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Opening that presents general framework from Empire
Empire is an unlimited form of rule, network of supranational, national and local institutions (no outside, no center).
Multitude is the productive subject within and against Empire, subject of a potential global democracy (no outside, no center).
Our feeling is that whereas the concept of Empire was articulated relatively well in the book, the concept of multitude was left at a poetic level. Negri and I are working to articulate better the multitude in empirical and conceptual terms. We have to ask who or what is the multitude? and then how can the multitude work politically toward the formation of a global democracy? and furthermore, what would constitute a global democracy?
One of the most powerful obstacles to a global democracy is the system of private property, insofar as private property maintains social hierarchies and prevents the equal and collective formation of the multitude. No democracy can be absolute under the rule of private property. One element of the politics of the multitude, then, is the abolition of private property. It might strike you today as naïve or quaint or anachronistic to argue for the abolition of private property but at least with respect to certain kinds of property, as we will see shortly, the legitimacy of private ownership is today more widely and strongly contested than ever. I explore in this essay not so much the political practice but the strategy of argument that best challenges the legitimacy of private property. In the process I hope to demonstrate how the multitude can work within the Empire of global capital exploiting capitals own logic to overthrow it and construct an alternative society.
I will focus on some immaterial forms of property, such as intellectual property and bioproperty, that cast a new light on private property as a whole, but before doing so I need to consider the forms of labor that are linked to these forms of property. This is necessary because still today is effective the old capitalist dictum that, as Adam Smith says, labor is the source of all wealth and, as John Locke says, property is labors just desert. Since the legitimation of capitalist property rights are still based on the labor of the producer, labor provides the most powerful avenue for challenging the capitalist structure of property relations. This labor logic, we will find, is even more clear and powerful in the new realms of immaterial property.
One of our slogans in Empire claimed that there is no more outside and, consequently, there is no more nature. For this discussion we could reformulate the same claim and say that life and nature are produced and producible. This producibility of life will be key to my argument here and I will investigate it first briefly in the work of Judith Butler and then in more detail in the logic of patent law. The producibility of life, we will see, brings with it new possibilities for liberation but also new forms of domination and control.
1. Immaterial Labor and Biopolitical Production
Along with several other authors, Toni Negri and I have used the term immaterial labor to summarize many of the changes taking place in the field of labor. By immaterial labor we understand labor that produces an immaterial good, such as a service, a cultural product, or a relationship. Our claim is that such immaterial labor has recently gained the central position in the capitalist economy, dominant with respect to industrial labor, agricultural labor, and the other forms. It is dominant not in quantitative terms but rather in qualitative terms, with respect to value and this dominance colors all economic activity in a new light.
Immaterial labor itself might be thought of as consisting of two ideal types. The first ideal type refers to labor that is primarily linguistic or intellectual, such as problem solving or symbolic and analytical tasks. The various kinds of labor related to computers and their languages could be thought of as paradigmatic of this type. This kind of immaterial labor produces ideas, mental processes, images, and other such products. We call the other ideal type of immaterial labor affective labor, that is, labor that produces or manipulates affects such as a feeling of ease, well-being, satisfaction, excitement, or passion. One can recognize such affective labor, for example, in the work of flight attendants, fast food workers (service with a smile), or health care professionals.
Most actual jobs involving immaterial labor are combinations of these two ideal types. The creation of communication, for instance, is certainly a linguistic and intellectual operation but also inevitably has an affective component. Various forms of social interaction and social relationships clearly involve both of these aspects of immaterial labor. Immaterial labor is also almost always mixed with material forms of labor: the flight attendant, the health care worker, and the typist at the word processor are all performing immaterial tasks together with material ones. Finally, immaterial labor is being mixed with and transforming traditional material laboring forms. Industrial production, for example, is being increasingly informationalized, that is, permeated by networks of communication and information, both in the production process itself and in its relations to the market. Even agriculture, a we will see later, is being informationalized through practices such as the genetic manipulation of seeds and plant varieties. This is the role of the dominant sector in each phase of economic history: to transform all of the other sectors in line with its own central characteristics. The argument, let me repeat, is not that immaterial labor did not exist before but rather that it has recently been accorded the dominant position in the economy and that such dominance has a series of important effects.
Before moving on to consider how this new position of immaterial labor relates to forms of property, I want to focus briefly on four important characteristics of this conception of immaterial labor. First of all, at the most basic level, this conception makes clear that labor is involved in the production of ideas, knowledges, information, affects, and the like. This may seem like a simple and obvious point but it is not uncommon for analysts of the new economic phenomena to claim that knowledge or information has today replaced labor as the foundation of wealth, without recognizing that knowledge and information themselves are produced by specific kinds of labor. This distinction is important from the standpoint of capital because, as I will claim later, the capitalist right of property is necessarily based on a foundation of labor. If knowledge, information, and other immaterial goods were not products of labor, then no one could claim private ownership of them.
Secondly, the notion of immaterial labor breaks away from the old conceptual distinction between manual labor and intellectual labor, and at a more general philosophical level the distinction between mind and body. Whereas the first ideal type of immaterial labor, the one associated with linguistic competencies, information, and communication, might appear as a kind of incorporeal and intellectual labor, the second ideal type, affective labor, is clearly both corporeal and intellectual. Are affects proper to the mind or the body? This is a question for Spinoza and early modern European philosophy. Affects are equally corporeal and intellectual, and in fact they demonstrate the inadequacies of the division between mind and body. Here one can begin to see too some of the gendered aspects of immaterial labor and affective labor in particular. We developed our conception of affective labor from a series of studies by socialist feminists, mostly written in the 1980s, that tried to understand what has traditionally been designated as womens work with concepts like labor in the bodily mode, caring labor, kin work, and maternal work. One aspect common to these various studies was the effort to undo the conventional mind / body division and particularly its correlate in the field of labor, intellectual versus manual because it was an obstacle to accounting for what womens work actually consists of. The concept of affective labor and immaterial labor as a whole thus is intended as an extension of this project to think labor outside the mind / body division.
A third important characteristic of the concept of immaterial labor has to do with another blurred distinction. In addition to challenging the mind body division, these and other socialist feminist studies of womens work also intended to challenge the economic division between production and reproduction. This project too is intrinsic to the concept of immaterial labor. In the context of communication and even more so in the context of the production of affects, the distinction between production and reproduction breaks down completely, because what is involved here is the production of social relationships and at the most general level the production of social life itself. These products are not objects that are created once and for all, but rather they are produced and reproduced in a constant stream of activity. The production and reproduction of social life biopolitical production, the continuous production of the life of the polis is from this perspective the most general activity and the highest scope of labor.
The fourth and final important characteristic of our conception of immaterial labor is that it names not only the new laboring practices that have recently been created (dealing with computer and information technologies, for instance) but also previously existing practices that have only recently been conceived as labor. This is a rather controversial aspect of our concept and it was equally controversial for the socialist feminist concepts of labor, such as caring labor and maternal work, that I mentioned earlier. Some scholars resist calling these activities labor because that denigrates the activity. Why should we call labor, some object, for example, the nurturing and care that I give to others? Its done out of love and thus its not work. Or, in a rather different context, one might object similarly to calling labor the production of traditional resources in indigenous communities the knowledge, to use an example I will say more about shortly, of how to use certain seeds as a pesticide to protect crops; or even think of as a kind of labor the traditional practice of storytelling, which of course creates social relationships in the community. Arent we distorting traditional communal activities by forcing them into the category of labor? My response to such objections is that indeed none of these activities are intrinsically labor and in fact no activity is. The definition of labor is the object of struggles and what counts as labor today is the result of previous struggles. Capital seeks to define labor as any activity that directly produces economic value. Labor, from this perspective, must be read backwards in the production process: labor is what produces capital and all those activities that do not produce capital are not labor. It is important from the standpoint of capital, as I said before, that certain activities are coded as labor because labor is necessary to ground the right of property but I still want to delay this discussion a few more minutes. Here, I should note, we encounter another meaning of the term biopolitical production: all life activity is potentially today coded as labor and thus all of life is potentially under the control of capital. In fact, the progression toward all life activity becoming labor is advancing hand in hand with that toward all elements of life becoming private property. This might be called too the real subsumption of life under capital.
2. From the Critique of the Body to the Flesh
I want to investigate some of the challenges or problematic that a theory of immaterial labor and biopolitical production must confront by situating it in the context of the theories of the body explored by Anglophone feminist theorists during the 1990s. I will pursue just two of the themes in the wide range of work that comes under this heading: the critique of the mind / body distinction and the critique of the sex / gender distinction.
The feminist philosophical challenge of the mind / body distinction can be summarized I think in three coordinated critiques. The first is a critique of the simple dualism of the relationship between mind and body, that is, the fact of conceiving the phenomena of the world or of subjectivity as divided between the two categories. The stakes in this first critique become more clear with a second critique: the problem is not merely the division into two separate categories or attributes or qualities, but rather the unequal relationship between them. In fact, dichotomous or dualistic thinking, the argument goes, leads, perhaps inevitably, to hierarchies, ranking the two polarized terms so that one becomes privileged and the other its suppressed, subordinated, negative counterpart. Here is the clearest reason why the question of the body should be the proper domain of feminist theory, because the mind / body dualism has traditionally been mapped onto the male / female dualism, in both the history of European philosophy and more common discourses. In other words, to the extent that male is associated with mind and female with body, the hierarchy of mind over body is a representation of or field for the power of male over female. The critique of the minds domination of the body is thus conceived as parallel to the critique of patriarchal domination. Finally, a third critique, which was perhaps already implied in the question of dualism, challenges the separateness and isolation of mind and body from one another. The point here is not so much about the conceptual distinction between mind and body, which still functions, but about their interactive nature. Rather than conceiving them as autonomous entities, we have to recognize that there are continual exchanges between mind and body, transforming one another and even passing into one another.
A second stream of Anglophone feminist theories of the body of the 1990s, most closely associated with the work of Judith Butler, addresses the sex / gender distinction. The distinction had been important to US feminist theory at least since the 1970s when it was formulated in explicit terms to combat the longstanding influential theories about how womens social roles were determined by their biological functions. The distinction thus separates from this relatively fixed conception of sex and femaleness a realm of gender that is determined culturally and socially, and can thus be directly addressed in political terms. The distinction between sex and gender thus does echo, in this respect, that between the body and the mind and similarly that between nature and socialization. In the 1990s, Judith Butler critiques the traditional sex / gender distinction by arguing that the difference between the two is not that one is natural and necessary whereas the other is cultural and contingent. She claims, in fact, that the traditional insistence on the social construction of gender serves to reinforce the notion that sex is unconstructed or natural. Butler goes on to insist that the naturalness of sexual difference supports and masks a normative heterosexuality: the natural division of the human into two sexes itself necessarily implies, especially in the psychoanalytic framework, a sexual complementarity and normal coupling. In this sense she follows Foucaults claim that sex is a regulatory ideal. Butlers strategy for contesting this heteronormativity is to demonstrate how sex too is produced and reproduced through our daily practices and performances. We are, of course, not free to perform completely as we choose with respect to such norms; we are constrained socially in many ways to repeat such performances and thereby reproduce the norms. The fact of this process of production, however, does potentially open a space for intervening in the process and disrupting or subverting the established norms.
When we take a step back from the specific claims of the arguments we can see that these 1990s feminist critiques of the body arrive at an understanding of the contemporary condition similar in important respects to our notion of immaterial labor and biopolitical production. My claim is not that one is somehow subordinate to the other but rather that they have taken parallel paths to grapple with a common social condition. In the first place, immaterial labor, and especially its affective component, challenges the traditional divisions between mind and body, posing instead a continuous interchange between the intellectual and the corporeal. This is where one should develop a theory of the productive flesh, since flesh is the name for that matter that is at once and indistinctly both intellectual and corporeal, subjective and objective. This is a flesh that produces and creates. In the second place, in the realm of biopolitical production, our practices, our performances, and our labor are constantly constituting all aspect of social life: norms, relationships, institutions, and so forth. Not only sex but all of life is produced and producible and this is where one should develop a notion of monstrosity because the infinite producibility, transformability, mutability of life is the stuff of monsters, beautiful monsters and horrible monsters too. It is true that by recognizing the constructed and performative nature of sex and of life in general we can begin to attack the pillars of heteronormativity and other regulative social regimes, but we also thereby open a new, fluid world equally full of promise and danger. The fact that all is producible and produced, in other words, does indeed present great new potential for liberation but it also makes possible new forms of domination and control. The scene of biopolitical production is a stage on which the struggle for liberation has to be played out.
3. Immaterial Property
A. Reproducibility and the Protection of Private Property
This new realm of production and this new producibility of life is reflected in the new forms of property that are emerging today. Corresponding to the newly central role of immaterial labor is a similarly central role of immaterial forms of property. This correspondence is no coincidence, I will argue, because the capitalist legitimation of private property has always been grounded on labor such that a shift in the forms of labor makes possible and necessary new forms of property. In particular, biopolitical production makes it possible that life itself can become private property.
Let us back up a moment and consider immaterial property in general. Immaterial property poses special problems for capitalist social order. Protecting private property has always been a problem. Capitalist social order in general, in fact, can be usefully defined by the series of regulations developed to respond to the various threats against private property. Ever since there was property there was theft, counterfeiting, corruption, sabotage, and other such violations. It is obvious that all mobile forms of material property are constantly in danger of being stolen. Immobile forms of material property too run the risk of being damaged through sabotage or simple destructiveness. Even land, that most secure form of property, suffers from insecurity. (In Balzacs great novel Les paysans, for example, we see all the devious strategies by which the peasants undercut the ownership of the new bourgeois proprietors. The peasants may not be able actually to steal the land, but they can steal all that belongs to it, the timber, the animals, and so forth. Glanage (gleaning) is what they call it little by little, through a slow process of attrition, undermining the value of the land until the owner is forced to leave and sell it at a loss.) All private property is insecure, in other words, but in the age of immaterial production private property becomes even more volatile and uncontrollable. The ephemeral nature of immaterial property makes it ever more susceptible to unregulated reproduction and corruption, and it renders less effective many of the traditional mechanisms to protect private property. As property becomes ethereal, it tends to slip through the grip of all the existing mechanisms of protection.
Computer viruses, worms, and the like are simple and obvious examples of how immaterial forms of property, such as computer programs and data banks, can be destroyed relatively easily. Computer viruses function as a form of sabotage since, like the wooden clog thrown in to break the mechanical gears of the machine, they too use the machines own functioning for its destruction. They also present significantly greater difficulties for security than other forms of sabotage because they do not require physical proximity. Computer sabotage only requires virtual access.
The susceptibility of immaterial property to corruption or simple destruction, however, is not the only story here. More interesting, in fact, are the ways in which the private character of immaterial property is increasingly difficult to maintain. Many forms of illicit reproduction of immaterial products are quite obvious and simple reproducing written texts, for example, or audio and video property. They are obvious because the social and economic power of many immaterial forms of property depend precisely on their being reproducible easily at low cost, through techniques from the printing press to digital recording. The reproducibility that makes them valuable is exactly what threatens their private character. (To put this contradiction another way, private property is based on a logic of scarcity, but the infinite reproducibility central to these immaterial forms of property directly undermines any construction of scarcity. ) Computer hacking is emblematic of the kind of theft or piracy that becomes virtually uncontrollable in the realm of immaterial property. Hackers both gain access to information property and disable the protections against reproduction of software programs and data banks. Like creating viruses, hacking too is extremely difficult to prevent because connectivity itself, an important component of the use of informational and computing property, is the primary source of danger. This, once again, is the contradiction: development of the central utility of the property undermines its private character.
The napster experiment was an interesting example because it posed the issue of reproduction in such a social form. The napster web site provided the platform for numerous users to share and copy freely recorded music in the form of mp3 files. In the exchanges among users the recorded music no longer functioned as private property. It was an extension well beyond the traditional conceptions of piracy in the sense that it is not merely the transfer of property from one owner to another but a violation of the private character of the property itself perhaps a kind of social piracy. The napster site was eventually closed down on the grounds that it facilitated the infringement of copyright, but there are many other examples on the web of texts, information, images, and other immaterial forms of private property that are illegally made freely accessible and reproducible. Such examples point toward at least the possibility of a general trend in the immaterial realm from the private to the common.
B. Four Challenges to the Legitimation of Private Property
All of this could be seen as merely a police question: immaterial property presents new dangers to security and requires the invention of new schemes and techniques of protection and control. The difficulties of the protection of private property, however, point towards the more important and more interesting issue of the legitimacy of private property. My question, in other words, is not really can the security of the private immaterial property be defended against illegal threats and indeed I assume that despite significant difficulties it can but rather can the legitimacy of the private ownership of immaterial products be maintained? Force is secondary in the establishment and maintenance of capitalist relations of property; the logic of legitimation is its primary support. By what logic should we judge the violation of private immaterial property? Are those, for example, who reproduce and share such property liberating what ought to be common or merely stealing from the rightful owners? Or is the private ownership of immaterial property itself a form of theft? To address these questions I will present a series of cases some of them very well known in which the ownership of immaterial property has come under question. I organize the cases into four groups that designate four strategies for challenging the legitimacy of immaterial property rights.
Before turning to the cases I should repeat that in my view the fundamental basis of the legitimacy of private property in capitalist society, in the immaterial as well as the material realms, relies on labor. The labor logic of legitimation is particularly clear, I think, in the realm of immaterial production and property rights. Copyright, patents, and other legal frameworks protecting immaterial property rights are intended to correspond to the labor of writers, artists, and scientists whose products could otherwise be easily reproduced without compensation. From a broad historical perspective one might say that such legal frameworks arose in Europe to fill a void after the decline of the patronage system that had previously supported artists and scientists. Their rise also corresponds roughly to the invention of new techniques of mass reproduction, from the printing press onwards. Reproducibility is indeed one criterion for immaterial property rights an unrecorded musical or dance performance, for example, would not be eligible for copyright. The most important criterion for immaterial property rights, however, is the identification of the labor of its creator the author, the scientist, the composer, and so forth. The claim to property is tied inextricably to the labor of the one who produced it. Copyright of a text obviously may only be granted to the author of the text or the authors delegate. Copyright is not granted, however, for traditional folk tales, folk songs, or other such elements of our common cultural heritage, unless an author or composer adds his or her labor and modifies them substantially. Patents function in much the same way. According to U.S. patent law, Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor. The criterion of newness means that the object or process has been substantially modified by human inventiveness. One cannot patent a process that is common knowledge, for instance, because no labor went into it. Similarly, laws of nature, physical phenomena, and abstract ideas are not patentable because they too are manifestations of nature. Discovery of Einsteins formula E=mc2, for instance, or even discovery of a previously existing but newly found mineral, plant, or animal would not be patentable. Only the addition of immaterial labor legitimates the patent claim. Nature, conceived here as what is devoid of human labor, is not eligible for patent just as artifacts of our common cultural heritages are not eligible for copyright. In fact, common cultural heritage functions here as a form of nature. The nature / labor division is the foundation of all immaterial property law.
The first challenge to immaterial private property has to do primarily with a special kind of immaterial property that I call bioproperty, that is, forms of life that have become private property. The challenge in these cases relies on the labor / nature division; bioproperty lends itself to the moral objection that forms of life should not be eligible for private ownership because they belong to nature. Individual living beings, of course, have long been eligible for private ownership, but at question here is a more general form of bioproperty. Traditionally one can own one or ten or a hundred Holstein cows or Macintosh apple trees, but one cannot own Holstein cow or Macintosh apple tree as a form of life. The general form has traditionally been conceived to be part of nature and thus not eligible for ownership.
Perhaps the most celebrated and controversial new example of bioproperty is Oncomouse, the only animal type to date that has been patented. Oncomouse was created by Du Pont laboratories together with Harvard University by transplanting a human cancer-producing gene into a mouse. The mouse is predisposed to developing cancerous tumors and thus useful for oncological research. Du Pont sells individual mice as research tools, but the novel aspect here is that Du Pont does not merely own individual mice but the type of mouse as a whole. The legal path was opened in the United States for the private ownership of types of living organisms by the 1980 Supreme Court decision, Diamond v. Chakrabarty, which allowed a patent to be issued not only on the process for making a novel organism but on the organism itself. In 1972, Chakrabarty, a microbiologist, had filed a patent in the name of General Electric Company for bacteria he had developed that broke down crude oil and thus were useful in treating oil spills. The Patent and Trademark Office granted his patents both for the process of producing the bacteria and for the method of carrying the bacteria in straw floating on the water, but it refused his patent on the bacteria themselves. The Office reasoned that micro-organisms are products of nature and thus not patentable. The Supreme Court, however, ruled that Chakrabartys bacteria do not fall under that category because his claim is not to a hitherto unknown natural phenomenon but to a nonnaturally occurring manufacture or composition of nature a product of human ingenuity . . . The Supreme Court reasons in this case that the bacteria do not belong to nature because they are the result of human labor and the exact same logic later establishes the basis for the patent of Oncomouse. In both cases, we can see that the producibility of life opens the door to the private ownership of bioproperty and undercuts all objections on the basis of common nature. Challenges to the private ownership of bioproperty with arguments that forms of life are part of nature are useless in the capitalist legal framework when one can demonstrate that the forms of life themselves were in fact produced by human labor.
A second group of examples demonstrates how immaterial property rights are challenged on the basis of first occupancy rights. Whereas in the first set of examples it was a question of eligibility for patent, in these examples the issue is primarily who has the right to claim the patent. Consider, first, the case of a T-cell line developed from the blood of a woman who is a member of the Guaymi Indians in Panama. Researchers from the US National Institutes of Health and the Center for Disease Control recognized that the Guaymi people carry a unique virus and that its antibodies could be useful in Leukemia research. In 1990 the researchers experimented with the blood of this particular woman, isolated in it the relevant T-cell line, and that same year applied for a patent in the name of NIH on the T-cell line with no compensation for the woman or her tribe. In 1993 the Guaymi General Congress learned of the patent, protested, and the patent was withdrawn.
There was a very similar case in the United States over a decade earlier. In 1976 a patient at the University of California medical center began treatment for hairy-cell leukemia. The doctors recognized that his blood might have special properties for the treatment of leukemia and, without telling him why, took samples of various bodily fluids and eventually even removed his spleen (for which apparently there was arguably medical rationale). In 1981, the doctors were granted a patent in the name of the University of California on a cell line developed from the patients blood and the potential value of the products derived for it was estimated at three billion dollars. The patient sued the University and the California Supreme Court ruled in his favor that the doctors had betrayed trust not informing him what they were doing, but it ruled against his claim to ownership of the T-cells and the genetic information. The court reasoned that the University of California was rightful owner of the cell line because a naturally occurring organism is not patentable whereas the information derived from it is the result of human ingenuity.
In both of these cases, the primary argument against awarding the ownership of the immaterial property rights to the scientists or their institutions is that the donor has the right to control and in some sense owns his or her own genetic material. I consider this a first occupancy argument, parallel to older claims to land rights based on first occupancy. This type of claim, however, can be trumped within the capitalist legal framework by the labor logic of property. The donor does not work in any way we conventionally recognize to produce his or her genetic material. The scientists rather are the ones who work to produce the genetic information and thus its rightful owners. In the face of claims of labor right, these first occupancy arguments are useless in the capitalist legal system.
Our third group of examples challenge private immaterial property on the basis of social utility. One example of this logic has become clear in what are called the seed wars, in which the private ownership of seeds and plant varieties have been contested along the global North-South divide. The global North is genetically poor in terms of varieties of plants and yet the vast majority of patented plant varieties are owned in the North; the global South, in contrast, is genetically rich in terms of plant varieties but poor in patents. Moreover, many of the patents owned in the North are based on information derived from the genetic raw material found in plants in the South. The wealth of the North generates profits as private property, whereas the wealth of the South generates none since it is considered the common heritage of mankind.
The legal basis for the private ownership of plant varieties is fundamentally the same one operative in the case of other living organisms, such as the oil spill bacteria and Oncomouse. In U.S. law this was established by the Plant Patent Act of 1930, which addresses asexually reproducing plants such as hybrid roses, and the Plant Variety Protection Act of 1970, which treats sexually reproducing plant varieties and thus seeds. The logic here, as in all patent questions, refers to labor. The plants, plant varieties, and germplasm (that is, the genetic information encoded in the seed) are eligible for private ownership if they are products of human labor and thus not part of nature.
One possible strategy for addressing the apparent injustice of the North South conflict over seeds and ownership is to insist on the first occupancy right to ownership that I cited in the previous set of examples. Some argue that the nations or communities or peoples of the global South should have the right to own all the genetic material and plant varieties that are contained within or native to their territory, which are now considered instead the common heritage of mankind, just as the corporations in the global North own the plant varieties they have produced. Nature can be owned, such arguments suggest, simply because humans occupy it. In any case, such arguments are weak for the fact I cited earlier that within the capitalist legal framework labor rights to ownership easily trump those based on first occupancy. Equating products of nature to products of human labor runs counter to the foundation of the existing legal framework and thus has little possibility of practical effects.
The Food and Agriculture Organization of the United Nations (FAO) did not in fact use any such first occupancy argument when it addressed this conflict over germplasm and plant genetic resources in its 1983 International Undertaking on Plant Genetic Resources. The FAO did not argue that countries or communities or peoples in the South have the right to own their plant genetic resources but rather claimed that all plant genetic information, whether the result of human labor or not, is the common heritage of mankind and thus not patentable. The U.S. seed companies, of course, represented by the American Seed Trade Association, responded loudly that one must distinguish between raw germplasm, which may be useful but can have no economic value, and created germplasm, which has both utility and economic value. Once again, labor is the foundation of the legitimation argument. The FAOs reasoning, however, disregards labor and focuses instead on social utility. It argues that the present system of germplasm and seed ownership not only deprives those who are poor of seed they can use, it also has tended to encourage the loss of plant biodiversity. It would be advantageous to society as a whole if we all had free access to all seeds and germplasm.
This is fundamentally the same argument advanced by computer hackers and the open source movement. One element of the implicit ethic that guides computer hackers is the demand that all information be free and that access to computers be unlimited and total. The hackers reason that access to information and equipment is necessary for them to improve the cyberworld and the world in general. Similarly, the open source movement argues that the source code of all software should be open to all so that it can be used more effectively and continuously improved. If more people can see how a program is written, they claim, there are more opportunities to fix errors and extend its usefulness.
Such arguments of social utility are very persuasive and carry great political value, but they too have little power within the capitalist legal framework. U.S. patent law does in fact state that the promotion and progress of science and the useful arts is the main object of the patent system, and reward of inventors is secondary and merely a means to that end, but that does not mean that patents will be decided on that basis. Neither patents nor copyrights are awarded or denied on the basis of arguments of promoting the progress of science or social utility. Useful labor is in all cases the determining factor.
That brings me to the fourth and final set of example, which challenge existing immaterial property rights on the basis of labor itself. Consider, first, the often cited case of the neem tree in India. For centuries farmers in India have ground the seeds of the neem tree and scattered them on their fields in order to protect the crops from insects. Neem is a natural, non-toxic pesticide that is not harmful to plants. In 1985, the W.R. Grace and Company, a multi-national chemical corporation, applied for and was granted a patent for a neem-based pesticide that it marketed as organic, non-toxic, and so forth. That patent was challenged in U.S. courts, but unsuccessfully. In fact, between 1985 and 1998, forty patents were awarded to products based on the neem tree, some of them to Indian organizations and some not.
A case involving turmeric is very similar. In 1995 the University of Mississippi Medical Center was granted a patent on the Use of Turmeric in Wound Healing. In India, turmeric powder is a traditional remedy for healing scrapes and cuts, used for generations. In 1996 the Council of Scientific and Industrial Research of India challenged the patent and it was revoked. The patent was not revoked, however, for the simple reason of its common usage. Plant examiners in the United States are not required to accept the evidence of traditional knowledge held outside of the United States as prior art (i.e., already known) unless it has been reported (and thereby validated) by scientists and published in learned journals. The turmeric patent was revoked, then, because its traditional use had been documented in publications. One interesting aspect of the case, of course, is that it reveals different standards for traditional knowledges inside and outside the United States.
Both the neem and turmeric cases demonstrate a contradiction in the labor logic grounding the system of immaterial property. One might say that the system only recognizes as labor formal scientific activity and thus only its products are eligible for property; traditional forms of the production of knowledge are not recognized as labor and thus their products are regarded as the common heritage of humanity. This is the kind of challenge that I think poses serious problems for patent law. The logic that legitimates it must consider all labor equally. Whoever invents or discovers, the law states, must be granted ownership. The formal equality of this whoever cannot be abandoned without abandoning too the legitimacy of private property, leaving it simply as a legal sanctioned form of theft. Whose labor, then, created the knowledge of the useful qualities of neem and turmeric? The labor of the scientists played a part but so did the labor of numerous others. The knowledges that neem seeds can function as a safe pesticide and that turmeric as a healing agent were produced by hosts of agents that form a chain stretching over a long historical period. To credit as inventor the final individual to enter into this chain would be a great distortion of the process that produced the knowledge. Alternatively, apportioning accurate relative contributions to all the individuals involved would require an impossible calculation. In other words, legitimate property rights must involve an adequate representation of the production process but that representation here is thrown into crisis.
I do not think that this calculation difficulty and representation crisis of the labor logic of property is isolated to the knowledge production of traditional communities. I think rather that it is a general condition that affects all immaterial labor. First of all, in the realm of science this individual labor logic is based on a false representation of scientific practice. Scientific ideas are produced collaboratively, not only within each laboratory but in the scientific community at large. Think of attacking a scientific problem like adding weights that accumulated in a pile on one side of a scale. The work of each scientist adds a small weight and at some point the balance will tip. Crediting the solution to the individual who added the final piece is a very inadequate representation of the process as a whole. The only accurate representation would be that all the scientists who worked on it produced the solution collectively.
The same is true for the production of ideas, knowledges, and information in general. No one thinks alone; rather we all participate in a general social intellect. Consider, for example, the hypothetical case of an idea for an advertisement with a hip-hop musical theme. Imagine that the ad employee got the musical idea from a band he or she heard the night before and that band in turn developed its music out of a street vernacular. Who produced the idea? The individual attribution of ideas smacks of a false notion of genius. Originality is highly overrated. Thought is really produced socially, collectively. Finally, I would argue that all forms of immaterial labor are necessarily collective and social. Communication is an immediately cooperative, relational mode of activity. The production of affects too works through what is common.
The legitimation of capitalist property is based on a relationship of measure or representation among labor, value, and property. In the framework of an individual or even a delimited set of individuals, however, labor and value become immeasurable and unrepresentable. The labor and value involved always exceeds what the individual or individuals actually did, and thus the ownership of the corresponding property is illegitimate. Knowledge, information, communication, and affect are all produced socially and collectively in such a way that their value cannot be measured or represented with respect to the labor of any individual. The only scale on which the calculus or representation makes sense, and thus on which the attributing of property is legitimate, is that of the society as a whole. In other words, if the labor is collective and social, then the property must be equally collective and social.
This seems to me the most powerful challenge to immaterial private property. The other three challenges each have some value. Least so the first challenge that forms of life should not be property because forms of life are part of nature, that is, outside of human production. Once we recognize the producibility of life, the foundation of such arguments crumble. (Here Judith Butlers argument seems to me very useful, demonstrating not only the producibility of nature but also the oppressive consequences of claims of the immutability and naturalness of nature.) I find only a little more useful the second challenge that immaterial property rights should be awarded according to first occupancy rather than on the basis of labor. More successful, I think, are the social utility arguments that immaterial property should be public in order best to facilitate social improvement. All three of these types of challenges, however, run up against and are thwarted by the capitalist legal structure. Even when these arguments are persuasive, the legal system is deaf to them and awards property rights instead on the basis of production.
The fourth type of challenge is qualitatively different because it works through the labor logic of property to come out the other side. This challenge accepts that the ownership of immaterial property is attributed according to the immaterial labor involved in its production. Immaterial labor, however, is a collective and social process, not an individual one. It would be a violation of the capitalist property logic itself therefore to grant ownership to an individual or a group of individuals. The only logical owner of the immaterial property is the community or society as a whole out of which it was produced. This is perhaps what hackers mean when they say that information wants to be free: when information expresses its own social production, it argues against its private ownership but instead calls for open, common social access.
Many readers of Empire were displeased with our claim that there is no more outside because they thought that it undermines the possibility of politics; an external standpoint, some think, is necessary for resistance. What I am proposing here is a alternative strategy of argument. Specifically I propose to challenge immaterial private property on the basis of the forms and nature of immaterial labor. In a more general framework, this strategy belongs to an approach of contesting the rule of capital not by resisting and defending alternatives outside but rather by developing an alternative within by pushing some of its tendencies further until they come out as something qualitatively different rather like a martial arts technique that uses the force of the opponent, moving with it to shift the balance and gain the advantage. This is an example of the politics of the multitude, working within the Empire of global capital, exploiting its own logic to overthrow it and construct a new alternative society in the shell of the old.
10/2003 - Labor k3000