We're all commoners now

A major argument I make in my book, Who owns You? is about the nature of the natural genome as a "commons." It seems to me utterly clear and uncontroversial that that there are some things that simply cannot be claimed by any individual as their "property" in any meaningful sense of the term. The strongest analogy I make is to radio spectra, which can be monopolized only over short distances as long as someone else has a transmitter of identical strength. Brute force cannot make one the king of the radio waves, as long as others have the same potential force, in which case we end up with the classic tragedy of the commons, where a certain frequency ultimately becomes worthless as whomever wishes to and has the means tries in vain to monopolize something that cannot be enclosed. In many ways, this is the story of the encroachment by corporations in general over the domain of science.

Scientists deal in the natural world. They seek understanding, prediction, and ultimately control over natural laws. This cannot be accomplished without a community of scientists undertaking the tried and true methods of science, which depend in large part upon open critique and judgment of hypotheses, theories, and results of experiments by a community of peers. The domain of science is nature and its laws, and these can best be delved into, and nature's riddles best solved, with open and free exchange of information. All of which clearly annoys the powers that be who want as much as possible to cordon off vital knowledge so it can be put to use in profit-making. I am not, in general opposed to making profits, nor am I opposed to people being rewarded for inventiveness, except where the commons makes better sense, or in some cases, is a matter of justice.

We choose to make certain commons (which I call "commons by choice"). Thus, while land can be enclosed, and trains can be privately owned and possessed to the exclusion of others, in some cases we deem it in everyone's best interests to make certain resources freely available, or at least be heavily subsidized (as in the case of national parks and public transportation.) In other cases, like in the case of radio spectra, we allow the government to regulate an otherwise unencloseable space (what I call a "commons by necessity"), doling out monopolies to bidders at public auctions in order to prevent the breakdown of that commons. In some cases, nations negotiate to regulate commons (like the atmosphere) to prevent the collapse or ruination of an unencloseable space that benefits all. In the case of genes, an unencloseable, evolving, utterly natural and necessary commons has been parceled out to the first to file their bogus claims of invention where they are merely drawing lines on a landscape that nature drew long ago. Lots of money is now at stake, and there are entrenched interests, shares, and stakeholders who will fight tooth and claw to hold onto what they never should have gotten. But the commons are ours. Always have been. No property right can be taken where none ever truly existed, and as a classical liberal about property (in the A. Smith sense), I am perfectly comfortable that no right will be denied when we repeal the practice of gene patenting, and once again require invention, innovation, usefulness, and human need to drive the market rather than greed and the desire for bulging patent portfolios.

The commons is reemerging in many spheres, as a vital natural forum for both competition and cooperation. After all, the commons once devised under British common law were available for commoners, who had no other property or wealth, to eek out a living through their hard labor and a common agreement that some spaces were to be used for all. If one was productive, frugal, and lucky, one could rise above one's squalor and save, and even, eventually, become a tenant farmer (because then, the sovereign owned everything thanks to God). Recognizing the role and use of the commons was both a democratic and a market innovation, encouraging class mobility. The oceans are another example, rich with resources claimed by no one, the bravest and best, or the luckiest could garner wealth. The commons is a source of capital for anyone who uses it best. Intellectual capital, innovation, guts, grit, and fortitude, combined with a well-maintained commons, is not only right, it is just.

Speech rights and innovation

I am working on a paper for a special issue of The Monist, forcing myself to refine and expound on themes I have developed in the past about artifice and expression. In the course of it, I have come to see the strength of the ACLU's arguments about free speech. They are quite technically right, and we should acknowledge that intellectual property is a governmental interference with speech rights. It might well be one we are willing to endure, like so many other speech rights we have chosen to let the government curtail, but it is simply a governmental restriction on speech. If you own the copyright of a song, you are granted a monopoly, by the grace of the sovereign, over that song for an obscene (see above) period of time. During that time, I cannot record your song, even with my own creative arrangement of instruments or voices, or editing of the lyrics, without paying you for that pleasure. So, my speech has been restricted. If we take the court's current, small "l" liberal interpretation of what constitutes speech then I'd argue that building a machine, which after all expresses an idea (brings an idea into the physical world outside of a mind) is as much a matter of free expression as sculpting a statue could be argued to be. Patents limit my right to express certain ideas, just as do copyrights. One way to get beyond the implications of these restrictions is to make IP all a matter of private contract: agreements between authors/inventors and end users, without the institutional necessities of government (except, maybe, the courts in case of breach). This is precisely what is going on with the use of copyleft, creative commons, open source, and other forms of licensing that avoid traditional IP laws. Seems to me that this sort of private alternative to big government bureaucracy ought to appeal to conservatives... if there are any left.