Academic journal article Texas Law Review

Culture War

Academic journal article Texas Law Review

Culture War

Article excerpt

Over the last ten years, much of copyright and patent has come under attack from those who suggest that capture by private interests has had a pernicious influence on public policy in this field. In the related areas of telecommunication spectrum management and internet regulation there have emerged strong arguments for not allocating private property interests, and instead considering these domains as commons property. I suggest that these developments form part of a culture war, a war over the means of production of creative content in our society. I argue that the best way to understand this war is to view it as a Marxist struggle. However, I suggest that copyright and patent reform-where commentators have actually been accused of Marxism-is not where the Marxist revolution is taking place. Instead I locate that revolution elsewhere, most notably in the rise of open source production and dissemination of cultural content.

A Spectre is haunting multinational capitalism-the Spectre of free information.

-Eben Moglen, The dotCommunist Manifesto1

It wasn't long ago that intellectual property law was seen as a wholly positive force in society. In those simpler times, intellectual property was thought to guarantee social progress, promote innovation, and (no doubt one day) cure baldness. But within the blink of an eye the golden period faded, and intellectual property became a mare's nest. In copyright, scholars and civil society groups led a series of attacks on copyright term extensions and on the diminution of the public domain. Within patent we witnessed increasing concerns about the extension of patent scope, and the grant of wildly overbroad patents: recently a number of civil society groups announced plans to challenge the grant of those patents that they see as the worst offenders. Internationally, criticism was leveled at the impact of Western intellectual property policy on developing nations in areas like plant and seed protection, drug pricing in Africa, and the development of indigenous high-technology industries. And in related areas like telecommunication spectrum allocation and internet regulation, there emerged movements seeking to protect commons property from private encroachment. At the same time, intellectual property owners decried rampant piracy and daily foretold the deaths of their industries. Where once intellectual property was seen as good for all, we now survey a battlefield that pits private interests against the public good.

Karl Marx and Friedrich Engels's Communist Manifesto foretold the end of private property and the inevitable rise of a workers' paradise. Though this failed as a political movement, there are extraordinary parallels between Communist ideology and the current war over the creation of cultural content. In fact, I argue that the various battles of the culture war can best be understood as elements of a Marxist class struggle. One hundred and fifty years ago, Marx began writing his fundamental works and, in doing so, re-wrote history. His philosophy reacted against the concentration of power in the hands of capital that came about as a consequence of the industrial age. Now, as the information age progresses, we see the same concentration of power through the dominant property form of our era, that is, intellectual property. The laissez-faire capitalists of the gilded age have their direct descendants in intellectual property-based industries like media, software, pharmaceuticals, and the like. And so we shouldn't be surprised if we see a Marxist response to these developments. Equally we shouldn't be surprised if capital, that is the owners of intellectual property, rightly see this response as a profound challenge to their position. We can expect to see, and in fact do see, significant resistance on their part.

The purpose of this Article is to describe the nature of the culture war and to explain why viewing this war through a Marxist lens can shed light on it. …

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