Is copyright “policy” or “property”? A critique of the FSF’s position

In a discussion on the P2P Foundation’s mailing list the question concerning the Free Software Foundation’s view on property and how they see copyright in relation to property has come up. Below I reproduce a section from the essay, which comes to terms with this, but it is without page numbers and with the footnotes as endnotes and other bits of formatting (especially lost italics for emphases) mangled in the transition from to WordPress.

If you want footnotes etc. get this excerpted PDF (pages 92-107), or the full chapter or the entire essay. See also ‘Free Software as Property’ for an application of the critique.

Property and the tangible/intangible divide: a policy of what?

In this section I examine the reasoning behind the particular framing of the intangible realm that characterises 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.

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From the Conclusion: Property, Commoning and the Politics of Free Software

The concept of property is obviously central to the essay. Here is an excerpt from the conclusion that sheds some light on the position developed in the essay with respect to the relations between property and cyberspace, as well as land, its resources and the means of production:

Cyberspace is disembodied not only in the sense of being technologically mediated, or virtual, but also because it is continuously represented as if it were not highly dependent on the material realm for machines and minerals and energy. Understanding the dynamics of cyberspace in terms of property – the language of social relations with regard to things – is a good starting point for exploring the concept of property. It is a recursive process that generates a new understanding of property, which in turn might facilitate the emergence of further permutated relational modalities. If the world were a commons and property an open-ended toolbox for the self-articulation of value practices, then commons would probably blossom. Property seen through the lens of spontaneously emerging social relations – whether in cyberspace or landless movements in Brazil – opens the black box of property and reveals building blocks that can be recombined in very many ways. With an enriched understanding of property, private property might – in line with the anti-capitalist hopes that have animated this essay – be limited to (something like) personal possessions. Rights of commoning can then be substituted for private property in land, its resources, and the means of production and distribution (p. 290).

Pedersen, J.M. (2010) ‘Conclusion: Property and the Politics of Commoning‘, The Commoner, Special Issue, Volume 14, Winter 2010, 287-294.

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Map of Essay: Property, Commoning and the Politics of Free Software

Another academic hoop to jump through is making very explicit the way in which a PhD thesis is going to unfold. This can be done in a variety of ways, but I chose a pretty standard, straightforward “map of the thesis” format, which I decided to keep in the essay version, since it does help the reader along and can indeed be used as a map to navigate the structure and arguments of the essay.

It is reproduced here (and also excerpted in a .PDF):

Map of the essay.

Chapter 1 – Free Culture in context – is a critical discussion of the way in which a number of key commentators are framing the politics of cyberspace. I argue that their framing of the debate is mistaken in two key ways. First, it conflates private property (a particular configuration of property) with the concept of property in general. Second, it relies on an untenable distinction between the tangible and intangible realm, which I examine in detail with reference to the commons of the land.

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Table of Contents: Property, Commoning and the Politics of Free Software

This is the Table of Contents of the essay as published in The Commoner (also as .PDF):

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Cyberspace: A New Frontier of Enclosure

The essay on “Property, Commoning and the Politics of Free Software” was originally a PhD thesis, which required it to have an abstract of no more han 300 words. That is rather few, especially if you have just spent seven to ten years thinking about, researching and formulating your ideas and thoughts about a very wide set of topics, debates and questions.

This is the result, which satisfied academic criteria, but with which the author himself was not very happy. Especially the “linguistic anthropomorphism” in the statement that “This thesis argues” rubs me up the wrong way, but it made things easier and kept the word count down, so that was how it came into being despite very strong reservations, both linguistically, stylistically and aesthetically:

The enclosure of cyberspace constitutes a new frontier of capitalism. Yet the Internet continues to facilitate new forms of collaboration and co-creative social relations. Whether this tension will result in a consolidation of capital and its underpinning logic, or lay the foundation for a world of voluntary cooperation, will depend on how these novel phenomena are conceptualised and organised.

This thesis argues that leading commentators on Free Software make two theoretical mistakes which threaten to have grave practical implications. First, they conflate private property (a particular form of property) with the concept of property in general. Second, they misconceive cyberspace – the intangible realm – as distinct from the material world – the tangible realm. Consequently, prevailing property relations in the tangible realm are left unquestioned, while the material underpinning of cyberspace is obscured. By contrast, the thesis aims to show the critical importance of recognising the materiality of the novel phenomena made possible by the Internet. In addition, an examination of concepts of private property in liberal jurisprudence reveals a number of distinct components and potential configurations thereof. It is argued that all relations between people with regard to things can in fact be understood in terms of configurations of these same components. This allows for an understanding of commoning – collective action based on shared values and self-organisation – in terms of property. Free Software, on this model, can be understood as an autonomous commons that has constituted itself through the reconfiguration of a private property right, namely copyright.

Conceptualising the relational modalities of Free Software and commoning in terms of property thus feeds back into the concept of property. This understanding can in turn be mapped back onto the tangible realm, reanimating debate about the range of possible property relations more generally.

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The Commoner N. 14 – Winter 2010 – Property, Commoning and the Politics of Free Software

This is – more or less – how the essay “Property, Commoning and the Politics of Free Software” is presented in The Commoner:

Volume 1 / Two Volume Special Issue

CALL FOR CONTRIBUTIONS TO VOLUME 2 — Property, Commoning and Commons

Download complete issue or click to download individual chapters below.

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Property, Commoning and the Politics of Free Software

This blog takes as point of departure a three chapter essay, which is a philosophical and political inquiry into the material nature of immateriality titled “Property, Commoning and the Politics of Free Software” that has been published in The Commoner, as the first of a two volume Special Issue (14, Winter 2010).  See the call for contributions to the second volume for further details.

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