of expression”―that is, written down or somehow recorded―the difference between a printed book or a cassette tape and a digitally transmitted text is one of degree, not of kind.) Neither words displayed on a page nor words displayed on a screen are completely lacking in physical substance, and both are easily copied. The lack of fit between the law and the reality, from the point of view of the accumulated critical literature on property, was nothing new. A Critical Legal Studies aficionado might have said that everything we know about property in general was wrong, so what’s the big deal about pointing this out in the digital realm?

¶ 16 Leave a comment on paragraph 16 0 Yet even for someone who was aware of all that, there was something alluring in Barlow’s jeremiad. In a by-then-familiar move, Barlow distinguished between the cool young folks who got it and the old suits that did not. He argued that “most of the people who actually create soft property―the programmers, hackers, and Net surfers―already know this. Unfortunately, neither the companies they work for nor the lawyers these companies hire have enough direct experience with nonmaterial goods to understand why they are so problematic.” The “programmers, hackers, and Net surfers,” who at that time were already developing a heroically rebellious status in the culture, thus might in fact be willing to rally behind someone who claimed that all those old lawyers were wrong. Deconstructing property law might impress a few colleagues, but following Barlow’s lead might take one to new, more hopeful places. Here was a potential ally, a new potential audience, and, unlike the seemingly impotent Critical Legal Studies, a hint of something that might actually make a difference.

¶ 17 Leave a comment on paragraph 17 0 Barlow’s essay exemplifies how the generalized romanticized construction of the digital in the context of the spreading internet created a context for a popularized iconoclasm. The surprising spread of the internet with the romanticized sense of rebellion so successfully propagated by Wired suddenly made it easier, even attractive, to dismiss large chunks of the received wisdom. In this new context, intellectual property might be one of those areas where the received wisdom might be changed, not just criticized.