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Vibhu Chandrashekhar Philosophy Howard McGary 3 Dec 2011 Life, Liberty and Intellectual Property: The Eschewal of Locke in IP Laws Few people disavow the notion of property. The western worlds mode of dealing with what we perceive to be natural rights is primarily based on John Lockes fundamental principles; what Robert Nozick terms The Lockean Proviso has formed the epistemological underpinnings of the United States governments view on natural rights and ownership. As of late, however, the United States has eschewed the principles of John Locke and has instead implemented a series of increasingly draconian laws to protect so-called intellectual property. Locke believed that our progress as a human race is wholly dependent on the fundamental rights of life, liberty, and propertyif we are to doubt this, we are to revoke any claim of Lockean values to which we may henceforth commit. Although some intellectual property law advocates believe the current state of affairs to be the natural progression of Lockean ideals, I argue that the intellectual property laws enacted by the United States government are not only anti-Locke, but also anti-property rights. The wholesale collapse of the framework provided by John Locke

indicates not only a misunderstanding of the Lockean proviso, but also a paradigm shift in terms of the role of government in property disputes. And as newer intellectual property protection lawsSOPA (Stop Online Piracy Act) and PIPA

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(Protect Intellectual Property Act)are enacted, the country irreversibly lurches away from the spirit of the very documents that were based on thinkers like Locke. Even though 300 years have elapsed, John Lockes views on natural rightsviz. life, liberty, and propertystill influence the United States model of governance. When Locke wrote his Second Treatise on Government, the world was a very different place.

Thus, it is not very surprising that his experiences informed his beliefs on private property and acquisition. At the time, resources were predominantly natural and
tangible; Locke writes of nature being bountiful. Even if a man is able to acquire property from nature, there was never the less left for others because of his enclosure for himselfNobody could think himself injured by the drinking of another man, though he took a good draught, who had a whole river of the same water left him to quench his thirst. And the case of land and water, where there is enough of both, is perfectly the same. (Locke) The implication is that usage of resources is not a zero-sum game; ones usage of a certain natural resource does not preclude others from using that natural resource. What, then, for privately held property? Locke holds that private property results from the mixing of ones labor with natural resources. Thus, one cannot take ownership of a natural resource merely by laying claim to it. Although Lockes views on property are admittedly anachronistic, especially in light of a more nuanced understanding of labor, resources, and property, he has much to offer the modern citizen by way of analysis. While Second Treatise did not mention intellectual property, John Locke did in fact write about licensing with respect to books

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and other printed materials. In 1695, the Licensing of the Press Act 1662, which heavily regulated printing presses so that unlicensed books could not be published, was up for renewal. In response, Locke wrote his Memorandum Concerning the Licensing Act, lambasting the intent and execution of such a law. He took particular issue with a specific article: No books to be printed or imported, which any person or persons by force or by virtue of any letters patents have the rightsolely to print. (Hull) In response, Locke correctly identified that this law would only serve to create a monopoly on the publishings of the classic authors, and in a nod to the power of competition in the marketplace, he went on to explain that those seeking to purchase these books would have no choice but to do so at exorbitant cost. That is not to say that Locke completely eschewed any sort of licensing; rather, he had the foresight to propose short term limits regarding written works: nobody should have anyright in any book which has been in print fifty years...for by such titles as these which lie dormant and hinder others, many good books come quite to be lost. (Hull) As evident from the quote, Locke felt it was important to do away with the stringency of property laws, as they would ultimately limit the spread of knowledge and information. Post-Locke, however, the United States government has gradually introduced stringent laws that have completely changed how intellectual property is protected. In direct opposition to what Locke posited in his Memorandum, the Copyright Act of 1976 gave copyrights to the author of a book for the duration of his/her lifetime, but also to that persons estate 50 years post-mortem. In recent years, the duration has been expanded to

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70 years after an authors death. Despite attempting to keep in the spirit of Lockes proproperty views, the Copyright Act does not stay true to its intentions. In the Second Treatise, Locke claims that the right to defend ones private property is a natural right. However, this right is extended only to those who own that private property. After the owner is deceased, it is customary for his/her estate to take over ownership of said propertythis body is merely a proxy, however; those who control the estate are not entitled to the fruit of the deceaseds spoils because they are not directly given ownership of the property. Locke believes that the value of inheritance is based on by a like Obligation bound to preserve what they have begotten, as to preserve themselves and because children are born weak, and unable to provide for themselves. (Hull) Thus, according to John Locke, the value of inherited property is geared towards those unable to provide it for themselves without having to earn it. As a result, the current implementation of inheritance is akin to charity, if Lockes values are to hold true. The implications of this statement are profound; it removes any sort of justification for the often litigious and restrictive natures of the deceaseds estates. There seems to be a trend towards increased enforcement of intellectual property rights, and perhaps attribution of rights that might not even exist. With the rise of new technologies has come a veritable cornucopia of threats to traditional business models based on selling goods and servicespiracy, file-sharing all abound as people become more able to manipulate the content they have purchased. As a result, various content/intellectual property owners have tried to have to equate these instances of

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unintended use of copyrighted goods to stealing of potential profits. The law does not favor this argument, if Dowling v. United States, 473 U.S. 207 (1985) is any indication. Paul Dowling ran a bootlegging service in which he distributed recordings of Elvis Presleys unreleased and concert music. The Ninth Circuit Court of Appeals found him guilty of transporting stolen property, arguing that he had no authority to distribute the recordings and thus they were stolen. However, because these recordings were not done in a manner that deprived them from the copyright holders, the United States Supreme Court did not equate infringement with stealing, and thus struck down the Circuit Courts ruling. This leaves precedence that copies of copyrighted works cannot be considered stolen in the eyes of the law. Even now, however, organizations like the RIAA (Recording Industry Association of America) and MPAA (Motion Picture Association of America) continue to use advertisements to promote this disingenuous view of copyright and intellectual propertycommercials that compare downloading of music to stealing of cars populated the airwaves in the most recent decade. Locke would dismiss this belief as a fiction. There exist two views that people use to rationalize this fictionone based on a stealing potential profits view, and the other steeped in a moral argument. The former tends to be used as a way to rail against the evils of piracy and sharing; it simply equates unbought copies of works with actual theft of profits. This view is not quite accurate, because it implies a right to certain profits that, quite frankly, never existed to begin with. The moral view on the other hand, is based on a belief that everyone is entitled to be reimbursed for their ideas. This is a tempting argument; however, it merely acts as a

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guarantee that the first to produce a product is essentially guaranteed that market for however many years their intellectual property is protected. As Locke noted with respect to the Licensing Act, this would merely result in a lack of cheaper and potentially better versions of the product or property being produced due to lack of competition. The propaganda seems to have worked; lawmakers have recently proposed a pair of laws that take inspiration from these litigious organizationsSOPA (Stop Online Piracy Act) and PIPA (Protect Intellectual Property Act). Each bill focuses on copyright protection specifically with respect to the Internet. It is fairly evident that these laws intend to curb copyright infringement and protect the very rights that Locke argued for centuries before. However, I argue that these laws will only serve to decrease the rights of intellectual property owners. To understand the effects of the SOPA/PIPA, it becomes imperative to understand the laws themselves. According to analyst and legal scholar Mike Masnick, Under SOPA, you can be found "dedicated to the theft of US property" if the core functionality of your site "enables or facilitates" infringement there's also a risk if you take "deliberate actions to avoid confirming a high probability" of infringement on a site [PIPA]'s definitions are equally broad, again using the "enabling" or "facilitating" language. (Masnick) There are several key issues with the two bills. First, the language behind the Stop Online Piracy Act indicates a fundamental ignorance of the Dowling vs Unites States decision. Because the definition of enable or facilitate itself is not explicitly specified,

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enforcement of this policy will most likely not be limited by specific criteria. But what is the fate of the offending site(s)? Previously, under the DMCA (Digital Millenium

Copyright Act), only the offending content would have been removed or blocked from
access. The two bills extend the protection further; SOPA would essentially block all revenue for offending sites, and PIPA would result in an immediate lawsuit. It is arguable that any disruptive technologythe cassette, DVR, the Internetwould facilitate infringement by nature, however it would be senseless to block entire chunks of the Internet because a user uploads a copyrighted file. In fact, the heads of organizations

such as the MPAA have fought against these technologies; in 1982 the president, of
the MPAA Jack Valenti, commented on the VCR saying, But now we are faced with a new and troubling assault on our fiscal security, on our very economic life, and we are facing it from a thing called the Video Cassette Recorder. (Masnick) Such action
would be akin to a shooting victims family suing Smith and Wesson for damages; because Smith and Wesson manufactured the gun, the family might argue, they facilitated the victims untimely demise. This is a facile argument and would constitute a violation of the property rights of the so-called infringer. Traditional theories on copyright and intellectual property tended to advocate a pro-enforcement view on infringementseeing such actions as theft rather than potential market opportunities. This notion, common as it may be, does not jive with realityone seen by Locke centuries before these issues arose. In his Memorandum, Locke refers to the efforts of the government to enforce harsh penalties against landlords who leased land to tenants with unauthorized printing presses.

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By doing so, Locke correctly argues, the government gives itself unlimited power to search all houses and to seize upon all books which [it] shall but think fit to suspect. (Hull) Judging by the similarity between this situation and the one encouraged by SOPA and PIPA, it is plainly obvious that these new laws spurn Lockean values. It seems we are witnessing a watershed event; thanks to a shift in views on property rights, modern American values are irreversibly on the path towards the exact sort of government intervention that our philosophical ancestors decried. Unlike the Copyright usage is not a zero-sum gameany gain in freedom with respect to usage of copyrighted works does not necessarily equate to a loss of intellectual property. The political

philosophers job, then, is to understand the implications of these laws that claim to protect property rights. Returning the Lockean proviso, it becomes fairly evident that the modern copyright laws do nothing more than hamper property rights. The current crop of intellectual property laws, along with the newer SOPA/PIPA, are said to be
good for property owners and content creators, as John Locke would have wanted. However, this does not fit with the United States pro-Lockean ideals. John Locke himself was very adamant about limited enforcement and government intervention with respect to intellectual property and infringement. However, when the disturbance is persistent and constant, as in the case of human development, the cycle of innovation and property rights is interrupted. And as one man over 300 years ago correctly identified, this shall not be of little consequence.

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Sources Cited Hull, Gordon. "Clearing The Rubbish: Locke, The Waste Proviso, And The Moral Justification Of Intellectual Property." Public Affairs Quarterly 23.1 (2009): 67-93. Philosopher's Index. Web. 3 Dec. 2011. Masnick, Mike. "The Definitive Post On Why SOPA And Protect IP Are Bad, Bad Ideas | Techdirt." Techdirt. 22 Nov. 2011. Web. 03 Dec. 2011. <http://www.techdirt.com/articles/20111122/04254316872/definitive-post-whysopa-protect-ip-are-bad-bad-ideas.shtml>. Peterson, Jonathan. "Lockean Property And Literary Works." Legal Theory 14.4 (2008): 257-280. Philosopher's Index. Web. 3 Dec. 2011. Tavani, Herman T. "Locke, Intellectual Property Rights, And The Information Commons." Ethics And Information Technology 7.2 (2005): 87-97. Philosopher's Index. Web. 3 Dec. 2011.