Peter Frase

Complementing my last post, here's a story about the twisted ideology that now surrounds intellectual property, where IP is considered not just as utilitarian necessity, but as some kind of [inherent natural right](http://thenewinquiry.com/essays/phantom-tollbooths/). In the most absurd form, it is seen as a moral responsibility for creators to zealously defend any IP they can get their hands on, and maximize whatever amount of money they can squeeze out of it.

This [article](http://www.latimes.com/business/la-fi-sriracha-trademark-20150211-story.html) is about our trendy hot sauce of the moment, Sriracha. Specifically, it is about the fact that while the hot sauce in question is strongly associated with a particular product made by Huy Fong foods, the Sriracha name itself is not trademarked. As a result, everyone from your local twee sauce artisan to Heinz and Tabasco is now jumping in with their own Sriracha.

None of this seems to much bother Huy Fong's founder, David Tran. But boy does it bother all the people that look at this scenario and see a bunch of juicy lawsuits!

The author of the LA Times article calls it a "glaring omission" not to trademark the word.

"In my mind, it's a major misstep," says the president of a food marketing consultancy.

Even his competitors are baffled. "We spend enormous time protecting the word 'Tabasco' so that we don't have exactly this problem," says the CEO of a rival hot sauce company that's now going into the Sriracha market. "Why Mr. Tran did not do that, I don't know."

An IP lawyer laments: "The ship has probably sailed on this, which is unfortunate because they've clearly added something to American cuisine that wasn't there before."

That David Tran has added something to American cuisine is hard to dispute. But Tran also has a successful, growing business that has most likely made him very rich. One which he has said, on numerous occasions, he deliberately does not scale up as much as he could, in order to maintain the quality of his product and control the sources of his peppers.

So for whom is it so "unfortunate" that he doesn't spend his life in constant litigation against anyone who dares make a Thai-style hot sauce and name it after a city in Thailand? Tran himself gives the answer. "We have lawyers come and say 'I can represent you and sue' and I say 'No. Let them do it.'"

The most common justification for intellectual property protection is that it provides an incentive for future creation or innovation. There are many cases where this rationale is highly implausible, as with copyrights that extend long after the death of the original author. But even where IP does spur innovation, the question arises: innovation of what kind?

I've written before about things like [patent](https://www.jacobinmag.com/2013/09/property-and-theft/) and [copyright](https://www.jacobinmag.com/2013/05/porno-for-pirates/) trolling, where the IP regime incentivizes innovations that have no value at all, because they amount to figuring out ways to leverage the law in order to make money without doing any work or producing anything. But there's another category of what might be called "pseudo-innovation." This involves genuine creativity and cleverness, and the end result is something with real social utility. But the creativity and cleverness involved pertains only to circumventing intellectual property restrictions, without which it would be possible to produce a better output in a simpler way. A couple of examples of this have recently come to mind.

The first is the movie *Selma*, Ava DuVernay's dramatization of the 1965 Selma to Montgomery voting rights marches led by Martin Luther King, Jr. Like most dramatizations of historical events, the movie takes liberties with the historical record in order to compress events into a coherent and compelling narrative. But one of these liberties is particularly unusual: in scenes recreating actual King speeches, none of the words we hear from actor David Oyelowo's mouth are King's; rather they are broad paraphrases of the original words.

As it turns out, this was not a decision made for any artistic reason, but for a legal one: King's speeches are still [the property](http://www.vox.com/2015/1/13/7540027/selma-copyright-king-speeches) of his descendants, who make large amounts of money by zealously guarding their copyrights. DuVernay was apparently barred from using the speeches because the film rights to King had already been licensed to Stephen Spielberg; meanwhile, the King family has had no problem lending his memory out to commercials for [luxury cars and phone companies](http://www.motherjones.com/politics/2013/08/mlk-intellectual-property-problems). DuVernay does an elegant job of giving the content and the feel of King's oratory without using his actual words, and one could perhaps even argue that some unique value arises from this technique. But for the most part it's pseudo-innovation, a second best solution mandated by copyright.

Another example comes from a very different field, computer hardware manufacturing. Here we turn to the early 1980's and the development of the "PC clone." Today, the personal computer is a generic technology---the machines that run Windows or Linux or other operating systems can be bought from many manufacturers or even, like the machine I'm using to write this post, assembled by the end user from individually sourced components. But in 1981, the PC was the IBM PC, and if you wanted to run PC software you needed to buy a machine from IBM..

Soon after the PC was introduced, rival companies began trying to produce cheaper knockoffs of the IBM product--the efforts of one leader, Compaq, are dramatized in the AMC series ["Halt and Catch Fire"](http://www.amctv.com/shows/halt-and-catch-fire). Building the machines themselves was trivial, because the necessary hardware was all publicly available and didn't require any propriety IBM technology. But problems arose in the attempt to make them truly "IBM-compatible"---that is, able to run all the same software that you could run on an IBM. This required copying the BIOS (Basic Input/Output System), a bit of software built into the PC that programs use to interface with the hardware.

That BIOS *was* proprietary to IBM. So in order to copy it, Compaq was forced into a bizarre development system [described by](http://www.internethistorypodcast.com/2014/05/the-incredible-true-story-behind-amcs-halt-and-catch-fire-how-compaq-cloned-ibm-and-created-an-empire/) Compaq founder Rod Canlon as follows:

> What our lawyers told us was that, not only can you not use it [the copyrighted code] anybody that’s even looked at it---glanced at it---could taint the whole project. (…) We had two software people. One guy read the code and generated the functional specifications. So, it was like, reading hieroglyphics. Figuring out what it does, then writing the specification for what it does. Then, once he’s got that specification completed, he sort of hands it through a doorway or a window to another person who’s never seen IBM’s code, and he takes that spec and starts from scratch and writes our own code to be able to do the exact same function.

Through this convoluted process, Compaq managed to make a knockoff BIOS within 9 months. Just as Ava DuVernay came up with paraphrases of King, they had essentially paraphrased the IBM BIOS. And the result was something genuinely useful: a cheaper version of the IBM PC, which expanded access to computing. But the truly inventive and interesting things Compaq came up with---the things that make the story worth fictionalizing on TV---are pure pseudo-innovation.

Looked at this way, the world of IP pseudo-innovation looks kind of like high finance. In both cases, you have people making money and even having fun figuring out the best ways to game and counter-game the system, but in none of the complicated trading algorithms or software development strategies add anything to social wealth.

Further to my last post. Some years ago I went to a gallery in Queens, and as a byproduct ended up on a mailing list that periodically advertises at me with various art objects. As it turns out, you can literally shove the enlightenment [up your ass](http://www.eidia.com/store/view.php?id=19)!

> Anal Scroll is a limited edition series of 5 custom crafted butt plugs made of pH neutral cast silicone, dimensions: 5.7 x 1.2 x 2.3 inches (14.5 x 3 x 5.8cm). Inside each plug is a scrollable text printed on 7/8 x 144 inch (2.5 cm x 360 cm) fabric ribbon of, "Of Space" from Critique of Pure Reason by the German philosopher Immanuel Kant. Anal Scroll was infamously performed in the eponymously titled work by the artist's alter-ego Renny Kodgers at Newcastle University, Australia in 2014 as part of The Grotto Project presents: Art and the Expanded Cover Version -- curated by Sean Lowry PhD. Accompanying each Anal Scroll is: Instructions for Use as well as Disclaimer: "Entry At Your Own Risk". Price $300 with one artist proof $400 for Plato's Cave performance; The Groker, Exhibition: January 24, 2015 - February 21, 2015.

So I found myself (h/t [Gavin Mueller](https://twitter.com/gavinsaywhat/status/563733500986413057)) perusing Cyril Smith on [Hegel, Marx, and the enlightenment](https://www.marxists.org/reference/archive/smith-cyril/works/articles/interim.htm), and by way of that Marx's comments on religion. (For contemporary relevance, see [here](https://twitter.com/pefrase/status/563750648005799936) and [here](http://inthesetimes.com/article/13497/oprah_iate_of_the_people).) Smith quotes an 1842 letter (Marx was 24 at this point; what have I been doing with my life?):

> I requested further that religion should be criticised in the framework of criticism of political conditions rather than that political conditions should be criticised in the framework of religion, since this is more in accord with the nature of a newspaper and the educational level of the reading public; for religion itself is without content, it owes its being not to heaven but to the earth, and with the abolition of distorted reality, of which it is the theory, it will collapse of itself. Finally, I desired that, if there is to be talk of philosophy, there should be less trifling with the label ‘atheism’ (which reminds one of children, assuring everyone who is ready to listen, that they are not afraid of the bogy man), and that instead the content of philosophy should be brought to the people.

This applies, of course, to contemporary anti-religious scolds of the Sam Harris/Bill Maher/Richard Dawkins variety. But the term "religion" could, in many contexts, be replaced with "science" or "reason" today. That is, the authority of science or reason is used as a cudgel against those who might have good---though perhaps misguided---bases for questioning whether the scientific process is distorted by the imperatives of capital accumulation. And so too against those who point out that the right to argue from disinterested reason is not one that is evenly or universally acknowledged. (Repeatedly these days I find myself thinking of [this](https://libcom.org/library/how-overthrow-illuminati) as a model for engaging wrong ideas in the spirit of Lenin's ["patiently explain"](https://www.marxists.org/archive/lenin/works/1917/apr/04.htm) rather than a spirit of arrogant derision.)

And Smith points out that reason, and the enlightenment, were for Hegel and many others fundamentally *religious* concepts:

> The atheists, and especially the Enlightenment materialists, who easily settled this entire discussion with the word ‘superstition’, left no more space for subjectivity than their opponents: we are just matter in motion, governed by the laws of Nature, they said. Spinoza had no trouble identifying the laws of nature with God’s will, and Hegel shows that Enlightenment and superstition in the end agree with each other. ‘Marxism’, coming up with ‘material laws of history’, locked the gates still more securely.

Needless to say I endorse the scare-quoting of "Marxism" in this context. The criticism of ideology generally proceeds more constructively by analyzing the conditions of that ideology's possibility, rather than simply confronting it with counter-ideology. And my favored reading of Marx, from "On the Jewish Question" on outwards, is that the enlightenment ideal of disinterested reason is best posited as the *objective* of communists, an ideal that cannot be realized in capitalism, rather than an existing regime to be defended against the forces of irrationalism.

A few years back, in pursuit of the [lately relevant](http://www.vox.com/2015/1/29/7945119/all-politics-is-identity-politics) notion that all politics are, in some sense, identity politics, I wrote a bit about the role of regional cultures as a basis for left [identities](https://www.jacobinmag.com/2012/11/an-imagined-community/). In particular, I talked about the labor protests in Wisconsin and their relationship to the "Wisconsin idea":

> The historian Christopher Phelps argues that the protests drew strength and legitimacy from a particular set of shared norms unique to Wisconsin: the “Wisconsin idea,” a left-populist notion that both government and economy should be accountable to the common man. The Idea goes back to the early twentieth century politician Robert La Follette; it is taught in Wisconsin schools and is often invoked to describe the mission of the state University system. There is nothing inherently exclusionary or chauvinist about the Wisconsin Idea; its purpose is to provide a big tent in which all Wisconsinites can define themselves as part of an imagined community with shared progressive values.

The University of Wisconsin dedicates a whole section of its [website](http://wisconsinidea.wisc.edu/) to expounding upon the Idea. Scott Walker apparently understands the significance of all this, since he recently tried to [delete](http://crooksandliars.com/2015/02/walker-proposes-killing-wisconsin-idea) references to the Wisconsin Idea from the university's mission statement, replacing it with some blather about "meeting the state's workforce needs."

This move met with substantial backlash, although it remains to be seen if the symbolism of the Wisconsin Idea can be effectively mobilized to push back Walker's substantive attempt to further dismantle the state's public sector.