The Internet of Things (You Don’t Own) under Bourgeois Law: An Integrated Tactic to Rebalance Intellectual Property

Citation

Noto La Diega G (2023) The Internet of Things (You Don’t Own) under Bourgeois Law: An Integrated Tactic to Rebalance Intellectual Property. In: Internet of Things and the Law: Legal Strategies for Consumer-Centric Smart Technologies. Routledge Research in the Law of Emerging Technologies. London: Routledge, pp. 275-340. https://doi.org/10.4324/9780429468377

Abstract
First paragraph: It is a commonly held view that intellectual property (IP) is a policy bargain whereby exclusive rights and monopolies are granted as a reward to intellectual labour and investments in order to incentivise innovation and creativity. The idea that IP rights (IPRs) would be a necessary incentive has been largely debunked. Law and economics studies demonstrated that IP is just another product of capitalism aimed at creating new enclosures of the ‘commons.’ This notwithstanding, a number of national and international laws have kept expanding its scope and augmenting the relevant level of protection. Most IP-stemming monopolies are temporary on paper but end up producing revenues that are regarded as rents on a virtually permanent basis. The elevation of IP to perpetual rent is rendered possible by complex strategies that rely on cumulation of IPRs, factual control over data and service, contracts, and technical protection measures. Favoured by a legal environment that is ‘heavily tilted in favour of IP rent-seekers,’ IP has become the key ideological device of rentier capitalism. Traditionally, the phenomenon of rentiers refers to the fact that landowners would exploit their monopoly power over the land to impose a rent that was a monopoly price. As noted by Marx in The Poverty of Philosophy , ‘[r]ent, in the Ricardian sense, is patriarchal agriculture transformed into commercial industry, industrial capital applied to land, the town bourgeoisie transplanted into the country.’ Marx and Ricardo could not foresee that new forms of rent-seeking would become an essential component of capitalism: rent-seeking through IPRs. The IoT is pivotal to rentier capitalism as it generates ‘new sources of rent, new infrastructures of rentier relations, and new mechanisms of extraction and enclosure.’ While the IoT is not rentier in nature, the historically existing IoT is indeed rentier also thanks to IP abuses. According to Jathan Sadowski, data extraction, capital convergence, and digital enclosure are the main mechanisms of rentier capitalism. 9 IP is key to digital enclosure, as instantiated by the use of software licenses to control access and collecting rents over the physical world, regardless of the ownership of the underlying tangible assets.