<nettime> Reflections on Dan Hunter's Culture War

[Patrice Riemens <patrice@xs4all.nl>]

(This is not meant as an overal review of Dan Hunter's article. I just 
want to highlight a few points that stroke me...)



Dan Hunter's Culture War
(Download from: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=586463)

A very good and useful paper, immo, which has attracted some controversy I 
fail to understand. Of course, some criticism is possible, and I will 
attempt to share mine here.

In his rendering of why IP has become so important in the 'new' economic 
regime, DH is, as the Dutch would say, 'going a bit sharp through the 
bend'(aka 'cutting corners';-) I do not think that it is the importance or 
even prevalence of 'intangibles' in our time that has given rise to the IP 
madness, whereas their lesser importance in a previous epoch made 
copyright etc. enforcement 'lite' and limited. I think that previously, 
proprietors were more pessimistic about protecting and enforcing their 
intangible assets, which Ronald Coase (1937) aptly called 'proprietary 
knowledge'. Their assumed inability to protect their proprietary 
knowledge, that is, to establish and extract an 'arm's length' price for 
it was, according to Coase, precisely what made firms opt for 'internal 
markets', aka 'internalisation' as opposed to 'open markets', this in turn 
explaining the growth of firms, both individually, and as a category(*). 
Now that intangibles are effectively protectible by law, seeing holders 
rush to establish an increasingly 'robust' IP regime comes as no surprise.

To me, there is a strange parallel here with the privatisation drive of 
structurally unprofitable public goods and services, for instance public 
transport. What was once considered as unattractive to private enterprise 
becomes a highly enticing proposition once a financial construct, 
converting the operating loss in a (tenderable) subsidy, has worked its 
'magic'. If the private operator is then able to make the loss less than 
the subsidy, a profit is 'created'. It is remarkable that the flanking 
argument in both cases (privatising knowledge and public transport) is 
'efficiency', which of course obtains thanks to the 'socialising' of the 
externalities...

There is another interesting parallel that may be noted in Dan Hunter's 
article when he discuss the public domain as a 'left-over' ("after all 
private interests have been allocated"), and it is with the relentless 
attacks on the welfare system. both public domain and welfare were 
'traditionally' considered as a provision. Both are now seen - at their 
great expense - as a 'safety net', and driven to near-extinction as an 
'anomaly'.

Another flaw in Hunter's argument is the usual Anglo-saxon bias in his 
discussion of copyright's history, and hence of its juridico-philosophical 
tenets. The French concept (or is it Roman Law?) of 'droit d'auteur', i.e. 
the moral right next, and sometimes opposed to, commercial rights, is once 
more conspicuously absent. Yet its tribulations (also, but not 
exclusively, at the end of propertied lobbies and their political mignons) 
goes at great lengths to explain the current, almost farcical, internet 
regulation frenzy (in defence of the sacro-sanct 'droit d'auteur') that 
has seized France, and from there, threatens any international drive to 
delegitimize (and de-legalize) the current oppressive, IP regime.


Ceterum Censeo... Along the same line as I advocate the systematic 
replacement of 'intellectual property' by 'proprietary knowledge ( a line 
that was criticised in nettime, but I have forgotten the argument ;-) I 
think that we should abandon the use of the word 'private'/ 
'privatisation' and substitute 'corporate'/'corporatisation' for them 
since this is what we actually mean when talking about the seizure of our 
life by big transnational enterprises and their allies in government. That 
would defuse a considerable amount of fruitless controversy in our ranks, 
mostly centering around the interpretation of the libertarian position 
(and would incidentally free Lawrence Lessig of accusations of 'reformism' 
;-)

BTW, 'Marxist-Lessigism' should be written 'Marxism-Lessigism' ...

..............

(*) Incidentally, Coase's seminal paper is mostly associated with his 
description of (the consequences of) transaction costs, and much less with 
the, immo far more important and now, also far more relevant, 'proprietary 
knowledge' part. And even less remembered is his assertion about the 
continuously growing transfer of incomes from households to firms - the 
very mechanism driving the 'corporatisation' of our world...)

(R.Coase, The Nature of the Firm, ECONOMICA 4(1937)






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