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Notes
For example, John Perry Barlow’s facially implausible suggestion that information is a “life form” that has rights, which misunderstands both the biological category of “life” and the concept of a “right.” The claim that information should be free is, it should be noted, a very different claim that is facially more plausible and logically follows from Barlow’s claim. But this more reasonable claim can be held without holding Barlow’s stronger (and deeply implausible) view. For a critique of this view, see Himma (2005).
On the authors’ view, Barthes’ proposition captures, I take it, the spirit of Foucault’s view.
Of course, there are a couple of cases where the issue (1) is suppressed. If one takes a consequentialist analysis or subscribes to a theory of legitimacy whereby the law is justified in exercising its coercive force only to promote the common good, then the issue of whether the law should legally protect IP rights is a question, purely of political morality. But it should be noted, as Spinello and Bottis do, that a utilitarian theory is still a general theory of morality; it simply doesn’t identify specific interests or rights of individuals that receive moral protection. Instead the objective state of affairs to be promoted is maximized community utility. See Spinello and Bottis, 169, for a discussion of this important observation.
For exceptions, see Himma (2008).
The same considerations apply to the Hegelian assertions that “property is a mechanism for self-actualization” and “a way for a person’s self-identity to be recognized by others” (163).
As I have argued elsewhere, the morally significant interest of the content-creator might be trumped by stronger interests on the part of the public in information necessary to survive or thrive; but most content that is wanted by persons is content desired merely for entertainment purposes. It is hard to conceive any plausible argument that would defeat the claim that the interest that people have in content I have created for entertainment outweighs the interest I have in controlling that content. Of course, one can make other arguments to try to address this point—including some that have been made. But all of these arguments will have to involve the assumption that the interests that labor creates in the laborer is outweighed by some other morally significant interest than individual desires for being entertained. It seems clear that different arguments will have to made for content that implicates different levels of moral interests in the persons desiring free access to the content—a point too frequently ignored in the literature. See Himma (2008) and Himma (2007).
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Himma, K.E. Richard Spinello and Maria Bottis: Understanding the debate on the legal protection of moral intellectual property interests: review essay of A Defense of Intellectual Property Rights. Ethics Inf Technol 13, 283–288 (2011). https://doi.org/10.1007/s10676-011-9275-5
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DOI: https://doi.org/10.1007/s10676-011-9275-5