The excerpts below are all from this article: Terra Nullius
The Labor Theory of Property
In 1660, John Locke published his Two Treatises of Government, where he set out to resolve the seeming conflict between individual property rights (which he valorized) and the Bible (ditto), which set out the principle that God had created the Earth and its bounty for all of humanity. How could a Christian claim to own something personally when God had intended for everyone to share in His creation?
Locke’s answer was the “labor theory of property”: private property is the result of a human taking an unclaimed piece of the common property of humanity and mixing it with their labor (each human owns their body and thus the labor of that body), creating a property cocktail: one part unimproved nature, one part human sweat of the brow, mix well and serve in perpetuity.
'Aloha Poke'
More than a thousand years before John Locke was born, the people of the island of Kahiki coined the term “Aloha,” which is present in all the languages of the region today: it’s an untranslatable word that conveys a beautiful, complex blend of emotions and sentiments, so iconic that adherence to the “Aloha Spirit” has been Hawaiian state law since 1986.
In the 1970s (300 years after the publication of Two Treatises of Government) Hawaiian chefs expressed their aloha spirit in a dish called “poke,” a delicious mix of raw fish, served with seaweed, rice or greens, roasted and ground kukui nut meat, and other variations. In 2012, this dish spread to the mainland and mutated further, acquiring many new and delicious variants.
In 2016 (centuries after “aloha” and Locke, decades after “poke”) Zach Friedlander founded a restaurant called “Aloha Poke” in Chicago, and in the summer of 2018 Friedlander’s successor, Chris Birkinshaw, retained the law firm of Olson and Cepuritis Ltd to threaten Hawaiian chefs operating poke restaurants, insisting that they remove “aloha” from their business names. Eventually, the furor prompted Aloha Poke to issue a half-assed, self-pitying apology and to back off a little from its threats.
Friedlander defended the company’s actions and dismissed criticism as a “witch hunt” and “fake news”. [In their response] you can see the specter of John Locke haunting every word. Friedlander, his staff, and his investors put real work into making a midwestern chain of poke restaurants identified with the name “Aloha Poke.” These unimproved words had been around forever and no one else was building a national empire with them: by getting to the idea first and mixing their labor with it, they had transformed the bounty of nature into private property. This odious specter haunts much of the world today, and it has plenty of company, for this conception of property rights has sent millions to their graves.
Terra Nullius and Colonialism
In 1778, Europeans began to colonize the inhabited continent of Australia, whose aboriginal people had lived there for over 65,000 years. These people did not embrace Lockean property theories, but they certainly used and improved the land they had inhabited for virtually the entire era of behaviorally modern human existence.
The Europeans – staunch Lockeans – had a problem: they wanted to harvest the bounty of a new continent but absent the agreement of the people who already lived there, this would be theft, by Lockean lights. To solve the conundrum, they deployed a bit of Aloha Poke logic: they declared the ancient, communally held thing to be owned by no one. They called it terra nullius (“nobody’s land”) and proceeded to “improve” it to make it into property. Many of these “improvements” involved acts of genocide against the indigenous people. After all, if something is owned by nobody, then the people on the land must be “nobody.”
The Problem
Both the venality of Aloha Poke and the genocidal brutality of Terra Nullius reveal a deep problem lurking in the Lockean conception of property: all the stuff that’s “just lying around” is actually already in relation to other people, often the kind of complex relation that doesn’t lend itself to property-like transactions where someone with deep pockets can come along and buy a thing from its existing “owner.”
The labor theory of property always begins with an act of erasure: “All the people who created, used, and improved this thing before me were doing something banal and unimportant – but my contribution is the step that moved this thing from a useless, unregarded commons to a special, proprietary, finished good.”
Criticism of this delusion of personal exceptionalism is buttressed by a kind of affronted perplexity: “Can’t you see how much of my really top-notch labor I have blended with this natural resource to improve it? Who will willingly give their own labor to future projects if, every time they do, loafers and takers come and freeride on their new property?”
This rhetorical move continues the erasure: it denies the claims of everyone who came before you as ahistorical figments: the people who coined, popularized and nurtured the word “aloha” or inhabited the Australasian landmass are stripped of their claims as though they were honeybees whose output is a naturally occurring substance that properly belongs to the beekeeper, not the swarm.
Preconditions for Invention
Invention is an intensely personal activity that is nevertheless socially determined. As Kevin Kelly documents in his incredible, unmissable 2010 book What Technology Wants, most of the major inventions of our species are recurring phenomena: TV, radio, and other “breakthroughs” occurred more or less simultaneously and independently, all around the world.
Kelly explains this through his idea of “the adjacent possible,” which says that ideas suggest themselves more-or-less continuously, but are not realized until the conditions for bringing them to fruition are in place.
For example, thinkers as far back as Da Vinci observed the flight of maple keys, considered the action of a screw, and sketched something that looked like a helicopter. But the helicopter couldn’t be made until there were breakthroughs in metallurgy, aerodynamics, engine design, etc. The closer those other fields grew to a helicopter-ready state, the more obvious helicopters were, so the pace of helicopter attempts only increases as the adjacent possible draws nearer. Once the conditions for helicopters are in place, it’s helicopter time, and so you get helicopters, everywhere, all at once.
But from the perspective of a helicopter inventor, they have been struck by a bolt of inspiration and made something where nothing existed before. They are a Lockean Titan, who has blended their labor and imagination with the raw substance of the world to make a thing that has never been seen before and would never have been seen, without their genius.
Invention is Common
First, all the raw materials they combined to make a helicopter aren’t raw materials at all: they’re finished goods, that other people invented through their own bursts of inspiration, about which they felt every bit as proprietary as the Helicopter Titan.
Second, even if they’d never been born, we’d still have helicopters. When it’s helicopter time, you get helicopters. There isn’t just one Helicopter Titan, there is an emergent cohort of them.
It’s natural to feel like a Lockean Titan when you have a bolt of inspiration and see it through to fruition. It’s generally a lot of hard work and sacrifice, and it requires a legitimately imaginative leap to realize. But the honest truth is Lockean Titans are a dime a dozen. fBeing a successful Lockean Titan is like being the successful staph bacterium that manages to find its way into a break in its host’s skin and spawn an infection: yes, you had all the characteristics necessary to go viral (ahem), but you also got lucky by being in the right place at the right time, and if you hadn’t been there, someone else would have been.
What Exactly is Intellectual Property?
Living in a moment in which markets alone determine something’s worth – and thus whether its creator will have a dignified life – has elevated [the idea of the heroic inventor to its highest point].
It’s not just the inventors and creators – fearing [deep poverty] in a society without a social safety network – who say things like, “I worked very hard on that, I created it, who are you to rework it” (and treat the musical form or the literary genre or the conventions or the chord progressions or the references that I plundered as a Terra Nullius begging to be mixed with my labor).
It’s the financier (“Who would fund the production of such original books, music, and films but for the right to stop people from using ‘our’ works in their unoriginal, derivative works?”).
And it’s the grifter (“I’m not a patent troll! Without people like me willing to buy up the inventions of Lockean Titans like the person whose name appears on this patent, no one would invent things: the fact that I make nothing but lawsuits that extract cash from people who are making things of use is not important, because that extraction business creates a market for inventions that rewards Lockean Titans, without whom, progress would stall.”)
[The inventor's] achievements are a combination of freeriding on the people whose contributions he’s erased, and bleating that everyone who had the same idea as him was actually stealing his idea, rather than simply living in the same influences he had. This isn’t intrinsically racist or sexist or class-discriminatory, but when you’re ripping off and denigrating other people, it’s a lot easier to get away with it if you’re a rich, white dude.
Intellectual Property
