‘What would constitute a non-reformist reform of intellectual property?’
The state’s current approach to intellectual property has come under scrutiny of late, as its disconnect from anything that might have once legitimated it has become more and more obvious. The activities of rent-seeking patent trolls, who accumulate patents solely for the purpose of filing lawsuits, have been highlighted by National Public Radio’s “Planet Money” program. And the absurdities of strict copyright enforcement are apparent in the life-destroying legal judgments leveled against small-time downloaders — $220,000 against Mille Lacs Band of Ojibwe employee Jammie Thomas-Rasset for twenty-four songs, $675,000 against college student Joel Tenenbaum for thirty.
Faced with these outrages, it’s tempting to demand the immediate destruction of the entire edifice of patent and copyright protection. All the more since intellectual property compounds the general socialist discomfort with private property, because the right it encodes is such an expansive one. No longer just the right to control a particular physical space or object, it abstracts the property form into the control of patterns and processes, wherever and whenever they appear. Instead of owning a book or a factory, the intellectually propertied class controls all copies of the book, and all implementations of the production process within the factory.
What would constitute a non-reformist reform of intellectual property? The revolutionary overthrow of all intellectual property, even if it were possible, leaves unanswered the question of how to ensure that those who create knowledge and culture are provided for, and how to control the exploitation of the cultural commons by digital capitalists. The anarchist championing of online piracy only allows for some resistance around the edges, without posing a fundamental challenge to the system. And yet the idea of reforming IP into something better and more egalitarian, something that truly rewards all who participate in the work of creation, seems like another iteration of the naïve dream of a just and democratic capitalism.
Anne Elizabeth Moore and Sean Andrews approach this bundle of contradictions in different ways. For Moore, the central point is that IP is now and has always been gendered, and therefore any path toward its transformation and abolition must explicitly work toward addressing inequities that are embedded in our notions of culture, even if that sometimes means more IP rather than less. “An across-the-board loosening of IP protection,” she fears, would “lead to the increased piracy of those cultural productions already less protected, worsening the economic gender gap.” The task is to “correct for generations of cultural misogyny,” which entails fundamentally rethinking what counts as IP, beyond an isolated male inventor in his study, the image of whom forms the explicit or implicit basis of much of our current regime.
Insofar as the socialist perspective is taken to be hostile to the existence of intellectual property and private property more generally, Moore’s argument might be taken as a challenge to it. But this is to confuse a socialist approach with a libertarian one. The libertarian absolutist case against IP is consistent with the movement’s anti-statist trappings, and depends on the inference that because intellectual property is a debased, false form of property, it therefore does not fall within the purview of the state’s property-defending mission.
A socialist, however, can recognize that law and the state are contested terrain, and that replacing the regime of capitalist private property requires erecting, at least in the interim, an alternative form of socialized property, in order to defend the commons against the persistent efforts of the capitalist class to enclose and appropriate it.