|FROM ||Ruben I Safir
|SUBJECT ||Subject: [hangout] Economic of Copyright: Row Row Row Your boat
Occupation?s Mixed Legacy
by William K. Tabb
Michael Perelman teaches economics at California State University,
Chico. This article is based on his book Steal This Idea: Intellectual
Property and the Corporate Confiscation of Creativity (Palgrave, 2001).
His other books include The Pathology of the U.S. Economy Revisited: The
Intractable Contradictions of Economic Policy (Palgrave, 2002) and The
Invention of Capitalism: The Secret History of Primitive Accumulation
(Duke University Press, 2000).
The dramatic expansion of intellectual property rights represents a new
stage in commodification that threatens to make virtually everything bad
about capitalism even worse. Stronger intellectual property rights will
reinforce class differences, undermine science and technology, speed up
the corporatization of the university, inundate society in legal
disputes, and reduce personal freedoms.
We have no precise measure of the extent of intellectual property, but a
rough calculation by Marjorie Kelly suggests the magnitude of
intellectual property rights. At the end of 1995, the book value of the
Standard and Poor (S&P) index of 500 companies accounted for only 26
percent of market value. Intangible assets were worth three times the
value of tangible assets.1 Of course, not all intangible assets are
intellectual property rights, but a substantial proportion certainly is.
While the legal protection of intellectual property might seem
inseparable from contemporary global capitalism, until fairly recently
capitalists were equivocal about such things. During the first six
decades of the nineteenth century, corporations in the United States
were not inclined to respect such intellectual property rights. For
example, they often paid as little as possible, or nothing at all, to
inventors. In addition, the United States did not even recognize
The free-marketeers of the nineteenth century vigorously opposed
intellectual property rights as feudalistic monopolies. Their view of
intellectual property rights mostly dominated political economic opinion
in the United States until the massive depression of 1870s weakened
faith in market forces. In the context of the economic crisis, business
was desperate for anything that would return profits to what they
considered to be an acceptable level.
At first, business owners tried forming cartels and trusts to hobble
competitive forces. In response to vigorous protests, Congress passed
the Sherman Antitrust Act. However, corporations were able to use
patents, which were perfectly legal, as a convenient loophole to evade
the intent of that law. Through patent pools, they could divide up the
market and exclude new competitors. In this way, intellectual property
rights were important in establishing monopoly capitalism.
The strengthening of intellectual property rights accelerated once again
as the bloom wore off the post-Second World War ?Golden Age? and the
United States? export surplus disappeared. Behind closed doors,
corporate leaders successfully lobbied the government to strengthen
intellectual property rights that would give advantages to their
industries. Just as in the late nineteenth century, business saw
property rights as a means of increasing profits when economic
conditions began to sour. The public never had a clue about the extent
to which the government had given away important rights.
The Bizarre World of Intellectual Property Rights
Today, intellectual property rights claims go far beyond patent
protection for useful inventions and copyrights for new music. Some
claims are so outlandish that they would be humorous if the courts did
not take them so seriously. For example, lawyers are now suggesting that
athletes should patent the way they shoot a basket or catch a pass.2
The American Society of Composers, Authors, and Publishers (ASCAP), ever
on the lookout for more royalties, was about to sue the Girl Scouts for
singing ?Row, Row, Row Your Boat? and other songs around campfires until
adverse publicity caused it to relent.3 On the same day that the Girl
Scout article appeared, a Wall Street Journal article reported that the
National Basketball Association was engaged in a suit against America
Online over the transmission of game scores and statistics from NBA
games in progress.4 In another case, someone, in all seriousness,
patented the correct way of lifting a box.5 In one remarkable case, a
patient found that his doctor had patented genetic material from the
patient?s own body without informing him. The patient sued for
compensation, but the courts upheld the doctor?s rights to the
intellectual property encoded in the patient?s genes.6
Absurd claims to informational property rights have been expanding by
leaps and bounds. People have successfully convinced the Patent and
Trademark Office to grant property rights for everything from colors to
a specific number.7 The Patent and Trademark Office even registered the
?frowny? emoticon as a trademark of Despair.com. Ralph Lauren won a
victory in an appeals court in 2000, when his lawyers forced a magazine,
begun in 1975 as the official publication of the U.S. Polo Association,
to change its name because Lauren claimed the word ?Polo? as
intellectual property.8 In a similar case, when educators at the
Australian Institute of Management listed a twenty-year-old course,
?Effective Negotiation Skills,? on the organization?s Web site, a United
States training group, Karrass, told the institute to take the course
description off the site because Karrass has a U.S. trademark over the
expressions ?effective negotiating,? ?advanced effective negotiating,?
and ?effective sales negotiating.?9
One critic of the patent system even succeeded in winning a patent for
Kirchoff?s law, a scientific principle first developed in 1845, proving
that the electric current flowing into a function equals the current
flowing out.10 If an individual critic of the patent system is able to
manipulate the Patent and Trademark Office into registering such
ridiculous claims, think of how much profit-maximizing corporations,
with enormous resources available for research and legal expenses, are
able to stake out as private property.
To illustrate this point, Richard Stallman, winner of a MacArthur
?genius? award, challenged Bruce Lehman, then head of the U.S. Patent
and Trademark Office, at a contentious meeting. Stallman produced a
voluminous, unwieldy printout of a computer program he had written
earlier with several colleagues. He explained that the program was
currently in use on more than a million computers, including those of
the U.S. Air Force and major companies, such as Intel and Motorola.
?Just a few lines of code can be enough to infringe a patent, and this
compiler has ten thousand pages,? Stallman said, gesturing to the
document. ?How many patents does it infringe? I don?t know. Nobody does.
Perhaps you can read the code and tell me?? he challenged Mr. Lehman.11
The Dual Economy
Intellectual property rights change the nature of competition. Most
industries that do not enjoy the protection of intellectual property
rights find themselves involved in intense competition, which lowers
their profits. In contrast, companies with intellectual property rights
face limited competition and can enjoy elevated profits.
For example, Federal Reserve Board Chairman Alan Greenspan recently told
Congress: ?Indeed, a striking feature of the current cyclical episode
relative to many earlier ones has been the virtual absence of pricing
power across much of American business, as increasing globalization and
deregulation have enhanced competition. In this low-inflation
environment, firms have perceived very little ability to pass cost
increases on to customers.?12
Let us decode the Chairman?s words. For agricultural products, steel,
and other commodity-like goods with no intellectual property protection,
competitive forces put powerful pressure on profits. If the entire
economy were like those industries, a severe crisis would engulf it. In
particular, those industries that depended on intellectual property
would tend to be especially vulnerable. Reproduction costs for software,
pharmaceuticals, or movies are trivial. In the language of economics,
marginal costs are small and fixed costs are high. Without the legal
protection of intellectual property rights, strong competition in such
industries would mean certain bankruptcy. Consequently, monopoly in
these sectors is essential, and monopoly is made possible by
intellectual property rights protection.
A few years earlier, Greenspan was emphasizing a different part of the
economy, breathlessly rhapsodizing about a weightless economy:
The world of 1948 was vastly different from the world of 1996. The
American economy, more then than now, was viewed as the ultimate in
technology and productivity in virtually all fields of economic
endeavor. The quintessential model of industrial might in those days was
the array of vast, smoke-encased integrated steel mills in the
Pittsburgh district and on the shores of Lake Michigan. Output was
things, big physical things.
Virtually unimaginable a half-century ago was the extent to which
concepts and ideas would substitute for physical resources and human
brawn in the production of goods and services. In 1948 radios were still
being powered by vacuum tubes. Today, transistors deliver far higher
quality with a mere fraction of the bulk. Fiber-optics has [sic]
replaced huge tonnages of copper wire, and advances in architectural and
engineering design have made possible the construction of buildings with
much greater floor space but significantly less physical material than
the buildings erected just after World War II. Accordingly, while the
weight of current economic output is probably only modestly higher than
it was a half-century ago, value added, adjusted for price change, has
risen well over threefold.13
Over and above the obvious exaggeration, Greenspan?s words here appeal
to the marvels of high technology. But the so-called weightless economy
has more to do with the legislated powers of intellectual property that
the government granted to powerful corporations.14 For example,
companies such as Nike, Microsoft, and Pfizer sell stuff that has high
value relative to its weight only because their intellectual property
rights insulate them from competition.
In his more recent testimony, Greenspan noted, however, ?a firm is
inherently fragile if its value-added emanates more from conceptual as
distinct from physical assets.?15 This possibility would be even more
terrifying to holders of intellectual property was it not for the
powerful protection that the state provides. Not a day goes by when some
legislature or some courtroom fails to grant new powers to holders of
The Costs of Intellectual Property Rights
Intellectual property rights are in the process of corrupting society in
a number of ways. First of all, intellectual property rights will
reinforce class differences. Worldwide, the rich have become richer to
an unimaginable extent in recent years. The members of the ?Forbes 400,?
a compilation of the 400 richest people in the United States, have a
combined net worth of $1 trillion-greater than the gross domestic
product of China.16
Between 1995 and 1998, the average annual income for a member of this
elite group rose from $50 million to a staggering $110 million. The
obscene wealth of a Bill Gates of Microsoft, a Phil Knight of Nike, and
all of the other instant Internet billionaires, alongside the sizable
residue of poverty that blights the contemporary United States, reminds
us of the link between the distribution of income and intellectual
Emblematic of the extent of this new distribution of property, in 1999
outside of those who have inherited their wealth, three of the four
richest people in the world, according to a Forbes magazine survey, owed
their wealth to Microsoft, one of the major holders of intellectual
property rights, befitting the so-called New Economy in which ?DOS
Capital? has supplanted Das Kapital.17
Perhaps the famous trickle down effect could justify the obscene
maldistribution of wealth if intellectual property rights actually
improved productivity. In fact, intellectual property rights are
terribly destructive of productivity on many counts. First of all,
intellectual property rights undermine the very science and technology
that they are supposed to promote. Intellectual property rights are to
science what tollbooths are to highway traffic. Both create bottlenecks
and impede forward progress, but in the case of intellectual property
rights, innumerable disputes arise about who gets to collect the tolls
and how much the tolls should be. To the extent that the present system
of intellectual property rights constricts the flow of new technologies,
it imposes another incalculable cost on society.
For example, virtually no new technology is the product of a single
person or even a single corporation. Ideas and discoveries, what Marx
called ?universal labor,? draw upon a multitude of sources. Sorting out
who deserves legitimate credit for any technology is impossible. Just
consider the complexity of a large software system with 100,000
components. It can use hundreds of previously patented techniques.
Because each patent search costs about a thousand dollars, searching for
all the possible patent potholes in the program could easily run well
over $1 million, and that far exceeds the cost of writing the program.18
Intellectual property rights spawn a system of wasteful litigation.
Already, by the early 1990s, Intel?s annual litigation budget alone was
believed to be at least $100 million. No doubt it has grown
significantly since then.
Intellectual property rights also create an atmosphere of secrecy, which
is inimical to scientific progress. Finally, the quest for intellectual
property rights is speeding up the corporatization of the university.
Universities now routinely sell to corporations the rights to the
patents developed in university laboratories, often at public expense.
Oil or Intellectual Property
While energy sources are the central to maintaining life itself, let
alone the capitalist mode of production, intellectual property rights
are now every bit as important in maintaining the international
financial balances of the U.S. economy. Domestic access to oil will
remain important, of course, so long as the comfortable classes continue
to ride in their SUVs and heat and cool their mega-mansions, but the
energy requirements for the domestic production of material goods
becomes increasingly less important as production moves to low-wage
peripheral areas of the world. Intellectual property rights have become
the financial counterweight to deindustrialization, because the revenues
that they generate help to balance the massive imports of material
goods. Unfortunately, this means of payment still remains woefully
insufficient to reimburse the rest of the world for the imports to
The strengthening of intellectual property rights is perhaps the most
pressing U.S. foreign policy objective today, possibly even more so than
oil. The government?s efforts go well beyond shoring up the legal rights
of holders of this kind of intellectual property. The full weight of its
power is brought to bear against all evildoers who would dare to create
knock offs of a Disney cartoon or a Nike ?swoosh.? In the words of
Thomas Friedman, perhaps the most enthusiastic proponent of
globalization at the New York Times:
The hidden hand of the market will never work without a hidden
fist?McDonald?s cannot flourish without McDonnell Douglas, the designer
of the F-15. And the hidden fist that keeps the world safe for Silicon
Valley?s technologies is called the United States Army, Air Force, Navy
and Marine Corps....Without America on duty, there will be no America
Lest the skeptical reader dismiss Friedman?s clever phrasing as nothing
more than a rhetorical flourish, consider the words of William Cohen,
the secretary of defense in the Clinton administration. In February
1999, upon his arrival in Seattle?a city that a few months later became
a symbol of resistance to the policies that he was sent to advocate?to
speak to the employees of Microsoft, the secretary told reporters, ?I
will point out that the prosperity that companies like Microsoft now
enjoy could not occur without having the strong military that we
have.?20 Friedman and Cohen have expressed what is probably the central
thrust of the foreign policy of the government of the United States.
Intellectual Property and Corporate Control
Guarding the property rights of typical material commodities is
relatively simple. Because most commodities are assembled in stores or
warehouses, the owners merely have to watch over the commodities in
question to ensure that unauthorized people do not take possession of
them. In the case of intellectual property, the materiality of the good
is irrelevant. A song or a program can be downloaded virtually
everywhere by anybody. As a result, protecting intellectual property
requires control over people rather than things. Consequently, the
protection of intellectual property is necessarily more intrusive than
for material commodities.
Purveyors of intellectual property implore the government, often with
success, to mandate modifications that limit the capacity of modern
technologies to violate intellectual property rights?even if they cause
inconvenience to the consumers whom capitalism is supposed to serve.
A frightening, albeit ridiculous, example of this invasiveness came from
a Canadian case in which a farmer was accused of ?stealing? Monsanto?s
intellectual property by planting genetically engineered seeds. The
farmer protested that he had not planted Monsanto?s seeds. The judge
ruled that even though the court had no evidence to prove that the
genetic material had not drifted onto his property in pollen from other
farms, this farmer had the obligation to police his fields to protect
Monsanto?s intellectual property. According to the decision, ?the
source...is really not significant....Growth of the seed, reproducing
the patented gene and cell, and sale of the harvested crop constitutes
taking the essence of the plaintiffs? invention, using it, without
permission. In so doing the defendants infringed upon the patent
interests of the plaintiffs.?21 Of course, to expect farmers to prevent
pollen from drifting onto their fields strains credulity?even in a
So here is a property right that undermines science, burdens the economy
with expensive litigation, and infringes on personal freedom. To make
matters more absurd, public research forms the basis of the great
advances in intellectual property. Yet the leaders of the capitalist
world can find no better way to lift the rate of profit than to promote
the expansion of intellectual property rights.
1. 1Marjorie Kelly, The Divine Right of Capital (San Francisco:
Bennett-Koehler, 2001), 16.
2. See William W. Fisher, ?The Growth of Intellectual Property?
. Also, see Mark Walsh,
?Patently Ridiculous, Some Say; People Dunk Basketballs. People Lift
Boxes. Should the Patent Office Protect Their ?Inventions??? Legal Times
(19 August 1996), S32.
3. Elisabeth Bumiller, ?ASCAP Tries to Levy Campfire Royalties from
Girl Scouts and Regrets It,? New York Times, 17 December 1996. Also, see
?Girl Scouts Don?t Have to Pay Fees to Sing Songs,? Wall Street Journal,
27 August 1996.
4. ?America Online Faces Lawsuit by NBA Over Data on Games,? Wall
Street Journal 29 August 1996.
5. Walsh, ?Patently,? S32
6. James Boyle, Shamans, Software, and Spleens (Cambridge, Mass.:
Harvard University Press, 1996), 21?24.
7. Simson Garfinkel, ?A Prime Legal Patent: Legal Rights to a Number
Upset Programmers and Lawyers,? Scientific American 273 (July 1995): 30.
8. Seth Shulman, ?PB&J Patent Punch-Up,? Technology Review 104 (May
9. David James, ?Trademarks: Latest Word on the Internet: It?s Legal
Chaos,? Business Review Weekly (Australia), 4 February 2000.
10. Seth Shulman, Owning the Future: Staking Claims in the Knowledge
Frontier (Boston: Houghton-Mifflin, 1999), 11.
11. Ibid., 69.
12. Alan Greenspan, ?Federal Reserve Board?s Semiannual Monetary
Policy Report to the Congress Before the Committee on Banking, Housing,
and Urban Affairs,? 7 March 2002, .
13. Alan Greenspan, ?Technological Advances and Productivity: Remarks
at the 80th Anniversary Awards Dinner of the Conference Board,? New York
City, 16 October 1996,
14. See the discussion in Michael Perelman, Steal This Idea (New York:
15. Greenspan, ?Technological?.
16. Peter Newcomb, ?The Richest People in America,? Forbes 164
(October 1999): 169.
17. See Erika Brown, et. al., ?Global Billionaires,? Forbes 164 (July
1999): The phrase ?DOS Capital? was coined by George Bittlingmayer and
Thomas W. Hazlett in ?DOS Kapital: Has Antitrust Action Against
Microsoft Created Value in the Computer Industry?,? Journal of Financial
Economics 55 (March 2000): 329?359.
18. Fred Warshofsky, The Patent Wars (New York: Wiley, 1994), 168.
19. Thomas Friedman, The Lexus and the Olive Tree (New York: Farrar,
Strauss & Giroux, 1999), 373.
20. Robert Burns, ?Post-Cold War Worries: Cohen to Call for Strong
Military in High-Tech Visit,? Associated Press, 18 February 1999,
21. Cited in Perelman, Steal, 123.
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All material copyright ©2003 by Monthly Review
On 2003.04.06 03:40 Ruben I Safir wrote:
> Published on Tuesday, April 18, 2000 in the San Francisco Bay Guardian
> Greenspan Shrugged:
> The Reserve Chair's Philosophy Differs Little From His Ayn Rand Days
> by Ralph Nader
> Last year Congress made Federal Reserve Board chair Alan Greenspan a
> virtual regulatory czar over financial services corporations.
> Considering the waves of adulation that have been sweeping over
> Greenspan, the anointment was not a surprise.
> It would be reasonable to assume that before placing this important
> regulatory power under the Federal Reserve, Congress undertook a
> review of Greenspan's regulatory philosophy and record. You can toss
> that assumption in the nearest trash can.
> Congress knows little and cares less about how Greenspan views the
> government's role in protecting the public interest and the public
> purse. The same is true for the three presidents -- Ronald Reagan,
> George Bush, and William Clinton -- who have appointed and reappointed
> Greenspan to four terms as chair of the Federal Reserve.
> A causal observer of Senate confirmation hearings would be led to
> believe that financial regulation has nothing to do with the job of
> Federal Reserve chair. The issue never comes up. It is the rarest of
> occurrences when a congressional oversight hearing places a Federal
> Reserve official in the dock over financial regulatory shortcomings.
> Yet Congress, with only half-hearted opposition from the Clinton
> administration's Treasury Department, handed Greenspan and the Federal
> Reserve the regulatory plums when it authorized the merger of banks,
> securities firms, and insurance companies under common ownership in
> giant conglomerates. The safety and soundness of the nation's
> system will rest heavily on how vigorously the Federal Reserve carries
> out its responsibility.
> For longtime watchers of Greenspan the move was incongruous, if not
> outright risky. As a disciple of Ayn Rand, later as an economic guru
> the Republican Party, and still later as a lobbyist for financial
> corporations, Greenspan has disagreed with regulation as a tool to
> protect consumers and the well-being of a free enterprise economy.
> Greenspan has argued that the self-interest of the corporations ? the
> desire of corporations to protect their reputation ? was all that was
> necessary for consumer protection.
> In an article published in 1963 as part of Ayn Rand's book Capitalism:
> The Unknown Ideal, Greenspan declared that protection of the consumer
> against "dishonest and unscrupulous business was the cardinal
> of welfare statism."
> "Regulation which is based on force and fear undermines the moral base
> of business dealings," he wrote. "Protection of the consumer by
> regulation ... is illusory."
> Some may well argue that these diatribes against regulation were part
> a passing phase in Greenspan's career. Perhaps, but this philosophy
> alive and well when Greenspan, as a consultant-lobbyist, badgered
> federal regulators. In one case, Greenspan intervened directly with
> principal regulator of Charles Keating's Lincoln Savings in an attempt
> to gain special exemptions from regulations for the institution. Risky
> investments ultimately brought Lincoln Savings down, sent Keating to
> jail, and cost the taxpayers $2.5 billion. Greenspan became chair of
> Federal Reserve.
> Greenspan's antiregulation philosophy continues to crop up at the
> Federal Reserve. Not only has the General Accounting Office raised
> questions about the efficacy of the Federal Reserve's regulation of
> holding companies, but Greenspan has erected roadblocks to the
> collection of data important to consumer protection and fair lending
> In 1996 Greenspan was urged to help in the enforcement of fair lending
> laws by collecting data on the race and gender of applicants for small
> business and consumer loans. Despite pleas from the Office of the
> Comptroller of the Currency and the Civil Rights Division of the
> Department, Greenspan and his fellow governors blocked the proposal.
> This year Greenspan decided to end the collection of nationwide data
> bank fees. The survey, which was authorized as part of the financial
> reforms adopted in 1989, has proven an excellent tool that consumer
> groups have used to highlight and battle the excessive fees that banks
> impose on consumers.
> Similarly, the Federal Reserve is dropping its "Functional Cost
> Analysis" study, which has provided important data on how much it
> banks to provide services. This has been a great tool for measuring
> validity of bank charges. Credit unions, particularly, have made good
> use of this data to dramatize fee and interest rate gouging by banks.
> But if we believe the words of Greenspan during his Ayn Rand period,
> probably doesn't see any need for such data, much less regulation.
> And if anyone complains about the loss of such consumer and
> information, Greenspan could send them this excerpt from his writings
> with Ayn Rand: "Government regulation is not an alternative means of
> protecting the consumer. It does not build quality into goods, or
> accuracy into information. Its sole contribution is to substitute
> and fear for incentive as the 'protector' of the consumer. The
> euphemisms of government press releases to the contrary
> the basis of regulation is armed force. At the bottom of the endless
> pile of paper work which characterizes all regulation lies a gun."
> And this is the Alan Greenspan who Congress believes should protect
> public interest in the regulation of the new financial conglomerates?
> On 2003.04.06 03:38 Ruben I Safir wrote:
> > Greenspan says balance needed in protecting intellectual property
> > WASHINGTON (AP) -- As the fruits of ever-changing technology play an
> > increasing role in the U.S. economy, the country must strike the
> > balance in developing legal protections for innovative ideas or
> > "intellectual property," Federal Reserve Chairman Alan Greenspan
> > Friday.
> > "Are the protections sufficiently broad to encourage innovation but
> > so broad as to shut down follow-on innovation?" Greenspan asked in
> > remarks prepared for delivery via a satellite video link to a
> > Reserve Bank of Atlanta conference in Sea Island, Ga.
> > "How appropriate is our current system -- developed for a world in
> > physical assets predominated -- for an economy in which value
> > increasingly is embodied in ideas rather than tangible capital?"
> > Greenspan asked.
> > A copy of Greenspan's remarks was distributed in Washington.
> > Among the thorny issues raised by intellectual property rights is
> > define precisely what should be legally protected by a copyright or
> > patent.
> > The evolution of the Internet into a communications tool that people
> > at home and at work has raised intellectual property rights issues
> > concerning musicians, movie makers and others in the new digital
> > "Ownership of physical property is capable of being defended by
> > the militia or private mercenaries," Greenspan said. "Ownership of
> > is far less easily protected."
> > In his speech, Greenspan did not talk about the current state of the
> > economy or discuss the future course of interest rate policy.
> > Greenspan and his Fed colleagues last month decided to hold interest
> > rates at a 41-year low of 1.25 percent, saying they would keep a
> > eye on economic developments surrounding the war.
> > --
> > __________________________
> > Brooklyn Linux Solutions
> > __________________________
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> > Brooklyn....
> > 1-718-382-0585
> > ____________________________
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> Brooklyn Linux Solutions
> DRM is THEFT - We are the STAKEHOLDERS http://fairuse.nylxs.com
> http://www.mrbrklyn.com - Consulting
> http://www.inns.net <-- Happy Clients
> http://www.nylxs.com - Leadership Development in Free Software
> http://www2.mrbrklyn.com/resources - Unpublished Archive or stories
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