Tag Archives: commons

What is Property?

Pierre-Joseph Proudhon
Pierre-Joseph Proudhon

“Property is theft!”

– Pierre-Joseph Proudhon, What is Property? (1840)

“Property is freedom.”

– Pierre-Joseph Proudhon, What is Property? (1840)

(That’s not very helpful, PJ.)

Last week, I discussed some libertarian confusions about the idea of property and the human body. In that post, I mentioned Locke’s theory of property – the idea that we have some “natural” right in objects that we have “mixed our labor” with. Locke has been a big influence on certain brands of libertarianism, but it was the libertarian philosopher Robert Nozick who pointed out the problem with this theory. He imagines pouring his tomato juice into the sea to try to acquire the ocean. Other Enlightenment philosophers, like Kant and Rousseau, held more realistic views of property. Property is not a relationship between a person and objects, but a relationship between two or more persons regarding objects. If I own a shovel, then my rights to the shovel do not describe my relationship to the shovel. My ownership of the shovel describes my relationship to others with regards to the shovel. Principally, I can use the shovel and they can’t, unless I give my permission.

We generally think of our property as objects that we have “sole and despotic dominion” over, to use Blackstone’s phrase. The concept of property is not as simple as that, not even in the time of Blackstone. Property, instead, is composed of a “bundle of rights”. The basic rights given by most economic texts will include:

  • the right to use an object;
  • the right to the income from its use;
  • the right to transfer ownership rights.

But this does not exhaust all the possible rights in property. The British jurist, Honore, identifies five additional rights:

  • the right to possess the object;
  • the right to manage the object, that is, make decisions regarding the object;
  • the right to the capital of the object, or the wealth produced by the object;
  • the right to secure the object;
  • the “absence of term”, that is, there is no point at which you stop owning the good;

Interestingly, Honore adds two duties in property: the “prohibition of harmful use” and the “liability to execution”. The latter means that the property may be taken to satisfy other obligations, such as the repayment of debts. Most of us understand that our right to property is not infinite. We have duties to society as much as society has duties to us.

The argumentative strategy of libertarians and other property-centered ideologies is, like Locke, to find a “natural” right to property. That means a right that would exist for people in some hypothetical world without society. Early modern political philosophers called this the “state of nature”. Such rights would be somehow fundamental to our thought and would not be dependent on social recognition for their reality. If we could find rights that exist without society, then every society would have to recognize them. As discussed last week, Locke’s strategy to make property a natural right failed, and similar strategies also fail.

Property is almost entirely a right created by social institutions, principally the state. Without the state, one person could not accumulate enormous quantities of wealth. There would be no property, except what one person or groups of persons could protect for themselves, or what others would be willing to accept. As such, property arrangements are also alterable by the state, as in taxation, regulation, and expropriation.

The only exception to the social dependence of property rights could be personal possessions. I’m actually in possession of several personal objects, and violence, threat, or fraud would be necessary to remove them from me. That would be unacceptable because we do recognize prohibitions against violence and deception, regardless of social arrangements. But that is because they are acts of violence against persons, not for some natural right to property. This is the kind of property for which “property is freedom”.

If we lived in a democratic state, the people could alter the social arrangements of property as they pleased. This would only violate anyone’s fundamental rights if personal possession is violated. Property is a bundle of legal rights, and we can rearrange those rights to create new forms of property. For example, the public could demand that its natural resources be returned to them after a certain period in as good a quality as their original state. Also, the rights in property to an enterprise could be held in common among a community. The right to capital and income from assets could be conditional on access and use by the public. Before the 20th century, such diverse property regimes were considered ordinary. In fact, most societies have enjoyed the common ownership of land. This is why the modern imposition of private property means that “Property is theft!”.

Of course, we do not have a democratic state, we have a plutocratic state. Until that is fixed, the American state will continue to deliver the wealth of society to the ruling class.

Is Intellectual Property a Failing Enclosure?

The world of private property that we live in today was manufactured in Europe at the end of the Middle Ages.  The Middle Ages were marked by a mixture of feudal landlords and peasant commons.  “Commons” refers to a basket of subsistence-based property rights intended to permit the peasantry and other lower classes to satisfy their basic needs for fuel and game.  In the late medieval and early modern period, the European aristocracy and gentry began taking over common-areas and denying commoning rights, which would be approved by the state after the fact.  This process is called ‘enclosure’.  The result of enclosures was to impoverish the peasantry and create a growing underclass increasingly dependent on employment or government largess rather than independent labor.  This class eventually became the source of labor for the Industrial Revolution.  Enclosure is a process that continues to this day.  In every developing nation, the peasantry must be driven from their land to stuff foreign factories with the cheapest possible labor.  The computer and the Internet have given the developed world a new frontier of enclosure, called “intellectual property rights”.

The classic instruments of intellectual property have been copyrights and patents.  Copyrights are government monopolies created to allow artists to receive credit and the benefits of the sale of their work after transferring possession to a printer or a studio to copy and distribute that work.  Patents were created to provide an incentive to inventors to publicize their inventions, again by providing a government monopoly on the invention.  These, with trademarks and other rights over ideas and symbols, form the basis for today’s intellectual property rights.

The advent of the computer and the Internet has resulted in an unprecedented capacity to reproduce and distribute original works without the intermediation of publishers and recording studios.  These are the principal interests driving the increasingly insane world of intellectual property law.  The most obvious case of this insanity was the prosecution of the accomplished programmer, Aaron Swartz.  Swartz figured out how to download millions of articles from JSTOR (the academic journal archive), and intended to distribute them for free.  For this, US district attorney Carmen Ortiz charged Swartz under the Computer Fraud and Abuse Act, with penalties to include 35 years in prison and a fine of one million dollars.  Aaron Swartz committed suicide as a result of this punitive and attention-hungry prosecutor.  But the mad laws protecting so-called intellectual property formed the background of this abuse.

The enclosure represented by intellectual property seems untenable in the long-run.  On the one hand, the Internet simply makes sharing creative work too simple.  For every new method of locking work away, a method of breaking it open comes along.  On the other hand, the extent of the disruption necessary to enforce intellectual property laws is absurd.  As this author points out, private email communication would have to be eliminated to prevent sharing videos, music, or other protected material.  No society could sustain the amount of lunatic enforcement and criminal prosecutions that would be required to protect intellectual property.

Most importantly, the media corporations seem to be losing the ideological battle.  Most people know better than Carmen Ortiz, who claimed that “stealing is stealing… whether you take documents, data, or dollars.”  Private property is easy to protet because tangible property is “excludable” and “subtractable”.   Tangible property is excludable because people can be kept away from using it, by means of locks, walls, fences, and so forth.  Owners need these means of exclusion because real objects are also subtractable.  That is, once you use it or possess it, I cannot also do so.  These are the properties that allow markets to function, because objects can be exchanged only if other people cannot take it otherwise.  (In reality, it is not really the case that all real and tangible property is excludable, and markets are not appropriate for all objects.)

Intellectual property is neither excludable nor subtractble.  New means of acquiring protected software becomes freely available all of the time.  Nor does it cause a loss when the material is copied, because the information is not subtracted from the original possessor.  When Internet users are aware of simple and costless methods of acquiring free content, they use them.  However, most people do not abuse other private property in the same way if given the chance, because taking a real object actually deprives another person of its use.

Hopefully, the disrespect towards intellectual property will persist.  The battle for traditional enclosures was eventually won in the West by the twentieth century.  Perhaps the general public came to accept the private property regime was because labor struggles and social welfare states allowed them to hold a little bit of their own private property.  The general public will not benefit from intellectual property in the same way.  If someone chooses not to create and share work, then intellectual property laws will only be a cost to them.  If someone chooses to create and share work, then they will face such broad competition that they will not see much in the way of returns.  Most people will not be Hugh Howey.

The madness of intellectual property laws and its ideological impoverishment is no barrier to its persistence.  Worse things have persisted.  People must continue to organize against intellectual property law, before it destroys the Internet and culture.