Wednesday, June 17, 2009

Fool Rushing in again- very preliminary scratch pad thoughts on enclosures and commons

Lots of people would like to have the last word on the big issues. Like abortion, say, or global warming, or intelligent design. Many of these issues aren't really issues, and simply divide the thinking intelligent crowd from the idiots, right? And it would be nice to find the argument to cure the idiocy, or at least to point out which psychological disease process makes it necessary to hold idiotic opinions, like those of sociopathic and diseased bloviators Rush Limbaugh or Michael Savage.

These guys so clearly go for the common rude denominator; in the same way we all like McDonalds' Hamburgers once we've agreed not to think about anything beyond the low level hit when you take one in. You can't think about the aftermath, you can't think about your overeducated palate, certainly not about the environment or your health. You can't even think about the cost anymore, since they are routinely priced above local divey places. If there's something you know nothing about, then these guys will offer you the solar plexus hit which makes you feel pretty sure which side you're on.

I've commented here on the gene patenting debate, coming at it fairly obliquely, via a former student of mine who wrote what I really found to be a great and important book. More recently, I tripped across something approaching a polite flame war on the topic, where Dr. Koepsell was being cast in the role of anti-patent we're all commoners freak. The opposition put up a pretty good and pretty reasonable argument that genes actually can be patentable and patented since the item which actually gets the patent never occurs, in its isolated state, in nature.

The interesting part for me is the agreement, more or less dismissively, on both sides of this debate that there surely are many many cases of patents being issued erroneously, or for that matter withheld. Since the issue will ultimately be decided only in the courts, both sides (as if there only were two) are gearing up to make their case before that mythologically impartial panel, judge, or process.

This seems to be a corollary of the fundamental rule that extremism sells. If you're going to make a case, then make it to the max, and set out to destroy the opposition. Since almost by definition, the readers won't have the firepower themselves to be the master of either side of the argument, they're that much more likely to take your point of view. This is the essence of adversarial resolutions for the law, for sports contests, for wars of all kinds. It's the essence too of what works with capitalism, where there's a competition for market share, or price. It's what propaganda means.

Just as, in the case of abortion, there can be dismissive agreement that of course there are terrible tales on both sides of the issue, where women were forced or tricked into abortion or killed by being forced to carry to term an impossible pregnancy. As if these dirty facts detract from the main battle to be engaged. There is almost a kind of lust to bring things right down to their very crux, and then butt heads right at that juncture. Sometimes, especially when things descend to something which looks like a flame war, it can be downright primitive, you idiots!

For my part, I confess that I have a good deal of sympathy for the intelligent designers, when their issue gets pitted against [what might well be the straw dog of] scientism whereby all mysteries will be revealed to be logically solvable. As if replication of life's origins can ever resolve its mystery.

Similarly, with the anti-global warmers, I must agree that we, the human race, will not ultimately prevail as masters of this or any other domain. Did I say already that I will never agree with Rush or Savage on anything they say, since they are just patently wacko, not to mention dangerous for their fanning of idiot winds to fuel dangerous flames. I mostly think it's a fine distinction indeed between what they do and yelling fire in a crowded theater, although they do help to refine the sides.

But I guess their market share gives them some right, right? I'm not so entirely sure. Jeeze, I guess I even agree with censorship on or at some level. The problem is, who gets to decide? There's a hoot of a film out there called "The Last Supper" which explores some of this to the point of absurdity.

So, you can take the argument for or against the patenting of genes right down to its most minimalist precise terms, and you are finally arguing about art v. nature, and it can sound almost sophomoric. These are arguments about world view, right?

What if there is never any clear boundary? What if point of view will always count? Even plastics, which would never occur "in nature" without man's invention, are surely "of nature" to the extent that man is.

Patents are grants from legal authority to private entities of a temporary exclusive franchise on something they invented but which ultimately reverts to the commons which that authority has always held in trust for you and I, the commoners. The authority to confer that grant ipso facto confirms that what is being granted is rights over something the authority has the right to grant in the first place. There is a kind of distribution of what is "out there" presumably for anyone to "find" but which is never known to be there without its first "invention". Distinctions between invention and discovery can get very mushy indeed, leading to considerations about choices we might have had but have chosen not to take.

Sometimes following the letter of the law becomes itself a very bad choice, and the law must be changed. Chattel must be redefined, for instance, to exclude wives and black people. Property must be redefined to exclude the right to despoil, or generate certain effluents. Sometimes events march on too quickly, and the length or terms for ownership become patently unwise. What happens when pumping out oil causes an upset to geological equilibrium? What happens when a patented life form, say, takes off in overpopulation? What happens when a company owns a patent on something which becomes essential to the survival of virtually everyone?

Perhaps intellectual property also must be redefined simply to exclude specific items, like genes, in the same way that real property might exclude air rights or mineral rights, which are simply too valuable or which impinge somehow on the rights of neighbors. Sometimes it helps to blur rather than to refine the boundaries, so that you might own coastal property, but the public has the right to trespass between the low and high tide marks. Or maybe 25 feet above. Or maybe not at all, but there is nothing a-priori obvious or intuitive about the choices which must be made.

In any case, when debate reaches a kind of final impasse, beyond which there can be no movement; where the sides get cemented in regardless of the firepower brought to bear; then it's usually time for - and I think this might be one of the few proper uses of the term - a paradigm shift.

In physics, a useful distinction can often be made between energy of position and inherent energy; potential and measurable, with potential energy always relative to what's around its "possessor" and things like relative motion. It then might not be clear how the perspective of the measurer must be taken into account, or in the extreme quantum mechanical cases, if the perspective of the measurer can ever be taken quite out of the account.

So, at the level of the basic issues, there seems to be some automatic taking up of sides. When does life begin? Is the origin of life knowable? Is this an invention or a discovery? Is there any direction to evolution? Is mankind at its pinnacle? Are we any different than other forces of nature? Is there such a thing as artifice?

But what if the resolution is always and only a matter of time and position. Most non-straw-dog scientists except for really whacked out fundamentalists like Ray Kurzweil, don't form any opinions, ultimately, about how life begins. Most non-straw-dog religionists don't suppose that airplanes don't really fly, although there are apparently some who think that pilots might get wafted literally away at the time of some rapture.

In the matter of abortion, it seems unfair, just for example, to use scientific notions of conception to talk about when "life" begins. Why not push it back all the way to the twinkle in the eye? Why not make the turning away from all lust evil? Who really knows how to navigate these boundaries? I mean it also would seem clearly to be murder if a fully invested pregnant Mom were forced into abortion.

It might be worth the excercise to find ways to blur the boundaries. To make the case that patenting genes is an issue less simple to pin down that patenting manufacturing processes. Why not mitigate the price which might result from too much value with some progressive tax? Why not issue "commons impingement credits" so that the patenters of some new machine can sell off some of their credits to the bozos who need to own something so abstracted as a gene sequence. If I want to own the number 747, say, I should have to pay almost the entire treasury of the government issuing the patent, which, sad to say, is never quite out of the question now is it?

Let's see. The formula could be E = MC² . Where C is some GNP, denominated in some currency, which equals the value of everything combined. An outer limit, beyond which it's just impossible to go. M could be, ummmm, a fudge factor for what proportion of the proposed patent grant is estimated to be part of our commons. Then E could be the price.

Well, now that's just silly, but at the very least the paradigm could shift a little bit to where borders are recognized themselves to be changeable and negotiable entities. Clearly, as has been well established in the tiny rural town where I live, building very large windmills on ones private property does impinge on the value of all the property around. Why not compensate everyone for the cost to their "view"? Why must we encourage Hatfields fighting McCoys?

The cost should approach infinity if someone proposes to own the air, the water, natural laws. The cost should be nominal if someone has come up with something unlikely to have been come up with by anybody else. But at a certain point, even establishing priority gets ridiculous, like in the case of patenting genes, where the processes are well understood and it's just another gold rush, where the fastest, best provisioned, and most ruthless are the ones to get the claims. What kind of finish line camera will be the most fair if, say someone's internet connection goes down, or their xerox machine needs new toner, or the principal investigator gets sick?

It was all right to grant oil franchises when there was no sense of any limits. Maybe now it's not. It was all right to mine for minerals when all the land was not even mapped. Maybe the existence of limits is the primary thing which redefines all the boundaries or makes them relative. If there are clear limits to the uses which can be made of what we all depend on, in common, then there also must be changes to the ways in which those usages get regulated for the good of all. Patent law may be useful as an engine for progress, but harmful as a mechanism to ensure survival.

This is a simple place marker, for further discussion of Kinsey and his wasps, words and their relation to ideas, boundaries in general, and lots and lots of fun. Would that there were world enough and time . . . .

1 comment:

David said...

This is really the point... we can CHOOSE to try new approaches to property, and why wouldn't we? What's so special about the devices we've been using? Who is benefiting? Only a very rare few, it seems.