Foucault and copyright?

[sawyl]

One of Foucaults preoccupations in Discipline and Punish is the shift from the harsh, body-centred, torturous public executions of the 17th century to the more humane punishments of the 19th century and beyond.

In this excerpt, Foucault links the shift in punishment to the shifts in landownership and commerce that occurred during the industrial revolution, citing Patrick Colquhoun's A Treatise on the Police of the Metropolis as evidence:

The transition to an intensive agriculture exercised, over the rights to use common lands, over various tolerated practices, over small accepted illegalities, a more and more restrictive pressure. Furthermore, as it was acquired or preserved (the abandonment of old obligations or the consolidation of irregular practices: the right of free pasture, wood-collecting, etc.) were now rejected by the new owners who regarded the quite simply as theft (thus leading, among the people, to a series of chain reactions of an increasingly illegal, or, if one prefers the term, criminal kind: breaches of close, the theft or killing of cattle, fires, assaults, murders (cf. Festy and Agulhon). The illegality of rights, which often meant the survival of the most deprived, tended, with the new status of property, to become an illegality of property. It then had to be punished.

And this illegality, while resented by the bourgeoisie where the ownership of land was concerned, was intolerable in commercial and industrial ownership: the development of the ports, the appearance of huge workshops (with considerable quantities of raw materials, tools and manufactured articles, which belonged to the entrepreneurs and which were difficult to supervise) also necessitated a severe repression of illegality. The way in which wealth tended to be invested, on a much larger scale than ever before, in commodities and machines presupposed a symmetric, armed intolerance of illegality. The phenomenon was obviously very evident where economic development was most intense. Colquhoun set out to give proof, supported by figures, of the urgent need to check the innumerable illegal practices that had grown up: according to the estimates of the entrepreneurs and insurance companies, the theft of produce imported from America and warehoused along the banks of the Thames had risen, on average to £250,000 per annum; in all approximately £500,000 worth of goods were stolen each year in the Port of London itself ( and this did not include the arsenals and warehouses outside the port proper); to this should be added £700,000 for the town itself.

Foucault, M., (1977), Discipline and Punish, Trans. A. Sheridan, Penguin, 85–86

Regardless of the merits of Foucault's analysis, what strikes me is how closely his description mirrors the current fuss over copyright and intellectual property. For wood collecting, simply read fair dealing, for free pasture read limited terms and for smuggling read piracy.

It's also interesting how closely Colquhoun's descriptions and analysis of the problem — which I haven't bothered to reproduce, interesting though they are — mirror much of the entertainment industry's descriptions of piracy and illegal copying. Strikingly Foucault concludes, again citing Colquhoun, with the comment, "the pilferers themselves regarded their work as a kind of smuggling, which 'they did not regard as a serious offence'." How little things seem to have changed.