(1)For functional goods, production without property relations yields inherently superior goods;

(2) For nonfunctional goods, distribution without property relations yields inherently superior goods.

Accepting the distinction between functional and nonfunctional goods, I have come up with no grounds on which to oppose either of these propositions. The theoretical underpinnings of both are sound, and the real-world demonstrations of both are convincing. Let us take these principles, then, as something akin to a natural law.

The difficulty I am having with this material does not come from a dispute with the principles themselves. Rather, my difficulty stems from another position, expressed by Professor Moglen and others, which I believe has a direct connection to the principle.

Let us consider the following examples.

First, consider the market for word processing software, a quintessential functional good with zero marginal production costs. This market includes costly proprietary software like Microsoft Word, “free” proprietary software like Google Docs, and software produced without property relations like the Apache-licensed OpenOffice? .. For the sake of simplicity, let us assume that these are the only market players. Accepting the first principle, we should expect that the anarchically-produced OpenOffice? will come to dominate the marketplace as it will be better than the proprietary Google Docs, and better and cheaper for users than Microsoft Office. By any economic theory, we should expect to see both Docs and Word should be driven into unprofitability, being unable to compete with OpenOffice? on price or quality. This is the process we have observed already with the dominance of Linux over Microsoft Windows.

Similarly, let us consider the market for music, which we will accept, arguendo, as a nonfunctional good. Here again, we have commercial music giants such as Metallica that would never allow free distribution of their music, artists who give away all of their music for free (I do not know of any such artists, so let us use Radiohead, which has given away a couple of albums, as our example), and artists like A$AP Rocky who fall somewhere in between, often giving away their early music in order to build their audience and then charging for later albums once their brand is established. Here again, artists who charge for their music should either be driven out of the marketplace entirely or forced to change their business models to free distribution to keep up with freely distributing artists, who see their audiences grow larger, quicker, and accordingly are able to command higher ticket prices, sell more merchandise, attract more endorsement deals, and otherwise attract bigger, better direct revenue streams than album sales and royalties.

Accepting the principles of property-free production and distribution, we should expect that no matter what, market forces will lead to the dominance of non-proprietary goods in both the functional and nonfunctional spheres. Proprietary goods will be squeezed out and intellectual property will be obviated naturally. Given this, I argue that it would be an active violation of justice to use the law to abolish intellectual property protections across the board.

Regardless of whether one accepts intellectual property as an intellectually valid form of property (i.e., a form of property one believes would or should exist in the state of nature, or a form that would or should be protected by an ideal government built from scratch), the following is true: Creators of intellectual property – from the lowliest self-published author to Hollywood studios – invest massively in producing their works and incur huge relative costs in doing so. Further, regardless of whether these creators have any expectation – reasonable or otherwise – of finding a market and deriving pecuniary benefit from their work, they do expect to have at least some level of control over their work: whether and in what form they will publish their work, whether and to what extent others will be allowed to take their work in new directions, whether and in what ways others will be allowed to make profit on the back of their work. The labor and resources expended in producing a work of authorship give people a sense of ownership, and that sense of ownership ought to be respected, regardless of whether one is willing to equate it with the ownership of tangible objects.

It is one thing if economic reality conspires to disfavor business strategies predicated on authors controlling their work product; however, for the state to come in and declare that you may not control the fruits of your labor, no matter how badly you might want to. Control over your labor and freedom of choice are prime values, even if the set of rational choices is constrained or forced by economics.

This argument gains more force when we consider that the justice argument opposing intellectual property – that freedom to learn should not be constrained by ability to pay – is obviated by the foregoing economic principles. If free works are inherently better or will inherently enjoy greater distribution, then free works will dominate the market and be available. In light of this availability, the question does not contrast a whole system of property relations with a whole system without property relations. Rather, it contrasts two systems without property relations, one in which authors at the margins who do not desire to give up control of their work get to keep that control, and the other in which they are forced to give it up. Can it truly be said that the marginal system-wide gains of forcing every last author to give up their control outweighs the injustice done to authors holding out for what must be personal, rather than economic, reasons? I am skeptical that it can.

-- TomLawrence - 20 Nov 2014

<--/commentPlugin-->