Artificial Scarcity and Goods With Zero Marginal Cost

Eben Moglen, a professor and historian at Columbia Law School proposed what he calls the great ethical question of the twenty-first century (paraphrased from his DotCommunist Manifesto and the related talk):

If everyone can everything, everywhere, all of the time, how can it ever be ethically justifiable to deprive anyone of anything?

If you could make food by pressing a button, there would be no ethical justification for hunger. Why is information any different?

While simple, this statement introduces a major dilemma for all goods that are entirely knowledge, data, or expression which, unlike all other goods before, have zero marginal cost.

The rapid development of information technology in the last half-century has done exactly this. Each one of us has general, flexible, adaptable, copying machines on our desks and in our bags. They make perfect copies and allow us to transfer copies around the world almost instantaneously.

Our economic, social, and political systems are based on natural scarcity in goods. As information goods have become inherently and unexceptionably abundant, we have responded by creating artificial scarcity in these information goods through the creation of legally, politically, technically, socially constructed monopolies (i.e., private property) in ideas.

Intellectual Property

Private property in ideas comes in variety of ways. Most notable amount these are intellectual property:

• Copyright: Long-term (i.e., up to 100+ years) monopolies in a particular type of expression.
• Patents: Medium-term (i.e., 20 years) monopolies on an idea.
• Trademarks: Unlimited or "as need be" monopolies on marks used to keep consumers from being confused.
• Trade secrets: Secrets.

Each of these gets special and particular legal protection.

Each of these areas is expanding in scope and duration:

• Copyright lasts decades longer.
• Business methods and software is now patentable.
• DRM systems make it so that your technology no longer respects your wishes when those clash with the wishes of the people who created your computer or the content that you have put onto it.

In an unprecedented development, this protection has been merged with global trade (e.g., agreement to IP in the TRIPS agreement is part of joining the WTO).

Overview

There are three major classes of methods by which people "resist" current ownership of ideas:

1. Alternative Approaches: Groups to attempt to live the world now by creating and releasing information freely and by refusing to participate, either through production or consumption, in proprietary communities. They define essential freedom and then live in that world.

2. Transgressive Approaches: Frequently, this boils down to piracy. In addition to systems like Napster, this is the process through which the vast majority of the world produces and consumes content. In a sense, what is happening is that the group simply ignores the current exclusionary approaches to IP. Some argue that this will kick the legs out from under the current system in the process.

3. Progressive Approaches: These are primarily approaches that involve "working within the system" in one way or another. This can include anything from consumer campaigns to put pressure on recording companies to constitutional challenges to copyright extensions in front of the Supreme Court.

   Alternatively, progressives might aim to merely provide sets of tools to allow for alternatives without making calls for a set of essential freedoms.

Examples

Alternative Approaches:

• The free and open source software movement. If you're heard of GNU/Linux, then you know what I'm talking about.
• The Science Commons project or Open Access journal movement.
• Arguably, some aspects or sub-groups within the Creative Commons movement.

Transgressive approaches:

• The way that media is consumed in the vast majority of the world.
• Napster and most up-to-date P2P technology. Getting involved is as simple as participating.
• Groups like the Pirate Bay which is run by a group in Sweden called Pirat Byran which now has a political party.

Progressive Approaches:

• Creative commons through creating licensing.
• The work of groups like the Electronic Frontier Foundation (EFF), Public Knowledge, and others who are working to put checks on the expansion of IP law and the "enclosure" of the public domain.