[rumori] Fwd: <nettime> warkogram [x2]: wark on lessig on supreme court

From: shannon o'neill (aliasATaliasfrequencies.org)
Date: Mon Jan 20 2003 - 06:32:46 PST

as with much of wark's writing, i can't decide whether this
is an interesting analysis, or a self-important, neologism-
ridden statement of the bleeding obvious.


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>Date: Sun, 19 Jan 2003 22:06:47 -0500
>From: "McKenzie Wark" <mckenziewarkAThotmail.com>
>To: nettime-lATbbs.thing.net
>Subject: <nettime> warkogram [x2]: wark on lessig on supreme court
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>Reply-To: "McKenzie Wark" <mckenziewarkAThotmail.com>
> [digested AT nettime]
>"McKenzie Wark" <mckenziewarkAThotmail.com>
> Lessig's Last Stand
> Lessig on Supreme Court IP Ruling
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>From: "McKenzie Wark" <mckenziewarkAThotmail.com>
>Subject: Lessig's Last Stand
>Date: Sun, 19 Jan 2003 15:47:51 -0500
>The Supreme Court just decided not to intervene in the enactment
>by Congress of copyright legislation that is contrary to the
>Constitution's stipulation that copyright be of limited duration. All
>that is really surprising about this is that Lawrence Lessig, esteemed
>law professor at Stanford Law School, should be all that surprised.*
>Lessig argued before the court on behalf of a group of publishers and
>creators who depend on work falling out of copyright and entering
>the public domain. As Justice Breyer notted in his dissenting argument,
>only 2% of works copyrighted between 1923-42 continue to be used
>commercially. Tp protect the value of that property, an enormous
>amount of material is locked away from free use by artists, curators,
>historians and others who might use it if it came into the public
>domain as the original framers of the Constitution, and of early
>copyright legislation, intended.
>What is surprising is that Lessig would expect the Supreme Court to
>arrive at a rational decision in the public interest. Copyright law is not
>a neutral component of a common social fabric, a compromise
>between individual incentive and public good. Copyright is now a
>component of a regime of intellectual property that forms the basis
>of an emergent kind of class power.
>The class power that relies on intellectual property to secure its
>interests is a new class power, what I would call a vectoralist class.
>Legislative changes enacted in the 90s, in communication and
>intellectual property policy, create a platform in which information
>and the vectors by which its value is realised has been effectively
>Intellectual property law is no longer substantially about providing
>incentives to creation, or protecting the rights of individuals. Rather
>it secures the rights of corporations whose main assets are the
>capacity to realize the value of information through their control
>of its means of distribution.
>This is not the first time in then history of the commodity economy
>that the legal apparatus of the state has created the formal rules
>within which a new class interest claims its power on the basis of
>the abstraction of property.
>Commodity production has already been through two such phases.
>The abstraction of property begins with agriculture. Through the
>destruction of common rights to land, a pastoralist or landlord class
>emerged, which threw peasants of their land, denied them their
>traditional rights and made of them a class of dispossessed farmers.
>This process of dispossession is still going on in much of the
>'underdeveloped' world today.
>Property reached a new threshold of abstraction when it was extended
>to fungible assets and to more complex forms of possessing subject.
>Or in other words, a transformation of the law made possible the creation
>of a capitalist class, in possession of the means of production, which
>confronted a working class deprived of any working asset other than
>its own labor. This regime is now being extended to the underdevloped
>The pastoralist and capitalist classes did not co-exist quietly, but were
>-- and in many parts of the world remain -- in constant conflict via the
>state for legal and policy inititatives that might favor one interest over
>another. Trade and taxation policy, for example. But one thing they
>were united on was the value of a liberal regime of copyright and
>patent that encouraged the development and adoption of innovations
>in farming and manufacturing technique and the free exchange of
>ideas among tangible property holders. This common interest is
>expressed in the Constitution of the United States and in early
>approaches to copyright and patent.
>But times have changed, and a new class arises which exploits a
>further extension of the abstraction of property -- to information.
>Just as the value of the assets held by the pastoralist and capitalist
>classes are maintained within a framework of private property
>rights, so too the vectoralist class now demands the same rights.
>Even if that extension of the privatization of property is contrary
>to the 'common interest' -- the interest of the other dominant classes.
>As with the two previous phases of the abstraction of property, this
>one too meets a counter movement. In the underdeveloped world,
>the privatization of land meets vigorous resistance from peasant
>movements who want to retain communal practices of land
>management. In the 'overdeveloped' world, the working class has
>long sought the partial socialization of the means of production
>through the creation of the welfare state.
>This resistance is as yet somewhat unfocussed. It has not really
>canvassed the range of options it has before it, which might range
>from the liberal to the radical. The recent Supreme Counrt decision
>must surely be seen as a setback for the liberal or moderate
>position, which rests on the assumption of a neutral arbitrator that
>upholds the public interest, in this case the courts.
>One should be under no illusion how high the stakes are. A more
>radical approach, which attacks the technical means by which
>digital information is secured against duplication, has already been
>anticipated by the evctoralist class. The Digital Millennium Copyright
>Act axtually criminalizes attempts to hack digital security code. This
>remarkably punative law is surely a clear indication of the new class
>interest that the state now expresses, sometimes in conjuction,
>sometimes in conflict with pastoralist and capitalist interests.
>The impediment to thinking through resistance to the commodification
>of the information common lies in identifying the other pole of class
>interest that such a transformation creates. The privatisation
>of land creates a farmer interest out of those it disposseses.
>The privatisation of the means of manufacturing creates a worker
>interest out of those it dispossesses. So too I would argue that the
>privatization of information creates both a vectoralist class, who
>control the means of commodifying information, and a 'hacker' class,
>the actual creators of new information, who stand to loose their
>common rights to the sum total of human knowledge and creativity.
>Some may quibble about the extension of the name 'hacker' from a
>narrow useage to describe coders and programmers. Some may be
>sucked in by the already well advanced -- and not disinterested --
>criminalization of that term. It really doesn't matter what one calls
>them (us), what matters is the attempt to abstract from the particulars
>of the division of labor and see a common interest in the information
>commons that unites all producers of information -- the hacker
>The 90s was an era in which this class was induced to see all its
>interests in terms of commodification, in terms of the IPO that would
>make every computer geek and culture freak rich. We all know what
>happened. The ideas ended up in the hands of the corporate world.
>A lucky few sold out their hacker interest and joined the vectoralist
>class. But the very nature of a this class relation prevents the majority
>from attaining private wealth in this manner. Not to mention the fact
>that the privatization of information directs all creative energy toward
>the production of exchange value. It sets a narrow limit on what
>counts as creativity.
>So while one might mourn the loss Lessig suffered before the court,
>and pay a tribute to the tireless work of this campaigner -- one need
>not be all that surprised at the result. From the point of view of a liberal
>calaculation of individual rights against social values, the Supreme
>Court's actions look illogical. From the critical perspective of the
>of class interests through legislation and law, it makes perfect sense
>-- for the emergent class interest that benefits.
>*Protecting Mickey Mouse at Art's Expense
>New York Times, 18th January, OPED page
> ... we no longer have roots, we have aerials ...
>The new MSN 8 is here: Try it free* for 2 months
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>From: "McKenzie Wark" <mckenziewarkAThotmail.com>
>Subject: Lessig on Supreme Court IP Ruling
>Date: Sun, 19 Jan 2003 14:59:57 -0500
>Protecting Mickey Mouse at Art's Expense
>New York Times, January 18, 2003
>The Supreme Court decided this week that the Constitution grants Congress an
>essentially unreviewable discretion to set the lengths of copyright
>protections however long it wants, and even to extend them.
>While the court was skeptical about the wisdom of the extension, seven
>justices believed it was not their role to second-guess "the First Branch,"
>as Justice Ruth Bader Ginsburg put it. As I argued the opposite before the
>court for my clients, a group of creators and publishers who depend on
>public domain works, I won't say I agree. But there is something admirable
>in the court acknowledging and respecting limits on its own power.
>Still, missing from the opinion was any justification for perhaps the most
>damaging part of Congress's decision to extend existing copyrights for 20
>years: the extension unnecessarily stifles freedom of expression by
>preventing the artistic and educational use even of content that no longer
>has any commercial value. As one dissenter, Justice Steven G. Breyer,
>estimated, only 2 percent of the work copyrighted between 1923 and 1942
>continues to be commercially exploited (for example, the early Mickey Mouse
>movies, whose eminent entry into the public domain prompted Congress to act
>in the first place).
>But to protect that tiny proportion, the remaining copyrighted works will
>stay locked up for another generation. Thus a museum that wants to produce
>an Internet exhibition about the New Deal will still need to find the
>copyright holders of any pictures or sound it wants to include. Or archives
>that want to release out-of-print books will still need to track down
>copyright holders of works that are almost a century old.
>This is a problem that the First Branch could fix without compromising any
>of the legitimate rights protected by the copyright extension act. The trick
>is a technique to move content that is no longer commercially exploited into
>the public domain, while protecting work that has continuing commercial
>value. The answer is suggested from the law governing patents.
>Patent holders have to pay a fee every few years to maintain their patents.
>The same principle could be applied to copyright. Imagine requiring
>copyright holders to pay a tax 50 years after a work was published. The tax
>should be very small, maybe $50 a work. And when the tax was paid, the
>government would record that fact, including the name of the copyright
>holder paying the tax. That way artists and others who want to use a work
>would continue to have an easy way to identify the current copyright owner.
>But if a copyright owner fails to pay the tax for three years in a row, then
>the work will enter the public domain. Anyone would then be free to build
>upon and cultivate that part of our culture as he sees fit.
>None of the supporters of the copyright extension act should have any
>complaint about such a provision. All of them argued that they needed the
>term increased so they could continue to get revenue from their works that
>supported their other artistic endeavors. But if a work is not earning any
>commercial return, then the extension is pointless. Of course, there may be
>people who want to keep their work from passing into the public domain, even
>if it is not commercially exploited. That's why the tax should be low, and
>should apply only to work that was published. The privacy and control that
>copyright law gives authors would thus be assured for as long as Congress
>deems proper.
>This compromise, of course, puts much less work into the public domain than
>my clients believed that the framers of the Constitution envisioned. But it
>would nonetheless make available an extraordinary amount of material. If
>Congress is listening to the frustration that the court's decision has
>created, this would be a simple and effective way for the First Branch to
>Lawrence Lessig is a professor at Stanford Law School.
>New York Times
>The new MSN 8: smart spam protection and 2 months FREE*
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