The problem of 'intellectual property'

  • Posted on: 15 May 2017
  • By: benfell

Update, May 16, 2017: I initially composed this entry away from home and was, at that time, uncertain about one of my citations (specifically, the one for Alfonso Montuori's argument, which is not just his argument). This has now been corrected and I have also changed some wording to reflect the correction.

My thinking has recently been compelled in the direction of intellectual property by a couple of events. One is Waymo's suit against Uber alleging theft of intellectual property in the development of self-driving cars, in which the "judge asked federal prosecutors to investigate"1 the "potential theft of trade secrets," suggesting he "thinks something criminal might have happened here and that the feds ought to take a look."2 Apparently, Uber's engineers, who are working on the technology, are sufficiently concerned about the possibility of an adverse (for Uber) outcome of this case that they are jumping ship.3

The second is that a Ph.D. student whom I have been unofficially mentoring is taking her ethics class (required of every Ph.D. student). For her major essay in this class, she's drawing on her own experience working in art galleries decades ago, and taking on questions of what constitutes art, who decides what is art, the same questions repeated for 'fine art,' and the relationships galleries and museums have with artists. This topic directly invokes the difference between the way things are and the way I think they ought to be: None of this would be problematic except for problems with a market that rewards some creators extremely well and leaves many others to starve, creating a power relationship that is, to the say the very least, extremely problematic. And, as Max Weber pointed out, and as I keep citing, any exchange system privileges whomever—in this case art reviewers, gallery owners, and museum curators—has the greater power to say no.4

I've been reluctant to take the topic of intellectual property on, largely because I have no answers for the current exchange system-driven paradigm. I'm inclined to think the paradigm itself is the problem, and certainly not just with the art world. And Uber has many, many problems besides Waymo's suit. I have no conclusions to offer here (although it's getting harder and harder to see how Uber can survive,5 and its demise would not be entirely undesirable).

My first approach is to look at the term intellectual property. First, property is a poor term; it suggests a tangible thing that I, as an owner/creator, might deprive you, as a reader/whatever else, the use of. Property often tends to be a zero-sum thing: If I am using a thing, it could well be that you cannot also use it, at least at the same time. But ideas are different: As a teacher, I do not lose the use of a concept because I share it with you. The authoritarian aspect of property here is also problematic; in an extreme interpretation, intellectual property could (impossibly) deprive others the right to think certain thoughts or even to feel certain feelings, a possibility explored at length in George Orwell's 1984.

My second approach is really Alfonso Montuori's. He persuasively argues that intellectual creation is an emergent property arising from creators, whether they be artists, musicians, scientists, or anything else; their audiences, viewers, and everyone else who putatively receives their work; and a larger social context. Along the way in making this argument, Montuori points to several cases where one person or team gets the credit for work that was also nearly simultaneously being developed by others. The winners here are those who file their copyrights or get to the patent office first. And the losers—well, they are just losers. Montuori's (and others') argument fundamentally challenges the notion of a 'lone genius,' suggesting that attribution would be more complete if it included not only the creator but her or his associates and the entire social context of the work.6 I have my differences with Montuori, but on this, I find it hard to disagree.

My third approach stems from my own social location. As a Ph.D. who has failed to find gainful employment, I have a considerable stake in being credited for my work. I do not agree with our present paradigm but I am compelled to live within it and indeed, my very survival may be at stake. My situation here is not so different from those many starving artists whom my mentee also encountered. And just as I resent the many (I think) less talented folks who have nonetheless managed to find a niche in this socioeconomic system, those starving artists resented even children whose artistic output conspicuously resembled their own.

That third approach is the one that's most salient for me at the moment. Unless something changes, there is a non-trivial risk that I will be homeless in a few years—I will be in my sixties. But in neoliberal society, where all value is reduced to exchange value, it's unclear where I even fit.

There can be little question that a better approach is needed. But as I said, I have no answers and no conclusions to offer in this paradigm.

  • 1. Ryan Felton, "Self-Driving Engineers Are Looking To Flee Uber's Sinking Ship," Jalopnik, May 12, 2017,
  • 2. Aarian Marshall, "Google’s Fight Against Uber Takes a Turn for the Criminal," Wired, May 12, 2017,
  • 3. Ryan Felton, "Self-Driving Engineers Are Looking To Flee Uber's Sinking Ship," Jalopnik, May 12, 2017,
  • 4. Max Weber, "Class, Status, Party," in Social Theory: The Multicultural and Classic Readings, ed. Charles Lemert, 4th ed. (Boulder, CO: Westview, 2010), 119-129.
  • 5. Ryan Felton, "Uber Is Doomed," Jalopnik, February 24, 2017,
  • 6. Alfonso Montuori made these points in lecture in Transformative Studies "intensives" at the Best Western Lighthouse Hotel in Pacifica, California, while I was a Ph.D. student in this program at the California Institute of Integral Studies from 2009 to 2011; see also Ervin Laszlo, "The 'Genius Hypothesis': Exploratory Concepts for a Scientific Understanding of Unusual Creativity," in Social Creativity, eds. Alfonso Montuori and Ronald E. Purser (Cresskill, NJ: Hampton, 1999), 1:317-329; Dean Keith Simonton, "The Creative Society: Genius vis-à-vis the Zeitgeist," in Social Creativity, eds. Alfonso Montuori and Ronald E. Purser (Cresskill, NJ: Hampton, 1999), 1:265-286.