If Intellectual Property Is Neither Intellectual, Nor Property, What Is It?
from the rethinking dept
Continuing my ongoing series of posts on "intellectual property," I wanted to discuss the phrase itself. It's become common language to call it intellectual property, but that leads to various problems -- most notably the idea that it's just like regular property. It's not hard to come up with numerous reasons why that's not true, but just the word "property" seems to get people tied up. There are some who refuse to use the term, but it is handy shorthand for talking about the general space.
The main reason why I have trouble with the "property" part isn't just the fact that it leads people to try to pretend it's just like tangible property, but because it automatically biases how people think about the concept. As I've written before, the very purpose of "property" and "property rights" was to better manage allocation of scarce resources. If there's no scarce resource at all, then the whole concept of property no longer makes sense. If a resource is infinite, it no longer matters who owns it, because anyone can own it and it doesn't diminish the ownership of anyone else. So, the entire rationale for "property rights" disappears.
Even if you buy into the concept of property rights for intellectual output, a look at the history of property rights suggests that the laws are eventually forced to reflect the realities of the market. Our own Tim Lee just wrote up a masterful comparison of property rights in the early United States to copyright laws, noting how property rights in the US needed to change based on usage, rather than forcing everyone to follow the in-place rules. It's not difficult to see how the same may happen when it comes to "intellectual property" as well, if various companies who rely on those laws don't recognize the realities they face.
However, if we don't want to call it "intellectual property" what should it be called? Here are some of the contenders that people toss out:
- Intellectual Monopoly: Popularized by economists David Levine and Michele Boldrin, who have a fantastic (and well worth reading) book called Against Intellectual Monopoly. As they point out, patents and copyrights really are monopolies much more than they are property rights. In fact, as we noted early on, that's exactly how Thomas Jefferson and James Madison referred to the concepts when discussing whether or not such monopolies should be allowed by the Constitution.
- Intellectual Privilege: This one is being popularized by law professor Tom Bell, who is working on a book by the same title. While this is nice in that it retains the "IP" designation, it's also a bit cumbersome and requires a pretty detailed explanation for anyone to understand. For that reason, it may have a lot of difficulty catching on.
- Imaginary Property: Another one that retains the "IP" designation, and is growing in popularity on some blogs. It's also a little troublesome because it's probably the least accurate (and may also imply something entirely different than copyrights or patents). It gets rid of the "intellectual" part, and keeps the property part, even while calling it imaginary. But, intellectual output isn't imaginary. It's very real. That doesn't mean it's property, of course, but imaginary property may set people off in an entirely different manner.
- Others: Other suggestions are even less common, but deserve to be mentioned as well, if only briefly. There's use monopoly. Richard Stallman has suggested and rejected Imposed Monopoly Privileges (IMPs) and Government-Originated Legally Enforced Monopolies (GOLEMs), which are cute, but... not very practical. Some have even tried to tie the concept more closely to the "Promote the Progress" constitutional clause -- though, that really only covers copyright and patents. Besides, you again have the problem of it being cumbersome.
- None of the Above: There's definitely something to be said for voting for none of the above and clearly separating out each of the different types rather than lumping them all together into a single bucket.
Links to other posts in the series:
- On The Constitutional Reasons Behind Copyright And Patents
- Patents, Copyrights And Trademarks, Oh My!
- If Intellectual Property Is Neither Intellectual, Nor Property, What Is It?
- What Kind Of Progress Are We Promoting?
- Why Do Patents Tend To Cause More Harm Than Good?
- The Case For And Against Software And Business Model Patents
Reader Comments (rss)
(Flattened / Threaded)
anecdote
Shit, posted this to the wrong thread... was so f****** angry
A lecturer gives a presentation at some remote kibbutz
"This is a skull of Karl Marx when he was 8..
and this is a scull of Karl Marx when he was 15.."
A question from the audience:
Excuse me, sir, how can one man have two sculls?
"Where are you coming from, fella ?"
From academia, sir
"Then get the f*** out of here, go back to your academia, this is a lecture for retarded kibutz workers !!!!"
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Imaginary property
I imagine you realize that at least some of us who are calling it "imaginary property" are doing so in a deliberate attempt to inspire ridicule of the very idea that ideas can be owned. The current uses of patents and copyright descend to the ridiculous all too often, and that point ought to be driven home, hard and often.
I suppose that you want your analyses and recommendations to be taken seriously and fear that adopting a term of ridicule will make that harder. Do what you think you should, but sometimes you need to figuratively slap people in the face to get them to pay attention. Calling it "imaginary property" might just be the slap in the face that some people need.
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Re: anecdote
Wow. That makes no fucking sense at all. I think you're impersonating the real angry dude: Usually he's coherent (in my experience) if wrong (in my opinion).
This is not coherent. What does Karl Marx have to do with anything at all? It feels really, well, surreal, and perhaps a bit detached.
And if you ARE the angry dude: Didn't you say you were leaving? I know you have better things to do with your life then argue with people on the net, trying to convince them of a point by insulting them.
That's not at all the right way to convince someone of a point: The way to convince someone is to look at things from their perspective, and to use their own thought processes against them, proving to them, from their base assumptions, their position is wrong. Or to prove conclusively that their base assumptions are wrong.
Many people argue poorly on the internet: Myself included on bad days. I really wish people were better at debate and argument. I'm suck and tired of loud, angry, nuts with extremist positions on the left and right. I want to hear from the silent majority.
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Mike, I agree with KD.
The first time I saw the "Imaginary Property" variant of IP, I immediately understood it to be pejorative with a ridiculing connotation.
I just wish I possessed the linguistic talent to distill "A largely problematic and burdensome group of laws that allows and encourages adults to behave like overly territorial children in respect to ideas and expressions." down to a few well chosen words.
Please keep writing on this topic, Mike.
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Infinite Goods Tied to Finite Goods
This has always been the point where I stumble in discussing this topic, perhaps someone can point me in the right direction.
Granted- "If a resource is infinite, it no longer matters who owns it, because anyone can own it and it doesn't diminish the ownership of anyone else. So, the entire rationale for "property rights" disappears."
That is understood, but the issue as I understand is when tangible property is employed to create this infinite resource. I call it: Artists need to eat. Namely by not granting this "monopoly" to the creators we are disincentivizing the creation of these goods in the first place. For instance why would musicians try to create and sell music if instead it is swarmed through the torrent network gratis? Why should a musician bear the cost and the risk of creating music with no expectation of a return on their investment?
Though I loathe the inefficiencies begotten by DRM and copyright litigation, I admit that I am unable to understand how we would else incentivize the creation of creative goods in the first place. Lessig's panacea of Some-rights-reserved seems to fall flat when a risk-averse author decides to reserve all rights because what do they stand to lose by doing so?
Another alternative frequently mentioned on TD is the idea of leveraging complimentary services or goods which are finite. Perhaps I am cynical when I envision artists suddenly writing songs exhorting fans to buy more t-shirts, drink Pepsi and buy Good-Year tires. It suggests that we are incentivizing an inferior goal (I am not suggesting that ads are bad, just thinking that musicians make lousy ad-men)
Hopefully I am completely missing the point and someone can correct my assumptions or conclusions. Because I want to believe the credo of a new economy centered on infinite resources.
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Re: Infinite Goods Tied to Finite Goods
That is understood, but the issue as I understand is when tangible property is employed to create this infinite resource. I call it: Artists need to eat. Namely by not granting this "monopoly" to the creators we are disincentivizing the creation of these goods in the first place. For instance why would musicians try to create and sell music if instead it is swarmed through the torrent network gratis? Why should a musician bear the cost and the risk of creating music with no expectation of a return on their investment?
The faulty assumption here is the idea that artists aren't able to eat when they adopt these models. As we've pointed out repeatedly here, adopting these models actually expands the ability to eat, by making the artist more popular and more able to drive revenue through alternative models, which often pay much better than the old models.
The "risk" of creation is actually less under this model. Under the old model the chance of making any money from being a musician was quite low. With this model, you can be profitable with a much smaller number of fans and you don't need to sign your life away to a label.
Another alternative frequently mentioned on TD is the idea of leveraging complimentary services or goods which are finite. Perhaps I am cynical when I envision artists suddenly writing songs exhorting fans to buy more t-shirts, drink Pepsi and buy Good-Year tires. It suggests that we are incentivizing an inferior goal (I am not suggesting that ads are bad, just thinking that musicians make lousy ad-men)
There are two faulty assumptions here. First is in thinking that the complementary goods need to be tangible trinkets, and second is assuming that those complementary products are incidental to the main part of the artist's business. As we've pointed out, the biggest "scarce" resource for a musician is the musician themselves. So they sell *access* not t-shirts. They sell concert tickets (scarce). They sell the ability to write a new song (scarce until created). They sell the ability to have a private concert or backstage passes or anything along those lines.
Then when you start realizing these types of scarce goods are made more valuable to more people when you use the infinite goods (in this case, music) to advertise them, suddenly the "risk" you talk about earlier is a lot lower, and the opportunity to profit is much, much bigger.
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Intellectual Monopoly +1 vote
I am used to the term "intellectual property" and use it all the time. But we live in a world where we slice and dice the meaning of words. The word "property" clearly creates the wrong impression. It is also a word that is being used to create the image that the content producers are valiantly attempting to protect their so-called "property" when in fact they are depriving the users of the content of their property right to that content. So if we have to choose a designation, I will go with "Intellectual Monopoly".
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A:
Censorship.
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"imaginative property"?
my issue with the proposed term "imaginary property" is not the whole issue with "imaginary" implying "fake," but that it ALSO requires a bit of motivation behind the term, "imaginary"; the imagination figures into much of our ideas in the first place in order to conjure something original based on what concepts we've connected together in our heads, which is probably what we mean we say "intellectual property."
if we are to go on the same war path as to pick apart semantics of "intellectual property," we should also equally pick apart "imaginary property"; imaginary today was what was considered "fancy" about 200 or 300 years ago - that is to say, "fancy" is simply a conjuration of images that is connected to what we've already observed, such as putting horns on a horses head (unicorn) or people with elongated ears (elves). however, IMAGINATION is simply the faculties in which we connect our experiences together in order to formulate an overall concept, which, through language, is then disseminated for others to understand and absorb.
i suppose a better proposition is to name it "imaginative property" rather than "imaginary property," since "imaginative" implies a sort of action, whereas "imaginary," in our common parlance, implies the quality of the property in question, which would make people uneasy when they see that "imaginary property" doesn't SOUND like it should exist in the first place.
but picking apart semantics seems to be a bit of a slippery slope... perhaps a survey into what people actually think of when they hear "intellectual property" would lend us a basis for argument, rather than isolating the phrase and saying, "oh it always implies something tangible because of so and so definition."
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illegitimate property
improper property
ill property
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Re: A:
WTF?
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If I Buy Something, Do I Own It?
It's quite easy to see why the very concept of "intellectual property" is wrong: because it interferes with property rights.
To see why this is so, consider the question: "If I buy something, do I own it?". To anyone who believes in property rights, the answer has to be an unqualified "yes". But "intellectual property" invalidates that answer, because it imposes restrictions on what you can do with your own property: having bought a CD or DVD, you are not allowed to copy the information to another format, play it on another player, all that kind of thing. Companies are even trying to impose conditions on your ability to transfer ownership of something you've bought to someone else.
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Re: Infinite Goods Tied to Finite Goods
I agree with the position that spreading music files can help the artist by increasing awareness and then motivating people to buy 'access' to the artist via performance etc. As a matter of fact, as kevin kelly points out here, the artist can do quite well if this relationship is nurtured:
http://www.kk.org/thetechnium/archives/2008/03/1000_true_fans.php
However, there is another aspect of this that is separate from the question of the 'intellectual property' of the recording, and that is of service marks. Suppose a person went around calling himself 'Beck' and tried to sell concerts and other things with this name on it. Now he's not the real Beck and so the public would be fooled and the real Beck would lose an opportunity to make a sale. In this case, i think it would be correct for the real Beck to sue the imposter for damages and protect the name under which he performs.
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Re: Re: Infinite Goods Tied to Finite Goods
That's what trademark exists for
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Re: Intellectual Monopoly +/-1 vote
How about "Idea Monopoly", it isn't intellectual after all. I also use "legal prior restraint" (or "illegal prior restraint" when someone misspells it "DRM") and the Lawyer Leveraged Concept (LLC 8-) rings ironic.
IPR (Illegal Prior Restraint) and LPR (Legal Prior Restraint) do the best job of describing what is being done with the correct social leading.
Restricted Idea (RI)
and
Restricted Domain (as opposed to Public Domain)
come to mind.
(how about Granted Intellectual Territory 8-)
or LT for Licensed Thought?
There is no good word for a bad concept.
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Irrational Property
Just thought of that. Irrational in the mathematical sense. Its property raised to the square root of -1. You need it to represent some things, but you cannot hold it. Think of it as describing "the area owned". 8-)
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hah
or, since you can't divide the idea by any number of people other than 1, it's irrational? :P
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Imaginary Property
Well, with a topic like this I feel obligated to comment, given that I am the one trying to popularize that term.
There are a few reasons why I prefer it, but it seems clear to me that many misread part of the intent. Imaginary property is intended to imply that it is only imagined as property when it is not, and also that it is a legal fiction being imposed upon the world, given that ideas cannot be treated the same as property sensibly.
After all, we call real property property because it causes one inconvenience or worse when another uses it and the owner is unable. Yet with ideas, as the metaphor goes, you can light your candle from another's without diminishing their light. Indeed, more light is available to all in that case and everyone richer. It therefore seems perverse that we should extinguish unlicensed candles in the hopes of having more light.
But you are correct to note that it does suffer from some drawbacks, not the least of which is throwing disparate areas of law under the same rubric. Unfortunately, so long as law classes teach the term, it is far beyond my powers to undo it. You can't really convince people to "unthink" things, you can only get them to think new ones, and it helps to tie the new ideas to old ones. Therefore, I chose the term Imaginary Property as a form of protest to highlight the issue and started submitting all the things I was interested in anyhow to Slashdot. I guess this proves that my plan is working :-)
Oh, and I see that someone likes the term Irrational Property. I think I was the first to use that, as a joke, in my story about that law that would've recognized someone's "invention" of squaring the circle, recognizing pi as their "property", even though they thought it was something like 3.2, when it's actually an irrational number not expressible as any rational number (i.e. fraction). In other words, pi was almost someone's irrational property.
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Data Monopoly
How about calling it a Data Monopoly? Because it's all just data to the computers which are copying it. And the government imposes a monopoly to the creator (or the purchaser of the rights) for a "limited" time.
We can explain that the duration of the monopoly is supposed to be limited, but in fact is so long that it might as well be infinite. What good is a monopoly on consumer entertainment which lasts longer than the lifetime of the average consumer?
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Re: Re: Infinite Goods Tied to Finite Goods
However, there is another aspect of this that is separate from the question of the 'intellectual property' of the recording, and that is of service marks. Suppose a person went around calling himself 'Beck' and tried to sell concerts and other things with this name on it. Now he's not the real Beck and so the public would be fooled and the real Beck would lose an opportunity to make a sale. In this case, i think it would be correct for the real Beck to sue the imposter for damages and protect the name under which he performs.
Hi Dave.
Yes, I tried to address that in my prior post in the series. That's a trademark issue -- which I don't really consider to be intellectual property (which is supposed to be about exclusive rights for promoting progress). Instead, trademarks, like the situation you describe, are really about consumer protection -- not letting someone who is *not* Beck fool consumers into believing he is...
So I don't consider that to be an IP issuer per se, but really a consumer protection/false advertising issue.
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Re: "imaginative property"?
Apparently you didn't understand a word of what was written...
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Re: Re: anecdote
Dude,
this is still me, the real angry dude
I decided to stick around for a little longer..
And I don't really argue with you, techdirt people:
I just shit on you, haven't you noticed ?
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Well said
I have been in the computer software business for effectively my entire life, and intellectual property is close to my heart (so to say), both from the perspective of ownership and freedom of it. Having a level playing field for everyone, including small companies and individuals is very important in order to maintain the steady stream of innovations that we take for granted, and to avoid the emergence of another Bell company that stifles an entire industry for generations.
For example, there would be no PC industry if the bar for "ownership" of "ideas" is too high. If the "idea" behind the PC, i.e. the particular combination of features had somehow been considered intellectual property, then it would never have been "cloned" and the IBM PC would just be a distant memory, sort of like the PS/2 is today.
Similarly if the particular combination of features behind the CP/M operating system had been somehow protected, then we might still be using some sort of CP/M derivative for an OS on our Apple XII's, for which a small Seattle-based software company would offer what they call Microsoft Basic.
It's ironic that the company that arguably benefited most from the relative freedom of ideas and innovations in the digital age seems to be so keen to slam the door shut behind itself. Perhaps it's a reflection of them knowing what their success was based on, and their desire to avoid someone else doing the same to them.
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Maybe it's a mistake.
Maybe it is a mistake to try and give the concept of "Ideas" any other name. Like you say Copyright and Patents are different things. Copyright is pretty self explanatory, the right to control copying. Patents are the time limited monopoly over the production of some thing. The only thing they have in common is that before they exist in reality they exist in some ones mind. I think that trying to give the term "ideas" names like Intellectual Property or any of the others is playing by the rules of those who's intent is to bilk us of all they can. In a sense by giving it a special title you are conceding far more than Thomas Jefferson and James Madison seem to have.
And while I'm on the subject... The constitution says "to promote science and the USEFUL arts...." I challenge the notion that pop music is useful and even deserves protection. I myself enjoy playing music, but I am not under the delusion that I have a right to make my living that way.
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Re: Maybe it's a mistake.
In this case, it is about the production of diverse and new musics that we're concerned about. Substitute entertainment values for usefulness there.
For inventions, we measure usefulness in term of how much impact it have on daily life.
For some area, you could use usefulness but other area you have to measure something else to measure the economic welfare.
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Re: Well said
Intellectual monopoly is not necessary for a leveled living field.
Free and open source software help proves that the little guys can compete with the big guys. Heck, FOSS did more for leveling the playing field than intellectual monopoly will ever do.
Let me go further to say that intellectual monopoly stifles competition and the little guys. It produced a net loss that hurt consumers as well.
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Re: Re: Re: anecdote
"And I don't really argue with you, techdirt people"
Because you've proven time and again that you don't actually have the ability to have an intelligent discussion on copyright, trademarks, patents, or apparently anything else. I guess acting like a 6 year is therapeutic for you.
"I just shit on you, haven't you noticed ?"
In other words, you make an ass of yourself. And let's not forget the lame Russian insults when someone hurts your feelings.
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Re: Re: Maybe it's a mistake.
I think that it has been clearly demonstrated that diverse and new music is created regardless the existence of copyright. It is my opinion that there has been a serious decline in "diverse and new" music, and I suspect that the state of current copyright laws may be one of the primary factors. I also believe that the majority of professional are musicians harmed by copyright more than they are helped. I think this is because the side of the issue we see the most is the one put forth by Hollywood. Most professional musicians are NOT rock stars, and not many people know their names.
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Your blog post
Quote: "If there's no scarce resource at all, then the whole concept of property no longer makes sense. If a resource is infinite, it no longer matters who owns it, because anyone can own it and it doesn't diminish the ownership of anyone else. So, the entire rationale for "property rights" disappears"
This premise is completely wrong. Ideas *are* scarce, in that like rubies or diamonds, you can't just pick them up anywhere. When fertile ground is found (the mind of the creator) and an idea is uncovered, then like a gem, it can be shown to many people -- an unlimited number, really -- and they may benefit from, and enjoy the qualities of that gem, while the gem still remains the *property* of the finder.
If we wish finders of gems to show them to us and not simply keep them to themselves, then we must, as a society, agree that when shown the gem, we will not take it. For yes, *that* gem, once taken, can be enjoyed by everyone, but the *next* gem found will not be so generously displayed.
Instead, the bitter experience of having had one's *property* taken (with whatever set of excuses) will have taught the finder not to allow *that* to happen again.
In this way, the fertile ground, having been demeaned in value by thieves, becomes non-fertile, non-producing ground from the perspective of the public.
This is why we should (a) respect intellectual property, which is to say, not take it without satisfactory recompense to the author, and (b) ensure that said recompense is sufficient as to encourage the finder of that gem (the author, artist, etc.) to go back to the mine that is exclusively theirs and in which no one else can search (their own mind) and excavate for additional gems.
The value of IP to the producer is in the respect and compensation given the producer: It is their property, unquestionably, until or unless we can convince them that in relinquishing it to us to enjoy the fruits of, we will compensate them in such a manner as to ensure that they feel the process was worth doing.
In compensating for this property, we are saying, please, go back to the source and uncover more of this worthwhile matter. Contrariwise, when we take it and walk away, muttering contentiously about how "information wants to be free", we are telling the producer that said matter has no value *for them*, and the odds of them doing the *work* of producing more for us drop precipitously.
It is in the continuous encouragement of production of such matters that benefits to the arts and sciences accrue; I would say, having read all three of your blog posts, that it was clear that Jefferson, for instance, understood this perfectly, and *that* is why the issue is enshrined in the constitution. It is not at all clear that you understand it.
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GGTM
My preference is Government-Granted Temporary Monopoly, which while having an unfortunately unpronouncable abbreviation (other than just spelling out the letters) of GGTM, seems to actually be fairly descriptive.
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Re: Your blog post
> This premise is completely wrong. Ideas *are* scarce, in that like rubies or diamonds, you can't just pick them up anywhere.
Odd, this place is full of them. For free. In fact, after seeing some of the things that get patented, I have to say that most ideas aren't original. After all, words themselves contain ideas, and very few things actually require new words to express them. Thus, all of our ideas are built upon preexisting ones.
You sound like someone trying to convince us that dousing unlicensed candles is the best way to make the world a brighter place...
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Re: Your blog post
This premise is completely wrong. Ideas *are* scarce, in that like rubies or diamonds, you can't just pick them up anywhere.
You are confused. Ideas, once created, are not scarce. They are infinitely available. I find it amusing (and troublesome, actually) that you later claim that Jefferson agrees with you when clearly he does not. I quote:
"If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property."
If we wish finders of gems to show them to us and not simply keep them to themselves, then we must, as a society, agree that when shown the gem, we will not take it.
No one is "taking" anything. They are reproducing it, spreading it, making it better, making it more valuable and expanding the overall welfare. Taking implies that someone has lost it. That is not true with an idea. You are incorrect.
For yes, *that* gem, once taken, can be enjoyed by everyone, but the *next* gem found will not be so generously displayed.
This, too, is incorrect. Please look at the research of Eric Schiff. Or Petra Moser. Or David Levine. Or Michele Boldrin. Or many, many others. They all found the same thing. A lack of intellectual property law does not stifle new creations. In fact, it often increases the pace of them, because the innovations are designed to create products in the market that can be sold, not for the sake of hoarding intellectual property.
Factually, you are wrong.
Instead, the bitter experience of having had one's *property* taken (with whatever set of excuses) will have taught the finder not to allow *that* to happen again.
It is not property, and it is not taken. You are incorrect again. Instead, it is an idea that is shared and spread and made better.
If you understand the basic economics, then you will recognize that the creator of that idea is likely to be BETTER OFF the more the idea is spread and the more it is improved on. If you understand the economics you don't, as the "finder" work to prevent it from happening again -- you TRY to make it happen again and again and again and again, because you recognize that it boosts your reputation and in doing so boosts your ability to influence, to change and to make money as well.
In this way, the fertile ground, having been demeaned in value by thieves, becomes non-fertile, non-producing ground from the perspective of the public.
Quite the opposite. Historically, the evidence shows otherwise. The more an idea is shared and spread and refined, the MORE valuable, the MORE fertile, the MORE productive it becomes. It is in the limiting, the hindering, the hiding of ideas that shrinks a market.
This is why we should (a) respect intellectual property, which is to say, not take it without satisfactory recompense to the author, and (b) ensure that said recompense is sufficient as to encourage the finder of that gem (the author, artist, etc.) to go back to the mine that is exclusively theirs and in which no one else can search (their own mind) and excavate for additional gems.
This is based on the extremely faulty notion that the REWARD for intellectual endeavors comes in the direct sale of the output of those intellectual endeavors. That is simply not so. If that "said recompense" is not necessary and hinders further innovations by creating a monopoly, that does much more damage to innovation and does much more damage to the market for the individual's work.
For a perfect example, look no further than Giuseppe Verdi who lived in a time both with and without copyright. When there was no copyright, he wrote much, much more. Why? Because to make a living he had to continue to produce. Yet once copyright was in place, he could rest on his laurels and sit back and collect royalties. This is the opposite of your prediction. Yet, time and time again we see the same thing. Again, look at the research I have pointed you to and you will find that your assumptions are incorrect and have been proven incorrect time and time again.
The value of IP to the producer is in the respect and compensation given the producer: It is their property, unquestionably, until or unless we can convince them that in relinquishing it to us to enjoy the fruits of, we will compensate them in such a manner as to ensure that they feel the process was worth doing.
It is not property. Again, please reread the Jefferson quote above.
In compensating for this property, we are saying, please, go back to the source and uncover more of this worthwhile matter.
Again, the false assumption that the only way to make money is in direct payment for the idea (not property). This is false. It has always been false.
Contrariwise, when we take it and walk away, muttering contentiously about how "information wants to be free", we are telling the producer that said matter has no value *for them*, and the odds of them doing the *work* of producing more for us drop precipitously.
Again, this is false. Look at the research of Eric Schiff.
He looked at countries that got rid of their patent system, and found it INCREASED innovation because there was MORE competition in the marketplace. That is companies focused on making more goods for the market, rather than focusing just on patenting things and not having to compete in the market.
Look at the history of the steam engine -- which only grew the market AFTER the patents expired, because James Watt made it prohibitively expensive to use, and no innovation could occur until the patents were gone.
Look at the research of Petra Moser, who found that countries without patent systems innovate just as much, if not more, than those with patent systems.
It is in the continuous encouragement of production of such matters that benefits to the arts and sciences accrue; I would say, having read all three of your blog posts, that it was clear that Jefferson, for instance, understood this perfectly, and *that* is why the issue is enshrined in the constitution. It is not at all clear that you understand it.
I would ask that you go back and read more closely. Jefferson was quite clear that these were not property rights. They were monopolies that should only be granted in the rarest of circumstances.
I am afraid that you believe some very faulty things -- that are certainly believed by many -- but which have no basis in reality. The evidence, basic economics and a little common sense all show that you are incorrect.
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Re: Re: Infinite Goods Tied to Finite Goods
Another good example is BOOKS. I believe that authors who put their works out in digital form for free are finding that they drive UP book sales. The reason is that it's still expensive to physically print out a book. For some strange reason, real people still seem to like "dead tree editions", especially of longer literary works. People will read only so many pages on an e-book reader before their eyes tell them they really need a hard copy book printed on real paper.
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Re: Re: Your blog post
Wow, such a loooooooooooong piece of nonsensical shit from Mikey in response to the only reasonable comment on this thread
Mikey has a real talent for demagogy
Must make a good politician one day... maybe a senator... or even, God forbid, a prez
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Re: Re: Re: Infinite Goods Tied to Finite Goods
nonsense, dude
Ever tried a Kindle from Amazon ?
Or the very latest LCD screen with high resolution ?
It's getting there, dude
trust me on this, I've been in this shitty tech business for years...
No more paper. Those trees are safe. Period.
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Fallacy
I just read a few lines and found a gross fallacy:
> the very purpose of "property" and "property rights" was to better manage allocation of scarce resources. If there's no scarce resource at all, then the whole concept of property no longer makes sense.
Ownership of a digital or "intellectual" object might not be exclusive, but ownership of the rights to control it certainly is. So there IS a scarce resource: the right to control the creation. It is exclusive and scarce. The song might not be, but nobody claims a song is property of someone, but the rights to the creation are.
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Private Information
Better to call it PI - 'Private Information" - than IP. After all, what we're really talking about is information that the originator wants to keep private rather than having it made public.
In reality, we need a rewrite on our patent laws. It should be required that source code be produced to gain a patent on software. After all, we require a sample of a novel or other written item for copyright; why should software (which has a written component) be any different? The idea that making a few sketches and a couple of paragraphs of description is precise enough to define a software patent is ridiculous.
It would seem to me that the user interface could be patented, but the code should be copyrighted. Once the code is copyrighted rather than patented, the copyright owner gets to carry forward the copyright for a limited number of years, just as in current copyright law. After that, the rights revert to the public domain. A system like this would also drive innovation, rather than letting companies lock their codebase forever. In order to get a new copyright they would have to come up with new techniques.
Having the code in question on file would also make it harder to use FUD to threaten other users' code (i.e. - Microsoft's claims against Linux), since it would be a simple matter to compare the code from both sources.
My 2 cents...
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Renaming IP
I posted a comment on this on the Mises blog:
In If Intellectual Property Is Neither Intellectual, Nor Property, What Is It?, Techdirt writer Mike Masnick discusses various proposed replacements for the misleading term "intellectual property." Contenders include "intellectual monopoly," "intellectual privilege," "imaginary property," and "None of the Above." There are problems with each of these. Masnick concludes: "In general, because of common usage, I don't think it's bad to use the phrase "intellectual property" just so that people know what you're talking about -- but we should be careful to not use it in a way that reinforces the concept that it's property just like other kinds of property."
I tend to agree. What IP law does it give legal (positive) rights to people to try to protect or stimulate innovation or creation. It gives them rights in innovations, creations, recipes, or patterns. If one keeps in mind the distinction between natural and positive rights, then it's easy to see that laws do create legal rights, and of course all rights are, in the end, types of property rights. So IP laws do create (positive, or legal) (property) rights. And they do have to do with products of the mind, or intellect. So "intellectual property" rights seems fine to me, if one realizes that there is a difference between positive right (positive law) and natural rights (natural law).
Still, some ideas came to me (and I own them, heh heh!). It would be nice to take the word "property" out, and just refer to the rights conveyed. Copyright gives authors of original works certain (legal) rights to their "works" or creations. Books, songs, paintings are regarded as "original works of authorship". There is an element of "creativity" to these things. Patents give certain (legal) rights to inventors of practical inventions--methods or processes for doing things (recipes) or arrangements of matter (designs). What do inventions and "works of authorship" have in common? One is practical, aimed at some gizmo or method that produces a practical result (a machine or process). Another is aimed at "creative" things--paintings, novels, songs. J. Neil Schulman, in his neo-Randian/Galambosian [I don't know if he would accept this label] IP theory groups them all under the term "logorights," where the "logo" refers to a "pattern". I think this is a pretty good description: a recipe is a type of pattern; as is the design for a practical machine or device. Likewise, original works like paintings, music, etc., are obviously representable digitally, as patterns. Copyright and patent law clearly grant rights ... to whom? To creators--inventors and authors--of "logos"--patterns, such as machine designs, process steps, or the patterns that represent the song, painting, etc.
So as much as I disagree with Schulman's justification for "logorights," the term is a pretty good one--except that it is so arcane. A variation on it using more standard terms might be better: pattern rights, or perhaps innovation rights.
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A Flawed Discussion
The various comments make mostly reasonable points about why copyrighted information is or is not property (most of which show an understanding of the nature of property, and of information, and how they differ), and they suggest interesting names for copyrighted information, supposedly as alternatives to "intellectual property". But the very premise of the discussion is fatally flawed. It is based on a misunderstanding about what "intellectual property" means. A copyrighted work is NOT intellectual property. Only people who know nothing about the law, or who know better but are deliberately propagandizing (as the RIAA does), use "intellectual property" to refer to a work, or piece of information. So what is intellectual property? It is the copyright or patent, not the information or invention copyrighted or patented. Copyrights and patents do have the characteristics of property. If I own a patent, for example, only I can exercise the rights associated with it. I can sell it. You might in theory steal it from me, if you could infiltrate the USPTO and falsify its records. You can trespass on it by violating it. It may be property that is created by or arises due to an artificial act of the state. But it is definitely property.
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Re: Re: Re: Your blog post
"such a loooooooooooong piece of nonsensical shit"
Says the king of posting short pieces of nonsensical garbage. I'm sorry you feel intellectually inferior to everyone and need to resort to pointless insults and lies.
Why do I keep feeding stupid internet trolls......
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Re: Re: Your blog post
I urge you to read Ms. Moser's work before citing it in support of your hypotheses. I believe you will find that it contradicts many of the points you have been making.
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What is the problem with IP or ????
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What is the problem with IP or ????
I am a patent attorney specializing in small entity IP (read, poor and abused, but happy). I do so because I think that is what IP is supposed to be about. If I see that I can invent something, and it will cost X time and Y dollars, and I can expect that someone with more assets will steal it as soon as it is developed, I won't develop the idea into an invention - DUH!
But our present law caters to the rich, because they provide CAMPAIGN funds! So, enact campaign finance reform and good IP laws will follow, until then, the system will be broken (as it is, now).
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Re: Re: "imaginative property"?
no, i do understand (to a degree) what is being said; i'm mostly opposed to the whole idea of picking apart semantics just because it seems to imply something totally different. while this is a valid claim (IF indeed the common person perceives "property" as a "real thing"), it's also a pointless exercise that seems to culminate in creating terms that's going to obscure the concept even further. i duly place my faith in the common person's understanding of the phrase (or at least somewhat of a grasp on what it really means) rather than this crap of coming up with terms that, while it doesn't sound esoteric, simply goes against what people already know from "intellectual property" and will serve to obscure the meaning even further.
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Why not just "Intellectual products" or"intellectu
What we are talking about is the products of intellect, rather than the products of manufacturing. It gets away from the idea of property, but does retain the idea of production or creation. What we want to protect is the ability to market one's intellectual creations with inhibiting the ability of others to learn from them and so produce other creations.
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Re: What is the problem with IP or ????
What do you mean by "IP"? That's the heart of the problem.
Copyrights: I don't think I can even list all the problems. They outlive the authors. You get paid almost in perpetuity for something done only once. The rights are too broad (my TV can be too big per 17 USC 110???) and people are working to stifle fair use. It's difficult to remix things, and the minute somebody makes something valuable out of something that was utterly ignored prior to that, there's a money grab. There are crazy, draconian laws being drafted to enforce them online which aren't really enforceable, but which strip everyone of privacy even in the attempt. There are programs to try and enforce them, but they take over your PC and stop you from doing even legal things. The DMCA makes it too easy for people to take down any web page they don't like, put-back notices are hard to draft and not always honored, and you can flat-out lie on them and not get in trouble in any case I've ever heard about.
Then you have unconstitutionally excessive statutory damages (see BMW v. Gore), not to mention all the things the RIAA is trying to do, both in asking for new laws and persecuting people with no computer. I realize that that last thing is more of a problem with the plaintiffs than the law, but please read http://recordingindustryvspeople.blogspot.com/ to see what a fellow lawyer thinks of what they're doing and how they're trying to make sure that people have little or no opportunity to defend themselves in court. Plaintiffs like them cause most of the ire towards IP that you find online.
Need I go on?
Trademarks: On the face of it, they're okay. Until some idiot gets a generic trademark, or trademarks some trendy new term, and tries to make everyone else stop using it. I'm surprised someone hasn't trademarked "Imaginary Property" and tried to go after me, except that I'm reasonably anonymous, barring a few subpoenas. Then there are those who go after anyone complaining about them online (see all the [trademark]-sucks.com domains that had to go through expensive legal fights before they won) and the danger that the term "commercial" is rather all-encompassing. So if you had your whatever-sucks.com domain hosted somewhere free that puts ads on your page, you're hosed because what you're doing is "commercial" even though you're not making a dime off of it.
Statutory "super" trademarks are even worse: the Red Cross has asked video games to change their health-box symbols to green. Because, you know, we're really going to get confused some day on the battlefield as to whether that video-game ambulance is a protected non-combatant!
The Olympics, well, I dislike the whole affair. They're nothing but a giant, international commercial with drug tests thrown in. They're very protective of anything that looks remotely like any of their symbols, force people to change their clothes lest a camera see the logo of any company that didn't pay them enough. And then there are all the restrictions about what those participating can and cannot comment concerning what they saw.
Mind you, professional sports do this, too. The MLB and NFL have been ridiculously protective of their broadcasts and any "accounts or descriptions" of their games, even trying to copyright player stats which are NOT creative works per any definition I can make sense of. Hell, they went after someone for posting a video of their COPYRIGHT NOTICE on YouTube as a demonstration of overreaching copyright holders by a law professor for educational use! They wouldn't even apologize, they just kind of shut up after someone finally got enough attention to have their Counter-Notice actually get paid attention to.
Patents: Within limits, they could be reasonable, but we have lots of people patenting well-known (but unpatented) things everyone else thought were too obvious. And instead of being written in a way that's useful to other inventors, they're written to be useful in court. So they're total gibberish to someone trying to learn from an expired patent. Moreover, you DON'T want to look at patents, otherwise you get hit with 3x the damages if they can prove that you knew about their patent! In Australia, someone managed to patent _swinging sideways_. In the US, they patented PB&J sandwiches with no crust, where the jelly is in the middle and peanut butter is on both sides to hold it together. How many mothers made that for their kids? So why does Smuckers have the patent??
Software & Business Method patents are the worst, though. I have NEVER seen one that provided any useful code or anything I would ever be able to duplicate from the patent itself that wasn't trivially obvious. You have your one-click patent, patents for double-clicking (yes, seriously), and so many more I can't think of them all. Hell, IBM even patented patent-trolling! Talk about legal sarcasm. If you didn't already know, patent trolling is where you spin off some entity with no products that could be a target of counter-claims to sue someone. Novell did it to Microsoft once upon a time, as we learned from SCO v. IBM and the weird arrangements Novell had to control SCO. Of course, now SCO is being used as a proxy by Microsoft against Linux, so it's an odd reversal. They're not a true patent troll, though. SCO still sells products no one wants to use, but IBM dropped the patent counter-claims against them because they have no money and it wasn't worth it.
Then we have forum shopping, where so many lawsuits get filed in the Eastern District of Texas, a court with ONE judge who is known to favor patent holders ridiculously much, thanks to the first-to-file rule that applies to patent lawsuits. There's been some indication that the appeals court might think about putting a stop to this, but they're a bit late.
The GOOD stuff, by and large, wasn't ever patented! We have lots of computer science journals where people write this stuff for free, share this stuff for free, and help everyone make better use of their computers. The whole Open Source movement is a good example. True, the GPL relies on copyright, but RMS, the man who came up with the idea, has long maintained that if there were no copyright, the GPL would become unnecessary.
Ship Hulls & Semi-Conductor masks: At last, we have some reasonable laws. Mind you, the Asian fabs they have making use of those masks probably just ignore them (leading people to develop things like that EPIC chip-lock system), but I haven't heard of too many people abusing these rights, so they're the least problematic of the lot. But they're hardly the first thing anyone thinks of when they hear IP! Most hardly know these rights exist!
So that, my friend, is what's wrong with "IP" and that is why I don't believe in Imaginary Property. As a lawyer, I'm honestly surprised you aren't more aware of all the shenanigans going on. Except for one college course, my entire education in law (such as it is) has come from studying the reports of all the stunts people are pulling.
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Re: anecdote
hi ajay,
we in Nauru are still looking for someone of your intellectual caliber to run the country. when we spoke last, you were interested in the postition. is this still true?
thank you. please let us know.
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Techdirt
Mr. Masnik,
Having only recently learned about your site, I am still attempting to determine if there is any aspect of "IP" law that you personally embrace. Your comments suggest there is precious little of the law you support, but then again I have seen only a small fraction of your articles.
If I may ask a simple question that obviously pertains to this website, do you support the legal fact that it is protected under copyright law? If so, why? If not, why?
As a sidenote, there are some of us who practice within each of the areas embraced by the term "IP" that prefer to call it by a much more accurate descriptor, namely "patent, trademark, copyright and unfair competition law". Each of these areas fall under what I generically term "business torts". It is regrettable that so much of the discussion concerning usage of the term "IP" evidences a lack of a firm understanding about what each of these areas of law comprise, the nature of rights associated with each, the federal and state sources for the enactment of such rights, how these rights interrelate, and the various policies that underlie each. Please note I use the term patent to cover designs, plants, etc., each of which likewise have their own peculiar characteristics and underlying policies.
One request, if I may. Might you limit to some degree the constant references to these rights as "monopolies"? That word is totally inaccurate and creates an impression in the minds of many unfamiliar with the vagaries of the law that these laws are somehow bad. Granted, there are some "bad apples" who give the law a bad name, but they are the exception to the rule and considered as such by the vast majority of legal practitioners.
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Re: Imaginary property
"Slapping people in the face" only makes them angry. Quite frankly, I get angry when people call it imaginary property because it implies that it's all part of the public domain - which is very, very wrong. Slapping me in the face with that phase only makes me more resolute fight back.
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Re: Re: anecdote
Heck, why not ?
do your women have big breasts and tight pussies ?
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Re: A:
Censorship is when a third-party stops you from communicating ideas to a second party. When I stop you from using the product of years of hard work because you won't pay for it, you call it censorship? Censorship of myself? You want to have everything for free or you're going to throw around insults like 'censorship' at the very creators and artists whose work you want to steal?
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Re: If I Buy Something, Do I Own It?
you are not allowed to copy the information to another format, play it on another player, all that kind of thing.
All those things are fine. What authors are against is giving copies of their work to a thousand of your closest friends, or reselling multiple copies of it. If everything was as open and free and you would like, then there should be no laws against buying a CD at the store, burning a thousand copies, and selling them at $1 each, undercutting the real artist's sales. Without the need to have talent, studio time, marketing, etc - you could always undercut the artist's selling price.
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Re: A Flawed Discussion
A copyright or a patent is a government granted right associated with a particular piece of work or invention. Neither is property. Your examples present an example of someone violating those rights.
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Re: Techdirt
I'm not him, but how does one "support" a fact?
Yes, I'm sure many acknowledge it, rightly or wrongly, but the mere fact that there is a law against having TVs that are too big (over 52" diagonal -- see 17 USC 110) in some circumstances doesn't mean it's "right" or that it's illegitimate to argue against it.
And make no mistake, both the rights as embodied in statutes and the rights as claimed by many prominent parties (e.g. the MLB and NFL) are overbroad and unenforceable.
Basically, technology is making copyright law (as well as trademark law for domain owners and disgruntled customers, not to mention patent law for programmers) go from a "business" tort to something far more personal that is affecting people's private lives and leading some to suggest that we require all sorts of snooping and monitoring of people's computers to put a stop to it (indeed, this is the ONLY way they can even attempt to enforce some of the laws as written).
If you want an overview of where the problems are, look above. Those are the issues that are driving people like me to think that we may need to start over with respect to those laws.
Don't get me wrong, I'm sure there are more than a few places where honest people got ripped off and that you've defended them, but the system is becoming less workable by the day, and it's not something you can do a patch job to fix. Especially not if you want the laws to mean anything in light of widespread disrespect when things like copyrights are hard to enforce to begin with. Visit the Pirate Bay sometime if you don't understand what I mean.
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Re: Re: Well said
If little companies can't protect their IP, their source of income (and survival) is seriously undercut. (Duh)
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Re: Imaginary Property
After all, we call real property property because it causes one inconvenience or worse when another uses it and the owner is unable. Yet with ideas, as the metaphor goes, you can light your candle from another's without diminishing their light. Indeed, more light is available to all in that case and everyone richer. It therefore seems perverse that we should extinguish unlicensed candles in the hopes of having more light.
Don't be silly. Your analogy bad. If you really want a proper analogy, then how about this: you spend your day out in the forest hunting animals. You come back to your tribe and discover that another man has spent the entire day building a fire by rubbing sticks together. He is tired from the work, and his hands are bruised. He says, "You can use my fire if I can have some of your meat". You reply, "I can take your fire without reducing your portion of it." then you take a stick, light it on his fire, and use it to cook your meat, sharing none of your meat with anyone. Then you expect him not to be angry with you, and you convince yourself that you haven't done anything wrong.
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Re: Techdirt
Might you limit to some degree the constant references to these rights as "monopolies"?
I realize this was directed at Mike, but I'm a bit confused as to why you feel that labeling copyrights and patents as monopolies is inaccurate. While the term 'monopoly' does tend to have a negative connotation, it is a reasonable description for both terms. Each provides exclusive control over an invention or work for a limited time. A monopoly is typically defined as the exclusive possession or control of something.
Unless you are using non-standard definitions, I don't see how you can argue against the correlation of terms.
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Re: Your blog post
Good post, Ben. I often skip these discussions on IP because a mob of freeloaders always show up to legitimize their freeloading. It's extremely irritating to see these people everywhere, and it actually makes me cynical about humanity in general.
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