The separation of (economic) power: a cultural environmental perspective of social production and the networked public sphere.

• Jurisdiction: United States
• Date: 01 January 2011
• Author: Cunningham, Robert

Cite as 11 J. High Tech. L. 1 (2010)

1. Introduction II. The Second Enclosure Movement III. Cultural Environmentalism IV. Public Choice Theory A. Free (Libre) and Open Source Software V. Social Production and the Networked Public Sphere A. Social Production--Decentralisation and Liberalism B. Civil Society and Public Sphere C. Comparative Advantage of Social Production: The Hardware-Code-Content Paradigm 1. Information Processing and Allocation Efficiencies 2. Critical Hardware Infrastructure 3. The Technological Information Continuum VI. Conclusion I. Introduction

   In 1481, the Duke of Milan issued a copyright. (1) During the fifteenth century, the first enclosure movement in the United Kingdom intensified. (2) In the seventeenth century, Hobbes and Locke wrote about the nature of property. (3) In 1709, the Statute of Anne was enacted. (4) In 1748, Montesquieu espoused the separation of powers doctrine. (5) In 1793, Ben Franklin pronounced patents immoral. (6) In 1813, Thomas Jefferson sent a letter concerning patents to Isaac McPherson. (7) In 1840, Proudhon declared that "property is theft". (8) In 1841, Lord Macaulay made a speech about copyright to British Parliament. (9) Between 1888 and 1893, the State of New Jersey enacted legislation that allowed for inter-corporate ownership. (10) In 1897, the UK case of Salomon v Salomon & Co Ltd [1897] clarified the legal traits of a corporation, namely limited liability and separate legal entity. (11) In 1949, Aldo Leopold published A Sand Country Almanac. (12) In1962, Rachel Carson published The Silent Spring. (13) In the same year Buchanan and Tullock published The Calculus of Consent. (14) In 1980, the US case of Diamond v Chakrabarty espoused the view that statutory intellectual property right subject matter is to "include anything under the sun that is made by man". (15) In 1984, Richard Stallman launched the GNU project. (16) In 1995, the World Trade Organization Trade Related Intellectual Property Agreement came into force. (17) In 1997, James Boyle coined the notion "cultural environmentalism". (18) In 2002, Lawrence Lessig published The Future of Ideas. (19) In 2006, Yochai Benkler published The Wealth of Networks. (20) In 2009, I began writing this article. (21)

   Amongst these seemingly miscellaneous and disparate events lie several common threads. There is, for instance, a direct correlation between the rise of corporate power and the strength of the international Intellectual Property Rights (IPRs) regime. (22) Likewise, there is a parallel between the contemporary environmental movement that tackles environmental challenges in the physical world, and the newly emerging discourse of cultural environmentalism that confronts challenges in the information environment. (23)

   This article begins by contextualizing IPRs through a brief exploration of the second enclosure movement. The emergent discourse of cultural environmentalism is then employed so as to draw upon the analytical framework of public choice theory, which in turn is explored so as to contextualize social production and the networked public sphere. Through an exposition of the comparative advantages of social production when pitted against alternate modes of production, the paper highlights the significant role that social production may serve in separating economic power. That is, just as Montesquieu espoused the need to separate political power in the eighteenth century, so too this article espouses the need to separate economic power in the twenty-first century. (24) While formal legal constitutional mechanisms are unlikely to wield this requisite separation of economic power, it may be that social production has an important practical role in delivering this outcome. Contemporaneously, in the absence of the requisite political will, the separation of economic power will only eventuate through adherence to the laws of economics. It is within this context that the paper explores the comparative advantage of social production when pitted against state-, firm-, and market- based production by contrasting computer software development with other form of technological innovation, namely biotechnology and nanotechnology.

   To be sure, social production will not always supplant the state, the market, or the firm, as the preferred mode of production. Rather, the thesis of this article is more nuanced: where the factors of production include undeveloped ideas and unarticulated know-how, and where the allocation of human creativity and/or intellectual input are relied upon as the engines of innovation, social production may in some instances surpass the advantages of state-, firm-, and market- based production. In so doing, social production potentially proffers an important practical contribution to the contemporary liberal project of separating (economic) power.

2. The Second Enclosure Movement

   In the fifteenth century, the structure of land ownership in England began a rapid transformation. (25) Drawing upon a variety of methods, the aristocracy appropriated for private ownership land that had been traditionally held in common. (26) This was referred to as the "enclosure movement," whereby the right to exclude was utilized to convert the default form of land tenure from commons property to private property. (27) Enclosure has continued up until this day, albeit contemporary limited-commons and semicommons analysis suggests a more complex picture. (28)

   Boyle's depiction of real property rights within the context of the first enclosure movement examines social contract questions regarding the legitimacy of state power and the incentivisation that is seemingly inherent within those rights. (29) Seemingly, as empirical evidence does not always support a direct correlation between property rights and increasing production. (30) The classic "tragedy of the commons" does not always eventuate in practice. (31)

   Property rights concerning both real property and intellectual property remain at center stage in contemporary theoretical discussion relating to economic efficiency and justice. (32) Property definitions and descriptions abound from Hobbes to Locke to Blackstone to Hume to Proudhon. (33) Although the definition of property differs depending on the context, at its simplest Benkler describes property as a "cluster of background rules that determine what resources each of us has when we come into relations with others, and, no less important, what 'having' or 'lacking' a resource entails in our relations with these others." (34)

   From the early days of IPRs, critics have voiced concerns about the broad-ranging nature of the said rights. The philosophical beliefs of the founding generation in the United States were heavily influenced by the Scottish Enlightenment and the traditional struggle of the people against the ruling class. (35) They were not against IPRs per se, but they repeatedly referred to the necessity to restrict both its term and its scope so as to avoid low quality, high prices and artificial scarcity. (36) Specifically, they questioned whether individuals should have exclusive intellectual property rights in light of the fact that innovation occurs cumulatively. (37) Furthermore, they were concerned, as are many contemporary scholars, that IPRs would grant an individual unwarranted power over important aspects of society and technology which may in turn affect the future of innovation. (38) The overarching theme, however, was the fear that monopolies would interfere with free trade (39) Nineteenth century musings such as Thomas Jefferson's letter to Isaac McPherson and Lord Macaulay's speeches within the British Parliament, oft quoted within the digerati, reflect these general sentiments. (40)

   In the contemporary context, the nineteenth century criticisms relating to monopolies and the centralization of power stemming from iPRs have manifested in the second enclosure movement critique. (41) This critique encompasses the theme that information, knowledge, and culture have become increasingly privatized through the intellectual property system so as to secure the economic returns demanded by the manufacturers of the industrial information economy. (42) As Benkler states:

   The economic returns to exclusive proprietary rights in information are highly concentrated in the hands of those who own such rights ... Monopoly is a good thing to have if you can get it. Its value for rent extraction is no less valuable for a database or patent--based company than it is for the dictator's nephew in a banana republic. (43) Within the academy, the second enclosure critique is exemplified by Lange's thought-provoking examination of the public domain; Samuelson's perceptive account of the application of copyright to computer programs and digital materials; and Litman's work on digital copyright and the public domain. (44) Boyle has enriched this theoretical landscape through his exploration of the basic romantic assumptions underlying intellectual property constructs; his description of the second enclosure movement; and, perhaps most importantly within the context of this paper, his visionary plea to adopt an environmentalist framework so as to preserve the public domain. (45)

   In diagnosing the harmful effects of the present enclosure movement Boyle, Lessig, Benkler (among others) have turned to empirical evidence, or the lack thereof, concerning the benefits and detriments of IPRs. (46) Traditionally, theorists have acknowledged both economic and moral justifications for IPRs. (47) That is, economically society is obliged to reward persons to the extent that they have produced something useful in accordance with the dictum "as one sows, so should one reap;" and morally, it is said that, at least within the context of liberal philosophy, that a person has a natural right to the product of her brain. (48) With respect to patents, the theory states, if an inventor cannot get a patent then she...