Is Intellectual Property A Violation Of Real Property?
from the thinking-this-through dept
While there was a recent argument being made (weakly) that all property is intellectual property, reader Kerry Kaye recently pointed out a discussion of the opposite point of view, saying that intellectual property is actually a violation of the concept of real property. I have to admit that, while I had hoped to find the article compelling, I actually found it to be lacking in substance. At points it seems to go around in circles without clearly making a point. You could, potentially, make a case that intellectual property tries to limit what you can do directly with the output of your own mind, and that is antithetical to the concept that you have the right to make use of the output of your own brain — which could violated basic property rights, depending on your definition of property rights. In fact, this is the part that I find most troubling about intellectual property laws (especially patents): that it effectively tells you that even if you come up with something entirely on your own, others can stop you from making use of those ideas.
Perhaps a much more compelling (though, I’m sure not to strong believers in intellectual property) discussion on a similar topic is a recent piece by Vedad Krehic, (pointed out by Michael Scott) that discusses how intellectual property laws turn IP holders against their own customers. In it, he makes a similar, but much clearer argument like the one above:
If a friend, however, lends me a music CD and if I then make a copy, so that I can listen to the music without having to borrow the disc again in the future, nobody is harmed. It is possible that I could, for example, have made an agreement or contract with him when I borrowed the disc stating that I cannot copy it. If I were to do it anyway, I’d be in violation of a private agreement. If not, who is harmed by my act of duplication? I used my own tangible property (CD drive, computer, and hard drive or blank CD) to fashion a duplicate of the data on the CD. The original CD is still my friend’s property. I return it to him, and while he is no better or worse off than he was before, I am now better off. The imprint of the music on my tangible property makes that property marginally worth more to me, as I can enjoy its use to a greater extent than previously.
Was anyone harmed at any point here?
Yes — if you choose to believe the consumer entertainment industry. They claim there was a third party here that was being harmed. Can you see the third party? There was me, and there was my friend. There was my property and that of my friend. I don’t see the third party anywhere in that process. I suppose my friend could have been in a contract with the person or organization he purchased the CD from not to copy it, but I wouldn’t have been bound by that contract. Either way, I did nothing wrong.
And this is where the trouble comes in for intellectual property versus real property:
Can anyone please explain to me how someone can be a just owner of something, yet not be allowed to exercise his or her ownership rights over it? He can throw rancid tomatoes at the painting, but not duplicate the pattern that makes the painting a painting, rather than just canvas and paint? Or, to use a different type of copyrightable pattern, how can someone own their own brain yet not own the part of it containing a song they memorized?
The logical conclusion is that the natural right of property and the idea of copyright, and of intellectual property in general, are fundamentally incompatible and conflict sharply. You cannot own something and have someone else dictate to you what you can and cannot do with it, without that being an element voluntarily arrived at through contract. In absence of a contract, the dictating party is initiating aggression against the just owner of an item. Intellectual property is an assault on tangible property.
And that’s the problem that we keep pointing out around here that troubles us so much. There are many — especially in copyright debates — who insist that those who don’t agree with copyright law should just avoid supporting those who do. But they ignore how copyright law is used, regularly, to limit what should be fundamental property rights of individuals to do as they please to products they legally purchased.
In fact, Krehic then takes this further, and notes that much of the entertainment industry’s troubles today may be traced back to the fact that it has aggressively tried to use copyright law to stop people from doing what they want with their own property, and it’s that mistake (which they keep compounding) that has resulted in customers defecting, rather than any issue of “piracy.” Again, it’s easy to predict that intellectual property supporters will scoff at this and dismiss it as ridiculous, but there is growing evidence to support this position. As we’ve seen over and over again, content creators who learn to embrace file sharing and the power of new technologies, while connecting with fans, and providing a smarter business model, have been thriving. It’s not piracy that’s causing harm, it’s bad business model choices, and many of those bad business model choices are driven by an over-reliance on the “crutch” that intellectual property provides, which gives firms the ability to take away property rights from individuals.