Open source, Rawls, and rights

Man survived the fierce test of the Ice Ages because he had the flexibility of mind to recognise inventions and to turn them into communal property.

Jacob BronowskiThe Ascent of Man, p 39

Let us pose a challenge to the prevalent attitude towards intellectual property. The society in which we live exists as a result of previous technological successes in overcoming environmental difficulties. Now, what if we are to posit some new difficulty on a par with the last Ice Ages. It would be a way of asking, with John Rawls,  in what type of society we want to live. How would we ideally cope with flows of information in such a world?

Imagine a new crisis. Take, for example, some purely hypothetical fatal disease with the annual death toll in the millions. (This is surely a stretch to imagine in these advanced and civilised times, but try to suspend disbelief with me) Imagine also some even more outlandish scenario on top of this, where somehow we have managed to damage our environment to such an extent that the world food and water supply approaches crisis. Consider also an even more fantastical notion, that we might even affect our entire world climate. Now, since we are playing make-believe, consider letting the Rawlsian veil of ignorance to fall.

When we have no way of knowing we will be born into the first world, where we have all the benefits of legally protected copyright, and none of the duties and responsibilities that ought to attend to such privilege, will we still agree with things as they stand? The world is how it is by our decisions, as consumers and citizens. Society is a complex of techniques and technologies, which we (by omission or commission) deploy as we see fit. It is not a primeval given. Nor is property an immutable fact (notwithstanding the even more outlandish fairy-tales of Locke and Hegel).

Some things we can accept as a given, as conditions for our survival. These we might regard as our primary, existential rights (alternate definition here). Such might be the need for shelter, food, and some means of continuing the endurance of both of these. After that comes what have come to be referred to as our “universal human rights” , but these human rights are secondary, logically, but not ideally. They are indeed preeminent, because they speak to a definition of what it means to be human.

Difficulties arise when something such as property is finessed into carrying something beyond it, such that some seek to convince us that property is a right. Even worse is when human is extended to cover a fictional, legal entity( v. “corporate personhood”). When this is happening, there must be some sort of test. If our existential rights are threatened, then the secondary rights are to be set aside  (Nozick‘s “side contraints” may be of relevance here).  Another problem is how to define whether or not we are threatened in the primary sense. These I highlight, but do not engage with due to this being nothing but an imaginary game.

No doubt, as things stand, our present unthought,ad hoc arrangement of rights and property is for the undeniable universal good of mankind. The best interests of the most vulnerable and least powerful are uppermost in the minds of every captain of industry, and every financial master of the universe. Corporations as a rule set aside the clamorous gabble of shareholders looking for quarterly profit, so that they can concentrate on undoing past environmental damage, and share their research into new medication and clean energies for the good of all. Individual governments do not use their political clout to stifle innovation in developing economies. Indeed, there is clearly a strict division between the desires of the market (which are, at any rate, unquestionably beneficent and far-sighted) and the operations of government. Thus:

“It is demonstrable,” said he, “that things cannot be otherwise than as they are; for as all things have been created for some end, they must necessarily be created for the best end. Observe, for instance, the nose is formed for spectacles, therefore we wear spectacles. The legs are visibly designed for stockings, accordingly we wear stockings. Stones were made to be hewn and to construct castles, therefore My Lord has a magnificent castle; for the greatest baron in the province ought to be the best lodged. Swine were intended to be eaten, therefore we eat pork all the year round: and they, who assert that everything is right, do not express themselves correctly; they should say that everything is best.”

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