Justifying Property Intellectually

In the first five chapters of his book, Merges lays the philosophical groundwork for what I suppose is to follow in the second half of the book. Fundamental to this groundwork is the idea that there should be a "one-to-one mapping" between owners and assets (both tabgible and intangible). Merges does a great job of progressing through the "orders," but unfortunately his whole argument is predicated on the first-order belief that Locke's labor theory of property applies to contemporary issues in intellectual property. It does not. Merges' argument that we can seemlessly apply traditional notions of property to more conceptual forms of property does seem to comport with theories proposed by Locke, Kant, and Rawls individually, but when taken together, the argument is not nearly as strong. 

Kant proposes that humans have a desire to shape and control things external to the self, and that this powerful desire justifies the allocation of property interests. If true, humans desire to control not only tangible goods, but intellectual ones as well. Humans throughout history have sought to comprehend the world, creating art and science in the process. But if we are to award individuals with the "labor" of these intellectual pursuits, we must be very clear as to what labor entails. Merges gives some examples highlighting the difference between "labor" and "mixing," but avoids the more critical analysis of labor. He fails to properly define labor outside the basic idea that it is the individual's personhood invested in an object through his ability to work. So how do we understand what role the "medium" plays in modern labor? Merges writes: "the medium is not the message, the individual is." So whose labor is the labor of a man's machine? Let me be more precise. Take the example of a music producer. The music producer purchases an Apple laptop computer. He then purchases the music composition software (Garage Band) that comes at an additional cost to Mac purchasers. He then uses the musical instruments supplied by the software program to create an electronic song. He adds no instrument of his own. Ignoring more complexities that can be added to this hypothetical, where do we want to assign the property right in this situation? Is our decision affected by how much time and labor the music producer took in writing the song? What if the producer was able to simply write an algorithm after which the software wrote out the entire composition? Merges would advocate the principle of "waiver" here (that the software makers would waive certain claims to the music produced on the software in exchange for expensive licenses), but music is entering a stage where computers are capable of doing almost everything a human is capable of doing (aside from mimicing the natural emotion with which humans are able to play instruments). When we reach the point in the near future where a music producer will be capable of composing thousands of songs in a year with the help of advanced music composition software, do we want to allow him the intellectual property right for each of those compositions? For Kant, the answer would be yes because for him "legal ownership is central to human freedom." The problem with this scenario is that most of the labor is being done by a machine that an artist owns and employs.

Locke could have never envisioned the capacity of the computers of today and tomorrow. Neither could Kant. They have beautiful ideas about property as it pertains to humans that operate in a physical world. Kant was right that we do want to control our environments, but he just didn't know that we could employ the help of machines to do that job for us. I would propose an alternative theory for intellectual property rights to the one proposed by Merges. I would replace the word "labor" with something along the lines of "human emotion," such that the concept would fall in line with the idea of "labor of love." Labor cannot mean the same thing today as it did when these philosophers wrote. In the West, the majority of economic activity is derived from the service sector. We want a property regime that allows this sector to attain maximum efficiency and minimal waste, but do do so, we must avoid assigning property interests for things that are produced almost entirely by machines. Essentially, only humans should be allowed property rights. That would be my first critique of Merges' argument in the first five chapters of this book.

I do however, agree with almost every one of Merges' philosophical arguments for protecting current intellectual property rights assuming any property regime is accompanied by a Rawlsian theory of distribution: "that society retains the right to claims some of the moeny that flows from individual creative works." I concur too with Merges' idea that society shapes the individual's creative capacity (as exemplified by the huge impact the Harry Potter books have had on modern pop culture). Therefore, I believe that we must strike a proper balance between rewarding the individual's "labor of love" and simultaneously, rewarding society at large for everything it does to shape our art and culture. Such an idea is in line with Gordon's idea that original creation can "shift the baseline." Because we have thousands of years of baseline movers and shakers, it would be naive to give the "Desert" to a single individual, especially in light of the fact (and I do take it as fact) that true innovators don't need incentives to produce intellectual property. Fritz Machlup's study supports this. 

Property rights are clearly very important here as in the rest of the world. Hernando de Soto, who investigated the role of property rights in developing societies found that the establishment of well-regulated property regimes is the means of prosperity and growth, and that it must precede all of development. Hume would agree. I agree. What will be very interesting, is to see how this concept plays out in the internet world where a new society is being built around new ideas of ownership and information. Are (intellectual) property rights as important in this medium as they have been in the other mediums? Surely, one issue we will have to deal with is the speed and method by with which IPRs can be obtained. Need our music producer go through the lengthy process of obtaining a copyright for his electronic song before he uploads it to Youtube where it will be remixed, retooled, and rereleased within days or even possibly hours? What about for all one thousand songs? What gives? Maybe we will see not so much a change in the legal framework as a change in the social conceptions of that framework. Maybe we will stop trying to copyright so as to allow for better, faster, more meaningful artistic interactive productions. This video sheds some light on where we may be headed. 2,000 Person Digital Choir (I doubt all these people claim a property interest in the final product).

Comments

[Noah Yavitz]

A similar example to the digital choir is provided by Star Wars Uncut-- http://www.starwarsuncut.com/ -- which aims to recreate Episode IV through the combination of 15-second fan-made clips. (It won an Emmy in 2010: http://www.nytimes.com/2010/08/28/arts/television/28uncut.html ). The NYT article mentions that Lucasfilm actually explicitly supports the project, though it would appear that the support is conditioned on the project not seeking profits.

[Asher]

very cool. thanks for this Noah. I think this sort of stuff is captivating, because it shows that people are willing to engage in creativity for no other purpose than to create. maybe one argument against Merges?

[Noah]

Well, Merges did anticipate this objection. He partially justifies giving "remixers" the cold shoulder by noting that they don't need a monetary incentive.