The Myth of “Intellectual Property”

This is just going to be a quick post about a subject I’ve thought about blogging over for for quite a while now. People with a financial interest in maintaining the status quo speak of “Intellectual Property” all the time and the more they talk about it without being questioned, the more people actually buy into the concept. But let me state unequivocally:

“Intellectual Property” is a MYTH.

There is just no such thing and I will explain why. Consider first the traditional notion of property. Property results from the finite nature of physical resources. There is only so much gold on the earth, only so many diamonds and rubies; in order for you to increase the amount you have, you either have to go mine them yourself or you have to get them from someone else. Getting them from someone else without compensation or their consent is called “theft”. This is obvious even to a small child; if you go into a store and take something without paying for it you have increased your property by decreasing the property of another.

Now consider an apple.

If I were to go to a store and take an apple without paying for it, I have committed theft. But what if I were to buy an apple, take it home and take out the seeds and grow an apple tree from them and produce my own apples?

Am I an ‘apple thief’ then?

You might laugh at that, but the question is not a silly one; some companies consider it “seed piracy” to do exactly that.

When you hear the RIAA speak of “theft” of music, they are not talking about people shoplifting CDs from stores, they are talking about the digital equivalent of growing your own apples from seeds. Just because copying a CD is easier and faster than growing apples, does not make it any less so.

At its core, “intellectual property” refers to ideas (aka memes and aggregations of them), be they in the form of books or music or patents or what have you…

If nature has made any one thing less susceptible than all others to 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 focuses itself into the possession of every one, and the receiver can not 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 [candle] at mine, receives light without darkening me.” — Thomas Jefferson, 1813

You can read more about Jefferson’s views here. The entire system of patents and copyright is based on the notion that by allowing a temporary monopoly on the application or distribution of an idea, people will be more willing to share their ideas because of the short-term profit motive; as per the Constitution:

“[The Congress shall have power] To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

But that has been subverted; while copyrights were originally for a period of up to 28 years, they have, especially in recent years, been increasingly extended to the point that they are now “the life of the author plus 70 years after the author’s death” (so easily well over a century). Patents may now be granted on software and even business methods. Fair use is hardly ever mentioned anymore except by those labeled “thieves” by large corporations. By accepting the notion of “Intellectual Property”, we agree that others literally own something that is in our heads.

To summarize: “Intellectual Property” is a myth; there are only government-sanctioned monopolies on the redistribution of memes. Making something in violation of a copyright or patent is not “theft” but rather a violation of a government-sanctioned monopoly. To claim otherwise, as groups like the RIAA do, is to LIE.

The copyright and patent system should be severely overhauled to establish that works made public are PUBLIC and only to benefit their creators temporarily before benefiting society as a whole.

Update Nov. 30: Readers of this article might be interested in a Linux Journal article which quotes RMS as saying “The clearest way out of the confusion is to reject the term entirely”, but which advocates a different method:

Instead of speaking of “intellectual property”, which invokes that feel-good idea of property and ownership, we should speak of “intellectual monopolies”. For this is precisely what copyrights and patents are: they are monopolies granted by governments for a limited period as part of a bargain – that, in return, those who are granted those monopolies hand them over to the public domain once the term of the monopoly has lapsed.

Update Dec. 24: There’s another interesting article, this time by David Pogue of the NY Times, “The Generational Divide in Copyright Morality” which is well worth a read; see also some of the comments its generated.

Update Jan. 24: Just a quick tidbit; I noted a user on /. by the name “I Don’t Believe in Imaginary Property” (emphasis added :)

Update March 5: An interesting article called “History suggests copyright crusade is a lost cause” argues that even if you were to treat ‘IP’ as one does physical property, “Congress’s current strategy of imposing ever more draconian penalties for breaking laws that lack broad public support is a recipe for failure. Congress may be forced to concede, as it did two centuries ago, that property law must accommodate the actions of ordinary Americans, and not the other way around.”

Update Sept. 10, 2009: An interesting post (full text here) to read, “Lord Kames Explains Why Copyright Is Not Property… In 1773”. Here are some quotes that summarize it:

The meaning of property, in the laws of all nations, is a right to some corporeal subject […] [copyright] is not property. […] this claim [of copyright], far from being founded on property, is inconsistent with it […] Taking it in all views, no more can be made of it than to be a privilege or monopoly […] The act of Queen Anne bestows this monopoly upon authors for a limited time upon certain conditions. But our legislature, far from acknowledging a perpetual monopoly at common law, declares that it shall last no longer than a limited time. […] when, upon expiration of the monopoly, the commerce of these books is laid open to all, their cheapness, from a concurrence of many editors, is singularly beneficial to the public. Attend, on the other hand, to the consequences of a perpetual monopoly. Like all other monopolies, it will unavoidably raise the price of good books beyond the reach of ordinary readers. They will be sold like so many valuable pictures. The sale will be confined to a few learned men who have money to spare, and to a few rich men who buy out of vanity as they buy a diamond or a fine coat.

Update Dec. 18, 2009: Copying is not theft.
Stealing a thing leaves one less left
Copying it makes one thing more;
that’s what copying’s for.

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6 Responses to “The Myth of “Intellectual Property””

  1. max Says:

    Excellent!

  2. technobility Says:

    May I? For fun? Offer another argument/perspective?

    Assume for the moment you manufacture a product. It doesn’t matter what it is.

    Assume that it costs you $100 to make one of those products. You make (and sell) 10,000 of them everyday.

    — an aside — if you could market it at 10%of the price, you could sell 100 times as many.

    I have an idea. I’ve developed it, worked out the bugs etc. etc. No one else in the last 100 years has even come close to figuring out the ‘secret’.

    It’ll reduce your cost to $1.00 per unit.

    Who ‘owns’ that idea?

    What’s it worth to you to have access to the idea?

    In your world everyone ‘owns’ the idea (or no-one owns it – the end result is the same)… BUT here’s the thing. I won’t give it away… yes I know, it’s not ‘property’ so you claim I can’t use that language to describe this action… yet you want/need access to the idea.

    What are my rights to the idea? After all, I developed it at great cost to myself.

    What are your rights to the idea?

    Or… must I give the idea away for free – because there’s no such thing as intellectual property?

    Or are you allowed to ‘copy’ (your word – not mine) my idea without my ‘permission’.

    Forget the existing structure of laws, patents, copyrights etc. etc. They just confuse the conversation.

    Start from a clean slate.

    In a fair world… what are my rights to that idea (I resisted saying ‘mine’) and what are your rights?

  3. Limulus Says:

    technobility: What you are describing sounds like a “trade secret”
    http://en.wikipedia.org/wiki/Trade_secret

    Regarding the current situation, quoting myself from the post, “The entire system of patents and copyright is based on the notion that by allowing a temporary monopoly on the application or distribution of an idea, people will be more willing to share their ideas because of the short-term profit motive”

    If trade secrets are made public in the form of a patent, when the patent-monopoly expires, everyone can take advantage of the idea (which was detailed in the patent) for free.

    Now, starting from a clean slate in a fair world, as you say, here’s how I would answer your questions:

    > Who ‘owns’ that idea?

    An analogy at this point might be useful; ideas are like children; as a parent you do not “own” children; they are under your guardianship. When you have an original idea, its inside your head and its up to you what to do with it. You could decide that you *never* want to transmit it to anyone else and, while keeping your idea a secret would be a waste, that’s entirely up to you. People take secrets to their grave all the time…

    > What’s it worth to you to have access to the idea?

    As the factory owner, its obviously worth a lot; it is in my financial interest to acquire that idea.

    > In your world everyone ‘owns’ the idea (or no-one owns it – the end result is the same)…

    Actually, I said that “works made public are PUBLIC and only to benefit their creators temporarily before benefiting society as a whole.”

    Once the idea is made public, it exists in the mind of everyone who has been exposed to it and I am basically saying that people do not have the right to things inside your head.

    > BUT here’s the thing. I won’t give it away… yes I know, it’s not ‘property’ so you claim I can’t use that language to describe this action… yet you want/need access to the idea.
    What are my rights to the idea? After all, I developed it at great cost to myself.

    As the ‘guardian’ of the idea, its yours to do with as you please so long as its a secret.

    > What are your rights to the idea?

    Its not my idea; its not in my head. I want a copy, but I cannot force you to divulge it in “a fair world”

    > Or… must I give the idea away for free-

    Certainly not; while you could choose to do that if you want, it would be in your best financial interest to negotiate for it. Contracts are the way to go for such things (see “trade secret” link). Patents have the benefit of making the details of the idea public while allowing a temporary windfall for the creator of the idea.

    > because there’s no such thing as intellectual property?

    In the course of history there have been numerous cases where the same idea has been independently invented by different people*; let us say that while it cost you a huge amount to develop, some graduate student in Australia has just figured out the idea by himself without ever hearing about your project. There is no way you can call him a “thief” of the idea, because he thought of it by himself. Such a case illustrates why the term “property” is ill suited to ideas.


    * e.g. consider how Wallace came up with the idea of Natural Selection completely independently of Darwin: “I never saw a more striking coincidence. if Wallace had my M.S. sketch written out in 1842 he could not have made a better short abstract! Even his terms now stand as Heads of my Chapters.” — Charles Darwin 1858
    http://www.darwinproject.ac.uk/darwinletters/calendar/entry-2285.html

    or the rediscovery of Mendel’s laws in 1900 by three different people in different countries: “Three botanists – Hugo DeVries, Carl Correns and Erich von Tschermak – independently rediscovered Mendel’s work in the same year, a generation after Mendel published his papers. […] The three Europeans, unknown to each other, were working on different plant hybrids when they each worked out the laws of inheritance. When they reviewed the literature before publishing their own results, they were startled to find Mendel’s old papers spelling out those laws in detail. Each man announced Mendel’s discoveries and his own work as confirmation of them.”
    http://genome.gov/25520238

    BTW, patents protect the first person to come up with the idea in a way that trade secrets do not; in that respect, it may be in the best interest of the inventor to patent the idea rather than make secret deals.

    For example…

    Let’s say that I sign a deal for a large percentage of the profits from the factory in exchange for the exclusive use of my idea; I won’t tell anyone else and neither will anyone in the factory.

    Great, now we’re making lots of money…

    But our competitors, realizing that they’re going to go bankrupt if they don’t figure out how to do the same thing, begin to look very closely at our new product. They notice something here, something there and are able to reverse engineer the process (see http://en.wikipedia.org/wiki/Reverse_engineering ) and then that’s that and everyone knows the secret now.

    > Or are you allowed to ‘copy’ (your word – not mine) my idea without my ‘permission’.

    ??? You cannot copy the idea until it has been released… e.g. If you’re a songwriter and you have a song in your head that you’ve never written down and never sung to anyone else, how can anyone else copy it? (no fair saying ESP ;)

    Once an idea has been transmitted though, there’s nothing about the laws of physics to prevent you from copying it without their permission; all that exists are the government-sanctioned monopolies of patents, copyrights, etc. In short, based on the simple nature of ideas, if unimpeded by laws: Creators have the right to keep ideas to themselves, but once they’ve transmitted the idea, they don’t have the right to take it back.

    For the latter case, consider the 1978 Star Wars Holiday Special
    http://en.wikipedia.org/wiki/The_Star_Wars_Holiday_Special
    It is so painfully bad that its almost funny at times. But anyway, so “Rumor has it that [George Lucas] had signed an agreement for it to air at least once, and after seeing it, decided that it would never again be shown on any network after its first airing.”

    Basically, Lucas wants all traces of it to disappear. But the ‘genie is out of the bottle’ or ‘the cat is out of the bag’ as they say. VCRs came into limited use not too long before the SWHS aired and so there are copies floating around…

    “At one Australian fan convention [Lucas] reportedly said “If I had the time and a sledgehammer, I would track down every copy of that show and smash it.””

    Clearly if Lucas could he WOULD erase the SWHS from existance. But that’s not his right; once ideas have been transmitted, its just a matter of time before they become public domain.
    http://en.wikipedia.org/wiki/Public_domain

    Of course, with the current abuse of the copyright laws, that won’t happen until at least a century after it first aired. If we still used the original copyright period of 28 years max, it would have become Public Domain last year.

    > In a fair world… what are my rights to that idea (I resisted saying ‘mine’) and what are your rights?

    Basically, what Thomas Jefferson was saying as quoted in the archipelago.org link I posted.

  4. technobility Says:

    It’s always fascinating how this conversation unfolds.

    You readily allow me to contract with someone to disclose the ‘idea’ to them – and even allow me the proviso to prohibit them from disclosing the idea to anyone else. ie. to restrict the flow of the ‘idea’.

    You have no problem with this. None at all. You concede my ‘right’ to do this without question. The idea seems to be ‘mine’ to do with what I will. That, to me at least, is ‘ownership’.

    The ‘reason’ you graciously allow me to do this with my ‘idea’ is that you stand to gain value from it’s usage, and can’t do that until I, the owner of the idea, allow you to use it. You have no choice, except force, but to negotiate with me.

    And ‘force’ is the no-no line we don’t cross in civilized society.

    An aside – since you brought it up – If someone else truly, on their own, comes up with the same idea? Then ethically I have no say, none, zero, over what they do with their idea. Does the fact that the idea has been developed elsewhere affect me? Of course it does. All of a sudden the idea I had which was worth untold wealth to me, is worth nothing – that’s life… unless of course the two creators of the idea can come to a mutual agreement.

    Ideas have value because of the effect on the real world AND the constraints placed on their access. Yes, to use that four letter word the Anti-IP folks are so fond of, ‘monopoly’ is what gives some, not all, ideas value.

    ‘Monopoly’ is also a severe detriment to the easy cross pollination of ideas.

    A ‘monopoly’ have to achieve a delicate balancing act, AND there are huge ethical issues to address. For a heated debate, more like a knock-down brawl… we could talk about the history of the birthing forceps. But we’d need beer. So that’s not possible.

    And seriously guy, forget about how all the current ‘laws’ are currently set up. I’m not interested in discussing the errors of our ways, I’m trying to get to the heart of the ethics of all this. ie.

    Now… assume I have a recording of a wonderful piece of music I created. I’ve let you listen to it once and you LOVE it — I’ll let you have a copy of it, for a fee, except that I add the proviso, you cannot copy it and hand it to someone else for a period of ‘X’ years. As a free trader, you can either agree to my terms, or tell me to go away. Totally your choice. No force involved. Just that wonderful thing called ‘choice’.

    In both cases, the manufacturing, and the music recording – as long as I only sell the idea/recording to one person – I’m protected – by contract – and more importantly the FACT that if the idea escapes I know who violated the contract.

    Things go to tatters as soon as I sell, (via the contract that you’ve allowed me), either of these to dozens, hundreds, thousands of people… why? Because it’s possible for one of them to break the contract and I can’t identify who did the deed.

    THAT’s WHY IP is not property in the traditional sense. Because it’s not a countable item (your apple example) it’s not ‘trackable’. The only reason people feel free to access IP without permission is that you CAN access it without force.

    Remember. The ONLY reason you were willing to ‘contract’ with me to access my idea is that it was the ONLY way you could access the idea – without resorting to force. AND you recognized it had value to you and were willing to exchange value in return for value. In other words, you were willing to trade with me on mutually agreeable terms.

    That’s what the whole IP/copyright issue boils down to… It is realistically unenforceable by law, it should be enforceable by ‘ethics’… but that’s ALWAYS a lost cause. People always do what they can get away with.

    And? For the record, I agree with you totally, the current laws are a crock. Perpetual copyright doesn’t make sense. At some point ( a fuzzy line to be sure and one that’s difficult to neatly define ) ideas DO pass into the public domain. And that’s the honest discussion about IP I’d like to have, but seldom do.

    It’s not about what’s ‘legal’, it’s about what’s right.

  5. Copyright Revewals » The Myth of Intellectual Property Limulus Says:

    […] Find more about it all here […]

  6. Don’t Buy DRM’d Garbage « Limulus Says:

    […] August 15, 2008: Here’s a game author who gets it; regarding ‘piracy‘, “I’ve read enough otherwise honest people complain about DRM to see that its […]

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