A2K Symposium: Owning the Stars
I heard Lawrence Liang give a terrific talk at the Open Video conference in New York last Fall. His contributions to the A2K volume are also thought-provoking. Here is the conclusion from one of them:
I end this piece with a small parable that many of us will have read while we were children. The story is from Antoine de Saint Exupéry’s tale The Little Prince. The Little Prince visits a number of planets and encounters a range of different characters. On the fourth planet, he meets a businessman who owns millions of stars, and the reason why he owns them is because he was the first one to think of owning the stars.
The Little Prince is perplexed, because he can’t seem to find a reason for owning the stars beyond the fact that they can be put in a bank to enable the businessman to buy more stars. The Little Prince tells the businessman that “I own a flower myself, which I water every day. I own three volcanoes, which I rake out every week. I even rake out the extinct one. You never know. So it’s of some use to my volcanoes, and it’s useful to my flower, that I own them. But you’re not useful to the stars.”
Liang’s parable in turn made me think of ownership as an obligation, not (just) an opportunity for exploitation.
A2K As a a Statement of Progressive Intellectual Property?
In a special issue of the Cornell Law Review, four noted professors of property law wrote a brief series of propositions they identified as “A Statement of Progressive Property.” I found the following propositions particularly compelling:
2. Property implicates plural and incommensurable values.
2.1. Some of these values promote individual interests, wants, needs, desires, and preferences. Some promote social interests, such as environmental stewardship, civic responsibility, and aggregate wealth. Others govern human interaction to ensure that people relate to each other with respect and dignity.
2.2. These values are not solely a matter of satisfying personal preferences. Values can generate moral demands and obligations that underlie judgments about the interests that the law should recognize as property entitlements.
2.3. Values promoted by property include life and human flourishing, the protection of physical security, the ability to acquire knowledge and make choices, and the freedom to live one’s life on one’s own terms. They also include wealth, happiness, and other aspects of individual and social well-being.
There is little reason not to put “intellectual” in front of property each time it occurs in this statement. Is that an indication of the propositions’ powerful universality or thin generality?
Finance is Fundamental
My worry is that agendas like A2K—or progressive property—are going to founder on larger economic forces. Over the past decade, I’ve watched various reform programs in both health care and information law run up against the “irresistible force” of capital flight and demands for increasing returns on investment. Pharmaceutical research is declining or trending toward the redundancies of me-too drugs. An explosion of creativity on the net is being channeled through megacorps, which are often driven by little more than a desire to maximize charges (for internet service provision) and marketing (for search engines and social networks). Rationales for vertical integration in the internet field often sound like little more than a new idea to “own the stars” (possibly literally if Comcast, NBC, and Hollywood someday find a way to reincarnate the “star system“).
Huge imbalances of wealth, earnings, and power are confounding traditional distinctions between market and state. They also make it nearly impossible for many firms to adopt principles of A2K. A blind market demand for maximum returns does not leave much room for the ethical goals of progressive property or A2K. Nor are global capital markets consistently promoting human freedom, development, or access to knowledge. They are increasingly serving, instead, to advance crony capitalist “creative destruction” that precarizes labor in the developed world and constantly exposes the global poor to food and energy shortages.
Democratizing Capital Allocation and Financial Information
A2K scholarship has focused on how state-granted entitlements to intellectual property protection unfairly deny access to knowledge. Leading thinkers in the field have promoted conditions on and limits to such entitlements. I think that, as the scope of state subsidies to business (both explicit and implicit) becomes clearer, that agenda needs to move beyond information industries themselves to the finance firms and traders who call the shots in the global economy. These firms simply cannot be profitable without taking advantage of exorbitant privileges, including access to the Fed’s discount window, the TLGP, current ultraloose monetary policy, and various forms of “too big to fail” backstops.
When thinking about the future of finance, we should look at another sector utterly dependent on government subvention—health care. In exchange for paying at least 45% of the bills, the government imposes myriad conditions on providers in order to assure certain outcomes. I teach about these in my course on Health Care Finance and Regulation, and if the American people ever get their money’s worth from explicit bailouts and ultraloose monetary policy, “Finance Industry Finance and Regulation” may be a topic for a future generation of law students.
In health care finance and regulation, the government’s goals are relatively clear: raise quality, cut costs, and increase access. These goals are often in tension, but they provide guidance for policymakers. I believe that the A2K agenda is doomed to failure (or at least far from complete implementation) if global policymakers cannot do more to encourage responsible capital allocation that promotes the goals of A2K, progressive property, and ecological renewal. Hope for new levels of access to knowledge is dependent on the development of alternatives to finance-driven capitalism, or, at the very least, a democratization of the financial information economy now shrouded in secrecy and obfuscation.
Recently many legal scholars have begun to turn their attention to financial markets, even if their primary field of study has been outside of that area. For example, employment law experts like Joan Williams and Richard Freeman have critically commented on the upside-down socialism driving bank bailouts for the few and austerity for the many.
I began looking at financial markets after years of teaching and researching healthcare finance and regulation, because I began to feel that the ways of Wall Street were a kind of physics or chemistry that set fundamental limits on whatever ecology of healthcare finance we learned about. The fundamental economic imperatives of rising stock prices and CEO salaries had begun to dictate insurers’ and hospitals’ political action, which in turn was driving the very rules that were supposed to set limits on them. Just as Mireille Hildebrandt and Helen Nissenbaum have warned that privacy values must be designed into technology (rather than just tacked on by law), I began to feel that a just health care system could not persist within finance capitalism as it is presently constituted. To mix the positive theory of Luhmann and the normative theory of Walzer: the health care system’s capacity to operate as a sphere of justice is diminished to the extent that bottom line demands eclipse its larger social mission.
Is It Written in the Stars?
So the A2K movement, like all modern social justice movements, must make a choice. It can either try to work within modern finance capitalism, or reform it. One of the chief allures of A2K for me has been its creation of an alternative, peaceable kingdom of reciprocity as an alternative to a monetary exchange system warped by inequality. To exemplify that exchange in some small way, I want to repay Liang’s starry metaphor with one of Brian Holmes’s:
Imagine the night sky as an overarching dome, filled with thousands of shimmering points of light. Each of these bright stars represents the stock of a publicly traded corporation. The intensity of their luminous presence varies in real time according to the frequency of trading. If one star co-varies with others – that is, if a pattern emerges between the rates at which certain stocks are bought and sold – then the flickering points of light draw slowly together, forming unstable constellations.
The illuminated dome is an artwork by Lise Autogena and Joshua Portway, entitled “Black Shoals Stock Market Planetarium” [pictured above]. It refers both to the financial economy and to ancient astrological techniques for the calculation of human destinies. At first glance it might resemble dozens of other stock-market visualizations, remarkable only for the astrological metaphor. But a further element transforms it into an existential allegory of contemporary social relations. . . .
Black Shoals is a great work because it asks two fundamental questions. First, what is the “artificial world model” that contemporary civilization has come to embody, under the decisive influence of speculative finance? And second, will the “creatures” of this particular world – not only the traders themselves, but all the cultures of global circulation that have sprung into existence over the last thirty years – now have to dramatically change survival strategies. . . .? As proven by the series of crises that have surged through the world economy over the last thirty years, nothing has more powerful effects at ground level than the shifting map of the financial stars above.
As Yochai Benkler’s seminal work on the Wealth of Networks showed, A2K’s promise lies in modes of production that sidestep markets and states (and the ever more prevalent “predator state” that melds both). But if A2K fails to pay attention to the fundamental drivers of markets and states, ominous forces of surveillance, exploitation, and control will erode its spaces of peer production and sharing. A “world model” that is “under the decisive influence of speculative finance” cannot long abide a social movement invested in meeting real human needs.