Novelist Cory Doctorow on the Problem With Intellectual Property

Cory Doctorow

Patents were once seen as a temporary reward for inventors. Now, as novelist Cory Doctorow tells Jacobin, they've become supposedly inviolable "intellectual property" rights that simply enrich people like Bill Gates.

Microsoft co-founder Bill Gates speaks at the Economic Club of Washington's summer luncheon in Washington, DC, on June 24, 2019. (Nicholas Kamm / AFP via Getty Images)

Interview by
Luke Savage

If nothing else, the COVID-19 pandemic has been an incredibly instructive case study in what the neoliberal dogma that now governs our waking lives really means when stripped of artifice or pretense. As things stand, just a handful of profit-driven private companies currently control the knowledge and expertise required to produce vaccines — with people in many poorer countries not expected to be vaccinated until at least 2024. It didn’t have to be this way, of course.

Enabled by a monopolistic global intellectual property (IP) regime and with a tip of the hat to billionaire Bill Gates, Big Pharma and its political allies have largely succeeded in controlling and defining the narrative during the early vaccine rollout — transforming the prospective solution to a global crisis into yet another occasion for narrow corporate profit, in this case at the expense of public health and a speedy end to the pandemic.

The ground, however, may slowly be shifting. With the Biden administration’s recent announcement that it will support a waiver of IP protections for COVID vaccines, worldwide moral outrage toward vaccine apartheid may finally be having an impact. As for Gates himself, the billionaire is currently experiencing a messy divorce and may be facing the most serious crisis for his meticulously crafted personal image since the antitrust actions of the 1990s.

Author and science fiction writer Cory Doctorow is a longtime critic of restrictive intellectual property laws and the ideology that inspires them. In a wide-ranging conversation, Jacobin’s Luke Savage spoke to Doctorow about the history of the phrase “intellectual property,” Bill Gates’s dogged commitment to monopolism, and the psyches of the global super-rich.


LS

Before we get into anything related to vaccines or Bill Gates, I wanted to begin by asking a rather open-ended question about intellectual property. The concept of IP, either as it’s been applied to COVID vaccines or anything else, is one that’s become so axiomatic I think people don’t really question it. You’ve written on the history of this term and its adoption by the World Intellectual Property Organization (WIPO), and also called it “a dangerous euphemism that leads us to all sorts of faulty reasoning about knowledge.”

Could you unpack that a bit? What is the recent history of this term, and why is it both dangerous and misunderstood?

CD

I have to say, I’ve come around in my thinking a little. I still think it’s dangerous. I don’t think it’s misunderstood anymore, but we can get to that.

In the prehistory of the term, there were a bunch of regimes that we now think of as intellectual property that came up first through common law and then through statute. Copyright, you know, has its history in trade wars between English and Scottish publishers. Then you have trademark, which grows out of unfair competition standards and was initially about this idea that if I went out and bought, say, a bottle of Coke and what was inside of it was Pepsi or shoe polish or, you know, goat urine that, I, as the individual don’t really have a lot of resources to sue whoever mis-marketed that bottle of Coke, but Coke does. And so Coke is kind of deputized to enforce its marks on behalf of its consumers to stop confusion in the same way that copyright confers an exclusive right to an author over a fixed work of creative expression.

Trademark, on the other hand, doesn’t. Trademark doesn’t stop you from saying, “I think my Pepsi tastes better than Coke.” It doesn’t stop you from saying, “This ink works in an HP printer” or “iPads are worse than Android tablets.”

Patent was a third thing altogether, and its history is in things like the Patents Royal, where monarchs would hand out exclusive rights and monopolies as a form of patronage (everyone who wants to make silver ribbon, for example, has to get a license).

When they were reformed in market economies, patents became a quid pro quo where you had inventors who were wasting a lot of energy trying to make the machines hard to understand and make them fall apart if you tried to take them apart but wanted to recoup their investment. And so, we said, “All right, if you’ll just tell us how your machine works and give us a model and publish the schematics, we’ll give you a fourteen-year exclusive right over your invention.”

Over the years, all of these have changed in different ways, and they’ve all expanded monotonically, but it was rare that we had to refer to them all one breath.

In the same way that we don’t have a name for tuna fish, cuckoo clocks, and D&D miniatures that encompasses them as a single category, we didn’t really have a category that was patents, trademarks, and copyrights. They were all things that businesses might use, but they weren’t the same thing. If we had to talk about them as a category, we would call them monopolies or creators’ monopolies.

And having a monopoly is a hard thing to defend! If you’re anxious that your monopoly isn’t quite doing it for you and you go to your legislature and you say, “My monopoly needs to be bigger,” you’ll get kind of a skeptical hearing.

So there was this other term, which first occurred in the 1930s, but really gained currency in the 1970s: “intellectual property.” Intellectual property was popularized by an industry body called the World Intellectual Property Organization (WIPO), which convinced the United Nations to sanction it as a UN specialized agency like UNICEF. Except its purpose was to defend intellectual property, and it embarked on a program to replace the term monopoly with intellectual property for obvious reasons. If property is now the state religion, then arguing that your property rights are being undermined is basically an appeal to prevent heresy: “Blasphemy is afoot! Bring out the witch finder!”

It was a very successful strategy, and the copy fighter/copyright skeptic/creative commons/open source/free software world has greeted the term intellectual property with great skepticism and has argued that we should just use the term monopoly if we’re ever going to talk about all of them in one breath.

What we should do is be precise. If we’re talking about a copyright, we should say a copyright. If we’re talking about a trade secret, we should say a trade secret. We shouldn’t lump them all together. But if we are going to lump them all together, let’s just call them what they are. Let’s call them monopolies.

In response to all of this, creators — primarily copyright holders but secondarily, some patent holders — have said “Fuck you, monopoly . . . I wrote this book. I’m the only one who’s allowed to sell it to a publisher.” But the definition of a monopoly in a market economy is the ability to set prices, and if you think I get to name my price with my publisher . . . I’d like you to talk to my agent. So it’s not really a monopoly in that sense.

But here’s where it gets interesting. We do have actual market power monopolies. The market is full of them. We’ve had forty years of antitrust forbearance that has created this great tendency towards monopoly; even in supply chains where important actors were skeptical of monopoly, they were kind of forced into it.

The best example is the US healthcare market where, as pharma monopolies became more salient because of mergers, pharma companies that control very large portfolios of drugs — and would make the prices rise on all of them and deny you access if you wouldn’t pay over the odds for the other and so on — hospitals found themselves increasingly confronted with monopsony, with buyer power, where the buyer for their goods was concentrated and they themselves couldn’t form a cartel. They couldn’t get together and say, “None of the hospitals in Southern California are going to buy your cancer drug unless you lower the price.” That is illegal under antitrust law.

What they could do was merge. And if they merged, they could then have the buyer power under one roof: instead of having two CEOs call each other and make an illegal agreement not to buy drugs unless the prices came down, two presidents of divisions of the same company could meet in their boardroom and have the exact same discussion — even if a week earlier they’d been the CEOs of two rival companies.

So the hospitals merge, and then they start to put the screws to the insurers, who had been a disorganized sector that was once very local and somewhat competitive. They said, “We’re going to charge whatever we want for these procedures, and you’re going to pay for it, or we’re not going to see your patients.” And so the insurers began to monopolize.

There’s only one sector that can’t monopolize and that also can’t form a cartel, and that’s labor (or labor and patients, in this case). So you see doctors and nurses facing declining wages and worsening work conditions, and you see patients paying more to get worse care. And that’s because the unequal bargaining power that arises out of this monopoly forces monopoly until no monopoly can be forced (and then whoever can’t monopolize gets screwed).

Cory Doctorow in 2009. (Wikimedia Commons)

So the term “intellectual property,” in that world of monopolies, actually has a very crisp and highly specific commercial meaning: IP is any rule that I can invoke that will allow me to control the conduct of my customers, my critics, and my competitors. If I have a patent, I get to decide who can make a product that competes with mine. If I have a copyright, I get to decide who can make products that integrate that copyright. And if I can use exotic parts of copyright, like the anti-circumvention provisions of “Canada’s Copyright Modernization and the US Digital Millennium Copyright Act,” then I can design a product so that if you want to perform a security audit on it and discover whether or not it’s fit for purpose, the act of reverse engineering it becomes a copyright infringement. An actual felony.

What that gets you is a new kind of hybrid monopoly with a monopoly of the author — which is of no use to the author as a monopoly except maybe as an element of labor policy, but it’s not an actual monopoly since it doesn’t give them price controls — and that monopoly can be fused with a market power monopoly. And you now don’t need a cartel or whatever to defend your monopoly.

You can now defend it by defending your IP and saying: “Look, it’s just the deal. Universal owns 30 percent of all the recorded music. We only licensed that music for samples to people who are within Universal’s portfolio of artists. If you want to make hip hop, you have to sign over your rights to Universal. That’s just us defending our copyrights! It’s not an anti-competitive practice. We’re not corralling all of the products under our roof, we’re not doing something that would give rise to antitrust enforcement, even in this very weakened and attenuated state that we have now, we’re just defending our IP!”

And not only that, but Universal could also count on the US trade representative, the cops, the courts, and others to have their backs and to defend their IP because it’s now technically their property that’s being stolen rather than a monopoly being maintained. That, I think, is the right way to think about how IP, copyright, and monopoly all fit together. They’re all part of the same project of monopolization.

LS

When we first talked about doing this interview, Bill Gates was still in the midst of a media tour in which he was pushing the idea that the sharing of patents for the various COVID-19 vaccines would essentially do nothing to increase their production or expedite their distribution. . .

CD

“Brown people can’t make vaccines.” That was the subtext.

LS

I mean, that was basically the argument! He claimed that “the thing that’s holding things back in this case is not intellectual property.” I do want to ask you about Gates’s wider relationship to the concept of intellectual property, but since there have been a number of significant developments since we initially spoke — the Biden administration having backed a temporary waiver to IP rights for the vaccines and the Gates announcing their divorce as well — I wanted to begin by probing Gates’s role in relationship to the pandemic a little bit.

Earlier this month you remarked that “the single individual who did the most to get us” to a situation of global vaccine apartheid was Bill Gates. Can you expand on that? How did we get here, and what was Gates’s role in all this?

CD

You have to understand where he’s coming from as a kind of ideological faith in IP. There’s this idea that you can just lie in a hammock and come up with ideas and other people will pay you rent on your ideas — and that this somehow produces the optimal outcome.

There’s a sense among the advocates for this way of doing things that it’s a pretty fragile belief, and there’s a lot of evidence that it’s not great — that it ends up like hurting a lot of people in the Global South and even people in rich countries who it’s supposed to serve. So they have a kind of all-out defense where anything that might weaken IP as an idea — and relatedly, the idea that there are people who are such brain geniuses that their ideas will generate rents that will make us all better off — or anything that smacks of disrespecting it as a concept has to be snuffed out immediately.

Gates is very much one of those people. And there’s probably some nexus there with software because software is the invisible product of the mind, and it travels at the speed of light and it self operates, so it lends itself to that ideology in the same way you had industrial factory owners who were fascinated by Taylorism and its idea of reducing workers to machine parts. This is Gates’s longstanding ideology.

The Oxford vaccine, which was developed primarily at public expense (as were the other ones — Operation Warpspeed was a giant public cash infusion, and the underlying mRNA platform had been publicly supported for a decade) was initially going to open all the praxis: the documentation, the patents, the fabrication details, all of it, because people will build factories all over the world, and across the globe you have regulatory regimes that can assess the quality of those factories.

The question that you need to ask in the pandemic is very simply: how do we get as much of this out there and into people’s bodies as quickly as possible? The Gates Foundation came along and convinced Oxford that they should instead do an exclusive deal with AstraZeneca, and the company, for its part, agreed to sell the vaccines at cost to the rest of the world.

Now, it didn’t make any promises about what kind of CapEx it would apply to building vaccine facilities. It didn’t say, “We are going to take all of the treasure that we have stored up, and we’re going to build as many vaccine facilities as there are materials to support so that we can ramp up our production.” Instead, they basically said: “We’re going to do as much as the irrational market demands. And then, when we’re done — when the vaccine is already in the arms of all the rich people — we’ll run them till vaccines are in the arms of the poor people too, which will take till about 2024.”

This is not a good idea for anyone, arguably not even their shareholders, because when you get infected you make copies of the virus over and over again: billions, hundreds of billions, maybe trillions of copies of the virus. Eventually, if you take enough of those small chances, you’ll probably get a variant that is more virulent, more deadly and vaccine resistant. And then, even if all you care about is your shareholders’ welfare, you’re still risking civilizational collapse and it’s hard to spend money after the civilizational collapse (like maybe they’ll somehow convert their winnings into poles they can use to dig through rubble to look for canned goods).

Gates also set up this other thing: COVAX, where rich countries and billionaires and companies could donate leftover doses to poor countries — like a UNICEF collection box at Halloween. Which, again: even by the standards of paternalistic elite philanthropy is so epidemiologically incoherent. You should really just want to get everyone vaccinated as quickly as possible so that the disease stops spreading.

Even if you don’t care about the lives of brown people, you do care about whether the Coltan mines keep running, and they’re not going to keep running if the countries are in the grips of wave after wave of an ever-more-virulent pandemic! You’re eventually going to have to change out the crew on your super yacht, and if you dock in the Philippines to do that, and your new crew has got a vaccine-resistant strain, you’re just LARPing The Masque of the Red Death at that point.

So it’s a really terrible way of going about stuff, even by the standards of Bill Gates: a billionaire dilettante who has set out to eradicate polio and also to eradicate public education.

LS

The Biden administration’s recent shift came in the wake of a worldwide campaign and was certainly a bit of pleasant surprise — though the administration notably took pains to emphasize its strong support for the global IP regime in general. How optimistic are you that the tide has actually begun to turn against Gates and the model that he’s been championing?

CD

I agree that this was a shocking turn of events, and people like David Sirota have been very skeptical about it. There’s some wiggle room in the weasel words of the declaration. But I’ve been in global IP circles for nearly twenty years now, and I’ve been in rooms with the US trade representative many times. I have never seen a USTR rep — let alone the head of the USTR — make a statement that was in the same galaxy as this one.

It’s like if Lindsay Graham came down off a podium and said, “Well I’m not sure about Critical Race Theory, but this is definitely a nation founded on white supremacist values and we have a real problem with structural white supremacy.” It’s hard to express what a Scrooge-showing-up-with-the-goose-on-Christmas-morning moment this is in terms of people who’ve spent decades fighting with US apparatchiks over equitable access to medicine and other lifesaving information.

I helped draft the Access to Knowledge treaty and helped work on the treaty of Marrakesh, which is a treaty on the rights of people with visual disabilities to access copyrighted works. I watched the US trade rep and reps from the association of publishers and stuff say: “Oh, sure, we think blind people should be able to read books, but is it really so hard to find volunteers in each country that speak English to do their own read-aloud edition of those books for people who have visual disabilities? Why should South Africa be able to import CNIB editions that were prepared by volunteers in Vancouver? Aren’t there South Africans who can read?”

So this is wild stuff for them to be saying now, though of course the proof is in the pudding.

Bill Gates meets with then–Secretary of Defense James Mattis in 2017. (Wikimedia Commons)

What do we get next? What does the agreement look like? It’s not like the WTO is a good forum. I’m not like a new Cold Warrior Sinophobe or anything, but I have watched a Chinese delegation play UN specialized agencies like a fiddle, and I’ve also watched the US do it. So this isn’t a slam dunk or anything, but it is a huge victory that we should leverage.

AOC saying “Next, do insulin” — that’s where we should be going with this instead of just saying “Look at all the weasel words.” I’m very optimistic about it or at the very least hopeful. I don’t generally brief for optimism — optimism is the fatalistic idea that things will get better no matter what we do, whereas hope is the idea that if we do stuff, maybe it’ll get better.

So maybe I’m not optimistic at all, but I am super hopeful that decades of blood and treasure and people dying in the millions of preventable diseases that they were not allowed to make medicine for because of the greed and venality and complicity of the US trade rep and the White House . . . that this is our moment to seize. So let us seize it. Let us take them at their word, and when they renege on it — as they almost certainly will — let us shame them and batter them and make the people who feel our hope enraged at them so that they are moved to it.

You know, Lincoln campaigned against abolition. If you listen to the Lincoln-Douglas debates, which everyone today says is the apex of American political rhetoric, they’re full of Lincoln going “black people don’t have the capacity for self-governance. Of course I’m not an abolitionist,” but then he was pushed into abolition by public sentiment.

We don’t have great men of history. We have malleable dunces who are pushed into good positions by public sentiment, and it’s our job to make that public sentiment.

LS

Gates is popularly understood as both a philanthropist and as someone who helped give us the home computer. But his fortune has in fact been intimately tied to the creation of software monopoly. Can you talk about the role that intellectual property has played in Gates’s career, in the creation of his wealth, and in his so-called philanthropic enterprises too?

CD

Gates first comes onto the scene with a letter he wrote as a petulant child to the Homebrew Computer Club — which was a very engineering-centric institution where people were building and inventing the computer as we understand it today. Gates’s letter basically says: “We all take each other’s code. That ends now.”

Gates gets his fortune because IBM had been subject to years of antitrust hell: every year for twelve years, IBM outspent the entire Department of Justice antitrust division fighting an antitrust claim. Finally under Reagan, they were let off the hook.

So IBM had spent years tied to the bumper of the DOJ, and one of the things they knew that the DOJ really hated was monopolizing software by tying it to hardware. So they made the PC, and they made it out of commodity parts so that it could be cloned. They sat back as Phoenix Computing reverse-engineered their ROM and started selling it to Dell and Gateway and Compaq so that there were compatible machines. And they said, “We’re not going to make the operating system,” and they went to Bill Gates and Paul Allen and asked them to make a DOS they could use for their machine so the DOJ would leave them alone.

That’s where Gates’s fortune comes from. He was in the right place at the right time, and his mindset — this idea of cutthroat competition, of no sharing, of no collegiality — allowed him to leverage the weakness of IBM’s own IP (its ability to control its critics and competitors and customers, and then impose his own).

Gates (right) with Paul Allen in 1970. (Wikimedia Commons)

He then does a lot of tying. He ties the ability to get Windows or DOS on your machine to an agreement not to pre-install rival products. He can sabotage the operating system, which he does through vertical integration: he sells you an operating system and a suite of applications that run on it, and then if you make a competing application, he can tweak the operating system. Excel, for example, had a long running competitor that was by all accounts better called Lotus I, II, and III. The motto at Microsoft was “DOS isn’t done until Lotus won’t run,” and every new release would just fall apart.

They had the ability to strategically snuff out rivals by bundling free versions of their products into the OS. So, in Toronto, there was a great software success story called Delrina that made the world’s most successful fax software. One day they started including free fax software with Windows, and no one ever bought a Delrina license again. That was the end of it.

So Gates was able to structure the market. He got to decide who could sell, what they could charge for it, what customers could see, what they couldn’t, what would run, how well it would run, and so on. He basically acted as a private commissar who would come up with a five-year plan to structure the market, which he could then command to conform to his parochial needs.

The fractures on the Right vis-à-vis this stuff are interesting, because there’s an anti-monopoly strain that likes the idea of the self-correcting market and is skeptical of market structuring, whether it’s done by the state or by dominant firms. There’s also an interesting argument to be had among leftists here, because if you’re skeptical that dominant firms will structure markets well, why be optimistic that individuals and ministries can structure them well? (And we can talk about democratic accountability and whether that makes them better at their jobs and so on.)

But Gates was able to do what everyone who’s dreamt of a command economy wanted to do: subordinate the individual priorities of other market actors to his needs to achieve a strategic goal, in this case for his own enrichment.

That went on until the early nineties, when there was the antitrust action that convicted him of being a monopolist. It was subsequently overturned, but he is a convicted monopolist and the antitrust action for him was not as unpleasant for Microsoft as it was for IBM.

I think for him personally — so long as we’re delving into the psyche of the young Bill Gates — it was very hard. One of the first pieces of viral video ever were the VHS recordings passed hand to hand of Bill Gates’ long and grueling deposition, in which a man who had clearly become very accustomed to being a tyrant whose judgment no one questioned was forced to put up with the impertinent questions of government lawyers, and who was within a hair’s breadth of just throwing things. It is an actual tantrum that goes on and on, and he looks like an asshole in it.

That got circulated pretty widely, and the internal accounts from Microsoft, as well as some of the things Gates has said afterwards, suggest that the personal trauma and the institutional trauma that Microsoft underwent there is what forestalled them from meting out the same to say, Google, that they meted out to Netscape. They could have crushed Google, since they had the OS-level market power, but they didn’t want to be dragged back into antitrust hell.

In 2019, Gates was being interviewed by, I think, Kara Swisher who asked: “Why didn’t you guys buy Android?” And he said, “Well, we were distracted by the antitrust action.” Android was for sale for seven years after the antitrust action ended. What he meant was that he was so traumatized, his PTSD was so keenly felt, that he did not want to risk the wrath of the DOJ by buying Android. (And of course, today we have Google as a monopolist that engages in wage theft from creators, that engages in fraud in the ad markets, and is able to structure all kinds of markets through its stranglehold on search and ads in the same fashion that Gates exerted in relation to operating systems.)

The Microsoft action was really the last gasp the DOJ had in it. But it’s been reinvigorated because reality has a well-known leftist bias, and if you don’t do stuff to enforce limitations on corporate power, corporate power monotonically increases.

Corporations are really bad at structuring markets: they structure markets to the parochial benefits of superyacht owners, and those priorities do not intersect with the priorities of an orderly state. The contradiction can survive for a while, but then you get a pandemic and, suddenly, the priorities of superyacht owners cannot be accommodated alongside the priorities of people who are dying of a pathogen.

LS

I want to probe the question of ideology a bit more. I think for various reasons, CEOs and the exorbitantly wealthy have become a folk demon in recent years. But I also think there can be a risk in looking at how a figure like Gates has behaved during the pandemic and seeing it as an issue of mere profiteering. You alluded already to his “Open Letter to Hobbyists” written in 1976, and it strikes me that profiteering is not enough on its own to account for the kinds of things that Bill Gates does. There is real belief here. There’s real ideological conviction and zeal.

I’m curious to what extent you think that the ideology is a product of Gates having had the trajectory and the career that he’s had, or whether it is it the other way round? Did Gates’s ideology precede his career? Ideology and pure acquisitive self-interest are clearly symbiotic here, but I’m curious how exactly you think that symbiosis plays out?

CD

When it’s railroad time, you get railroad barons, you know? I think that the underlying ideology of Gates is just right-wing ideology. And the definition of that that I really like comes from Corey Robin, who argues that the definition has been stable since the French Revolution.

The core idea of the Right is that some people have something that they’re born with that makes them better at being in charge — and that the world is well-ordered when those people get to boss around the people who weren’t born to be in charge. So the theory goes, if you artificially elevate someone who isn’t suited to being in charge, then things will go very badly. They’ll make bad allocations and everyone will be worse off, whereas if the right people are in charge, everyone is better off.

The point that Robin makes is that this is how you can group a whole bunch of ideologies that are otherwise incompatible under a single umbrella: you have Dominionists who are basically Christian nationalists; you have anti-war and anti-intervention libertarians who just want markets and want bosses to be in charge of workers; you have imperialists who want Americans to be in charge of the rest of the world; you have white nationalists, etc. The thing that they all ultimately share is the belief that some of us were born to rule, and some of us were born to be ruled over.

In that context, Gates’s ideology makes a lot of sense, because it is a belief that some people have the great ideas and, when their ideas are protected, they’ll make more great ideas. This is not an unusual line of thinking. This is Howard Rourke from Ayn Rand’s The Fountainhead: Give the great people their due, and they will produce a font of wonderful ideas. Every time I criticize Elon Musk, some dumb dumb comes into my mentions to say, “But he’s going to save us from the climate emergency! He’s Ironman! Tony Stark is here to save us in the climate emergency! He’s got satellites that will somehow fix our broadband problems!”

I think that’s what Gates is about too, and it explains his fury at the idea that other people might take the ideas that the good people came up with, because that’s like putting the fat-fingered proles in the manager’s chair and letting them decide how the factory is going to work. Well, they don’t understand! All they understand is how to screw on a widget. They don’t have the brain talent that it takes to run the factory!

It’s just another variation on an argument that we’ve had between the Right and the Left since the French Revolution.