Brooks on the Attitudinal Health of “Protocol Economies”

Today’s NYTimes features an op-ed by David Brooks that offers an alternative take on the changing notions of ownership I brought up in my post a few days ago. Brooks’ frames this as a transition from an economy of physical things (his corn and steel, my bicycle) to an economy of “protocols”:

A software program is a protocol for organizing information. A new drug is a protocol for organizing chemicals. Wal-Mart produces protocols for moving and marketing consumer goods. Even when you are buying a car, you are mostly paying for the knowledge embedded in its design, not the metal and glass.

Brooks then goes on to argue, referencing a new book by Arnold Kling (of the Cato Institute) and Nick Schulz (of AEI), that the success of a protocol economy “depends on its ability to invent and embrace new protocols.” And what is it that allows economies to nurture this ability?

Protocols are intangible, so the traits needed to invent and absorb them are intangible, too. First, a nation has to have a good operating system: laws, regulations and property rights.

[…]

Second, a nation has to have a good economic culture. “From Poverty to Prosperity” [ed., a new book by Kling and Schulz] includes interviews with major economists, and it is striking how they are moving away from mathematical modeling and toward fields like sociology and anthropology.

What really matters, Edmund S. Phelps of Columbia argues, is economic culture — attitudes toward uncertainty, the willingness to exert leadership, the willingness to follow orders. A strong economy needs daring consumers (Phelps says China lacks this) and young researchers with money to play with (Romer notes that N.I.H. grants used to go to 35-year-olds but now they go to 50-year-olds).

A protocol economy tends toward inequality because some societies and subcultures have norms, attitudes and customs that increase the velocity of new recipes while other subcultures retard it. Some nations are blessed with self-reliant families, social trust and fairly enforced regulations, while others are cursed by distrust, corruption and fatalistic attitudes about the future. It is very hard to transfer the protocols of one culture onto those of another.

So, according to Brooks, successful economies must quickly adopt new protocols, and the two most important factors in being able to adopt protocols quickly is to develop strong intellecual property rights and then to have inate anthropological characteristics that will develop strong leaders and eager followers, all arranged into self-reliant families. In short, Brooks takes a Randian, social Darwinist perspective on the global information economy. Those who excel in such economies do so because they originate from superior cultures and are bolstered by regulations which prevent the untermenschen from ransacking their protocols (which would, one assumes, weaken the incentive for futher protocol development). This is a proposal for a Bell Curve of the information economy.

On a related note, Arnold Kling got himself into a little scandal last February, when he suggested that Obama’s stimulus plan was actually “a reparations bill” (additional commentary here). Unintentionally as it may have been, Kling draws a very neat line between the ethics of slavery and colonialism and opposition to the so-called Socialism of government-run social services.

In any case, ignoring for the time being the fact that we all still rely very much on things like food and petroleum, not just “protocols,” Brooks’ logic (or the logic he takes from Kling, Schulz, et al) also fits quite nicely into a Hayekian/Trickle-Down worldview wherein the concentration of resources in the hands of the few somehow ultimately translates into prosperity for the masses.

As such, Brooks’ argument seems to have nothing to do with changing systems of value and ownership in the protocol age, except in that it seeks to justify the imposition of artifical scarcity on digital resources in order to preserve the same old justifications for enclosure that existed in those old-fashioned physical economies.

Who Owns Science? Part 2: the Bayh-Dole Act

In the United States, the question of who owns science was given a loud and clear answer in 1980 by Senators Birch Bayh and Bob Dole. Their “Bayh-Dole Act” allowed businesses and non-profit organizations to retain private, patent-style rights to control innovations and discoveries, even discoveries developed using federal funding. This effectively privatized large parts of big medicine and the military industrial complex. It also created a new academic trend: universities across the country created offices of technology transfer, which were responsible for surveying research being done and looking for ways to snatch up innovations and take them to market. This greatly accelerated a trend brewing since World War Two: universities began to rely more and more on private sector profitability for their funding. Ask any graduate student in the sciences who funds his/her education, and you’ll find many with private sector grants. It also encouraged another trend: the question of what topics should be researched became increasingly shaped by what is profitable. Because laboratories and experiments are often so expensive, private sector funders have little incentive to invest unless they think results could be profitable. Hence basic research in science, guided by the latest trends in the field, now takes a back seat to research that is more likely or more certain to generate profits.

Who Owns Science?

Via the P2P Foundation blog, I ran across some impassioned back and forth over the issue of IP in the realm of scientific research. The clash begins with a November 2009 manifesto published by the University of Manchester’s Institute for Science Ethics and Innovation (ISEI), in tandem with the Brooks World Poverty Institute

Entitled Who Owns Science?: The Manchester Manifesto [PDF], the report takes as its underlying platform the argument that the core purpose of scientific innovation is (or should be) to serve the public good and from that perspective, lays out an extensive series of particular points regarding current systems of IP as it relates to scientific research and innovation and in doing so reaches the conclusion that,

the dominant existing model of innovation, while serving some necessary purposes for the current operation of innovation, also impedes achievement of core scientific goals in a number of ways. In many cases it restricts access to scientific knowledge and products, thereby limiting the public benefits of science; it can restrict the flow of information, thereby inhibiting the progress of science; and it may hinder innovation through the costly and
complicated nature of the system. Limited improvements may be achieved through modification of the current IP system, but consideration of alternative models is urgently required.

The London-based Chartered Institute of Patent Attorneys (CIPA) immediately and unsurprisingly struck back at the report (again, this funny collective/private tightrope walk of the professional association). In my opinion, their three most important assertions are these:

– Patents can’t be used to prevent a product coming onto the market – if demand for a product is not met on ‘reasonable terms’ then, subject to certain safeguards, anyone can apply to the IPO for a compulsory licence under the patent. The competition authorities can also take action if patents are abused.
– Patents do not prevent universities from carrying out research – acts done for ‘experimental purposes’ don’t infringe.
[…]
– The alternative to patenting university research is that big business would get a free ride – they could use the work of universities to make profits for themselves.

In response, ISEI points out the employment of IP law to prevent the distribution of generic drugs as well as the fact that the blurred lines between academic reseach and “pre-commercial” development of scientific products within universities makes the boundaries of protected reseach uncles. Further, they argue that they are not seeking the abolition of IP altogether, but rather “to bring [IP] far more into line with the public interest – and indeed with the interests of the goose that lays the golden eggs and creates the discovery on which not only the IP Law industry, but civilization relies, namely science and technology research.”

They also very successfully create a class intervention into CIPA’s association between IP profits and innovation:

The IP system is a tool for encouraging innovation for drugs for rich markets, but this mechanism does nothing about affordability, leading to the problems of access described. In the absence of a rich market, the IP tool is of no help in creating incentives to discover and manufacture drugs, leading to the problem of neglected diseases for which the “necessary investment to discover and manufacture” drugs is lacking.

More information on ISEI’s research into the question of who owns science can be found here.

Public Water/Private Water: Whither Clean Water?

Today’s NYTimes has a rather extensive article regarding concerns that millions of Americans may be drinking tap water contaminated with all sorts of hazardous chemicals – despite the fact that this water passes the requirements of the (seemingly far insufficient) federal Safe Drinking Water Act.

The article doesn’t indicate whether private water systems are, on the whole, more hazardous than public systems, but in describing the egregious case of Maywood, CA, it does note how private systems exacerbate the already difficult process of bringing clean water to the people:

Maywood is only one square mile, but has three water systems. All are privately owned, so local officials have no real power except forcing them to follow federal and state regulations. About three-quarters of the nation’s water systems are private entities, beholden only to their shareholders and the law.

Laboratory tests show Maywood’s tap water has contained toxic levels of mercury, lead, manganese and other chemicals that have been associated with liver and kidney damage, neurological diseases or cancer.

But when Maywood’s residents asked for cleaner water, they were told what was flowing from the taps satisfied the Safe Drinking Water Act, and so the managers didn’t have to do more.

So while insufficient environmental regulation endangers the health of those reliant on both private or public water systems, the privatization of three quarters (!) of the nation’s water systems has closed off the principal avenue public recourse: pressuring elected officials. In fact:

When a city council member named Felipe Aguirre lobbied for cleaner water, anonymous leaflets arrived. “Felipe Aguirre has deceived the citizens of Maywood!” one reads. “Felipe Aguirre does not care that Maywood residents will be paying more for water already safe to drink!” another says. “Do you want this liar and corrupt politician to decide the future of Maywood and its residents?”

If water is a “private” resource, then the owners of that resource can openly declare that profit, not safety, is the bottom line – so long as they are working within the constraints of the law.

The Disintegrating Logic of Possession and Value in the Digital Age

This cutesy animation ties in to the ontological question of copies that Pete addressed in his previous post and the simplicity of its argument it makes me want to start laying out some fundamental logic of ownership, theft, and value.

Again, we’re looking at the real problem that exists in determinig the nature of copying and theft when it comes to digital media technologies. In particular, we must consider that the narrative of production, sale, use, and theft will be quite different when you attempt to apply it to different types of things.

If we’re talking about a purely physical object such as a bicycle, it’s easy to understand that the object is built and then used or exchanged among individuals. If the bicycle is stolen from you, you’ve gotta take the bus. The object’s value is thus constrained by possession.

When you start talking about analog media, this narrative starts to break down, because while you still need a physical object to realize the value, it is possible to make copies and convert media to different formats (e.g. taping a record) so that the use value – and perhaps even the exchange value – can be multiplied among various users, though the quality of the media may decline as generations of copies proliferate. Here, traditional notions of theft can still apply in the sense that you can’t listen to a record if somebody has stolen it from you, but there is another sense of theft that emerges wherein the act of copying makes it unnecessary for the copier to purchase an original work, thus denying the seller the revenue from that additional sale. Here, the physical possession of the record takes a back seat to the “intellectual property” contained on that record. In this instance, ownership becomes disconnected from possession and associated instead with commercial “rights.” The “theft” here is not of actual currency or products, but rather of the potential for additional revenue associated with the content contained in the sold object. This activity is referred to as “piracy,” though of course the pirates of the high seas were stealing physical, not intellectual property.

Things get even more complicated when we begin to look at digital media. First of all, the exchange of digital content from computer to computer pushes concerns over physical property even further to the sidelines in that authorized exchange often does not necessitate a physical object at all. In fact, the very act of using a piece of digital media usually involves making a copy of sorts (e.g., installing software on your computer). As digital technology all but obliterates the scarcity of any given piece of media, intellectual property-holders are attempting to compensate – and thus retain profits – by tightening restrictions on the traditional notions of ownership that would have applied either to the bicycle or to the record. That is, the use of individual pieces of media cease to be transferrable between users. When you buy a song on the iTunes store, you can’t loan it out to a friend for a week.

When you buy a record, you could reasonably state that you have purchased a copy of that content. When it comes to the iTunes story, you don’t even purchase a copy (copies being totally ubiquitous). Rather, you have perhaps bought access to certain content on a certain device, in some cases for a particular period of time.

Thus, as we transition from the bicycle to the record to the song on the iTunes Store, very basic notions of sale, ownership, and theft have to be reconsidered on a very fundamental level.

Cherry’s 10 cents per bottle: update on the Great Lakes water wars

As he prepares to run for Governor of Michigan, current Lieutenant Governor John Cherry (Dem) has been campaigning for a 10-cents-per-bottle tax or fee on companies that sell bottled water from Michigan. He estimates it would raise about $118 million a year, enough money to restore the unfunded Michigan Promise scholarship and put $18 million toward programs for protecting wetlands and the Great Lakes. Taxing bottled water companies to fund education and ecology? Sounds good to me.

The biggest and loudest opponent of the idea, so far, is Ice Mountain, a Michigan-based bottled water company owned by the American Water Division of Franco-Swiss giant Nestle. The company is making two moves to protect its privatized grasp on Michigan waters. First, Ice Mountain lawyers and the IBWA (International Bottled Water Association, a trade group) have been arguing that Cherry’s proposed tax is unconstitutional because Michigan’s state constitution prohibits any tax on sales of food products since 1974. Meanwhile, Ice Mountain PR has been hard at work picking at the special wounds of Michigan’s suffering economy with a widely circulated press release claiming that the tax would raise prices for consumers, raise costs for producers, and threaten jobs. In Michigan, heavily deindustrialized, with one of the highest unemployment rates of any U.S. state and a state government struggling financially, Ice Mountain knows that if it cries about increased costs and job loss, people will take notice. Two shrewd moves to protect the privatization of water, indeed.

But the tax is also being criticized by more publicly-minded critics. Some are concerned that it will prevent Michigan citizens from having access to clean water, especially where tap water is considered unsafe and residents rely on bottle water. Others are concerned that taxing water will add fuel to the fire of privatization, making it seem natural and normal that water is a commodity to be sold, rather than a common resource for public use and enjoyment.

Lt. Governor Cherry has responded to these charges in remarkably anti-enclosure terms (see this story on MLive):

Cherry said he knows putting a fee, or tax, on bottled water may be seen by some as turning water into a commodity. But he argues that businesses that draw and bottle groundwater from Michigan have already done that.
“This is a resource owned by all of us in Michigan,” he said. “And so in that context, if someone takes something that’s owned by everybody and sells it at a profit, it just seems to me to be logical that they have some obligation to reimburse those who own it.”
He said the Legislature has decided to let bottlers extract Michigan’s water without paying a fee, which encourages the use and sale of the state’s water.
“If you want to discourage it, you claim what’s rightfully yours — and that’s a portion of the money,” he said.
Cherry said he supports closing a loophole in the Great Lakes compact which allows shipment of Great Lakes water outside the basin as long as it’s in containers of less than 5.7 gallons.

Cherry’s argument that water is a public resource is refreshing and remarkable in these times when water is increasingly scarce, increasingly polluted, and increasingly captured and commodified by large corporations like Ice Mountain/Nestle. But Cherry’s campaign also needs to be kept in context: it is just another move in a long-standing battle for the water of the Great Lakes.

Peter Annin wrote his award-winning 2006 book The Great Lakes Water Wars (see his website here) to show how and why the region has become the target of such vicious water wars in the last several decades: the lakes hold 18% of the world’s surface fresh water (not including underground aquifers). Amidst a global water crisis, it is no wonder that corporations are working to snatch up this water, while locals fight to protect it. Questions of ownership and jurisdiction are difficult in the great lakes basin, however, which spans 7 U.S. states (Minnesota, Wisconsin, Illinois, Indiana, Ohio, Pennsylvania and New York) and sits astride the U.S.-Canadian border. Thus, on top of questions about whether water can and/or should be publicly or privately owned, there are questions here about which states, provinces and nations have claim to the waters as public property.

For more on water privatization and protection in the Great Lakes region, visit Save Michigan Water.

Fight for your rights? The problem with “copies.”

Today The New York Times published this story about “backlist titles,” books that were once top sellers in paper format, which may or may not be reissued today as ebooks. As publishers work to reformat and reissue such titles, the question of who owns the rights to reproduce these titles – authors or publishers – explodes back onto the scene. The fact that a change in format (from paper to electronic books for example) compels a new round of copyright battling is interesting, raising many questions: is the electronic version a separate “work” with a separate copyright as opposed to the paper version, or is the electronic version merely a copy of the paper work, which therefore puts the original copyright into play?

Behind this copyright question, a deeper question lurks: what is a copy? Obviously the copy is not identical to the original; a copy must be different, a unique object. But on the other hand, how different is too different? At what point does an object become so different from the original that it no longer counts as a copy? This ontological question about copies (or simulacra) and originals (a la Benjamin and Baudrillard), difference and repetition (a la Deleuze), etc., may seem cute or sophistic, but it could be a real thorn in the side of more practical, legal, ethical and political debates about the right to make copies. While I’m on a roll referencing European philosophers: might this problem of the copy be the Derridean lynch-pin which, when pulled out, will cause the whole copyright house of cards to deconstruct (self-destruct)? If we can’t define what a copy is, how can we tell if a copy has been made? How can we tell if an illegal copy has been made, or profited from?

A new thread: health care reform

So far, most of our activity here at Enclosure has been devoted to thinking about ‘privatization,’ i.e. the removal of goods, money, people, services, ideas, etc. from public or common spaces, and their installation behind barriers to access, barriers which shore up our capitalist system of private property: hence the term ‘enclosure.’

But this year’s long and frustrating debate in the United States over health care reform provides an opportunity to look at the issue of privatization from another angle. In this debate, we are not witnessing practices of enclosure or privatization; health care is already privatized and heavily deregulated in this country. The real fight for reformers on America’s liberal left has been the ‘public option,’ the attempt to wrest away health care provision from private hands and put it back in public hands. In other words, health care reformers are looking for the opposite of privatization, call it what you will (public-ization, common-ization, dis-enclosure, de-privatization, and so on…). As critics of the logic and practice of privatization, both authors of this blog are, not surprisingly, strong supporters of the public option.

The fact that so many American citizens and politicians are opposed to a public option furnishes another important topic for discussion. Privatization is not only upheld by organizational and institutional powers (copyright law, property law, lawsuits, police protection, etc.); privatization is also normalized, set up as a cultural value, fought for as a cherished belief (especially on the political center and right). The social, political and economic forms that keep privatization in place are supported by a widespread set of beliefs and values. This is to say that we not only have a system of privatization in this country, we also have a culture of privatization (for more on this, see our earlier post about Kristin Ross and cultural theory). In this year’s health care debates, this culture has proven as big an obstacle to reform as has the weight of inherited structural or systemic forms. The right has flooded the public sphere and the mediascape with messages linking a government-run health care plan with Stalinists and Nazis, as if the right to hold a Medicare card would transport one immediately into Animal Farm or 1984. Meanwhile, they miss the point that our current privatized health care system is more like Lord of the Flies. While we’re no policy experts here at Enclosure, we can say that the same capitalist forces working to slap DRM on our mp3s and privatize local utility systems (e.g. water supply and sewage treatment) have their dirty hands all over our health care system.

The lesson to be learned here is that resisting enclosure and privatization from happening in the first place is just as important and just as difficult as it is to dismantle an already existing system and culture of privatization. Hence we always have to think about privatization ‘before the fact’ and ‘after the fact.’ We have to prevent privatization from taking hold, prevent it from expanding, and to prevent it from becoming totalized.

Not As We Do

An article in today’s Toronto Star highlights a new copyright infringement case that’s about to go to court. The damages being sought are gigantic, with the defendants “effectively already admitted owing at least $50 million [CAD] and the full claim could exceed $60 billion.”

These infringers are not a cabal of p2p radicals or a gaggle of share-happy college students, but rather a series of record companies who utilize anti-p2p lawsuits as part of their purported good fight in support of recording artists victimized by intellectual property theft: “Warner Music Canada, Sony BMG Music Canada, EMI Music Canada, and Universal Music Canada, the four primary members of the Canadian Recording Industry Association.”

The claims arise from a longstanding practice of the recording industry in Canada, described in the lawsuit as “exploit now, pay later if at all.” It involves the use of works that are often included in compilation CDs (ie. the top dance tracks of 2009) or live recordings. The record labels create, press, distribute and sell the CDs, but do not obtain the necessary copyright licences.

Instead, the names of the songs on the CDs are placed on a “pending list,” which signifies that approval and payment is pending. The pending list dates back to the late 1980s, when Canada changed its copyright law by replacing a compulsory licence with the need for specific authorization for each use. It is perhaps better characterized as a copyright infringement admission list, however, since for each use of the work, the record label openly admits that it has not obtained copyright permission and not paid any royalty or fee.

Over the years, the size of the pending list has grown dramatically, now containing more than 300,000 songs.

Multiply that 300,000 by the CAD $20,000 per infringement price tag and you get $60 billion in potential damages (about $57 billion in USD).

On the face of it, this story can be appreciated for its comic irony, but on a more substantial note, this is clear evidence that the corporate recording industry’s defence of intellectual property is not an effort to ensure economic stability for artists, but rather an attempt to protect their own profits. That record companies are not really out to protect the economic interests of individual artists artists is not a new argument, even within the limited context of this site, but rarely is it laid out as plainly as we see in this case. Here the record companies use a product model (the compilation) and liscence model (the pending list) that half-heartedly disguise the fact that they aren’t playing by the same rules they want to enforce on consumers.

sludge update: from the bay area to the globe

The New York Times recently ran this story about a fight over privatizing sewage treatment in Novato, California. In September, local government decided to turn over sewage treatments to Veolia, one of the world’s largest water companies, based in Paris. Problem is,  both the city of Novato and Veolia have, in separate cases, been investigated for illegally dumping sewage into San Fransisco Bay. Veolia found itself snared in a couple of lawsuits, while the EPA raided the Novato water works searching for bureaucratic evidence (paperwork) of dumping. A local NIMBY insurgency has risen up, much like in our previous posts about Synagro and Cochabamba. Veolia also shows up (along with Bechtel and “disconcerting echos of Cochabamba”) in this post from Irish Eco Site The Local Planet, which asks “is there hidden profit in your water?”

So here is yet another story about a global water processing giant, committed on paper to sustainability, but closely watched by citizens and regulators. Regulators are concerned about the practice of illegal dumping, and citizens add concerns about California’s failing state budget, higher utility costs, and loss of local control and local jobs.

All of this is just another round of the same water wars. In this latest round, giant global corporations like Veolia, Suez, Bechtel and Synagro compete to scoop up as many fresh water and waste water processing and distribution gigs as they can, as more and more of the globe’s water is privatized. Privatization, in this case, is deeply connected with globalization. When French companies like Suez and Veolia are snatching up water contracts in California and Bolivia, we should be asking why, just like citizens in Novato are.