Empty Rhetoric: "Intellectual Property Is Property!"

Apr 30 2007 Published by under Intellectual Property

One of my pet peeves is when, in an attempt to help convey to others the seriousness of respecting copyrights, patents, and trademarks, somebody says, "Intellectual property is property!" This is often followed by an emotional appeal that just as you would hesitate before breaking into somebody's house and stealing their TV, you should also hesitate before passing on a digital file.

Often, people then respond, "but if I take the TV, you don't have it any more. If I copy a digital file, you still have the digital file!"

I have very rarely, if ever, seen a considered counter to that response. Most often, what I see are expressions of disgust, lamentations that "kids these days" don't respect how much work and creativity goes into making the copied work in the first place, reminders that while the copy may be free, the original production was not, etc.

But the fact is, this response makes it very clear that physical property (like a TV) and intellectual property (like a recording of a song) are not exactly the same thing. Any argument based on the equivalence of the two is either going to lead to thoughtless jingoism (which I so often see on the side of the copyright maximalists) or thoughtful dismissal.

If you sit back and think about real property, there are other forms of property that aren't like a TV. Consider land. A TV you can sell, and take away and give somewhere else. You can, with effort, materials, and time, make a copy of TV. Land is a finite resource, however. You can't make a copy of land. You also can't take land somewhere else. Your use of your land affects your neighbors in ways that your use of your TV does not, which is why we have zoning laws and homeowners' association regulations for land whereas other than noise pollution ordnances, there aren't similar laws for the use of a TV.

Neither of these are like intellectual property. With both a TV and with land, only one person (or group) can own it. Another person cannot take it without depriving the first person of it.

Here's a third example: a herd of cattle. On the face of it, this is like a TV. You take my cows, I don't have my cows any more. But, there's a difference. I can use my cows to make more cows. When my cows breed and I have new cows, I'm now the owner of new cows. In some ways, this is like "intellectual property"— if you view copyright as a form of ownership, then if you own a work, you also own the copies of that work. Sort of.

But it's still not the same. Cows cannot be identically copied. It takes far more resources to make a new cow than it does to make a copy of a digital music file. If I give away 1, or 100,000, or more, copies of a single music file, I still have a copy that works just as well; I can't do anything like that with the cow, given that cows don't have litters of hundreds of thousands.

So saying "intellectual property is property" falls down upon examination. There are a lot of ways in which those things called intellectual property are very different from everything else we think of as property. As such, I find the exhortation "intellectual property is property" to be worse than useless. It obfuscates the issues, but does so in such a way that seems to shut out intelligent debate about what's going on. Indeed, the very term "intellectual property" seems to presume a number of foregone conclusions about how we should be treating copyrights, patents, and trademarks. Especially in the USA, where we believe (or, if I may presume to say so, understand) that some level private property rights are essential to maintaining a free society, tacking the term "property" on to copyrights and the like will tend to bias people towards wanting to make them stronger.

I will offer further thoughts on this issue soon. Next: the key recognition that copyright is fundamentally at odds with an even more basic pillar of a free society....

32 responses so far

  • The cow example is flawed for another reason. In order to breed new cows, you need a cow yourself. So you'd have to buy one. An analogous property arrangement to our current maximal copyright regime would be this: once I sell you the cow, I still retain the right to control how many cows you can breed from it, if I let you breed any at all.

  • Rob Knop says:

    Yes, good point.

  • kamimushinronsha says:

    I still retain the right to control how many cows you can breed from it, if I let you breed any at all.

    Then to enforce my control I build a high security fence on your land. You can see your cow anytime you want, as long as you talk to me. Oh yeah, and sometimes if I think you might be breeding your cow behind my back, then I'll send ninjas to your farm to thwart your attempts.

  • Rob Knop says:

    Heh. It sounds extreme, but alas the analogy is only a little bit overblown....

  • kamimushinronsha says:

    Rootkits are like the ninjas of the virus world, and Sony is based in Japan. Oh yeah it's all coming together now.

  • Caledonian says:

    It's not the physical object that's owned when discussing intellectual property. It's the right to control the distribution of the information that's involved in ownership.

  • noself says:

    Here's a slightly different perspective from the continental European point of view (i.e. the other legal tradition), the basis of copyrights is authorial right and one grounded much in the concept of the author as creator and in morality as well.
    As a result, there's an entire branch of rights called moral rights which don't really see the light of day (except in very limited form e.g. Berne Implementation Act for visual performances) in the US or even in other Common Law jurisdictions. The rights involved are the rights of paternity (attribution), integrity (against any form of [adverse] distortion), divulgation (solely up to creator to decided if and when a work is finished and if and when a work should be displayed). And finally, the right of repentance (the artist is allowed to retrieve his work on payment of an indemnity to the current owner).
    So as a result of this historical development, things like protection of sound recordings or broadcasts or performance rights (things we would consider copyrighted works) are actually protected under so-called "neighbouring rights" because they "neighbour" copyrights.
    This is not to say that there is no concept of the economic benefit/exploitation of IP in that legal system, just that the focus (unlike the one we have in the Common Law) isn't necessarily on the economic harm as a result of infringement which I feel is the overwhelming and perhaps slightly erroneous concern within the Common Law tradition

  • Anonymous says:

    Land is a finite resource, however.

    And seemingly infinite (or replenishable) resources aren't usually property, for example air. (Carbon dioxide rights can be seen as an attempt to rectify the situation when it is in fact not adequately replenishable.)
    Somewhere in between is localized utility of wast resources, where property can be exchanged on as is basis. I am thinking of mines and similar property, where the state sells excavation rights on the practically infinite rock beneath "land".
    If the series of post is getting into research later, my thinking is that copyright never made much sense for papers. The basic protection against copy theft is already quite nicely handled by the usual means of review and slander. 🙂
    Or in other words, why send in the ninjas when we have honorable samurai? 😉 I hope on-line journals and archives will continue to encourage a change here.
    However another form of property rights here, patenting discoveries like DNA, seems to make sense when it can be a basis for later commercialization. The difference is that the discovery must be material, AFAIK.

  • "Or in other words, why send in the ninjas when we have honorable samurai?"
    Or better yet, who needs ninjas when you have straight up evil PIRATES? ARRRGGHHH!
    Sorry, couldn't resist. Anyway, on to more substantive matters.
    "However another form of property rights here, patenting discoveries like DNA, seems to make sense when it can be a basis for later commercialization. The difference is that the discovery must be material, AFAIK."
    I have a serious problem with this approach. Enabling the patenting of DNA makes about as much sense as enabling the patenting of photons (and indeed such would have been a great cash cow for whatever did so in the early 1900's, the transition to optical discs as a storage medium would've been all their's). One shouldn't be able to patent discoveries, one should only be able to patent a sufficiently original invention.

  • Tom says:

    ... copyright never made much sense for papers. The basic protection against copy theft is already quite nicely handled by the usual means of review and slander.
    Academics tend to discount the monetary value of scare-quote intellectual property (until it's time for that startup), but do put a greater value on their reputations than their membership of a dispassionate community of searchers for truth might suggest.
    So how about a gedanken experiment: It is decided by the world henceforth to publish scientific results anonymously, as a parallel to simultaneously discarding copyrights. The results will still be available for the betterment of mankind; the taxpayer funds the eminent work of the scientists anyway; in short, for the scientist, what is there to lose? Compared to having to live off the sales of your paper, hardly anything. So: will there be any effects on research quality, supply and so on? If any, which? Should we introduce this regime tomorrow?

  • Anonymous says:

    Enabling the patenting of DNA makes about as much sense as enabling the patenting of photons

    Oh, it only makes sense in the context of commercialism and its perceived use for society. The moral question will be balanced differently for different persons. An idealist would disregard commercialism, conceivably even factor it in as an added negative to the asymmetry of the above description.

    It is decided by the world henceforth to publish scientific results anonymously, as a parallel to simultaneously discarding copyrights.

    Interesting idea, but I seem to be too tired (last day in April is a party day here 😉 to reason out why it is considered or what it's effects would be. IIRC there has been a discussion about anonymity or not of reviewers that could bear on this.
    Hmm. I need to go nurse my poor head. Meanwhile those that still have their neurons firing can discuss this.

  • Rob Knop says:

    So how about a gedanken experiment: It is decided by the world henceforth to publish scientific results anonymously,
    That would completely break everything.
    I will write about copyrights and scientific papers, and my opinions on those. Scientists do not need, and should not have, exclusive control over who gets to distribute or use their papers, which is part of what copyright gives. However, they absolutely need credit for what they've done. Unless the world (and probably human nature) changes tremendously, taking that away would kill the progress of science.
    This is kind of a straw man -- insisting that publishing anonymously is at all like taking away the exclusive control of copyright is rather ridiculous. There is a gigantic range in between.
    -Rob

  • Rob Knop says:

    And finally, the right of repentance (the artist is allowed to retrieve his work on payment of an indemnity to the current owner).
    See, I don't recognize the moral authority of aspects of all of those rights, and especially of this one.
    To me, a lot of these things are like the "divine right of kings," or perhaps even the "right" to own slaves. They are things that have been considered moral rights in the past, but which are in many ways at odds with the rights and assumptions necessary to maintain a free society.
    Not the best of analogies, because I don't think these "rights" are as evil as (say) slavery, and indeed I do think that there are some aspects of some of those rights that are reasonable and the sort of thing that ethical people would preserve. But as "moral rights," they go way too far.
    I'll write more about that at some point in the future.
    -Rob

  • Rob Knop says:

    It's not the physical object that's owned when discussing intellectual property. It's the right to control the distribution of the information that's involved in ownership.
    Yes. And this is why trying to simply equate the two with "intellectual property is property" simply doesn't make sense, and obfuscates the issues.
    -Rob

  • Julia says:

    It's not the physical object that's owned when discussing intellectual property. It's the right to control the distribution of the information that's involved in ownership.

    You can't directly copyright information (though there are other ways to hide it from some audiences). If you could, some of us older people would copyright our birthdates, and refuse any permission for anybody else to know that. Essentially, it is the organization and presentation of that information that can get copyrighted and whose distribution is under control of the copyright owner.
    If you publish a piece of information in a public source, that new knowledge can legally spread round the world. It's the distribution of your personal presentation of that information that can be restricted. For example, companies that actually want to prevent information from getting out don't publish it, and have to resort to such techniques as requiring employees who will be getting that information to sign agreements not to repeat or use that information outside the company.

  • C. Taylor says:

    As someone who makes part of his living creating information I would advise that you think very carefully about what the world would be like if people who create information were not paid for their efforts by the people who use it. I myself would not continue to produce useful information on manufacturing improvements or drilling equipment for just the fun of it. I'd go get a different job that pays, and continue using my spare time to write blog posts instead. The first industry to face this problem was the publishing industry and writers. I think they came up with a very good solution with the copyrights and royalties. You can argue that copyright is too long or that it should not be based on the author's lifespan, but I still think we need it or some mechanism like it.
    If you disagree, then imagine what the publishing world would be like in a world where photocopying and scanning were dirt cheap (a world we're entering now), people could legally copy any text they wished as often as they wished, and the author did not get paid for this copying of their work. Would there still be books in such a world? Yes, but the availability of books would not be based on what book readers need, as it is now when the readers pay the writers for using their text. The availability of books in a non-copyright world would be based on what writers want to create. Think about that for a minute. Without the profit motive to create expensive specialty books, the world would have a lot fewer useful textbooks* but no less bad, self-indulgent poetry about people's cats. Instead of publishing useful books like Machinery's Handbook, that anyone who is curious about building things can buy and educate themselves with, such future valuable information might wind up on the internet... but then again it might never be published and be kept secret within a paying guild system. Which result does history suggest is most likely, production without self-interest or profit motive trade protectionism? Without a way for good writers to make a living doing nothing but writing, then the writers of good, popular fiction from King to Grishem to Asimov would not be able to produce as many books (if they produced any at all). Sure, there'd still be fiction; there would be all the lame Mary-Sue fanfiction and romance novels you could wish for. Those, after all, are the things people write because they want to instead of being rewarded too.
    Sure, writers could be paid to produce by the government. I suspect I'd like a world where the books that get funded are those that The State wants even less than I'd like the anarchist, cat-poetry, Mary Sue-filled dream of the info-socialists.
    BTW, Rob, the next time you see Joe, ask him to 'duplicate' a copy of "Business as Usual, During Alterations" for you. It's a great short story that touches on the future of this issue once nanotech universal assemblers become possible and copying products (from art to appliances to automobiles) becomes as easy as copying digital information is today.
    * Could open-source selfless Linux-style efforts produce technical books and textbooks instead? Sure. But which are most likely to be produced? Those that are needed by readers or those that make the project participants feel good about their social concience? We'd have a lot more effort going to books on alternative energy than on useful but dirty stuff like wastewater treatment or welding or wheat farming. Even if the open-source Cathedralers had the best intentions to produce what the technical book users really needed... how do they know what that is without the market indicator of price to tell them automatically how much and how strong of a demand there is for various books? Create some committee or group of people to decide? Go read "I, Pencil" see how easy that'd be; or better yet just ask a Russian. I know... I know... Communism only failed because the wrong people were doing it; that if the info-socialists were doing it they would be much smarter/less corrupt/selfless.... no thanks. What about a democratic system where people vote for the text that needs to be produced. Except that a large group of people who don't care much could outvote a medium sized group that had a real, strong need, and simple voting would not capture small markets who nonetheless have a very, very, high need. Now if you made the votes each cost a little bit of money, then the people who really don't care won't vote much and the niche industries with a huge need could still vote a bunch of times to get the text written that they absolutely have to have... and we could use the money raised by the 'votes' to pay the writers and editors of those books so that they can quit their day-jobs and spend more time writing the needed books... uh... and now we've just reinvented paying royalties. 🙂

  • Rob Knop says:

    As someone who makes part of his living creating information I would advise that you think very carefully about what the world would be like if people who create information were not paid for their efforts by the people who use it.
    ...which I never said, nor argued for.
    I was arguing that "Intellectual property is property" is empty rhetoric, and obscures the issues.
    That is very different from arguing that people should not be paid for creating information. By arguing back against that, you've either missed the point, or set up a straw man....
    -Rob

  • C. Taylor says:

    BTW, it may be easy to delude yourself that people will still create useful information for free, when you work in a field that has some appealing elements that make people WANT to do the work, such as Astronomy. Sure, there are pople who do astronomy for little or no reward whatsoever. How many wastewater treatment hobby clubs does your city have? Which is really more important to society: stargazing or keeping $#!? out of your drinking water? But which one would people be more likely to spend their personal time doing if they don't get paid either way? That is why I think both artists and academics are so quick to look at essentially socialist solutions. Most of them are the people who love their work and would keep doing it even if it paid less than some other job they could do... in fact it may do so already. Ask your plumber if he'd still be doing his job for the love of it. Producing information works the same way. Right now if you go to a propulsion conference you'll see a lot more papers being written about projects to reduce jet airliner specific fuel consumption than there are papers on interstellar rockets. If the only work being done was by people who wanted to do it, then you'd still have just as many interstellar propulsion papers but a huge dropoff in work done on the much more immediately useful field of high-bypass jet engine specific fuel consumption.

  • Rob Knop says:

    You're still arguing against something I haven't said....

  • C. Taylor says:

    No, I'm not setting up a straw man. I'm trying to show why it is important for our society to *grant* property rights for information.
    I agree that it does not seem to be a natural property right like someone's cow (although an animal rights nut might disagree) or a product they built(although a real Commie might disagree). In a 'natural state' sort of tribal society then I do own my ideas... as long as I don't tell them to anyone. But once I tell them to someone then the secret is out. If I want to profit (as a lot of people do) then it is better to keep my good ideas a secret and take them to my grave or come up with some secret keeping organization like a priesthood or guild and make a few people pay alot to get the information (since the chances of a 'leak' go up as more people get told). Maybe it is not as natural as recognizing property rights to something someone built with their own hands. But as a society if we do not GRANT property rights to information then it hurts us all. Someone who produces information has to have confidence that, yes... they will recieve rewards for sharing that information with society... Or else our society will evolve (or is it devlolve) back to a secret-keeping priesthood and guild state that we won't like very much. If people lose confidence that the information they give to society will be rewarded AS IF it were some other more solid form of property then it undermines our open and well-informed and fast advancing society.
    Yes, perhaps you have some point that makes other academics nod their head and go... "yes, it is not exactly the same thing." But it makes normal people go "What is your real motive for trying to tear down our society?" In our culture we treat it as similar for a good reason. If my ideas are only mine while they are unspoken then we risk to many of the ideas being unspoken.
    Even people who think they are iconoclasts shy away from saying some things that, even if true, undermine our society. If you don't believe that, then I could post a couple of examples... though they might be considered 'hate speech' to even bring the facts up.
    In conclusion, information is different than products... at least it is now before we have the nano-tech univeral assembler invented. But our society treats them the same for very good reasons, and yes you are right to point out to someone who does not spend all day thinking about minutia that the difference exists. And I don't blame them a bit for being suspicious of your reasons for taking the conversation down that path. Just as if a black man would become suspicous if I were promoting a 'national conversation' on IQ as a function of race. It's just a conversration... what harm could come of examining the facts of these things in the public eye? Why would you think I might have other motives for focusing public attention on these differences?
    Maybe you're no more of an anarachist or a communist than I am a rascist. But can you see that when every other person who has brought up such things has done so for nefarious reasons that perhaps you might need to be careful about how you discuss the issue and not be suprised when people jump to discount something... even if it might have some grain of truth in it.
    Saying that you can own your idea even after you share it with others is too useful of a societal convention to be careless with. And if it is a legal fiction to give property rights to ideas (and I'm not certain that it is) then it is far from the only legal fiction that our legal system uses to good effect for our society. What the others are I will leave as an exercise for the reader.

  • C. Taylor says:

    Actually, the second post was arguing against something you said. Just not something you said in your blog post. 🙂 I am arguing against the general philosphy of people (many of whom are readers here) that "information wants to be free." Yes, jewlery wants to be free, too. For every careful, honest, philospher who is curious about the nature of information there are a hundred immature punks who want an excuse to not have to pay for that Metallica song they ripped. I suspect, Rob, that you are the former. But because you have a job with high-non-economic benifits I fear that you may be discounting economic motivators for the vast bulk of the rest of society.
    Perhaps I'm wrong, and you will next post that you believe that ideas are not the same as physical property, but that we need to have some system for financially transferring wealth from idea consumers to idea producers anyway... and that your idle writings on the matter were just part of a sincere attempt to fully and correctly catalogue all the types of economic activity our society engages in. If that's the case then I apologize. I admit that I was trying to "head you off at the pass" and argue against statements you had not put in print yet. If I wind up waiting at the pass while you take a different path then it was a bad choice. But I think a lot of the readers here who are arguing for "free as in beer!" information would benifit from setting the beer down for a #^(#ing minute and thinking about the real world and real human nature instead of the pretend utopias that we imagine while plastering over the real ugliness that most of human history shows. The unpleasant truth is that our culture and society is a beautiful anamoly and we should be careful about throwing part of it away for some free MP3s lest that "information is property" bit turn out to have been more important to our inteliectuall advancement than the artists and acadmeics (with their high non-economic benifit jobs) suspected.
    If you want to just have a conversation on the nature of property, then I'll stop jumping ahead to argue against the conclusion that ALL OTHER people I've met who start out this way try to lead the conversation. I'd be pleasently surprised to discover that this conversation went differently; but I admit that if there ever is any copyright doubter to take the conversation in a different direcdtion, then you'd be the one to do so.

  • Rob Knop says:

    Chris -- well, I don't think "information wants to be free" for the same reasons that jewlrey doesn't want to be free... inanimate things don't want.
    I would say that by and large, though, we want information to be free.
    Go read my latest post, "Copyright is Censorship," where I do point out that, yes, we need economic incentives for creators.
    I just don't like the terms of the debate, nor do I like the fiction of creative expression as property, because it pushes us too far in a bad direction.
    I want us to keep perspective as to why we grant exclusive writes to ideas and creative expression.
    -Rob

  • C. Taylor says:

    Well, one of the limits on blogposts as dialog is the time lag between reading, writing, and responding. It turns out I was reading your latest post while you were admonishing me to do so, and I've already responded to the rest of this debate there.

  • noself says:

    Well, the right of repentance appears to be an exclusively French thing (along with the most stringent form of right of distortion).
    But the broader point I was hoping to make was to draw the exact distinction that the later half of the comments seem to implicitly assume i.e. that IP is simply about economic exploitation. And it bears noting that more than half the world's legal intellectual tradition adopts the more moral(istic) position. I think that seen in that light, we can start drawing finer distinctions and really consider what IP is.
    And I do agree with saying the IP is Property probably obfuscates more than it clarifies. It almost inevitably leaks to such oddities as "trespassing" on "digital property".

  • Tom says:

    This is kind of a straw man -- insisting that publishing anonymously is at all like taking away the exclusive control of copyright is rather ridiculous. There is a gigantic range in between.
    Why would anonymous publishing destroy science, while abolishing copyright would not destroy, for example, the software industry*? Or abolishing patents (another form of IP) would not destroy, for example, the pharmaceutical industry?
    From the viewpoint of incentives, this question is hardly a strawman. In one case, the reward is professional recognition or even fame, which can be followed by attaining prestige, money and power. In the other, the reward is more direct (but development costs usually have to be recouped out of pocket first).
    To forestall the inevitable sidetrack, please note that current intellectual property legislation may or may not be reasonable. (In fact, I'd probably argue it is broken in many jurisdictions.) But I'm interested in the principle.
    * As an aside, free software adherents might enjoy the thought of an equally free science, where the results are what is important, not, for example, the list of people who got the funding to do the work. And why not?

  • Rob KNop says:

    Why would anonymous publishing destroy science, while abolishing copyright would not destroy, for example, the software industry*? Or abolishing patents (another form of IP) would not destroy, for example, the pharmaceutical industry?
    Three completely separate issues. I'd discuss each one individually, rather than tryt o conflate them all as you have.
    I was arguing that basic science does not need, and should not have, the kind of copyright protections it needs -- not here, but in the next blog post I made after this one. I also address your asterix comment in that post.
    -Rob

  • Anonymous says:

    This is kind of a straw man -- insisting that publishing anonymously is at all like taking away the exclusive control of copyright is rather ridiculous.

    Oh, of course, that was why I didn't recognize hearing it before and couldn't make sense of it in my tired and hungover state. It was indeed nonsense.

  • Jan Velterop says:

    Here's a considered counter to "Intellectual Property is Property": http://www.law.stanford.edu/publications/stanford_lawyer/issues/73/Property.html

  • jim says:

    intellectual property (like a recording of a song)

    Nitpick alert!
    IANAL, but I've been involved with some legal discussion in some cases that, fortunately, never went to court. My understanding is that, first, "intellectual property" is not well defined, but copyright is, so let's dissect that example a little more closely.
    If I record an original song, all by myself, I then own the unquestioned copyright to that work. What I "own" is not the file, or any given copy of the file, but the right to reproduce the file (and make derivative works, and other things: see http://www.copyright.gov/title17/92chap1.html#106). Using "intellectual property" as a fuzzy proxy for copyright, then, the recording of the song is not an example of "intellectual property"; the right to make copies is the "intellectual property".
    So I think your example should have been:

    intellectual property (like the right to copy a digital recording of a song)

    This may seem a subtle distinction, but it can make quite a difference to subsequent analysis.

  • Rob Knop says:

    Jim -- but all of that would only strengthen my argument 🙂
    It's murky. The right to do something doesn't sound like "property" at all. Using the term "intellectual property," never mind trying to equate those rights with property rights, just confuses everything. Using the term "theft" to describe "copyright violation" is just as bad. And, yet, copyright maximalists like to say that it's theft as assuredly as breaking into somebody's house is.
    Most of the time the people who pull out the "intellectual property is property" argument are talking about the recordings themselves, even though that's not the real legal basis.
    -Rob

  • jim says:

    Jim -- but all of that would only strengthen my argument 🙂

    Yes, it does! I was nitpicking your phrasing, not your argument. And yet, as I have been assured by the people we pay to argue these things, that the "property" is indeed the right, not the file, and this is why "intellectual property" is even more a misnomer than most people think.
    The "property" is not the file, or the combination of numbers that comprise it (which, as a math geek, I can choose to think of as one number), but the government-bestowed exclusive legal right to reproduce it (and do those other things listed in the Copyright Act).
    The term "theft" is just so totally out of the ballpark that I can never quite believe that it is accepted by anybody. This doesn't mean that copyright infrincement is either morally or legally OK -- that's a separate argument -- just that copyright infringement is no more "theft" than it is "murder" or "juggling". Categorical error.

  • Rob Knop says:

    The term "theft" is just so totally out of the ballpark that I can never quite believe that it is accepted by anybody.
    Indeed, though, in the RIAA-dominated discussion, it seems to be accepted by most people who've heard anything about the issue at all.
    Some people are very adament that it is theft.
    -Rob