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.' 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 international copyrights.
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. …