[Solar-general] The advantages of seeing free software as property

[Nicolás Reynolds]

Parece interesante, pero no termino de entender el punto del tipo este. (esto
se puede convertir en un hilo al pedo :P)


Title: The advantages of seeing free software as property
Author: Michel Bauwens
Date: mié, 12 ene 2011 12:16:56 -0300
Link: http://feedproxy.google.com/~r/P2pFoundation/~3/NOoGBVWHIOY/12

Excerpted from section 1.3.2 of the thesis of Martin Pedersen, “Property, 
Commoning and the Politics of Free Software“.

* Property and the tangible/intangible divide: a policy of what?  at 
http://commoning.wordpress.com/2011/01/03/is-copyright-policy-or-property-a-critique-of-the-fsfs-position/[1]

The text below helps understand the ‘tactical’ opposition of the Free Software 
Foundation and Richard Stallman against seeing free software as property and 
especially against the concept of “Intellectual Property�.

It also argues that there are many advantages when we start seeing it as 
property.

For further info, see also our own section of Peer Property[2]�

J. Martin Pedersen:

In this section I examine the reasoning behind the particular framing of the 
intangible realm that characterise information exceptionalism. Siva 
Vaidhyanathan, prominent cultural environmentalist and professor of Media 
Studies and Law at the University of Virginia, writes that “[i]t is essential 
to understand that copyright in the American tradition was not meant to be a 
“property right� as the public generally understands property� (2001: 11) and 
“[c]opyright should be about policy, not property� (ibid: 15) and “[c]opyright 
is not property as commonly understood. It is a specific state-granted monopoly
issued for particular policy reasons� (ibid: 253). Moreover “[c]opyright was a 
matter of policy, of a bargain among the state, its authors, and its citizens� 
(ibid: 23) and “Jefferson even explicitly dismissed a property model for 
copyright� (ibid.).

That copyright is a matter of policy, not property might sound strange to a 
lawyer or a philosopher trained to understand copyright as a particular 
instance of property relations with a temporal limit and who understands 
property as a matter of policy. Some things do not quite add up. Nevertheless, 
that copyright is a matter of policy, not property, is a point that the founder
of the Free Software Foundation, Richard Stallman, together with other 
advocates of “Free Culture�, wants us to accept1.

Essentially, the Free Software and Free Culture movements reject the concept of
property and instead choose to frame issues pertaining to ideas, information 
and knowledge – or the intangible realm – in terms of freedom, liberty, human 
rights, policy, intervention, and regulation. Anything but property, but 
preferably “policy�.

Two mediate questions arise from this position: (i) What is policy? (ii) Why 
should we choose to adopt one term instead of another? I will answer them in 
turn.

What is policy? Is there something in the word that clearly delimits it from
property? What does policy actually mean and where does the term come from? It
is term that is etymologically compounded by two roots. The Greek “polis� –
????? – which means “city� or “state� and also “citizenship� or a “body of
citizens�. In other words, a rather general term suggestive of “political
society� and those “who make up that society�, either individually or
collectively, or their status within that political society. The second root of
policy is the Latin “politus�, which means “polished� in the sense of
“refined�. In late Middle English the compounded “policy� ambiguously referred
to “political sagacity� and “political cunning�, the former presumably the
meaning it had for those in power, while the latter likely reflects the views
of common people. Despite the ambiguity, or perhaps exactly because of this
ambiguity, policy referred to “what those in power are doing, how they rule
society�. The modern term policy, then, enters the English language conveying
the meaning of “a constitution�, which is now rare or obscure, but in 18th
century political science referred to “government, administration�; or was
equated with “polity�, which in turn meant “civil order�, “administration of a
state�, “civil government� or “a particular form of political organization�
(OED 1955: 1536-1537)2. In other words, policy is a broad term that we may say
refers to a variety of activities that a state performs as part of the
governance of its people.

In the context of capitalist democracy, therefore, the conventions that
institute its particular form of private property is a central part of the
state’s policy. It is a policy that gives rise to certain laws, such as “theft�
codified into a statutory offence in the Theft Act 1968 in the UK, where
Section 1 reads “A person is guilty of theft if he dishonestly appropriates
property belonging to another with the intention of permanently depriving the
other of it; and “thief� and “steal� shall be construed accordingly� (Theft Act
1968). Private property is part of the state’s policy and the Theft Act is an
enactment of that policy, which is necessary to secure the stability of
possessions as declared in the policy.

If we return to the claim that “copyright is policy, not property� it becomes 
obvious that there is a conflation at play, which is deployed for tactical 
purposes. The choice of policy over property is presented as a matter of 
tactic, rather than analysis: tactically it is decided to focus on “policy�, 
despite an analytical awareness that property can take on many different forms.
This tactic is chosen on the assumption that the public cannot understand the 
term “property� in the way that lawyers and philosophers are able to.

However, property is a form of policy – or it is a manifestation of policy. We 
may say, for instance, that “private property is a central ingredient in 
foreign aid policy in order to further entrepreneurship� or that “private 
property was central to Thatcher’s reasoning for the policy to turn council 
housing tenants into house owners�. Or, expressed differently:

“If it is true—as it must be—that copyright is policy, then it is equally true 
that all property rights are policy� (Mossoff: 2005: 33). The claim that 
copyright is a matter of policy, not property can also be unpacked differently.
Instead of arguing whether property means this or property means that – in the 
context of what are essentially artifices of justice at any rate – we can ask 
what debates around each of these respective issues entail. What kind of 
questions are asked in discussions about property relations and what kind of 
concepts are at play in discussions about copyright. Here it “is easy to see 
that every tangible property entitlement has arisen from a crucible of moral, 
political, and economic analyses, and thus implicates the same questions about 
utility, personal dignity, and freedom that now dominate the debates over 
digital copyright. The preeminent property cases that every law student studies
in the first year of law school are exemplars of this basic truth� (ibid.). 
Nevertheless, investigating the claims of the “information exceptionalists� 
further will be instructive3.

As part of the tactic to substitute policy for property in the context of 
understanding copyright, Free Culture advocates claim that copyright understood
as property is a modern invention carried out by scheming corporations using 
the rhetoric of (natural) property to distort the public perception of the 
underlying and original policy of copyright (Stallman 2004)4. However, the

“…story supposes that a multilateral treaty would be written and an 
international agency established with a wholly new name that no one was 
familiar with. In fact, WIPO’s predecessor international agency was called the 
“United International Bureaus for the Protection of Intellectual Property.� It 
was commonly known by its French acronym, BIRPI. BIRPI was formed in 1893, as a
combination of two small agencies that had been established to administer, 
respectively, the Berne and Paris Conventions. Thus, “intellectual property� 
was a conscious, nineteenth-century category created to subsume both “literary 
property� (Berne) and “industrial property� (Paris).� (Hughes 2006: 1005-1006) 
Further good evidence for the tradition of understanding copyright and patents 
as property has been provided recently as a response to these seemingly 
misleading claims:

“There can be little question today that intellectual property assets are forms
of “property.� The Patent Act expressly declares that “patents shall have the 
attributes of personal property� and the Supreme Court acknowledges them as 
such. The Copyright Act states that “ownership of a copyright may be 
transferred in whole or in part by any means of conveyance or by operation of 
law, and may be bequeathed by will or pass as personal property by the 
applicable laws of intestate succession.� (Menell 2007: 37) Consider also a 
publication that pre-dates cultural environmentalism and Free Culture:

“English law has considered copyright a form of property. An 1842 decree 
asserts that “Copyright … shall endure for the Natural Life of Such Author and 
shall be the Property of Such Author�. In other decrees the terms “the owner of
the copyright,� “ownership of copyright� and “proprietary rights� are 
mentioned“ (Matuck 1993: 406; see also Mossof 2005, 2007).

There is no evidence to suggest that intellectual property is a new term, on 
the contrary. To understand why Free Culture and Free Software advocates are 
rejecting the term, we need to understand their perception of the public 
imagination and the public’s capacity to understand issues concerning property 
and social organisation. Lessig explains:

“If you’re a lawyer, it’s OK to think of intellectual property as property, 
because we’re trained to use the word property in a careful way. We don’t think
of it as an absolute, perpetual right that can’t be trumped by anybody. We 
understand property rights are constantly limited by public-use exceptions and 
needs, and in that context we understand intellectual property to be a very 
particular, peculiar kind of property — the only property constitutionally 
required to be for limited terms. It’s clearly established for a public purpose
and is not a natural right … The real problem is when people use it in the 
ordinary sense of the term property, which is “a thing that I have that nobody 
can take, forever, unless I give it to you.� By thinking of it as property, we 
have no resistance to the idea of certain great companies controlling “their� 
intellectual property forever. But if we instead use terms like monopoly to 
describe the control that companies like Disney have over art objects like 
Mickey Mouse, it’s harder to run naturally to the idea that you ought to have 
your monopoly right forever� (interview in Walker 2002). Copyright, then, is 
property, for a lawyer and a philosopher, and property for a lawyer and a 
philosopher is not simply private property based on a natural right that 
requires no justification. For the “public� and in “ordinary� usages, on the 
other hand, property is a natural right according to Lessig; Stallman agrees:

“I, along with most people, consider property rights as natural rights, 
something people are simply entitled to. They don’t need any specific 
justification; rather, exceptions need justification� (Stallman 2007: email)5. 
Do most people really think that, I wonder? However, it is not a question that 
is really relevant here. Two principles prevent us from entering into such 
questioning. Firstly, this is an academic and scholarly exercise, to the best 
of my abilities, and secondly, we are certainly not in the business of 
misleading “the public� on the basis of the assumption that “the public� is 
unable to understand property properly. If anything, a very careful explanation
to “the public� of what property means for lawyers and philosophers would be 
called for, rather than a misleading, non-factual deviation. Such a careful 
explanation will be provided in Chapter 2. Let us here disentangle the 
confusion, which will reveal a different effect of the “framing effect�.

Stallman uses the term “framing� to strengthen the Free Culture claim and 
justify the tactic to treat the public as too unwitting:

“Bringing the word “property� into contact with this issue in _any_ fashion 
frames the issue in favor of whoever is the “owner� of the “property�. Everyone
can sympathize with “Keep off my property! I can use my property any way I 
like.� And that is the basis that non-philosophers will use to respond to your 
statement … In the “network neutrality� debate, that framing favors AT&T. In 
copyright issues, that framing favors the author or publisher. The issue here 
isn’t the history of Western modern ideas of property rights. (Property rights 
existed before 1700.) It’s about what people (other than philosophers) think 
today. I agree with you that, at the fundamental level, property rights are 
conventions set up by society, and that these conventions could be set up in 
various ways, and that we can present arguments in favor or against various 
proposals. None of these conventions is beyond the domain of questioning, and 
although I accept the idea of property rights as the default for physical 
objects, I can consider the question. I think you will find that a large part 
of the public won’t go that far. Merely to call patents a “property right� will
make it difficult for many people even to entertain opposition to them. You’re 
probably aware of the effect that the way of framing an issue has on people’s 
thoughts. Perhaps philosophers have trained their minds to the point where they
can overcome this effect — but not most people. If we frame copyright issues in
terms of “property�, that is in practice a terrible handicap� (Stallman 2008: 
email)6. There is good reasoning and cogent argumentation behind the tactical 
choice to not frame the politics of Free Culture and Free Software in terms of 
property. However, I am wary of discussing legal and philosophical concepts in 
a way defined and determined in scope by popular opinion, especially in the 
context of the free flow of information, ideas and knowledge – and a Free 
Culture in general. I lean toward sharing knowledge and skills with “the 
public�, rather than simply assuming their ignorance.

Indeed, I argue that framing Free Software in terms of property has great 
potential. Imagine what would happen if Free Software was understood as 
property and the public came to learn that copyright, as a form of property, 
could take very different and shared and collective forms and be temporally 
limited. The concept of property would be relativised, so to speak, and no 
longer take the particular form that appears to be tattooed onto everyone’s 
mind, namely the kind of private property that characterises capitalist 
democracy. For Ayn Rand, subverting the understanding of one intellectual 
property right means nothing other than the dissolution of “all other rights�:

“Patents are the heart and core of property rights, and once they are 
destroyed, the destruction of all other rights will follow automatically, as a 
brief postscript� (Rand 1966: 128). Currently, property is understood in what 
Stallman and Lessig so cogently noted was an incorrect manner: a natural, 
absolute, perpetual right to do whatever you please. Free Software, however, is
very differently configured and if understood as property would force upon that
concept substantial reorientation. If indeed framed in terms of property, Free 
Software might constitute a threat to capitalist property, because it reveals 
that capitalist property is only one of many possible ways of configuring 
property. Viewed upside down, then, the tactical framing (i.e. not in terms of 
property) that is central to Free Software politics, serves to protect Free 
Software from public misunderstanding, just as much as it serves to protect 
private property from public understanding.

Understanding Free Software as property potentially provides a fresh view on 
property that is not alien to lawyers and philosophers and which would be 
enlightening to “the public� (whoever that may be). It opens a door to the 
politics of property, which, according to the Free Software and Free Culture 
movements, is suffused with misunderstandings. A lack of information, I claim, 
is a signal to open up the black box of property and let insights circulate 
freely; and not a signal to keep the black box of property closed. Yet, 
Stallman disagrees:

“Our goal is to establish relations about software which are not property 
relations. There are rules, yes; but these rules are not like property rights 
(unless you stretch that term so far it will snap)� (Stallman 2007: email)7. 
Snapping property is precisely what I am aiming at. The institution of property
is a core element in political thought. Revisiting it, revising it, and 
understanding property in new contexts in the same way that you re-read a novel
to grasp dimensions that you had previously failed to notice, is a recurrent 
political task. In times of change, when the technological, cultural and social
circumstances change around us, we need to address the core rules and laws that
typify society to ensure that they fit and are sensible in the new context. One
such core rule or law is property and it is necessary to continuously redefine 
its boundaries. That is my claim, but that is also where my view diverges from 
Stallman’s:

“I think the “institution of property� is an overbroad idea, not useful for 
thinking about political issues … If [redefining the boundaries of property] is
your goal, it seems that we are fundamentally opposed� (Stallman 2008: email)8.
Because of this divergence, the “policy approach� that defines Free Software 
and Free Culture is irreconcilable with an anti-capitalist position. That 
incommensurability is clearly reflected as Lessig states his position with 
regard to private property:

“I [do not] condemn “proprietary culture.� Proprietary culture has been with us
from the start and for most of our history has served creativity and culture 
well. What I do condemn is extremism—the shift from the standard view to an 
extreme version of “proprietary culture� that could easily become embedded in 
the digital economy� (Lessig 2005: 63). Given that Lessig primarily sees 
property as referring to the tangible realm only, the statement that 
proprietary culture serves us well must include reference to exclusive 
ownership of land, the means of production and distribution. In short, Lessig 
refers to the very heart of the capitalist economy, which social movements all 
over world have resisted for hundreds of years. Lessig thus defends the 
industrial machinery that has landed humanity in an unprecedented ecological 
crisis and a relatively profound and prolonged economical crisis. Private 
property rights are embraced uncritically – except for in cyberspace – in 
submission to the invisible hand with the violent fist. The uncritical view on 
existing property regimes is here confirmed by Benkler:

“This is not to say that property is in some sense inherently bad. Property, 
together with contract, is the core institutional component of markets, and a 
core institutional element of liberal societies. It is what enables sellers to 
extract prices from buyers, and buyers to know that when they pay, they will be
secure in their ability to use what they bought. It underlies our capacity to 
plan actions that require use of resources that, without exclusivity, would be 
unavailable for us to use� (Benkler 2006: 23-24). The market is a useful and 
integral element of a liberal society of the kind that Benkler is advocating, 
because it facilitates contractual relations between rational agents that 
enable them to plan actions and produce things. The market is good for 
humanity, as long as it behaves nicely in cyberspace. The point of Free Culture
“is not to rethink real property but to explain the ways in which the economic 
theory of real property falls short when applied to the rather different world 
of intellectual property� (Lemley 2005: 1097). When it comes to the economic 
theory of “real property� as they call it, there is nothing to question, 
because we can “say with some confidence that a right of physical exclusion 
works as a legal matter because its benefits exceed its costs� (Lemley 2005: 
1099):

“Real property rights do in fact serve two valuable goals. First, they prevent 
rivalrous uses by multiple claimants to a particular piece of property and 
therefore avoid the tragedy of the commons. Second, they allow their owners to 
invest in improving or developing the property� (ibid: 1098). For the Free 
Software and Free Culture movements, we have seen, (mis)understanding property 
is a matter of tactic, not analysis. The overall strategy, it has been 
revealed, does not include a critical perspective on ownership in the tangible 
realm. The analysis of this chapter, on the other hand, will show that this 
tactical approach at the expense of a thoroughgoing, critical engagement leaves
Free Software and Free Culture eternally vulnerable to enclosure. That is 
because exclusive ownership of the technostructural underpinning of cyberspace 
– the materiality of cyberspace, as it were – permits those owners to seek rent
in and prioritise traffic on their network: exclusive, private ownership in the
tangible realm permits an extraction of wealth from activities that unfold in 
the intangible realm. There is no such thing as a purely immaterial mode of 
production or circulation, not even dreaming or telepathy come close. Nothing 
in cyberspace exists without a material foundation, as we shall see in the next
section. For that reason, Free Culture must appeal to the state to ensure that 
capitalists play ball in cyberspace and do not extract wealth in the manner to 
which they are accustomed.

By implication, then, Free Culture requires a strengthening of the state – and 
an always strong state – while the problems of private property rights in the 
tangible realm remain unquestioned. Consequently, the novelty of the social 
relations for which protection is sought are instead conceptualised in terms 
that rather permit for market forces to profit from them, than provide 
protection in a substantial sense. From an anti-capitalist perspective the 
celebrated co-productive relations are hence lost in the sense that they are 
not applied to that province of our knowledge and legal systems called 
property. It is, however, a desolate province in urgent need of cultivation. 
Understanding Free Software as property and commons-based peer production as a 
new mode of production that instantiates a non-capitalist space in society on 
the basis of novel property configurations, I argue, will cultivate an 
understanding of property that is very instructive.� 
[image 4][3][image 6][5][image 8][7][image 9]

Links: 
[1]: http://commoning.wordpress.com/2011/01/03/is-copyright-policy-or-property-a-critique-of-the-fsfs-position/ (link)
[2]: http://p2pfoundation.net/Category%3APeerproperty (link)
[3]: http://feeds.feedburner.com/~ff/P2pFoundation?a=NOoGBVWHIOY:cki2YZa4MqE:7Q72WNTAKBA (link)
[4]: http://feeds.feedburner.com/~ff/P2pFoundation?d=7Q72WNTAKBA (image)
[5]: http://feeds.feedburner.com/~ff/P2pFoundation?a=NOoGBVWHIOY:cki2YZa4MqE:D7DqB2pKExk (link)
[6]: http://feeds.feedburner.com/~ff/P2pFoundation?i=NOoGBVWHIOY:cki2YZa4MqE:D7DqB2pKExk (image)
[7]: http://feeds.feedburner.com/~ff/P2pFoundation?a=NOoGBVWHIOY:cki2YZa4MqE:2mJPEYqXBVI (link)
[8]: http://feeds.feedburner.com/~ff/P2pFoundation?d=2mJPEYqXBVI (image)
[9]: http://feeds.feedburner.com/~r/P2pFoundation/~4/NOoGBVWHIOY (image)
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