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About The Author

Shraga F. BiranShraga F. Biran

Shraga F. Biran is the founder of one of Israel’s leading law firms and an entrepreneur specializing in energy and international real estate. He lives in Tel Aviv.

photo: © Vardi Kahana

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EXCERPT

1
 
Opportunity Has Never Had an Opportunity
 
The world is on the brink of a new economic and social era. The changes taking place are so fundamental that they point to the emergence of nothing less than a new civilization in which human intellect and creativity will be the central source of wealth and prosperity for all. Few have recognized its scope and profound significance for the economic, social, political, legislative, and regulatory changes that it will entail.
We want to revitalize the classical ideas of private property and public ownership to provide an economic spark and a lasting sense of social justice. Among the basic arguments of this book stands the proposition that the promise of equal opportunity has failed its market tests—as it was bound to do when the game was fixed in advance—and that the way to attain real equality of opportunity is by increasing the depth and distribution of individual assets to help create an economic base for more people to participate in the world of opportunity. There are more than enough intellectual resources throughout the world for the competition to be open to everyone. Our goal is to develop the concept of “opportunism” for exploiting situations and not people, and to demonstrate that it can become a feasible strategy for shaping a new system to replace the financial capitalism that has failed us. It is based on the idea of opportunity: an unanticipated conjunction of circumstances and events, capabilities and advantages, that opens the door to possibilities—a situation that is in itself a positive achievement or a means toward attaining a goal.
At the heart of the evolving political and economic structures described in this book are new forms of property, including intellectual wealth. This property is no longer the product of natural resources transformed by labor and capital but of human capital alone; culture and education, rather than being dependent on capital, have become its wellspring. Within this structure exist new possibilities for collaboration among the producers of the new wealth, most of which is the product of innovation. Wealth is increased not only by the exploitation of existing property but also through the creations of the human intellect. Defining new wealth in this way enables us to define the spirit of this new era as one of opportunism and its component parts as creative opportunities. Can such a structure be described as “capitalist”? It is our contention that there now exists a rare opportunity to change the economic rules of capitalism and ground them in intangible assets as the basis for the distribution of as-yet-undistributed wealth. But if entrenched wealth holds on to its power to appropriate these new assets, then we will have missed our chance, and the flawed system of capitalism will simply continue as before.
Thus it is a principal objective of this book to develop the idea that there now exists an opportunity to implement a series of reforms that would reshape existing political structures by creating new institutions of property and the wider accumulation of wealth. Among them will be an online Idea Bank to register and display nascent scientific and technical ideas so other individuals and companies can build on them while still allowing the original creators to share in any eventual profits; this type of community effort is impeded by our archaic system of patents, which protect devices but not ideas. We also propose a Public Market for Private Goods, another type of exchange to stimulate the development of social, political, and humanitarian thought by writers and thinkers who are not ready or able to copyright and publish their ideas but want them protected as they begin their life in the marketplace. A further opportunity arises from the way that the information revolution has become a catalyst in the distribution of wealth. The rights to all these intellectual assets must be agreed upon in negotiations between the creators and the beneficiaries and supported by new social institutions through legislation. I call this process social privatization. The creation of this new form of property could produce the infrastructure for the creative individual who lacks the resources to compete in shaping his own opportunities.
Opportunity has never before had the opportunity to demonstrate its own positive worth despite investigation in the context of politics, philosophy, and economics. This book aims to analyze opportunity and opportunism as topics that deserve independent study. The random use of the terms opportunity and opportunism, and especially the tendency to treat them separately, is misleading. In fact, opportunism is the theory of opportunities. As we will show, this theory, with its mixture of philosophical and economic implications for a variety of legal structures, also embodies a number of meaningful social applications that can lead to progress and abundance for humanity as a whole.
As the world has moved away from the limitations imposed by the scarcity of natural resources, the horizons of opportunity and indeed of human freedom itself can reach levels undreamed of by earlier generations. The focus on individual intelligence, social skills, and artistry will come to define this new civilization. Investment in human welfare and education will mark our era for its ethical and humanitarian considerations that transcend sheer materialism. Cooperation and group collaboration will replace a culture of self-interest—if we are wise enough to put in place the right social regulation and institutions and to stimulate individual development.
The nature of assets, wealth creation, and the very meaning of capital are once again undergoing a process of fundamental change. Capitalism is nothing if not flexible, but today it is making an unprecedented move from reliance on material assets to the central importance of human intellect, its skills, and its infinite resourcefulness. As the asset base of the new economy moves from tangible physical property to the intangible products of the intellect, the legislative and regulatory framework as well as the institutions governing intellectual property need to be redefined to realize enormous benefits to society. These new ground rules must also enable those responsible for the creation of wealth to share equitably in the fruits of their own labor.
Since my earliest youth in Eastern Europe before World War II, I have grappled with the notion of destiny and believed it is possible to overcome adverse circumstances. Even if my fate seemed to be sealed, I would confront and challenge it, then go my own way. I never believed that success depends principally on luck or that it is determined by fate, nor that life offers opportunities only to the fortunate few. I strove to create possibilities for myself and cultivate conditions that by their very nature would bring me to what I very much wanted to achieve: in other words, my own opportunities. I wanted to shape them into something different and unexpected to exploit my own abilities. I believe other people can do the same. And I believe that if many do so, the world can be made better.
Although the genesis of my country in a historic tragedy is very different from that of America’s, there are also surprising parallels. The pioneer settlers in America arrived to found a new kind of society based on ethical principles in the Christian Bible. Just as they carved their settlements out of a wilderness, the early settlers of Palestine drained marshes and watered deserts in communal enterprises known as kibbutzim. Israel was conceived as a refuge for the persecuted; every American colony north of the Virginia slave planations except one was also a place of religious refuge. The sole exception was New Amsterdam, founded as a commercial enterprise and still the nation’s economic center. Like me, millions came to both places in the hope of freer and fuller lives, to build a new society and seek their fortunes.
In Palestine, before Israel’s independence, the great social experiment of the kibbutz was the commune of its day; property was owned in common, and even children were raised by the group. On this base was constructed a state with a raging desire for survival: we knew we would have to fight for it, and it is no accident that the greatest of our military leaders came from the kibbutz movement. But no one of any imagination and will can submerge his personality in the group forever. Gradually, individualism began to assert itself. The communes began to go their own way, and their members did too. Now both societies are preoccupied not only with their past but their future. But as societies that are not ruled by a fixed philosophy, they have alternatives. This is what I call positive opportunism. We are learning how to create our own opportunities, for even if some still think of ourselves as the Chosen People, we know that God will not always provide. We must seize the main chance for ourselves and for our less fortunate brethren.
We cannot—indeed, we dare not—abandon our conviction that economic polarization and widespread poverty are unacceptable. We must find ways to share global wealth more widely and to give more people access to education, health care, and a better life. The problem was cast into high relief by a half century of technological achievements that have vastly increased individual survival rates and global wealth while leaving so many in conditions of shocking deprivation. Such wealth and achievements were supposed to level out the world and make opportunity available to all. But a system that was supposed to last forever suddenly collapsed, and today it once again seems that fate does not determine the fortune of peoples, but that people determine their own fate.
My presumption in writing this book is based on seventy years of hard work. In 1940, when I was less than ten years old, I crossed the frontier created by the Molotov-Ribbentrop Pact. I did so with the help of a Nazi officer in exchange for one of the biggest cellars of mature vodka in Poland. Later, the NKVD placed me in a solitary cell in the fortress of Brest Litovsk in an attempt to compel me to divulge how I’d managed to cross. I made myself out to be an Orthodox Christian, a messenger of the Messiah on earth, praying in front of the village’s icon. I experienced the boundless happiness of triumphing over deadly hunger, targeted murder, and torture. In the spring of 1944, as the winter ice melted and the forest began to sprout in all its colors, we left it all behind, and contrary to the expectations of both enemies and friends, entered the main square of the capital of the Rovno region as victors. Improbably, I had remained alive. I was always aware of the need to disconnect from the experiences of the past and focus solely on fighting for my future. And yet, the thought was always in my mind that perhaps my life experiences could also serve those who have not yet succeeded in seeing their own way. After surviving the catastrophe of wartime Europe, I devoted the bulk of half a century to a legal practice, taking on cases fighting social injustice and ethnic discrimination, and advocating structural reform in granting rights to the poor to property opened up by slum clearance and urban renewal. In this book, then, I also attempt to dismantle the ideology of determinism and to extol individual opportunism: not the kind that views opportunity as a zero-sum game, which ends with every winner taking from a loser: this is negative and despicable. I mean opportunism empowered by free will; it drives an individual to shape his own fate and by doing so creates the ability to create opportunity itself.
As the years have passed, many dreams of a new world have been shattered. Ideologies that promised plenty to millions turned out to be illusions. Soviet communism collapsed. Capitalism, although it boosted efficiency and production to undreamed-of levels, never eliminated poverty, did not prevent two world wars, and once again has fallen victim to its own destructive system. The Western welfare state, which half a century ago seemed to be full of promise, has found itself facing a huge fiscal gulf; its apologists cannot admit its limits. And while globalization has opened vast opportunities and increased the wealth of nations, it has left vast numbers in privation and ignorance.
From the 1980s onward, an ideology of deregulation, privatization, and unlimited confidence in the free market spread throughout the world. It is not necessary to offer a deep analysis of the financial crash of 2008 to understand that it was not merely the result of mismanagement but the latest in a series of increasingly severe upheavals that were bound to occur in such a system after regulation was lifted and wise management reviled. The essential failure of unchecked capitalism was proven by the fact that the financial system was not self-correcting, as claimed by its chief ideologues and executors, from the chairman of the Federal Reserve to the chairman of General Motors. On the contrary, the system had to be bailed out not only to keep it from collapsing but to save the workplaces of the very employees whom the system had abused. In a reversal of Ronald Reagan’s famous free-market mantra, government was no longer the problem, it was the solution.
During the thirty years when the government publicly stepped aside, workers’ incomes stagnated and their assets actually declined. Households could not afford the goods churned out by global capitalism—at least, not without plunging deeply into debt. Individuals rarely felt secure enough in their jobs or their wealth to risk their assets in order to advance themselves and expand the economy. Productivity almost doubled, but the huge gains in productivity were not shared: they went almost exclusively to the owners of capital and not the workers who were instrumental in this improvement in efficiency, many by yielding their jobs to cheaper workers overseas and accepting work that paid less, simply in order to stay alive. They were not invited to the party, only asked to share in the cleanup costs as taxpayers.
During that era, there was a startling shift in the nature of wealth creation and the core definition of capital, a shift that passed largely unnoticed by the ideologues of the marketplace. According to the Brookings Institution, tangible assets on the books of the five hundred largest American companies ranked by Standard & Poor’s represented two-thirds of their market value in 1982. Heavy industry was defined by what it looked like: huge plants and heavy machinery. By 1998 this ratio had been more than reversed: tangible assets represented only 15 percent. The rest were intangibles based on intellectual property, such as information technology, biotech, financial services, and the alike. A close examination of all companies reveals many intangible assets, including patents, licenses, brand names, in-house software, manufacturing and management methods, customer and supplier relations and arrangements, and employee knowhow.
Wealth has come from the human brain since James Watt’s steam engine changed the nature of work more than two centuries ago. Even in the predigital world, the principal source of wealth has been brainpower. At first, money was made mainly from processing coal and iron and other natural resources, but now it literally comes from a grain of sand processed into a silicon chip and an integrated circuit. Google is valued in the billions by the stock market, but most of its value is in intangible assets, such as mathematical formulas, and very little in its buildings and computers.
This situation points the way out of capitalism’s dilemma: how to distribute more income to reignite demand without taking on the politically impossible and economically damaging task of redistributing old wealth. My proposition is this: We are not calling for a redistribution of the established assets that are already firmly held; we want to distribute new wealth—assets held by the state and produced by its regulatory powers. We must expand the ownership of intangible assets that have been the principal recent source of wealth. These are infinitely expandable because they are the product of brainpower. Moreover, this intellectual property has been amassed during the past generation and now can be integrated throughout society in a way that old wealth cannot be wrenched from private hands without creating a political and social upheaval.
But for most of humankind, the path to opportunity is blocked, and the idea of equal opportunity is a hollow slogan and a poor substitute for actually reducing inequality and poverty. For opportunity to have meaning, ordinary people must be given basic human infrastructure and capabilities: quality education and physical capital, either in the form of property or access to credit. All that is possible, if we are wise enough to write new laws and build social institutions with the principal aim of stimulating individual development at all levels of society. Doing so will enable the creators of the newly generated intellectual wealth to share it more equitably, because property with a high intellectual content has a unique attribute: use increases value. The more people read a book, adopt a computer program, or listen to a song, the more it becomes both useful and profitable. The creation of intellectual property enables us to escape from the old economy’s dependence on processing raw materials to make goods that eventually had to be replaced. Property law must be modernized to take account of a totally new type of wealth, which is virtual in nature but eminently tradable. The increasing importance of intangible property as a component in the wealth of nations—now perhaps the single most important component—enables us to consider the democratization of property.
The Bayh-Dole Act of 1980 shows how intellectual property can be democratized; it is an example of social privatization at its best. By allowing the transfer of government-funded inventions to universities and encouraging the institutions to develop and commercialize the ideas that come from their own laboratories, this pioneering legislation demonstrated that state property can be widely distributed to increase overall wealth. While one need look no further than the Pentagon-funded Internet, testimony before Congress in 2007 reviewing the performance of the law over a quarter century detailed its profound impact. The former president of the NASDAQ, where the stocks of most new companies are listed, reckoned that approximately 30 percent of their value on the exchange was rooted in university-based research funded by the federal government and might never have been realized but for Bayh-Dole. Other witnesses testified that as a direct result of this legislation, 260,000 new jobs had been created, 5,000 new companies based on university research had been formed, and during the previous ten years alone almost half a million new products had entered the marketplace from these companies. The benefit to the U.S. economy was estimated at $40 billion annually. The Bayh-Dole Act and the nineteenth-century American model of distributing government land as homesteads are historic examples of the potential of social privatization to distribute state-owned assets—both physical and intellectual—in a way that creates income and wealth and reduces inequality and poverty.
*   *   *
Legal recognition of a new form of property could produce the infrastructure for the creative individual who in the present economy lacks the resources to compete in shaping his own opportunities. I therefore stress that opportunity is itself a form of property. The elements of what is sometimes called a “second economic revolution of the intellect” can form a new platform for wealth creation and distribution carried out in the framework of legal and institutional reform to acknowledge new kinds of property rights. Armies from opposite sides have attempted to colonize what now is a legal wilderness. Major players with old and new money are attempting to monopolize intellectual property. In most of the world, with the exception of Japan and Germany, the rights to an invention developed in the workplace do not belong to its creator but to his employer. Blocking individual ownership enables old capital to capture new ideas by using patents to transform them into property rights that block others from elaborating on intellectual discoveries. Opposing this system are movements with the battle cry “information wants to be free!”—contemporary Luddites who refuse to accept that ideas can become individual assets but belong to all. Each camp in its own way would stifle the opportunity for creativity and the profitable spread of innovation. The dilemma is that while ideas need to remain freely accessible to everyone, a system must be developed to guarantee rights to the creators if and when those ideas eventually become the generators of wealth, a process that can take decades.
*   *   *
To place opportunism on society’s agenda, its reputation must be redeemed by examining the genesis of the concept. The word derives from the Latin opportunus, which itself derives from the words ob and portus or “toward port,” used by seafarers to describe a favorable wind bringing them to their destination. The opportunists were those who did not choose a specific destination but sailed the way the winds were blowing. Later on, opportunism took on a general meaning of convenience from the points of view of time, place, and circumstances. From this came the word opportunity. In the nineteenth century, opportunism took on a negative connotation: conduct meant to exploit opportunities without concern for ethical principles.
I will try to restore the positive meaning of the original by viewing opportunity as a generator of value. Nascent ideas are opportunities that should enjoy the same protection as settled intellectual property. This would help stimulate progress and produce abundant benefits to the economy and to political and cultural life. But opportunity has never had an opportunity to prove itself as an active creator of wealth and social justice—only as a potential pathway for individuals.
I see opportunism as a theory of opportunities. It seeks to define opportunity as an idea and to develop a method of realizing specific opportunities. The aim is to accumulate added value: knowledge succeeds by the manipulation of elements from nature to discover systems and produce technologies based on them. I also draw a distinction between creative opportunity and banal opportunity. The latter arises by mere happenstance; in contrast, creating an opportunity as an innovative process is an ethical act because it is democratic and open to anyone, not just the fortunate few. In saying this, I set apart those eruptions of sheer genius that have advanced humankind. But such genius is confined to its possessors and cannot be considered opportunity for the many, even though they benefit from it immensely.
Partly because of such genius, we are living in an era of extraordinary opportunity. This raises many questions about the nature of opportunity. Is it because globalization of commerce and finance, underwritten by the information revolution, has opened up opportunities at obscure and distant locations and in real time? Are more opportunities available today than at the dawn of the Industrial Revolution, when the steam engine replaced brute labor and for the first time opened the possibility of freeing human beings to capitalize on their unique gift of abstract intelligence? Is opportunity a purely human phenomenon, or does it also exist within systems in other natural organisms? Does opportunity vanish at the moment it appears unless it is immediately identified and realized? Do lost opportunities ever return? Can the circumstances of a missed opportunity be reproduced to create a new opportunity? Can a methodology be created—perhaps even mathematical models built—to predict, identify, and even preserve an opportunity? Does the prediction of opportunity and its realization require rational thought, or is it entirely a matter of intuition and imagination?
We cannot answer these questions with certainty, but we can seek the counsel of recent history. At the beginning of the twentieth century, most wealth was derived from physical property and the capital invested to develop it: land and its agricultural and mineral products; industries to process them; railroads and ships to transport the refined goods; and profits to those who had funded these huge enterprises. Now the decisive factor in the wealth of nations is the rising proportion of intangible human wealth and not just natural resources like mountains of metallic ore or amber waves of grain. Our age is characterized by the expansion of the creative classes: scientists, engineers, architects, designers, writers, musicians, and any person who uses his or her creativity as a central element in his or her work. This increased weight of human capital can make wealth grow from below—from the brains that function in flexible frameworks, and not the rigid hierarchy and broad backs of people that characterized the process industries from the early nineteenth to the late twentieth centuries.
Industries that capitalize on the discovery and movement of information account for most of the growth in wealth and income. The broader the access to information through inexpensive communication networks like the World Wide Web, the greater the proportion of educated workers who are exposed to ideas, media, culture, services, and other people with ideas to share. The more widely spread this access, the broader the opportunity for the intellectual raw material to become a source of income and wealth. The new economy makes it possible for the many and not just the few to identify opportunities and seize them. At the turn of the twentieth century, robber barons and their bankers traded information about the industrial reorganization of the nation in the narrow circle of their private clubs. At the turn of the twenty-first, two Stanford University computer engineers, one the child of immigrant refugees from communism, devised algorithms in their garage enabling people to access vast libraries of information and create specialized maps of the world.
Through such opportunity, an individual can convert this intellectual property into something like a physical asset that he can possess as its owner; he can be protected through trademarks, patents, copyrights and contract law, all of which have evolved to protect private property. This protection is not universal, and in some countries it is not even fully enforced. The institutions of private and intellectual property can nevertheless constitute a legal framework for the protection of the novel elements of opportunities that create new arrangements, new combinations, new systems that create wealth.
In an age when the role of this new property and creativity has grown, the exploitation of opportunities is gradually supplanting the exploitation of human beings. The huge growth in global wealth should have been able to meet humanity’s basic needs. But the majority of the world’s population lives in poverty: the World Bank estimates that 1.4 billion people live on one dollar a day. We can make a more abundant life available to all by negotiating a more equitable ownership of the new intangible property and sharing unappropriated national assets.
To Americans, sharing may seem like some alien kind of socialism, but perhaps that is because so few realize that their country long ago shared its original wealth among its citizens in a unique and communitarian manner. America’s prosperity is literally founded on sharing out its great gift of free land and resources, principally in the middle of the nineteenth century. Gifts of government land subsidized construction of the railroads that knit together the continent as a single trading unit. Under the Homestead Act of 1862, a quarter section of federal land was available to settlers who were willing to farm the property; it was raised from 160 acres in 1862 to 460 acres in the Stock-Raising Homestead Act of 1916. The land became theirs if they were still farming it after five years. As Thomas Jefferson had foreseen, “distribution of the public lands to the landless so they could become independent farmers would … assure the preservation of the American republic and avoid the excesses that might arise from a turbulent population that had no stake in the land.”
Thus, the Jeffersonian ethos of what we now call “sweat equity” represents the moral and political basis for the claim that American households are eligible to share in both the physical and the intellectual fruits of their country. Anticipating the knowledge-based economy of the late twentieth century, grants of public land also underwrote the founding of the great state universities that spread the arts and sciences to the newly settled areas of what would soon become the richest capitalist nation in the world. And the task is never finished. Poor slum dwellers—and homeowners recently victimized by rapacious lenders—could be assisted in obtaining affordable mortgages to remain in their own homes, or offered the chance to regain them. This would help ease the social problems of poverty. That is part of our answer; social planning and social privatization as tools for creating new private property rights are among the ways to realize it.
But private property is an essential prerequisite. This entire discussion of positive opportunism stands opposed to ideologies that purport to offer all-embracing solutions to the fundamental problems of humanity. In practice, these have turned out to be utopias of the left and right that postpone the fulfillment of their promises to the unforeseeable future. One of the latest is pure environmentalism, which fails to integrate and balance the needs of society and especially the poor against the obvious need to protect the natural world from irreversible damage. But the pressing needs of today must come before the unknown needs of future generations, and our opportunities lie in the present. Making the most of them requires, first, understanding by the public, and then action by its elected representatives. The aim of this book is to remove opportunity from the realm of luck and fate and place it squarely within the realm of creative and practical action.


 
Copyright © 2011 by Shraga F. Biran

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