Intellectual “Property”?
It’s a bit since my blog post. In that time I’ve been on holiday, upgraded this blog to Wordpress 2.8.2 and myself to 18 (ie. years old 
).
So, intellectual property. A good recent example to use to discuss this would be the recent Orwellian Kindle case. The irony in this case that it was actually 1984 animal Farm that Amazon chose to delete from users machine. (Yes, really. I almost didn’t believe it myself). The obvious question is, this this action right, or not.
I don’t think it is particularly productive to attack Amazon for actions in this case. Amazon was acting on behalf of the copyright holder, in order to comply with copyright laws. It could be argued that they should not have implemented the DRM in the first place, but many of the book publishers pressured them to do so. And, more importantly, DRM would not have the (partial/percieved) effectiveness it has, if it were not for copyright and laws against cracking DRM (eg. the DMCA).
So, instead lets look at the laws, and whether they are right or not. The laws here, covering copyrights and patents (trademarks are not such an issue), are often referred to as “intellectual property”. This leads to much confusion when trying to discuss whether these laws are moral. Some people claim that creative works are effectively property, and unauthorised copying is akin to stealing, so should be stopped. (This stealing analogy is even used by publishers organisations, that should really know better that the law does not link copyright and theft at all). Others don’t go quite this far, but say simply that the authors of creative works have a right to be able to benefit from their work. (There are example after example in the free software and free culture movements as to why “IP” laws aren’t necessary to make money).
As a voluntaryist believing in the basic natural rights to life, liberty and property. Its a black and white choice, and has nothing to do with existing laws. Either “intellectual property” is real property, subject to the same type of ownership, or it should not be controlled at all. The issue of whether “IP” is moral, for me, hinges on whether it is property. And, I do not think it is.
First of all, lets look at the concept of property in the first place. Why does the idea exist, and why is it better than alternatives. As far as I know, property exists as a way to manage resources. The exact same meal can not be eaten by both me and and the person next to me. So, property is about exclusivity. Something is mine because I am the only one who uses it (or more accurately, the one who decides how it is used).
Does this kind of exclusivity exhibit itself in the information world? Yes and no. Digital content can be copied very easily which blurs the line of what belongs to who. If I create an image, and send a copy to someone, who owns that copy? If we’re talking about property, if someone creates an object similar to mine, with their own materials, it obviously belongs to them. So, similarly, if someone recreates on their own machine, a file like I have on mine, their copy belongs to them. This means, if you want property like protections, that kind of exclusivity, there is a way – just keep your file to yourself!
(Of course, this issue of server side, or “cloud” software comes up here, but thats an issue I’ll look into in depth in another blog post.)
Of course, my way of thinking about property isn’t the only one. Objectivists maintain that property is created as a result of man’s mind. Raw materials are useless without the cleverness to transform them. Since property comes from the mind, then thoughts, ideas can also be property – intellectual property. The problem I see with this is, where do you draw the line?
Owning property means being able to morally use force to protect it. If someone copies my idea or creative work without permission, Objectivists presumably would argue the same is the case. But what if my idea is simple, or obvious. How do you manage fair decisions on what belongs to who, who has been influenced, and who has been “stolen” from. How do you be sure who the original creator is? And, ultimately, to whom do you want to give the power to make these decisions. Trust not to make decisions that limit creativity, that are in there own interests?
(The current patent system is a woefull example of this. The running of the system is influenced by lawyers who want as much paperwork and as many lawsuits as possible, in order to benefit themselves.)
Another argument is that intellectual property can be seen as an extension of contracts. I could contractually lend or give an object to someone (for example, to pay in installments). That object is used by them, but I still retain ownership. In the same way, I could also contractually lend a digital work to someone, on the condition that the don’t copy it. Breaking such a contract would, in my eyes, be immoral. But, if you are given the digital work by someone else, without my permission, you are not breaking any contract! Only the person who originally got the work from me is.
(In this way EULAs would also be pointless without copyright. It only takes one person to break it, and people can choose not to be bound by them.)
In conclusion, I think the idea of “Intellectual Property” is frankly silly. We would be a lot better off without copyright or patent law (despite what even stallman might say). As for DRM, without copyright laws, and DMCA-like laws, these measures would make no business sense. Even if a company were to try it, a mass boycott would be much easier without this government-perpetuated myth that copying is theft.
Ben Webb (bjwebb) 's status on Sunday, 26-Jul-09 16:52:31 UTC - Identi.ca:
[...] http://www.freedomdreams.co.uk/blog/2009/07/26/intellectual-property/ [...]
26 July 2009, 5:52 pmcls:
The problem stems from competition. As soon as we pit our ideas against each other, we must construct elaborate methods for controlling the use of those ideas. If we were not to compete but to cooperate, the sharing of ideas would be unequivocally beneficial to all parties…
26 July 2009, 9:20 pmfophillips:
Why are you confusing what is law with what is morally right? Just because the current legislature doesn’t provide sufficient protection for people’s ideas doesn’t mean they shouldn’t be protected. You might not have the means or knowledge to come up with a suitable system, that doesn’t mean the system should not exist.
And as for your “creativity” argument, I bet I could do some pretty creative things with your television does that mean I am allowed to steal it?
26 July 2009, 9:51 pmRoberto Brian Sarrionandia:
“But, if you are given the digital work by someone else, without my permission, you are not breaking any contract”
In analogy, if you sold a rented car under the pretence that you owned it – the person you sold it to broke no contract, therefore the car is his.
The pages of a book, brush strokes of a painting or microscopic magnetic sequences on a hard disk that form software are not the valuable attributes of any of these products. The value lies in the conceptual, not the material – and this is true of non-intellectual property too. A car, for example, is not worth a similar amount if it is delivered to you as several containers of steel, rubber, etc. Oil in the ground is worthless to a technologically backwards tribe.
To claim it is an infringement of rights to be denied to put paint on a canvas in a way similar to a previous painting, or to arrange bits on a disk in a way similar to previous software is to ignore the fact that we do not accept the violation of individual rights with any property. A gun cannot be pointed from your back garden at the people in the next garden, even if you mean no harm. You cannot randomly throw bricks from your property and distance yourself from the consequences.
Intellectual property is, in short, recognition of the fact that physical labour is not the source of wealth.
26 July 2009, 10:02 pmBen Webb:
@fophillips I’m sorry if I am confusing the two, I did not mean to do so. My intent was to clarify what the law said, and separately (with no influece from the law) discuss whether Intellectual Property is in fact real property.
My point with the creation of such a system, is surely that drawing a line between reasonable use and infringement of IP rights is surely inherently arbitrary. Where would you draw the line? Or do you go absolutist and suggest that any knew combination of words belongs to the person who uttered them, and anyone else who says them should be forced at gunpoint to pay royalties?
I am not sure what argument you are referring to by “creativity”, other than this blurred line. Part of my argument, is that you do not own copies on other people’s machines, because they are not the same entity. If someone does something with a creative work of mine, they are doing something to their copy, not vandalising mine.
26 July 2009, 10:02 pmBen Webb:
@roberto The contract point you make is valid, but let me explain my point of view better. When a contract is broken it is the person who breaks the contract who has done something wrong, and is liable to pay restitution. The person who unwittingly buys a stolen car is not in the wrong, he would be another victim of the thief. The thief would have to pay restitution to both victims to make right. Thus, in this way, one can not morally steal a car, and if you posses a stolen car it could be asked if you were part of the stealing, of this one distinct item. But, with intellectual property, since this supposed “property” is made of many copies a series of bits of indeterminate source, it is near impossible to tell who is the original “thief”, and who even realises a contract has been broken.
As for the origin of wealth, it is certainly ideas that lead to the creation of the wealth. However, ideas are very difficult to quantify and measure, and are very prevalent. Again, what is an idea that can be claimed ownership of? A word? A phrase? A name? Three brush strokes? And who decides this.
Also, I agree absolutely that those with ideas should be able to benefit from them, to make money from them. However, what is your basis for insisting it is an absolute that those ideas are owned, those who have good ideas become wealthy by being the first to have them (and inventors can use NDAs to keep hold of the ideas whilst the product is in production). Giving them eternal ownership (which presumeably carries on to their children for ever and ever) of an idea restricts new ideas. What use would ideas for a car be if using the idea of wheel had an extreme licensing fee?
26 July 2009, 10:26 pmfophillips:
You are still using your lack of practical knowledge as the basis for a conceptual, philosophical argument,
26 July 2009, 10:53 pmlibervisco:
Good article and some good points. I also think that the concept of intellectual property doesn’t quite fly. At first I thought everything can be owned including ideas, but only in the sense which you described where you own only one particular copy or instance of an idea or a piece of code store in some medium (your brain, hard drive, dvd etc.), but I later realized that since such data cannot exist without a medium this kind of ownership isn’t really the ownership of said data so much as it is the ownership of the medium itself, modified by the arrangements necessary to code the data in question.
So somebody copies a music album to a CD and sells it to you. You own the CD. The CD with this particular album is however in a very slight, but important way different than a CD with some other album in that the microscopic (or nanoscopic?) laser cuts made upon it are made in different order. It is this order or arrangement which creates data, and this is so in every medium. Ideas in your brain are just orders of electrical signals and various frequencies. You own your brain and thus clearly by virtue of having control over what goes on in your mind (these signals and frequencies and processes) you have control over your ideas.
But I’m probably making this longer than it has to be. What I wanted to say though is that I think objectivists focus too much on the process of creating ideas and too little on the acts resulting from these ideas. I can sympathize with the argument that everything human beings do and create starts from ideas, since that’s true, but that in no way means that it is then primarily ideas that can be owned rather than the actual outcome of them that is tangible in objective reality.
You may have many ideas passing through your head, but all of them are gonna be worth nothing if you don’t put them into practice, make something out of them. It is this result that can be owned, not the ideas themselves. But ideas have certainly played a part in the creation process, they are a part of who you are and they are the ones which brought you into action which is why it makes so much sense that the results of this process are owned by you, since the processed happened as part of you.
Cheers
26 July 2009, 11:00 pmBen Webb:
@fophillips Yes, some of my arguments are based on practicality, because things aren’t much use if they don’t work in practise. My main point on the philosophical side is people do, in practice, benefits from their ideas, regardless of any intellectual property system. Thus, I would ask, why are you so adamant that ideas themselves are property (and not simply its creator), and that some system (presumably necessitating government force, correct me if I am wrong) must be used to enforce this.
As for the blurred line, do you not agree that the line between obvious and new idea is arbitrary, or is this again a lack of practical knowledge?
26 July 2009, 11:13 pmRoberto Brian Sarrionandia:
The difference being that in intellectual property, it is obvious you are trading in stolen goods. If I offered you a car and explicitly stated that I had stolen it, it would be criminal for you to buy it. Or if you saw me hotwire it and drive it off a showroom, you would not have any legitimate business buying it from me. Even if you did not know, you would still have entered into an illegitimate contract and would have to forfeit the property. With intellectual property it is much easier to know if it is stolen or not. I am assuming you know full well which avenues record labels or software houses allow you to acquire copies of their software through.
Copyrights are not applicable to every human creation. Not to paint on a wall, not to my saying the word “giraffe” or of the thousands of human products created by each person every day – they are applicable to new applications in art and science, which is in some way unique – an entity of process created by an identifiable individual which is unique and has marketable value. A word could be copyrighted, if it was your word and if it had been elevated to marketable value by your ideas – though it would properly be referred to as a trademark. The same goes for a phrase, if you actually gave it marketable value – such as a slogan for a product. Three brush strokes could not, because that would not create anything new. The person who did it (I do not use the term artist, because this would not constitute art) has not created anything original nor implemented an original technique, he has used existing concepts and techniques and implemented them without any original thought at all. This is decided by reality, what is a creation and what is not is quite easy to discover, armed with the proper principles – and is enforced by the proper branch of government, in this case the judicial.
NDAs are not the same as intellectual ownership. For example, if you left your briefcase on a bus and it contained a blueprint, the blueprint would not become the intellectual property of the first person to find it – neither would a stack of cash left in the briefcase.
Eternal ownership is not something any Objectivist or serious property theorist would advocate. This is because eventually, somebody would own the rights and receive wealth through no production of his own. Unearned income is impossible. For example, suppose a great tycoon made the sum of $50,000,000 in his lifetime – he might legitimately pass this money to his son, to a friend or to a charity when he died. Supposing the heir to the fortune invested wisely, he might live comfortably his entire life, but it would not be fair to say that he had lived his entire life as a moocher on the profits of the tycoon – investment adds value. Conversely, suppose the heir was a hedonist or a playboy, never bothering himself with the status of his money, adding no value to the world and simply spenidng money on lavish parties and bottles of champagne – the wealth would probably not even last his entire lifetime, it would be consumed. Material wealth cannot be held in perpetuity, wealthiness is not an act of stagnation. However, suppose Shakespeare left the rights to a play to a close friend. The friend can legitimately have been said to have earned the rights, by making himself of some personal value to Shakespeare during his lifetime (Though even if Shakespeare altruistically left the rights to a madman or a criminal, it would still be a legitimate gift) – however, hundreds of years later you could be on the list of heirs. Shakespeare did not know you, he could not have possibly conceived of you and he would have no way of knowing that you were someone who he wanted his work to go to. You could, through no mental effort at all, collect vast royalties on his works – which is the exact opposite of the purpose of property rights.
I fully understand this begs the question of the length of intellectual property, this is a question of legal science – and is certainly up for debate, but the lifetime of the creater and then some seems to be sensible.
The example of somebody inventing a great machine, such as a car, yet being hampered by a patent on a primitive component – a wheel – is not realistic, as intellectual property is not properly perpetual. It is entirely possible that some machines, or musical remixes, might not be released in a timely fashion due to a stubborn inventor or artist- but this is his prerogative. The idea is his to do with as he pleases. If I invented a power plant that could take atmospheric charges and convert them into enough cheap electricity to power the entire planet, but it required a lump of element X – which only you owned, I would not claim the right to steal it from you. It would certainly be a shame if you did not agree to sell it, and it would certainly be proper for you to demand enormous compensation considering the money my plant would make from it, then that’s just the way it has to be. Just like if I invented such a plant, and chose never to tell anyone or write it down – it would be a shame, but the choice of the person who created the idea. Of course, this isn’t a primary argument because the ends do not justify the means – which is the reason I didn’t invoke the “But nobody would write books/code/music if they weren’t allowed IP” argument.
26 July 2009, 11:40 pmBen Webb:
@Roberto I think that it is evident that we are starting from a very different basis with our ideas of property and rights. I see know reason why ideas must necessarily be owned, even though they are the *precursor* to value. I do not consider the idea of governments to be moral (how does “government” legitimately gain the authority to do what others may not?), so I could not support intellectual property as it requires a government (unless you can correct me on this) to make decisions on the matters of definitions and lifetimes of creative works.
As regards contracts, my original attempt was to show that intellectual property can not be justified as being a complex contract. However, this is not your view, or the general objectivist argument, so my point is rather moot. One point of note though, a lot of people don’t know if their downloading of music is permitted. This is especially true with youtube, where content appears to be coming from a legitimate source (google), and some, but not all of the tracks are there with permission from authors.
27 July 2009, 7:24 pm