Table of Contents:
“How is it possible to own the stars?”
“To whom do they belong?” the businessman retorted peevishly.
“I don’t know. To nobody.”
“Then they belong to me, because I was the first person to think of it.”
— The Little Prince
Cultural capital refers to the cumulative products of the human mind, including language, art, stories, music, and ideas. Only recently have they been considered valid objects of property rights, and only recently have they been produced by specialists for the consumption of the masses.
In hunter-gatherer days, while some people probably had exceptional talents in art or music, there was no separate category of “artist” or “musician” because everybody was both. To sing and play an instrument, to dance, to draw, to create beautiful objects from the materials available in the environment, is as natural a part of being human as it is to walk, talk, and play. The atrophy of these functions began with the advent of the Neolithic division of labor, and accelerated as the division of labor intensified with the industrial revolution, which also created the means to replace them with mass-produced substitutes.
Let’s look at the example of music. Before the invention of the phonograph, practically any social gathering involved the playing of instruments and the singing of songs. People sang all the time. There was no one (except perhaps the profoundly tone-deaf) who “couldn’t sing.” If in 1880 you went to a dinner party at one of the large Victorian houses still standing in central Pennsylvania, chances are that after dinner, everyone would adjourn to the piano parlor to sing. People sang as they worked and sang as they played, they sang in chain gangs and around campfires, they sang alone and they sang at virtually any gathering, they sang traditional songs from the Old Country and they sang the folk songs of North America. But with the advent of the phonograph, then the radio, and finally the explosion of electronic devices that make recorded music ubiquitous today, the human capacity to sing began a long, gradual decline among the general population. Why? Because it was no longer necessary. When we buy recorded music, we are essentially paying someone to sing for us, paying for a function that was once just part of being human. Remember the eternal business idea of finding something people do for themselves and then convincing them to pay for it instead? That is exactly what happened with recorded music. It attracted people with its novelty and the fact that they could listen to the very best singers and musicians in the entire country, whereas before they had to content themselves with the best singer in the family or the town. In comparison, their own voices didn’t sound so good anymore, and they became convinced of their own inferiority.
Nonetheless, the decline of singing took a very long time. As recently as the 1940s, my father remembers his whole neighborhood getting together every week in the summer in suburban St. Louis to have a picnic and sing the old songs. Such neighborhood get-togethers have become rare these days with the generalized breakdown of community; even when they do occur there isn’t much singing going on. In colleges a half-century ago, students would sing the college songs at parties and football games, or someone would bring a guitar to the campus lawn and people would gather around and sing. Today they listen to recorded music (at high volume, insulating themselves from the world behind a wall of sound). By the 1970s the only people still singing were children. They were the only people for whom song was integrated into daily life. I remember sometimes on the elementary school bus we would sing all the way to school, the whole busload of us. That behavior disappeared by high school, however; we had grown out of it. We had grown out of singing just for the fun of it (and not as a performance). How sad. Today singing on the bus is probably against the rules.
Some vestiges of our inborn musicality remain: musically-inclined friends who get together for jam sessions and the like. Such activities are a powerful reclamation of our cultural, social, and spiritual capital. By and large, though, music has become a paid function, a commodity.
Something very similar has happened to storytelling. Television has replaced traditional tales as well as family stories and community stories. The old-fashioned storyteller, someone who can spin a good yarn, is a rarity these days; rare too are the types of venues and occasions where her stories might be heard. Instead, through our consumption of television and movies, we pay remote specialists to produce our stories for us. Significantly, the producers of these stories now own them, an unprecedented development. For most of human history, no one imagined that you could own a story. Stories were simply not conceivable objects of property, but constituted in each culture a vast commonwealth. Today, corporations such as Disney mine that commonwealth, wall off parts of it for themselves, and convert it into money.
A related erosion of cultural capital is the hollowing out and commoditization of our holiday customs and religious traditions. Starting with Christmas, one by one our holidays have been reduced to the buying of things; each is a fountain of profit. For Valentine’s Day we buy chocolate and flowers, for Easter we buy candy, for July Fourth we buy firecrackers, for Halloween we buy costumes (last year my children were the only ones I saw with homemade costumes). For Christmas, in addition to gifts of all descriptions, we buy wreaths, decorations, and cookies. And for all holidays we buy greeting cards. A new trend in the restaurant business is Thanksgiving dinner with all the trappings—why cook it at home when it is so much more efficient to have restaurant chefs do it? Remember again the quintessential business idea: Find something that people still do for themselves, and sell it to them instead.
The commoditization of our cultural capital has received increased attention recently due to the ongoing controversies over intellectual property and the preservation of the commons in cyberspace. Before discussing these less tangible objects of property, let’s examine what property actually means. Functionally, property is merely a social agreement that a subject (individual or corporate) has certain exclusive rights to use a thing in a certain way. These rights vary depending on their object and the society upon which they depend. For example, land ownership confers the right to prohibit trespassers in America, but not in Scandinavia. Trademarks confer the exclusive right to use a word or words for specific commercial purposes. For example, we can say that Wal-Mart owns the word “Always” even though I can still use that word in this book. Wal-Mart’s exclusive right is to use it in a specific commercial context.
Not too long ago, I asked a Penn State class how many of them download copyrighted materials from the Internet. The show of hands was unanimous. “According to the legal definition,” I said, “you are all thieves. But stealing has a moral as well as a legal component. So legal definitions aside, how many of you feel like a thief, the way you would if you shoplifted a CD?” This time, not a single hand was raised.
I continued, “So no one feels like a thief. The record industry says that the reason you don’t feel like a thief is that you are morally or ethically deficient. Maybe you are ignorant; maybe you are just plain bad.”
But perhaps there is another explanation, an explanation more trusting of the moral instincts of that vast majority of young adults who download MP3 files. Maybe the reason my class did not feel like thieves lies not in deficient ethics, but with the concept of intellectual property itself.
We understand the purpose of copyrights and patents to be to protect the interests of creators—artists, musicians, and inventors. But interestingly enough, the framers of the United States Constitution cited a rather different reason for authorizing Congress to establish copyrights and patents. Their reason was, “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” In other words, they deemed it socially beneficial for creators to be able to profit from their works. But did they think that a person who comes up with an idea should “own” it? Here are the words of Thomas Jefferson:
“If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property.”
Reflecting the Founders’ reservations about owning ideas, the Constitution prescribes that patents and copyrights are to be valid only for a limited time. The earliest legislation enacted limited terms indeed: copyrights lasted just 14 years and could be renewed for 14 more. Today, copyrights last the entire life of the author plus an additional 70 years, or 95 years for corporate copyrights!
Artists and inventors were not considered to own their ideas at all, but simply to enjoy an exclusive but highly circumscribed right to profit from them. It is this distinction that justifies the institution of the lending library. But today this distinction has crumbled: it is not only illegal to sell copies of a movie; it is illegal to copy it at all. In a former time, the students’ actions would have been neither illegal, nor considered unethical. If books were invented in today’s legal climate, the lending library would surely not exist.
The reasons for setting time limits on patents and copyrights are both practical and moral. Practically speaking, when someone has exclusive rights over a creation for too long, the effect is to stymie innovation, not promote it. That is because art, music, and technology build upon themselves. Their history is one of constant borrowing and self-referencing. Art and music draw from the cultural milieu that surrounds them, which is itself composed, in part, of the art and music already in currency. Today, because of intellectual property law, many types of artistic expression are essentially illegal. For example the digital age enables us to re-edit music and movies, to weave new material into them, to manipulate them in countless ways—that is, to use them as raw material for continued creativity. It is technologically feasible for any PC owner, but legally impossible for anyone without vast amounts of capital to purchase rights.
More generally, when culture is private property, then artistic creation, which draws on the culture, must trespass or be severely limited. When the propertization of the cultural space, the enclosure of the cultural commons, becomes total, it will become impossible to create art at all without asking permission. Already something like this is happening in the film industry, as Lawrence Lessig explains in The Future of Ideas:
Wait! In an extremely ironic turn of events, just as I was about to quote Lessig I saw a notice that said, “No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.” Not wishing to go through the hassle of obtaining such permission, I’ll paraphrase instead. Lessig quotes filmaker Davis Guggenheim that in making a film it is necessary to procure rights to all the images it contains. A poster in the background, a Coketm can, a piece of furniture (because it was created by a designer), a building (whose image might belong to the architect) might all require copyright clearance. Soon, there will be nothing left to film, except with permission, as the propertization of images proceeds toward totality. Increasingly, says Guggenheim, the lawyers determine the content of a film. These issues generate actual court cases. Lessig gives several examples: Twelve Monkeys, suspended when an artist claimed that a chair in the movie resembled a piece of furniture he’d designed. Batman Forever, threatened when an architect demanded money for the image of a courtyard the Batmobile drove through. The Devil’s Advocate, because of some sculptures that appeared in the background.
There, I think I did that without breaking any laws or encroaching on Mr. Lessig’s property rights to those sequences of words he now owns. It wasn’t easy though, because the clearest articulation was the one Mr. Lessig employed himself. Similarly, a filmmaker can try to use only images from the public domain, but because modern life happens in a proprietary realm, certain sentiments are difficult to express. McDonald’s, for example, is a potent cultural symbol; there is no good substitute. The filmmaker must settle for a reduced stock of images, just as I had to settle for a reduced stock of phrases in paraphrasing Lawrence Lessig.
A similar situation pertains to technological innovation, as the free use of scientific discoveries is increasingly limited by legal ownership over their applications. In the realm of biomedical science, the traditional free exchange of information, strains of organisms, and so forth is crumbling because genetically engineered micro-organisms can now be patented; that is, made into property. In the past, scientific progress was based on cooperation more than competition: People shared new results in journals and through informal exchange, protected by their university salaries from the compulsion to profit financially from their work. Now that careers depend in part on corporate research funding and now that researchers and universities have a pecuniary interest in patenting results, a new era of secrecy has dawned. It originates from the profit potential inherent in the patentability of new pharmaceuticals and genetically modified organisms. Contrary to the Founders’ intentions, intellectual property in this case stymies scientific development, because science progresses by building on the results of previous science. When the incentive is to conceal instead of to share, this is no longer possible. What else could we expect from the conversion of scientific knowledge into property, which is nothing else than the enclosure of part of the commons into a private holding?
The moral case against property rights over ideas rests on a similar basis. Ideas do not just appear out of thin air. They coalesce from the raw materials of the cultural commonwealth, and depend on the ambient culture for their resonance and relevance. Mickey Mouse, for example, is appealing mostly because (A) he is a small, humble creature—a mouse, and (B) he looks cute, an effect achieved by drawing him with large eyes, large ears, and a small body relative to his head. Mickey’s appeal, therefore, and his tremendous commercial success, draw upon factors—cultural raw materials and transcultural features of human perception—that are part of the commonwealth.
Recently there was a court case between Exxon and Kellogg over the cartoon tigers used to market their brands: the Exxon gas tiger and Tony the Tiger. The two look quite similar (and similar as well to “Tigger” of Winnie the Pooh fame, and to “Hobbes” from the comic strip Calvin & Hobbes). One of these two corporations claimed that the other infringed on its trademark rights, in effect asserting property rights over a certain rendering of an animal—the tiger—that has very deep cultural resonance. Tigers may be part of nature, but the idea and image of a tiger, with all its associations of strength, power, and beauty, is a kind of cultural capital. Since there are really only a limited number of ways to draw a tiger and have it still look like a tiger and carry these associations, the litigants were in effect asserting private ownership over an item of cultural capital that was once public, unowned.
Whenever someone gets an “idea for a story,” is it really original? Perhaps all stories are only variations on a handful of archetypal plots. And certainly all stories draw from the storyteller’s experience with real people and real events. Certainly she may put them together in a unique way, but can she in all modesty lay claim to ownership of that story? Reading academic exegeses of literary works it is impossible to avoid the feeling that the original authors could not possibly have intended all that. Such intent is unnecessary if they are but channels, and not creators, of their stories. I agree with Lewis Hyde that any creative work comes from a source greater than ourselves. Through us, the Muse delivers great archetypes and universal themes. To claim ownership of them is to subordinate a greater to a lesser. The true artist is humbled before his work.
I say this as an author myself trying to earn a living from my books. I have expressed some ideas in a new way, and applied some ancient ideas to certain aspects of modern life, but I do not presume to own the ideas themselves, nor the words used to express them? How dare I presume? In one form or another, these ideas have inhabited human minds for thousands of years; in each era they take on a new appearance. It would be hubris to enclose part of our common human heritage as my own personal property. That is one reason I’m putting the entire content of this book on line. And while I’m at it, I hereby give everyone permission to “reproduce, reprint, store in a retrieval system, or transmit by any means, electronic, mechanical, photocopying, recording, or otherwise” this book, as long as it isn’t for commercial purposes. I do not give you permission to repackage and sell these words—any copy you make, you may only give away for free.
The current rush to own melodies, words, images, algorithms, and even the code of life itself is a new enclosure movement, much akin to the privatization of the village commons by the English Enclosure Acts of the 17th and 18th centuries. Words that were once public and available for all to use are now the property of corporations and other institutions, unavailable to others for certain uses. “I’m lovin’ it” is the property of the McDonalds Corporation (it has the exclusive right to a certain use of that phrase). “Make every drop count” is the property of Coca-cola. “Ideas for life” is the property of Panasonic. “Always” is the property of Wal-Mart. “Making life better” is the property of Penn State. You can still use these words for most purposes, but not as a slogan for your organization. Penn State has taken them. Nike has taken “Just do it.” Donald Trump has taken “You’re fired!” These are but a few of the tens of thousands of common phrases that have been expropriated from the public language.
Even the words “Love thy neighbor,” which appear in both the Torah and the New Testament and lie at the foundation of moral philosophy, are now subject to ownership. In 2001 a Michigan jewelry merchant using “Love your neighbor” sued a Florida charity named “Love thy neighbor” for trademark infringement, claiming that the similar name confused customers and resulted in lost profits. The defendant said he was flabbergasted that it is possible to register rights to an expression that “has been around for 5,700 years.” Legalisms aside, does the plaintiff really have a right to this phrase? Did he create it and invent the concept? Or has he merely cordoned off a part of the cultural commonwealth and claimed it for his own use and profit, solely on the justification of having gotten there first?
What of music? Do we just invent new songs out of nothing? Do we really invent new melodies and tell new stories? Or are these things cobbled together out of the myriad works of creators past: free-floating ideas plucked out of the noosphere and arranged to appeal to a given audience, or at their best, to a universal audience? To a medieval minstrel, to claim ownership over a song and demand others not play it would have seemed a brazen conceit; to a tribal storyteller such an attitude may have seemed well nigh blasphemous. Stories and songs were sacred gifts from the gods.
A similar argument pertains to technological inventions—they too are born of a complex creative matrix, inspired by ideas ambient in the culture. Hence Lewis Mumford defined the patent as “a device that enables one man to claim special financial rewards for being the last link in the complicated social process that produced the invention.”
To claim ownership over what is not rightfully yours is theft. To stake out a permanent claim in the commons of our cultural heritage is to steal from us all. Seen this way, students downloading music and movies are simply defying our era’s new land grab on the intellectual commons. They sense what Thomas Jefferson articulated so well: that no person has a moral right to own an idea.
It is tempting to say that the riches of our cultural heritage should remain “public property”, but to use this term reinforces a dangerous underlying assumption that the word “property” can be made to apply to them at all. The cultural commons, like the village commons before it, was once the world outside the sphere of human ownership. Today, there is no such sphere. The separate human realm of the owned has expanded to cover all.
I am advocating a revolution in human beingness that goes much deeper than a mere Marxist shift of property from individual to common ownership. Property itself will become an outmoded concept.
A great hubris is implicit in the very concept of ownership. Ownership subordinates a thing to human being, makes what was at large and wild into a possession, something of ourselves. Wendell Berry has said, “He (God) is the wildest being in existence. The presence of His spirit in us is our wildness, our oneness with the wilderness of Creation. That is why subduing the things of nature to human purposes is so dangerous and why it so often results in evil, in separation and desecration.”
Of course, the things of nature, culture, and spirit that we attempt to subdue by making them into property are not subdued in reality, but only in our perception. Only in our perception are they reduced to possessions, something no longer larger than ourselves but smaller, no longer the mystery of the unknown but the catalogue of the owned. For what is it for a thing to be mine? Do I change its essence thereby, by imagining I own it? All of what we call “intellectual property”—patents, phrases, text, images, sounds—are pieces of the cultural universe that we separate out and make private. What is it to make something private, to make property of something? What really changes? Does the song know when its royalty rights have been transferred? Does the story know when the copyright has expired? What has changed is really only our collective perception of it. Property is, after all, a social convention, an agreement about someone’s exclusive right to use a thing in specified ways. However, we seem to have forgotten this. We seem to think that property belongs to us in some essential way, that it is of us. We seem to think that our property is part of ourselves, and that by owning it we therefore make ourselves more, larger, greater.
Significantly, it is force that backs up the social agreement defining property. If I defy that agreement by trespassing on your land, you can threaten or apply physical force (through police proxies, for instance) to maintain your socially-defined exclusive rights. Property encodes power relationships among human beings. Less commonly recognized is that property embodies a relationship to the world at large no less fraught with force and control.
Changing our concept of ownership and abandoning the conversion of the universe into property involves a fundamentally different conception of ourselves in relation to the world. It involves a letting go, a relaxing of boundaries, a trusting in what was once so quaintly known as “Providence” instead of reining in the whole world, bringing it under control, making it ours. In the propertization of everything we again find an echo of the technological program of perfect control and the scientific program of perfect understanding upon which it is based. Our socioeconomic system and our way of life is inseparable from our beliefs about reality: our ontology, our cosmology, and our self-definition. It is all about making it ours, conquering nature, conquering the mystery. To conquer means to make ours, and that means to own. To assign property rights to all reality is indeed to become the lords and masters of the universe.
The world of property is precisely the “separate human realm” whose emergence we have traced back to fire, stone, language, and number. It is a world labeled, numbered, and subordinated to human ownership; it is a world whose value we define in terms of money—a purely human abstraction, and a proxy for the interest of the separate self. As more of the world enters the money economy, the separate human realm grows and the wild shrinks. All becomes fuel for the fire that defines the circle of domesticity, blazing so high now that nowhere can we avoid its heat.
The realm of the owned continues to expand. Corvette owns a certain shade of red, UPS a certain shade of brown. These are parts of the electromagnetic spectrum. Did these companies create these colors, or just enclose them, wall them off and call them theirs? Harley-Davidson has done the same thing to the sound of its revving motorcycle engine. To the extent that music, images, and text can be digitized, intellectual property comes down to owning numbers, a natural next step after the conversion of the world to numbers described in Chapter Two. Thus we have extended ownership to the fundamental stuff of reality: electromagnetic waves, numbers, DNA, sound waves. That these are considered “intellectual property” again bespeaks our hubris, that we presume dominion over something far prior to human beings. We have merely taken what was there already, the substrate of reality. Whether words or land, at the beginning of the chain of purchase and sale, someone must have simply appropriated it. As P.J. Proudhon proclaimed in 1840, “Property is theft.”
Our possession of this world we have made ours is a grand larceny. And its victim is the commonwealth: the land, the genome, mother culture. We could say that property is what has been stolen from us all, or from Nature, or from God. In any event, our progressive ownership of the world naturally and inevitably accompanies our progressive estrangement from the world, so that in the end we languish in the prison of me and mine which, no matter how great our possessions, is far narrower and dingier than the unbounded Wild from whence we came.
 Some vestiges of the old days remain at Yale, where students still gather at Mory’s, a private club associated with the university, and sing old songs. Such behavior is exceptional, however.
 For example, in Sweden, the right of Allemansrätt allows individuals to walk, pick flowers, camp for a day or two, swim, or ski on private land (but not too near a dwelling).
 When I most recently asked this question to my class, I was nonplussed to find that a surprising number of students don’t feel the slightest twinge of guilt over shoplifting either. Keep this in mind as you read the discussion of intellectual property. Could it be that on some unconscious level, they realize that indeed, “Property is theft?”
 ***. This quote is widely cited.
 These are the terms of the Copyright Term Extension Act passed in 1998 and upheld by the Supreme Court in 2003—just as Mickey Mouse and other iconic characters were to have passed into the public domain.
 Lawrence Lessig, The Future of Ideas, Random House, 2001, excerpted at http://cyberlaw.stanford.edu/future/excerpts/.
 I have read that images such as commercial storefronts and the New York City skyline are also proprietary. In the human world, that covers the entire landscape. I imagine that as the natural landscape turns increasingly toward proprietary crop and animal varieties, non-urban landscapes might require rights clearance too.
 Based on comments of Dr. Jonathan Kind, Professor of Genetics at MIT, quoted by Bernard Lietaer in The Future of Money.
 “Trademark Litigation Hall of Fame,” Overlawyered.com, April 2001, http://www.overlawyered.com/archives/01/apr1.html, and “Michigan Lawyer’s Demand: get your case off my website”, Overlawyered.com, June 2001, http://www.overlawyered.com/archives/01/june2.html
 Lewis Mumford, Technics and Civilization, p. 142
 Berry, Wendell. “Christianity and the Survival of Creation.” Sex, Economy, Freedom, and Community. Pantheon Books, New York, 1993. P. 101