03 August 2003

economics and copyright

Scott Cunningham has been producing a frenetic and prolific spate of comments on the issues of copyright, intellectual property, and economics on Jon Webster's and Josh Strodtbeck's blogs. I wish I had a developed opinion on the topic, but I'm not an economist and, as Laurel will tell you, my eyes tend to glaze over when such discussions arise--especially around tax season.

Still, at the risk of making a fool of myself, I want to try to think through some of the relevant issues. Part of the difficulty for me is that much of what economists discuss just leaves me scratching my head in perplexity. I believe I am following Scott's discussion of property and scarcity--and on one level it all makes perfect sense--but something continues to bother me about that whole way of framing the discussion.

Perhaps "scarcity" is a term of art here, but theologically I want to say that we live in a world of abundance, a gracious gift from the Triune God who is an overflowing plentitude of love. "Scarcity" surely may be a local phenomenon, especially in light of the effects of sin, but I'm not sure I want to take it as fundamental to the ontology of property or as a necessary condition for the creation of property. But perhaps I'm misunderstanding what economists mean by the term.

Besides my theological reasons--rooted in the doctrines of the Trinity and creation--there are some phenomenological factors at work here as well. I look around my home and, if anything, I see too much stuff, an embarassing cache of riches, often involving multiple instances of the same thing or same sort of thing (clothes, books, glassware, cutlery, pillows, blankets, etc.).

Certainly, if someone were to invade my home and take some of these items, I would be deprived of their use and that would constitute theft. But I would be no worse off, except perhaps with regard to the loss of more intangible goods such as a sense of security. Indeed, I might be better off with less, better able to use my time and resources without the distraction of unneeded items requiring attention and care. In a world of abundance we too easily forget that everything is a gift and thus to be received in thanksgiving and put at the disposal of others, rather than fetishized into a possession and measure of worth.

That leads to another observation. Where there is scarcity, that fact doesn't seem to establish my right to personal property, but to undermine it. I think of St Ambrose's exhortation that, "It is the hungry man's bread that you withhold, the naked man's cloak that you store away, the money that you bury in the earth is the price of the poor man's ransom and freedom." When goods are scarce and I have more than I need, theologically I have stolen from those who are in need as much as the Israelite who rebuffed gleaners.

Part of the difficulty in this kind of discussion may be a certain kind of modernist distinction between fact and value or description and evaluation. I suspect terms like "property," "theft," and "scarcity" are supposed to function in an almost naturalistic way, marking out particular, objective arrangements of things in the world and events. But such an ontology appears devoid of teleology and to forget Aquinas' observation that virtue fundamentally involves the ability to discern the apt descriptions for actions and objects.

Perhaps Aquinas has more to add to such discussions, given his notions of property, justice, theft, charity, and liberality. Aquinas' approach suggests that things can be both common property and personal property since the world was given to Adam both as the representative of humanity and as an individual. In terms of the use of goods, Aquinas envisions a continual process of one giving over to the other in reciprocal exchange, so that each thing potentially belongs to another or all, even if the procurement and disposition of goods is largely a function of personal, private property.

In Aquinas' scheme private property exists, in terms of its procurement and disposition, as a matter of establishing order, maintaining peace, and fostering responsibility. Even a plentitude of goods must be organized, peaceably distributed, and cared for. But in its use, property is not to be regarded as one's own, but as existing for the common good of all, so that it might be readily communicated to those in need.

Moreover, such communication of goods is not governed by a homogenized notion of social space in which each possessor of property is indifferently, equally, and disinterestedly related to every other, except in terms of geographical distance. Rather, such space is governed by analogical relations of proximity and affinity governed by bonds of family, parish, affection, and need--by notions of proportionality and fittingness.

In such a scheme, "theft" is not defined primarily in terms of property rights, but by reference to the virtue of justice, which is a habit of character by which we render to each what is due as a matter of a stable and continual will. As such, justice can only function in a situation that presupposes a teleology for the distribution of goods as a manifestation of the divine charity. Theft is wrong then because it is a failure of charity, which is the form of every virtue, as well as being contrary to justice. Moreover, Aquinas insists, every theft involves fraud, since theft seeks to deprive another of his due by cunning and secrecy (otherwise we would be dealing with the violence of robbery rather than theft).

It is also the case, on Aquinas' view, that taking another's property in some instances (e.g. immediate need), would not constitute theft, since the common destination of goods overrides private possession of goods at the marigins. Thus the Torah allowed for gleaning and other means by which the poor could procure what was necessary for themselves, in keeping with the values of order, peace, and responsibility, even if it involved taking another's "possessions." On the other hand, retaining one's own property in some instances (e.g., in face of the needs of others) would constitute a sort of theft for similar reasons.

While common property and its need to be distributed privately are both "natural" for Aquinas (where "natural" designates a rational participation in the divine life of the Triune God), particular concrete arrangements of private property are established through positive law, by common agreement. And this, it seems to me, brings us to the question of copyright and intellectual property.

Against the background of an economics that doesn't prioritize scarcity over plentitude, rejects a sharp distinction between fact and value, situates theft within a teleological virtue ethics, and sees all private property as established and regulated positive law, I'm not sure that we can maintain a strong dichotomy between material property and intellectual property. To be sure, there are differences, but there also analogies.

If goods exists in order to be caught up in reciprocal exchanges for the good of all and if private procurement and disposition of property is regulated for the sake of order, peace, and responsibility, then copyright seems to function fully within the patterns that govern all property relations, even if they govern them differently than certain other goods, whether materials or land or access or services or labor.

Now, particular legal norms governing copyright and intellectual property may be more or less prudent or more or less effective in achieving the ends for which they are established. But I'm not convinced that we should envision such forms of property in wholly different terms than other forms.

The logic internal to various kinds of exchange govern that exchange in keeping with the virtue of justice. Thus, when an artist alludes to or borrows language and images from another artist, this is not theft (nor even fraud), but part of what that kind of exchange is all about: the return of another's words in an intertextual play, drawing upon the surplus of meaning generated by any text.

But if I were to pass off the text of another as my own, that would indeed be theft (as well as fraud since all theft is already fraud), since it involves depriving another of his or her due as the virtue of justice would discern that, whether in terms of obligation or, short of that, in terms of what is fitting. After all, we are obliged to give credit where credit is due and it is only fitting that the producer of a good should have some control over the disposition of that good, in keeping with the common good and property relations insofar as they promote order, peace, and care. The case is not identical with that of stolen material goods, but there are significant analogies and it strikes me as a mistake to assume that the meaning of terms such as "theft" should be taken as entirely univocal in their application.

In any case, I'll leave off there. More, no doubt, could be said, and I've probably made a complete hash of economic theory as that is practiced today. But my intuitions and theological sensibilities push me in the directions I've suggested. Still, I remain very much open to correction.