Property vs. Freedom

If you strip it down to its essence, the battle over SOPA/PIPA is Property vs. Freedom: the media companies want to defend their intellectual property, while Internet-users want to defend their freedom.

You won’t often hear it characterized that way in the corporate media, though, because Property and Freedom are supposed to be inseparable, like Love and Marriage. Sing it, Frank:

This I tell you, brother:
You can’t have one without the other.

Or, as Ron Paul more prosaically put it in 2004:

The rights of all private property owners … must be respected if we are to maintain a free society.

Simply saying the phrase “Property vs. Freedom” marks you as some kind of extreme Leftist. All right-thinking people know that Property can’t possibly oppose Freedom.

Last summer I wrote Six True Things Politicians Can’t Say. Well, here’s another one: The relationship between Property and Freedom is highly contentious. (On second thought, the Love-and-Marriage parallel isn’t that bad.)

Get off my lawn. Why is that relationship so contentious? It’s simple: The essence of Property is the right to tell people to get off your lawn, and to sic the police on them if they don’t. If you can’t do that, it’s not really your lawn.

So naturally Property increases Freedom for the owner. Once you have the right to sic the police on trespassers, your lawn becomes available for cookouts, gardening, minimally supervised children, and all sorts of other expressions of freedom.

But look at it from the other side. What if you’re constantly being forced off other people’s lawns and own no property you can retreat to? How free is that?

Free to be Jim Crow. Now read the Ron Paul quote in its full context. On the 40th anniversary of the Civil Rights Act of 1964 (Wikipedia entry, text of bill), which banned racial discrimination in “any place of public accommodation” (like the Woolworth’s lunch counter in Greensboro) and in hiring, Paul portrayed the law in this light:

The Civil Rights Act of 1964 gave the federal government unprecedented power over the hiring, employee relations, and customer service practices of every business in the country. The result was a massive violation of the rights of private property and contract, which are the bedrocks of free society.

In other words, business owners lost some of their right to tell black people to get off their lawns. Definitely it was a diminishment of Property. But was Paul right that it was a net loss of Freedom, or did the freedom gained by blacks more than make up for the freedom lost by businesses?

Why is it your lawn anyway? Post-slavery America may look like an exceptional case, but actually it was just a particularly egregious example of a general rule: Never in the history of humankind has private property been fairly distributed. By the time American blacks stopped being property themselves, all the good stuff was already owned by whites.

Welcome to Freedom, suckers! Now get off my lawn.

One standard pro-property response to this point is that in a free economy property tends to move to the people who earn it through hard work and ingenuity, so mal-distributions even out over time. Maybe the newly-freed slaves did get a raw deal, but that was a long time ago. According to this point of view, by now their great-great-grandchildren must be pretty much where they deserve to be.

But far from an exception, the race problem is a convenient color-coding that makes the general historical pattern easier to see. Michael Hudson described that pattern like this:

The tendency for debts to grow faster than the population’s ability to pay has been a basic constant throughout all recorded history. Debts mount up exponentially, absorbing the surplus and reducing much of the population to the equivalent of debt peonage.

In other words, the typical trend is not for things to even out after a few generations, but for unfair distributions of property to get moreso. Sing it, Billie:

Them that’s got shall have.
Them that’s not shall lose.

The only exception I can think of is post-World-War-II America and Europe, where property tended for decades to become more evenly distributed. But far from the natural workings of a free economy, that outcome required inheritance taxes, progressive income taxes, public education, laws to break up monopolies and protect unions, a significant social safety net, and many other government interventions.

Freedom and public property. America’s two greatest symbols of freedom are the Cowboy and the Indian, both of whom own little, but live in a vast public common where they can hunt in the forests, drink in the streams, and swim in the lakes without worrying about ownership.

Contrast that freedom with economic blogger Noah Smith‘s account of downtown Tokyo.

there are relatively few free city parks. Many green spaces are private and gated off (admission is usually around $5). … outside your house or office, there is basically nowhere to sit down that will not cost you a little bit of money. Public buildings generally have no drinking fountains; you must buy or bring your own water. Free wireless? Good luck finding that!

Does all this private property make me feel free? Absolutely not! Quite the opposite – the lack of a “commons” makes me feel constrained.

To me the lesson is clear: For all but the fabulously wealthy, freedom is maximized by balancing public and private property. It’s nice to have your own lawn, but public property you can’t be chased off of — roads, parks, sidewalks — is even more important. It’s also nice to have public access to water and sanitation, and not to be at the proprietor’s mercy whenever you enter a store, restaurant, or theater.

Intellectual property. Applying that logic to intellectual property gets you to the kind of public/private balance we used to have: Copyrights and patents grant creators and inventors valuable temporary rights, while producing a rich public common allowing fair use of recent creations. And since everything eventually becomes public, a balanced copyright law increases the value of the public domain by encouraging the creation of works that otherwise might be impractical.

Protests of SOPA and PIPA make no sense until you understand that we have lost that balance.

Consider how the music-downloading problem arose: By controlling distribution, media corporations inserted themselves as toll-collectors between creators and users. You’d pay $20 for a CD you could easily copy for $1, knowing that precious little of the difference made it back to the artist. Napster-users had few moral scruples against “stealing” music because the system was already amoral. (Call it the Leverage Principle: “The rich and powerful take what they want. We steal it back for you.”)

Also, endless copyrights have dammed the flow of material into the public domain. When Walt Disney created Mickey Mouse in 1928, he was granted a 28-year copyright with the prospect of renewing for another 28 years. Evidently, the prospect of Mickey entering the public domain in 1984 didn’t deter Walt from creating him.

But every time that expiration date approaches, the Disney Corporation leans on Congress to extend the length of existing copyrights. Tom Bell illustrates how copyrights lengthen as Mickey ages.

Unless corporate money loses its primacy in our political system, nothing created after 1928 will ever enter the public domain. Unlike Mickey, the vast majority of that cultural treasure-trove will be orphan works that no one has the right to use. (For a book-length treatment of these issues, see The Public Domain, which the author has graciously put in the public domain.)

As Lawrence Lessig has pointed out, extending an existing copyright does nothing to promote creativity or otherwise advance the public interest:

No matter what the US Congress does with current law, George Gershwin is not going to produce anything more.

In short, the Infosphere is slouching towards Tokyo. Gradually the public common is shrinking towards the day when almost everything of value will be corporately owned.

SOPA/PIPA. The Stop Online Piracy Act in the House and the equivalent Protect Intellectual Property Act in the Senate are two more corporate attempts to buy laws that serve the private interest but not the public interest. (Interestingly, Politico covers the SOPA protests as a battle between Hollywood and Silicon Valley, as if the public were not involved.)

These laws would make search engines, internet-service providers, and other middlemen responsible for blocking access to web sites that copyright-holders claim are pirating their works. Since they bear no comparable responsibility for defending fair use, their safest course will be to block any site Disney or Time-Warner complains about.

Consider the quotes and images in this article. Traditionally, they would be considered fair use. But what if somebody complains? Is WordPress really going to pay a lawyer to read this article and write an opinion? Or are they just going to shut the Weekly Sift down?

The protests worked, for now. Websites like Wikipedia went dark on Wednesday to protest SOPA/PIPA, and a massive public response forced many lawmakers to change their positions.

But it’s naive to think that’s the end of the story. Corporate money is relentless. When public outrage dies down, we’ll soon see the basic ideas of SOPA/PIPA back in some other form.

In addition to protests, we need a fundamental rethinking of intellectual property. As long as we’re just talking about theft and how to prevent it, we’re missing the point. The right question is how we restore the public/private balance to intellectual property.

We need intellectual property lines that are widely seen as legitimate. When we have that, the problems of trespassing and theft will become much, much smaller and easier to police.

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  • Mike Ignatowski  On January 23, 2012 at 9:18 pm

    I agree with your thoughts, and I could probably write a very similar article about the abuse of the patent system. There a many cases where it is being used to stifle creativity and innovation these days, the opposite of what was intended. It’s interesting to note that the US Constitution does not recognize a basic fundamental right to intellectual property. It only allows Congress to grant limited temporary rights for the sole purpose of promoting innovation. That seems to get lost in many of these debates.

  • Natalie Brierley  On January 23, 2012 at 10:36 pm

    It would be interesting to see what happened if “Property” and “Freedom” were both declared people/citizens by the Supreme Court!
    Then whose rights would prevail.

  • name  On October 20, 2013 at 4:20 pm

    You claim this is an issue of “Property vs Freedom” but that is a bit of a misnomer. You fail to define both freedom and property in this discussion in a meaningful manner.

    If SOPA would DIRECTLY protect people’s “Property of Personal Emails” they would forgo their so called “Loss of Freedom.”

    Hence we can add in the first stipulation, “Property of the 1%.”

    Let’s also say that you worked on a report for many hours that you were to present to your boss. A co-worker “copies” your report and presents it himself, saying you performed no part of said report and hence should be fired. In this manner, “intellectual property” is fairly represented, but you would take a side contrary to your current stance.

    “Immaterial Property of the 1% that I can get away with stealing”

    Freedom again remains poorly represented, what freedom are you really losing? WordPress responds to DCMA notices the same that they would respond to SOPA notices; or is your claim that because the punishment is immediate that it would be a “slippery slope” and thus forming no rational thought on the matter?

    “Freedom to not need to Think about Consequences”

    Let’s continue by pointing out that only countries that cannot be held under our laws would have been affected… or does your idea of “freedom” mean that American laws dictate all of what the internet does.

    “Freedom to impose your legal structure upon everyone”

    Your final accusation is that because the law is “created by corporate sponsors” it is inherently unjust. No rational argument here, just justification for the legalization of piracy (seriously now, you’re not even trying to hide it).

    Now are there problems with the patent system, YES… but that is a nonsequitor and serves little purpose except to create a self-serving argument.

    It is amazing how the U.S. Constitution does not recognize the fundamental rights of *insert controversial issue here (abortion is fine as well).*

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  • By Pulling Up the Stakes « The Weekly Sift on January 23, 2012 at 1:51 pm

    […] Property vs. Freedom. You won’t often hear the debate over SOPA/PIPA phrased that way, because Property is supposed to be Freedom’s inseparable partner. But they actually have a fairly contentious relationship. […]

  • By Obligations « The Weekly Sift on January 30, 2012 at 1:45 pm

    […] week’s most popular post. Property vs. Freedom had 245 views. The most-clicked link was to Democracy Now’s episode on the McDonalds’ […]

  • By Big War | The Weekly Sift on April 11, 2022 at 1:07 pm

    […] I have long opposed Congress’ repeated moves to extend copyright just as Mickey Mouse approaches the public […]

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