Against Intellectual Property (1995)
uow.edu.au
uow.edu.au
One irony in that is the fact that the Framers were skeptical of intellectual property. In fact, they didn't call it intellectual property. Even less did they call it "intellectual property rights." It was a temporarily granted monopoly. It was not considered to be a right.
How is that? All your actual rights are assumed to exist. The Bill of Rights explicitly says it isn't the List of Rights. That's because your rights predate any laws and constitutions. You simply have them, and governments are more or less just in observing that you have rights and in not trampling them.
This is key to making the US constitution future-proof. It carves out a set of legitimate powers. It doesn't enumerate your rights: to travel by car or jet-pack, or space-warp, to use unbreakable codes, to marry the person you love, etc.
Patents and copyright monopolies, on the other hand, are explicitly granted, and, unlike your rights, they expire. The congress could at a whim change patent and copyright terms to a week, a day, a nanosecond, and there would be no constitutional case against that law. Because these grants of monopoly are NOT rights.
Medieval guilds are in many ways the precursor to IP except the ability to manufacture something was what's being protected not the knowledge of how to manufacture it. The interesting part of this is that privilege could easily be revoked. However, this promoted a lot of secrecy and good ideas where often lost, so patents protect only those shared secrets.
I think the drug market can be viewed as a microcosm of that. There are no state-enforced property rights in drugs, at least none that anyone outside the drug trade takes seriously. It doesn't turn out very well for anyone involved in the market. Even those who get rich from it are at greatly increased risk of turning up dead.
Abolishing IP would affect income streams, but so does outsourcing, automation , and change in particular job markets or industries... the onward march of progress. I don't see that as a reason why it shouldn't be done.
Patents were invented in Venice and Copyrights in England before the Colonies even existed. Trademarks date from the 13th century.
> One irony in that is the fact that the Framers were skeptical of intellectual property. In fact, they didn't call it intellectual property.
One should hope so, given that the term was invented in Europe the 19th century, and was (and still is largely) a European concept.
> How is that? All your actual rights are assumed to exist.
These aren't inalienable rights in the sense you're using (and abusing). They're rights in the sense of "copyRIGHT". It's an old alternative use of the term.
The distinction is a direct consequence of the fact that intellectual property isn't actually property. (Because it is not scarce.)
I don't believe this distinction applies here. Not all IP requires the government to enforce it (e.g. trade secrets). Conversely, if someone were to move into my yard, or steal something from me, I would call Police (an agent of the government) to enforce my property rights.
Note: I'm not trying to defend or ague for property rights, merely pointing out that this particular distinction is in valid, as the poster above pointed out -- all property is, to an extent, government enforced.
Property rights over tangible things (whose use is physically exclusionary) do not require the defense of a coercive third party. That this is how the world works in the US today does not imply it is the only way. For example, I could defend my property with my own weapons. Or more likely, I could pay someone else to defend it for me.
I would still claim that the distinction you're drawing is arbitrary. Yes physical objects and ideas are different and the ways one goes about defending them will, of course also be different. The defense of intellectual property does not, in principle, require enforcement by a coercive third party. I could defend it by keeping it a secrete, or announce to the word that I am in fact the inventor (ownership of an idea does not necessarily have to imply exclusive use of it).
You're claiming that the attribute of physical exclusivity is essential to the notion of "property"; I can argue that it is incidental. The import thing is that thorough appropriating your property, I am depriving you of some tangible benefit. In case of physical property, the benefit is the (necessarily) exclusive use of that property. In case of intellectual property, the benefit maybe competitive advantage (if I choose to keep my knowledge secret), or a revenue stream (if I choose to allow others to benefit from my knowledge in return for compensation), or reputation and status (in being acknowledged as the inventor).
That paper makes the same erroneous assumption:
"Only tangible, scarce resources are the possible object of interpersonal conflict, so it is only for them that property rules are applicable."
This obviously wrong. Reputation, influence (political religious, etc), honor, status, competitiveness -- all quality sources of "interpersonal conflict".
In fact, the paper conveniently avoids tackling some forms of intellectual property--trade secretes and trademarks-- by dismissing them as "less problematic" (thus tacitly acknowledging the validity of the concept of "intellectual property") and instead chooses to focus on copyrights and patents (both of which are indeed severely flawed -- today even more so then when the paper was originally published). It is thus drawing an arbitrary distinction between different forms of intellectual property -- something it goes on to condemn later. Note that the classification of physical property is also essentially arbitrary (e.g. the notion of "private property", as applied to physical objects, was far weaker in the Soviet Union, and still is elsewhere in the world, than it is in the US).
EDIT: grammar + clarity.
Defense of property is defense from an aggressor trying to take that property from you. The things you've noted may be defense in some general way, but they certainly aren't the sort of "self defense" that is implied when speaking of defending one's property.
In particular, defense ought to be expanded to "the legitimate use of physical force or threat of force in proportionate response to the initial use of physical force or threat of force against your person or property."
In this sense, IP absolutely requires a coercive third party.
> You're claiming that the attribute of physical exclusivity is essential to the notion of "property"; I can argue that it is incidental. The import thing is that thorough appropriating your property, I am depriving you of some tangible benefit.
You have it backwards. The only reason why you're depriving me of some tangible benefit is because it's scarce. If you take some resource from me that isn't scarce, then no benefit is lost because I can immediately conjure up another resource of identical value. Therefore, there is no conflict.
> In case of intellectual property, the benefit maybe competitive advantage (if I choose to keep my knowledge secret), or a revenue stream (if I choose to allow others to benefit from my knowledge in return for compensation), or reputation and status (in being acknowledged as the inventor).
Defining property in terms of tangible benefits is simply untenable because there is no bound to it. For example, I could claim that the person who lives next to me lowers the value of my house because they never cut their lawn. I could therefore claim that they are creating conflict because they are removing some tangible benefit that I have.
We can't define property in terms of "tangible benefits" because "tangible benefits" could be just about anything. It makes the concept of property untenable as a means to resolve conflict and this is why it is rejected.
> This obviously wrong. Reputation, influence (political religious, etc), honor, status, competitiveness -- all quality sources of "interpersonal conflict".
You're misinterpreting the piece you quoted by assuming that "interpersonal conflict" can mean any kind of grievance someone might have. Frankly, that's ridiculous and defeats the whole purpose of having a system of ethics in the first place.
Kinsella makes it quite clear that interpersonal conflict is conflict in which one person deprives another person the use of a resource. This can only happen when the resource is scarce, otherwise it cannot be deprived from anyone.
> In fact, the paper conveniently avoids tackling some forms of intellectual property--trade secretes and trademarks-- by dismissing them as "less problematic" (thus tacitly acknowledging the validity of the concept of "intellectual property")
The paper does address them, you just didn't read those parts. Trademarks are discussed starting on page 43 and it's quite clear that no validity is given to the concept of intellectual property rights. Instead, some aspects of trademark law can be enforced with respect to the consumer (via charges of fraud).
> It is thus drawing an arbitrary distinction between different forms of intellectual property
It's not. Everything is explained. You're taking the "less problematic" portion out of context. Kinsella proceeds by arguing that any law which depends on the notion that ideas can be owned is illegitimate. He then goes on to show how most laws under the umbrella of "intellectual property" depend upon the notion that ideas can be owned (and are therefore illegitimate). Notably, there are some laws that don't depend on idea ownership and therefore could be legitimate.
This isn't arbitrary at all because it's consistently applying the illegitimacy of owning ideas.
> Note that the classification of physical property is also essentially arbitrary
It's not surprising one would think this. Property isn't exactly a universal law of physical reality. It's a useful heuristic that can be used among a collection of individuals who seek to resolve conflict peacefully in lieu of violence.
Why? You're arbitrarily narrowing down the definition of "defense" to suit your argument. Are you saying that anything short of physical violence or threat of physical violence is not a real threat that can be legitimately defended against (either through physical means or otherwise)? An if we're going down this route, an attacker may well choose physical violence to get me to divulge my knowledge just as they might use it to deprive me of a physical possession.
>The only reason why you're depriving me of some tangible benefit is because it's scarce. If you take some resource from me that isn't scarce, then no benefit is lost because I can immediately conjure up another resource of identical value. Therefore, there is no conflict.
True, but again, you're thinking of scarcity in purely physical terms. Say I run a food stand, and due to my grandma's secret sauce recipe, I have no shortage of customers. You, my competitor, acquire that recipe from me (you may have stolen a written copy, blackmailed me, or even simply beaten it out of me in a dark alley). You now start adding the same sauce to your product and take away some of my customers. Your knowledge of the recipe, has not diminished my knowledge of it, however it has diminished my competitive advantage (the scarce "resource" in this case) and so that knowledge no longer has the same value.
>Defining property in terms of tangible benefits is simply untenable because there is no bound to it. For example, I could claim that the person who lives next to me lowers the value of my house because they never cut their lawn. I could therefore claim that they are creating conflict because they are removing some tangible benefit that I have.
Yes, true, and certain councils and home owners associations do exactly that. It is a gradient. But that's the point -- the place where you choose to draw the "property" line on this gradient is necessarily arbitrary. You're claiming that your arbitrary point (physical exclusivity) is actually the right point, and any other point is "untenable". My argument is that this is not the case, and today, in a world of increasing automation of physical labor and freer, near-instantaneous communication, where an increasing portion of the population (in the West, at least) are engaging in what could be classified as "intellectual pursuits", physical boundaries are becoming increasingly inadequate.
>The paper does address them, you just didn't read those parts.
You're right, I've lost interest words the end of the paper, and didn't read it all the way through. My apologies. I have now.
>Trademarks are discussed starting on page 43 and it's quite clear that no validity is given to the concept of intellectual property rights.
Not in the case of trademarks. For trade secrets, the author, after wrangling with the legal notion of contract, does begrudgingly admit that trade secrets are a valid form of intellectual property (or at least, that they may form a valid grounds for legal recourse...).
The author's argument against trademarks is absurd. After establishing the concept of a trademark in the first paragraph, they dismiss it out of hand and with no justification or argument to back it up at the beginning of the second. The author then proceeds to construct and knock down the strawman of consumer rights (which is not what trademarks are about). Finally, they use their (entirely unsupported) conclusion about the notion of trademark ownership to dismiss the idea of trademark dilution.
>This isn't arbitrary at all because it's consistently applying the illegitimacy of owning ideas.
Except the author never justifies it. Instead, they assume illegitimacy of owning ideas, and then proceed to use that assumption to demonstrate how the (a priori) illegitimate laws are, in fact, illegitimate. The whole thing is an exercise in circular reasoning:
you can't own ideas --> laws that depend on owning ideas are illegitimate; there are no legitimate laws that support owning ideas --> idea ownership is illegitimate
Re: scarcity, nothing about property requires it to be scarce. Anglo law has been treating intangible things like contractual rights as property for hundreds of years. Moreover, you're playing a definitional game you're going to lose. Are you suggesting, for example, that if land weren't scarce, it shouldn't be the subject of property rights? Moreover, while copies of say a movie may be infinite, movies themselves are not. There are finite movies in existence, and each one takes effort and investment to produce. The property right attaches to the scarce resource of movies, not the unlimited resource of copies thereof.
As for the scarcity of movies. Well, that's a tough one. First, there is no way I can actually steal a movie —short of abducting the director, stealing the props… I mean, all I can do is download a copy at almost zero charge. Even if I shoplift a DVD, that's not stealing the movie, that's stealing a plastic disc.
The problem is, the value of the film is completely decorrelated from its scarcity. As you say, it takes resources to make a film: time, cameras, actors, props… most of which are scarce —some are not, like stock footage. Once the film is done however, the film itself is not scarce at all: it can be copied over and over at near zero cost.
The easy way out is to go back to scarcity: you know how to monetize it: just sell the artificially scarce copies. But this is obviously not ideal. Our world is sufficiently flawed as it is, adding artificial scarcity on top of it doesn't sound like a great idea.
Hence the question: how do you distribute something abundant when the production of the first copy consumes scarce resources? I don't know. But people are working on it, and have produced some ideas that are worth trying: global licence, basic income… Or maybe just lower the length of the granted monopolies, like 10 years after publication or so. Even if we can't abolish artificial scarcity altogether, we might be able to reduce it.
You're taking things too literally. Defending my property doesn't necessarily require me to do it. I can pay others to do it. This does not require a coercive third party.
> Re: scarcity, nothing about property requires it to be scarce.
Of course it does. Property itself is a construct invented by us in an attempt to resolve conflict. If something isn't scarce, then there can be no conflict, since my use of something does not conflict with your use of the same thing.
> Are you suggesting, for example, that if land weren't scarce, it shouldn't be the subject of property rights?
It's beyond my capacity of thought to even imagine what "land isn't scarce" would even look like. I guess it would require some sort of reality where N people could occupy the same space without impeding on the use of said space by the other N-1 people. In that case, certainly, it wouldn't be property.
> There are finite movies in existence
Finiteness has nothing to do with this. There are also a finite number of copies of movies, and yet, I claim such things are not scarce.
http://www.wto.org/english/tratop_e/trips_e/intel1_e.htm
http://en.wikipedia.org/wiki/Intellectual_property
http://www.investopedia.com/terms/i/intellectualproperty.asp
http://cardozolawreview.com/Joomla1.5/content/33-4/Hughes.33...
Details its origins of an 'ex post facto' legal concept.
So you end up defining that anything exclusive granted by government is an property with inalienable rights and "owners", making both the word "property" and "rights" meaningless.
See, the word "property" is full of connotations. Ownership has deep roots in our culture. Heck, even babies rapidly develop a sense of property (just try and take something from their hands).
On the other hand, few babies would complain if someone were to imitate them. On the contrary, that's a fundamental developmental need: the baby makes a sound, then her Mom barges in, imitates her, and we have the beginning of a communication.
Even on a purely technical basis, the world of ideas is nothing like the physical world: if I eat your banana, you can't eat it any more. If you eat it, I can't steal it from you any more. But if you have an idea, and you tell me about it, well I can't steal it from you. I can use the idea, I can claim it was my idea to begin with, but I can't erase the idea from your mind —which is a required component of stealing. The only actual "idea thief" I know of is Gilderoy Lockhart from Harry potter.
The word "property", as most people understand it, doesn't apply to ideas. "Intellectual property" is a type error. But since we're incredibly lenient compilers, we make sense of whatever doesn't. So we can accept the term "intellectual property" somehow. But in doing so, we develop an intuitive understanding of the world that just isn't accurate.
I'd rather believe true things.
> So we can accept the term "intellectual property" somehow.
The "somehow" is that it is a well-accepted and well-understood term with a very standard meaning, used by the vast majority of English speakers who discuss such matters. The spelling of the term doesn't matter. It could be called "intellectual schmoperty" for all I care, and if that was the term that was well-accepted, we could all use that and be understood.
What I'm saying is, the term "intellectual property" messes with our heads in a way that is difficult to compensate for.
Words do have true meanings, you know: it's whatever comes to our minds when we read or hear them. And I mean everything that comes to mind, not just what is supposed to come to mind. Take "shit", for instance. It's not just what comes out of our butts. It stinks, it sticks, it's disgusting. These secondary associations and feelings are what we refer to when we say "shitty code" or something. Nobody in their right mind would try to apply the term to a masterfully crafted gem. It would never fly.
Let's try a though experiment. Replace "intellectual property" by "intellectual monopoly". Do you feel the difference?
No?
I don't believe you.
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I agree the term "intellectual property" is well accepted. But it is not well understood. Most people wrongly believe intellectual property and physical property are analogous. Many people (especially those in power) wrongly believe stealing a film is like stealing an apple.
But I assume you understand the term well, and therefore don't fall prey to these gross fallacies. You're quite an exception, not being sensitive to this "intellectual property" piece of Novlang.
That article on lesswrong seems to agree with my point. "Intellectual property" is a specific term that has a specific and well-accepted definition, both as a legal definition and in common everyday usage.
> Words do have true meanings, you know: it's whatever comes to our minds when we read or hear them.
I completely disagree. Words are meant for communication. I say a word, and you hear it. My goal is for the idea in my head to map to the same idea in your head. That's why I should be aware of my audience, and shouldn't use words in non-standard ways. If you go around using the term "intellectual property" and you don't mean patents, trademarks, copyrights, etc., then you should expect to be misunderstood. And if you base your argument against IP protection laws on what you claim to be the "true definition" of "property," you're not actually arguing the relevant value judgement. You're just making a semantic argument.
> Replace "intellectual property" by "intellectual monopoly". Do you feel the difference?
Of course I feel the difference. One is an extremely common term that is fairly well-defined in legal and other circles, while the other is an ad hoc description of a similar or identical concept. And both would include patents, trademarks, copyrights, etc. What's your point?
> I agree the term "intellectual property" is well accepted. But it is not well understood.
The definition of the term is well understood. Perhaps the economic consequences of the idea itself are not well understood or widely agreed upon, but the definition is. That's why I advocate for debating the value judgement of the concept, rather than the definition of the term.
And, to be clear, though it's not particularly relevant to whether semantic arguments are worthwhile, I do oppose all forms of government-enforced intellectual property protection.
I think you forgot about the guts. Instincts. Whatever happens at a subconscious level, yet influences our explicit thoughts. If you want to communicate effectively, mapping an idea to my head is not enough. You also have to keep my guts in check. For instance, if you're aggressive, it will be more difficult for me to hear you (my own aggressiveness here sure didn't help me get heard).
Regarding "intellectual property", there are two things: the standard definition, that most people know in their head. And I agree this one is accurate. But we also have the connotations, the various feeling "intellectual property" triggers in their guts. Those are not accurate. People understand the term well at an abstract level. But at a gut level, they don't.
That leaves them open for bogus arguments such as "we should protect property, including intellectual property". An effective con tool.
Try on the other hand to say "we should protect property, including intellectual monopoly". The type error is obvious, an the argument doesn't fly.
Two very different outcomes, yet the concept behind "intellectual property" and "intellectual monopoly" was the same all along. That's because of the guts. The two terms may in an abstract sense refer to the same concept, but they don't feel the same, and different feelings lead to different outcomes.
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Now if you're in the middle of an actual debate, there will be no avoiding the term "intellectual property", for even if you're wise enough not to utter it, the other party will. At that point, your only recourse is to point out that intellectual property is not a form of property, but a form of monopoly (and maybe take a minute or two talking about state enforced exclusivity). At that point, I would stop using the term "intellectual property" altogether. If the other party continues with "intellectual property blah blah", I will paraphrase the argument with "you said that intellectual monopoly blah blah" before making my next point. If we come to that, I believe most intellectual monopoly advocates will start to insist that "intellectual property" actually is a form of property.
And we're back to arguing over definitions. The only reasonable middle ground I see is that we both stop using the terms "intellectual <whatever>", and start talking about copyright, patents, and trademarks directly (and possibly separately, for my current stance isn't the same on all three).
But that's for longer debates. If you only have the time for an elevator pitch, you may have to use the more heavily loaded terms to make your point quickly.
It dates back at least 150 years.
There's an 1855 book by Lysander Spooner[1] called The Law of Intellectual Property.[2]
Was?
Maybe I'm living in some kind of alternate reality...
Mind expanding on which country or group thereof comes even close to having the same levels of economic activity, military might and diplomatic influence as the US?
China? Economic, hardly: it's getting there, but it's entirely dependent on the US consuming its output. Military: they're outgunned 6:1 by the US alone in terms of spending. Diplomatic: not the slightest bit, except on its immediate neighbors (and in Africa, to an extent, if you count showering local strong men with cash as influence).
It's not possible to *own* a concept.
You own a *monopoly* on the sale of the *application* of a concept.
I realize that I'm arguing semantics, but I think a further look at the semantics help reveal the true nature of the system and enlighten the discussion. Intellectual Monopoly Rights are only granted by societies for the benefit of their citizens. Does our current set of Intellectual Monopoly Rights benefit us? Can we make them better?
It's not the physicalness that is a prerequistie to propertization, it's the rivalrousness.
A big game of Who Has The Best Lawyers.
Nothing less, nothing more. An expensive game, normally better played by big corporations, sometimes by small optimized "companies" (trolls), completely uncorrelated with any notion of fairness or economic sense. Another thing that exists not necessarily because is a good idea, but because of enormous inertia, like many other things we do "because that's how things are", even if they are completely stupid. A legal meme.
(As an aside, I'm personally totally OK with trade secrets; I'd accept a sane, limited version of copyright as useful; and I think patents should be abolished. All of them. Software patents are just the most aggressive and vicious strain)
In 1620 after an outburst of patenting to raise extra Parliamentary revenue by James I, Parliament passed the Statute of Monopolies which stated that only Parliament might grant monopolies in statutory form and that only for new inventions. The principle written into the law was that the only valid or legitimate use of the otherwise dangerous mechanism of the statutory monopoly was for new discoveries and that for a limited time.
That was then. Where we current live at is that this 400 year old legal concept of statutory monopolies is used not to secure new discoveries, but to have government act in the market. Companies want to prevent cheaper or better products by competing firms from entering the market, and "intellectual property" is one of the better tools used to achieve this end. This is obliviously wrong, so it is up to government to step up like they did in 1620 and stop the abuse, but so far the trend has been to add more abuse, more government involvement in the market, and ever increasing number of royal decrees.
https://news.ycombinator.com/item?id=7496154
But it's such a good article, that I think it warrants reconsideration given the "Abstract Ideas Don’t Deserve Patents" article in the New York Times (linked in that above comment thread).
This paper really changed my mind on the notion of IP. And if you've got a view on the subject, it's worth reading.
I'm not sure I disagree with the author (or Hettinger) but they have missed an important counter argument.