Cory Doctorow: Terra Nullius

Cory Doctorow
Photo by Paula Mariel Salischiker

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.

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 (Friedlander defended the company’s actions and dismissed criticism as a “witch hunt” and “fake news”).

Eventually, the furor prompted Aloha Poke to issue a half-assed, self-pitying apology and to back off a little from its threats.

Reading that apology, 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.

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.”

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.

The sins of settler colonialism are rife with this kind of Lockean delusion. Terra nullius was a doctrine applied by all manner of Europeans to all manner of “new worlds.”

It’s also front-and-center in the most pernicious “intellectual property” debates. The parts of musical composition that Europeans reify – melody – are eligible for copyright, but the characteristically Afro-Caribbean elements – complex polyrhythm – are not. Hence, the Beatles could appropriate R&B progressions and rhythms to make new music out of, but woe betide the hiphop artist who samples the Beatles to make a new composition today. The Beatles worked with unimproved nature (R&B), while samplers are stealing the property of the Beatles’ record label.

But even though Lockean delusion is often wrapped in racism, “intellectual property” debates also contain equal opportunity erasure.

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 were 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.

They’re almost right, except for two things.

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.

The honest truth is Lockean Titans are a dime a dozen. In the alternate universe in which I never wrote a novel, other people, influenced by similar phenomena in the wider world, and by similar trends in our literature, wrote novels that filled niches comparable to mine. Ask any editor: books and stories come in clusters, and not just because people are copying what works, but because the thing that works is zeitgeisty and captures the spirit of the moment, and if something is the spirit of the moment, then it is broadly diffused and powering many peoples’ imaginations.

Being 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.

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 Lockean delusion and erasure to a catechism.

It’s not just the inventors and creators – fearing the indignity of penury 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 Ayn Randian hero is delusional: his (always his) 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.

The problem is that property frameworks – especially when applied to ideas – demand an unrealistic simplicity of title. Edgar Allan Poe invented the mystery story (at the same time as several other people were inventing the mystery story) but his invention has been improved in a myriad of ways by practitioners who had brilliant ideas (that other people in their cohort were also having). Organizing authorship around markets requires us to either given Edgar Allan Poe’s estate a royalty every time we write a mystery, or denigrate the value of Poe’s contribution to zero.

But we can have a complex, non-property way of looking at things. I wrote my books. They were hard work. I made real imaginative leaps that contributed to the field.

Also: I wrote them because I read the works of my peers and my forebears. If I hadn’t written them, someone else would have written something comparable.

All these things can be true. All these things are true. Originality exists, it just doesn’t exist in a vacuum.

The descendants of settler colonialists have done beautiful and kind things (amid ugly and brutal ones), and reconciliation with the indigenous peoples of the world does not require us to repudiate those achievements, only to acknowledge their context, the injustices that they were rooted in, and work to right those wrongs.

On the other hand, I can’t imagine eating at Aloha Poke anytime soon. I have no idea if it’s any good, but those people are a bunch of jerks.

Cory Doctorow is the author of Walkaway, Little Brother, and Information Doesn’t Want to Be Free (among many others); he is the co-owner of Boing Boing, a special consultant to the Electronic Frontier Foundation, a visiting professor of Computer Science at the Open University and an MIT Media Lab Research Affiliate.

This article and more like it in the March 2019 issue of Locus.

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4 thoughts on “Cory Doctorow: Terra Nullius

  • March 26, 2019 at 6:40 am

    Yes, it takes capital to make capital.

    If you’re the guy that owns the means of production, you hire inventors and make them sign agreements that their inventions are the company’s inventions. If you’re a popular writer, you hire ghostwriters to take your outlines and fill in the blanks.

    Alexandre Dumas employed several writers to put together his books and then he came along at the end and added flourishes. Shakespeare took popular plays and revised them–Romeo and Juliet was Romeus and Julietta more than 100 years before Shakespeare revised it.

    I’ve noticed that every couple of years, another Michael Crichton manuscript is “found.” I’ve been thinking of talking to his estate about “finding” another one of his manuscripts (a novel I write) and selling it as a newly-discovered Crichton novel. A few posters in the airports across the US later and I’d have my first best-seller.

    Watch–very soon, when AI masters literary styles and becomes a complicated enough thinking entity to pattern genuinely new stories, all the old literary masters will be rebirthed as AI. We’ll have a new book by Asimov and Heinlein each year. The AI-as-SciFi-grandmaster’s books will excel anything those two authors ever wrote while they were flesh and blood, and hardly in new talents will ever sell another book.

    For more discussion of science fiction, visit Rapid Transmission:

  • March 26, 2019 at 12:35 pm

    The Randian hero was not a creator or inventor or property owner, they were a producer. They wanted the ability to produce without the encumbrances of government intervention in their affairs. They did not want to be compelled to produce at the behest of an uninterested third party.

    I agree with the sentiment expressed that those who came before should be compensated for their property (not that many understood it as such, but they do now), but I don’t see a solution proposed for how those past misdeeds can be reflected in the current state of things. Unless your proposal would be to abolish property, in which case you are only perpetuating the notion of individuals not being compensated for their labors.

    As for IP as it relates to art/music: I’m with you 100%. But most artists and musicians are not.

    • July 16, 2021 at 3:41 am

      The idea that First Nations didn’t ’understand’ property is a long discredited Rand fantasy. In addition to individual ownership of land, there was corporate and municipal ownership, depending on what part of the Americas are under discussion.

  • April 15, 2019 at 6:01 am

    Interesting, but a little “graspy.” Locke’s formulation of property wasn’t perfect, but understand what he was up against – the practical reality and intellectual underpinnings of absolute monarchy, often using the language of religion in its own defense. Locke did yeoman’s work arguing in many cases from premises supplied by his opponents for conclusions that supported freedom of thought, freedom of property, freedom of religion / conscience. Locke was insightful in understanding the link between the three (if you have means of self-support and space, others can’t control you as readily … ask Virginia Woolf).

    Locke’s formulation worked well in England, where it was underwritten by centuries of common law. And it worked well in trade (where he was involved) because identifying involved parties is pretty easy, and in most cases so is internalizing costs.

    Locke’s formulation didn’t export so well to the “New World” in part because it wasn’t new, but the traditional Anglo markers of “mixing labor” didn’t apply to the natives. These conflicts are near-ubiquitous when cultures / legal systems collide, or when paradigms don’t mesh (Locke applied to IP, as Doctorow notes, isn’t great b/c the relatively simple exclusion / permission principles applied to a piece of land or bushel of grain don’t work so well for ideas). Even legal systems with Lockean origins have big issues. Look at rural land use – “empty land” (not so much mixed labor) is often the first targeted for eminent domain for “public purposes” (typically with a private beneficiary behind the scenes), when it’s not empty. But things like watershed, green space, grazing space, fallow fields, habitat, etc … to an untrained (or poorly motivated) eye, look just empty.

    Feels like this one needed another week or so in the hopper to get formulated.


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