
The 'intellectual property' oxymoron - yannis
http://harmful.cat-v.org/economics/intellectual_property/
======
gvb
What I consider to be intellectual property is between my ears - it is _my_
intellect and _my_ property.

I have an arrangement with my employer to rent my intellect for nominally 8
hours per day. What that arrangement produces are _artifacts_ (ink on paper,
magnetic domains on disk drives, charge on floating gates) of my intellect. My
employer owns those _artifacts,_ but not the _intellect_ that created them.

Companies can talk all they want about their "intellectual property", but
their property is _artifacts,_ and artifacts are _not_ intelligent. Artifacts
cannot generate new, novel, artifacts. When a company uses the term
"intellectual property," that is offensive to me because the company is
denigrating my intellect by equating it to inanimate artifacts.

The uncomfortable truth (for companies) that they have forgotten or chosen to
ignore is that the intelligence part of their company is _not_ their property.
The intelligence walks out the door every evening.

~~~
T_S_
IP is a catch-all term for a variety of legal situations (patents, copyright,
trade secrets, even non-compete). Your comment is a very nice legal theory,
but I don't know if the courts decide things this way in every case.

------
hxa7241
A basic roundup of ethical problems for IP:

* Conflict with fundamental personal liberty: Mill's idea that we have unrestricted liberty except to the extent that it injures someone else, is fairly standard. But IP conflicts with that, yet IP is not fundamental, not grounded in physical fact. (See Koepsell: [http://www.hxa.name/articles/content/ethical-case-against-ip...](http://www.hxa.name/articles/content/ethical-case-against-ip_koepsell_2009.html))

* Cannot be justified on the basis of harm: One could justify rights by showing that lack of them causes harm to those denied. But IP represents no physical relation where any harm could be rendered. (See Wilson: [http://www.ucl.ac.uk/~rehbjgs/docs/could-there-be-a-right.pd...](http://www.ucl.ac.uk/~rehbjgs/docs/could-there-be-a-right.pdf))

* Does not make complete sense as a generalised rule: The idea that a moral rule is generalisable, as a critical feature, is also standard (probably more so). But if everyone owned IP equally much there is no advantage, and everyone would be better off freely sharing copies. (And indeed, what do we seem to see amongst similarly large corporations? They buy big patent portfolios and agree, or tacitly accept, truces between them.)

~~~
michael_dorfman
None of these are ethical problems if you accept the premise that the author
of a work is entitled to be remunerated for the production of said work, and
can contract (exclusively, for a period of time) with a publisher for the
distribution of said work.

Put another way: you may (or may not) be old enough to remember when an
American paperback company, Ace books, produced and sold paperback copies of
Tolkien's "Lord of the Rings" without paying Tolkien for the rights (and in
direct competition with Houghton Mifflin, to whom Tolkien had contracted).

Are you prepared to argue that Ace did Tolkien no harm?

~~~
hxa7241
> if you accept the premise that the author of a work is entitled to be
> remunerated for the production of said work

That is not the premise, that is the matter in question.

If it is simply assumed as the answer, nothing has been said.

As to the idea of harm here, it is not in the actions or materials themselves.
It depends on assuming the particular law is the baseline, and then saying
_without_ that the person would be worse-off. That is effectively saying:
people can make a living in a particular way because of the rule, and we have
the rule because people can make a living in a particular way from it. This is
a circular fallacy. It cannot be justified by itself.

 _Why_ is IP justified? -- as a rational argument, in terms more basic than
the question itself . . . (having looked around a bit, there seems to be only
one half-decent/plausible one: the standard economic one -- which is not
really an ethical argument (and conspicuously lacks actual evidence anyway))

~~~
cschwarm
> Why is IP justified?

From an economic point of view, by trying to prevent something like the
tragedy of the commons.

Since everyone can make copies if there is no ownership, the majority of
authors have no incentive to make their works public. And since authors can
figure this out before starting to work, there's less production of works than
beneficial.

In other words: Nobody would have spend the money to make movies like Lords of
the Rings, or whatever you fancy.

The free market argument applies in a world with ownership, too: Those who
paid the price for a work are assumed to be better off, otherwise they
wouldn't have agreed to the bargain. If they would want works without
ownership, they can always assemble, throw their money into one pot, and have
works made for them.

Since they don't do this, an average, the incentive of having works with no
ownership can't be that great.

You got to admit that every author is the possessor of his work, even in a
world without ownership, since he possesses the first copy. So, the question
is: How can you make him publish his copy?

~~~
wnight
> In other words: Nobody would have spend the money to make movies like Lords
> of the Rings, or whatever you fancy.

Sure. Like how nobody would write encyclopedia articles, operating systems,
fiction, manuals, textbooks, etc, for free.

------
tzs
There's an economic justification for the current type of IP law in societies
that philosophically believe that the free market should be used whenever
possible to determine the allocation of resources. It goes like this:

\------

It can be shown by the mathematical economics folks that the free market leads
to economically optimum results if and only if the goods in the market have
certain attributes.

If goods do not have those attributes, the free market does not work with
those goods in the sense that it does not lead to a good allocation of
resources.

Intellectual goods do not have those attributes. Therefore the free market
does not work for intellectual goods.

If we want to have optimal allocation of resources to the production of
intellectual goods, we either need some mechanism other than the free market
(e.g., patronage, probably by the government) or we need to pretend that
intellectual goods DO have the necessary attributes. Our current IP law takes
the later approach.

\------

Nearly every anti-current-IP-system opinion I've read (including the submitted
article and most of the comments here so far) fails to propose how to achieve
reasonable allocation of resources using some system other than the current
system (except for RMS...he's one of the few who gets it--see below).

At best we usually get suggestions that creators of intellectual goods will
find something else to do. For instance, musicians will give concerts, writers
will make their living doing contract articles, programmers will provide
customization or support, and so on.

Those suggestions are missing the point. When a great novelist is spending
time writing articles, he's not writing his next great novel. When a great
programmer is handling tech support, he's not writing great programs. Those
resources are not being optimally allocated.

RMS has suggested that there be a tax on internet connectivity, with the money
going to fund creators of intellectual goods, with distribution of the money
based on the cube root of popularity.

~~~
smokeyj
People are engaging in activity Y.

Activity Y is not profitable.

How can we control the internet to make Activity Y profitable?

Suggesting folks engaged in Activity Y figure it out is not an acceptable
response.

I can't help but feel this is a false dilemma. What about Activity A B and C
that aren't profitable? Shouldn't we care about the proliferation and
development of all these activities? Furthermore, maybe folks engaging in
Activity Y should just evolve and adopt to the modern climate of the digital
age. See GNU/Linux.

~~~
adsr
It's a strawman argument, since there are two components here. First, it's
hard to make a living as a writer, perhaps your just not good enough or only
appeal to a small part of the population. Secondly your right to get paid for
your work. The second part doesn't go away simply because making a living as a
writer is hard.

~~~
Helianthus
Yes, it does in fact. It isn't society's responsibility to make writing
profitable. Just because the internet et al are making it harder to make a
living as a writer doesn't mean we have any responsibility to turn around and
make it easier.

~~~
ignifero

      It isn't society's responsibility to make writing profitable.
    

Society rewards everything that benefits itself (at least the society i have
agreed to live into). For example it rewards good scientific research because
it makes everyone more productive and happier. I believe it has a good reason
to make it profitable for writers to write good books too.

~~~
Helianthus
Let me amend it to say it isn't _necessarily_ society's responsibility to make
writing profitable, and from what I've seen enough good writing gets done
without being profitable that the distinction between professional writer and
serious amateur writer is no longer meaningful.

------
nextparadigms
I've seen many people say that if RIAA and MPAA keep trying to introduce new
_censorship_ laws like that, eventually the "camel's back will break", and
people will demand a total overhaul of the copyright system, or perhaps
completely eliminate it.

I tend to agree. The more they will push this, the more people will rise up
and speak against it, and many people will start questioning if copyright
should even exist in the first place. Through their aggressiveness on this
issue, they will put the spotlight on it, and I don't think it will end up
being in their favor.

I believe the people will eventually win this one, even if in the mean time
they manage to introduce one or two more Internet censorship laws.

I like this TED video on this:

<http://www.youtube.com/watch?v=7Q25-S7jzgs>

~~~
bch
See also: <http://www.youtube.com/watch?v=zL2FOrx41N0> "Lessons from Fashions
Free Culture."

------
vog
That reminds me on Stallman's very interesting article about the (mis-)use of
the term "intellectual property":

<http://www.gnu.org/philosophy/not-ipr.html>

~~~
MatthewPhillips
That's a much less incendiary piece than what I'm used to seeing from
Stallman, thanks for posting.

------
jarrett
While I agree that our current intellectual property system is doing a great
deal of harm (particularly due to it being slanted in favor of monied
interests), there is a protect-the-little-guy rationale for some form of
copyright.

Let's imagine a world without copyright. Suppose I spend a year writing a
novel. This novel is great; it has the capacity to become the #1 bestseller,
provided the right marketing is there. I go to my publisher and enter into a
contract saying that I'll let them read my manuscript in exchange for them
promising not to publish or sell it until we've worked out a deal.

So far so good. Contracts keep me protected in the world without copyright. I
give them the manuscript, they love it, and they publish it.

All is well until a huge publishing company notices my book and starts
printing and marketing it, without paying me or my publisher a dime. They
manage to sell 100 times as many copies as my publisher, because mine is a
small, independent operation, and the big company has a sophisticated and
well-funded marketing machine.

This is one area where intellectual property laws, if properly designed, would
protect smaller entities against larger ones. And that's where I think the
real value of (hypothetical) intellectual property laws lies.

~~~
lukeschlather
Or nobody sells your book at all. You give it away for free on the Internet,
and you make money off speaking appearances.

~~~
eropple
Because that's very realistic (Cory Doctorow aside, and he's a special case).

It's foolish besides--speaking engagements, etc. take away time from _actually
producing creative works_. It's the sort of miss-the-point silliness often
espoused by the anti-IP sorts: "spend an incredible amount of time doing X to
maybe, if you're lucky, sell a marginal number of Y, where Y is totally
unrelated to X."

It's silly and a misallocation of a wtiter's resources to take away from
_actually writing_ to hit the speaking circuit.

~~~
johnnyjustice
Well that's not fair, its not simply foolish. He prefaced his comment with
"Or" meaning that its a possible business model. I think it would be fantastic
to speak to my favorite writers and I know their time is valuable so I would
pay to. But I am not stating that it is the perfect path. Though it would be
nice if people considered it as a possibility.

~~~
eropple
It certainly is possible revenue source--once you have a big enough fanbase to
support it. Which is probably multiple books and a number of years, during
which your effective cash flow from an activity that takes up a staggering
amount of time (and benefits others in the meantime) is essentially zero.

It is not, in the general case, very viable. Which is why nobody takes it very
seriously as a good path for all, or even most, writers. Because they have to
eat, too.

~~~
lukeschlather
>Which is probably multiple books and a number of years, during which your
effective cash flow from an activity that takes up a staggering amount of time
(and benefits others in the meantime) is essentially zero.

That's pretty much what most artists go through now, isn't it? I'm not
convinced that copyright does a particularly good job of solving that problem.
I'm not saying I definitely think copyright should be abolished, but it does
at best a very mediocre job of rewarding artists.

~~~
eropple
I'm not so sure. Given the rise of self-publishing services, once your product
is done (or even close to done, I suppose), you can immediately start
generating cash flow. If you have some pleasant "free culture" person
spreading the book free of charge and against your copyright, you're probably
losing some sales. (Obviously not every person who downloads it for free would
have bought it otherwise, but c'mon. The number of people in that category is
almost definitely not zero.)

It's not going to keep you in gold-plated Maseratis, but it can start to add
up.

~~~
lukeschlather
Yes, but can it pay rent? I guess, my concern is that it may be better to hold
down a single, solid, paying job and do art in your spare time than trying to
hold down enough art gigs to add up to a job. You end up doing a lot of hard
work making ends meet. Making it appear like art is a generally viable career
choice might be doing more harm than good in the average case.

------
olavk
Intellectual property at least makes a certain sense, since it is something
you create yourself out of thin air, and therefore can decide to make
available to others under certain conditions if both parties agree. If you
don't make it available, nobody suffers, and if you do, you have created value
without depriving others, so it is only fair to receive compensation.

Owning land, on the other hand is clearly immoral. You didn't create the land,
so how could you own it? Oh, you bought it from someone else. Well they didn't
own it either. Someone stole it from the community a long time ago. Owning
land is theft exactly _because_ it is a limited resource.

~~~
FrojoS
_you have created value without depriving others, so it is only fair to
receive compensation._

How is this fair to everyone else who had the same idea but wasn't as fast or
greedy?

~~~
olavk
Good point - that is why I don't support IP rights for ideas so simple that
other people would come up with them independently. This includes many
software patents. I do believe in IP rights for creations above a certain
level of complexity. For example, no two people would come op with the same
novel or symphony independently.

~~~
FrojoS
_I do believe in IP rights for creations above a certain level of complexity.
For example, no two people would come op with the same novel or symphony
independently._

Interesting thought. Though, where do you draw the line? I don't want to
oversimplify things. But a lack of IP obviously didn't demotivate Mr.
Beethoven from writing lots of symphonies.

------
jvandonsel
The quote by John Perry Barlow:

"Royalties are not how most writers or musicians make their living. Musicians
by and large make a living with a relationship with an audience that is
economically harnessed through performance and ticket sales."

leaves a lot to be desired. OK, so how do writers make their living? By giving
live readings? I think not.

~~~
Zigurd
The way I earn a living is the same way most musicians earn a living: By
working for hire or teaching (consulting).

There are about 10,000 books that make any measurable money at all, at any
given time, and only a small fraction of those earn the authors enough to live
on. Even famous authors of widely read books often have a "day job."

Books I have co-authored are "pirated," mainly in markets where wages are
lower than would support a local edition at local pricing. My publisher does
not use DRM on e-books, and e-books still rapidly outpaced paper books.

If you do the thought experiment, lack of copyright protection or a
significantly shorter term of copyright, or some other variant, like a
publishers' agreement not to trespass on other publishers' author
relationships for some term, would not change my direct income from book
writing very much.

Publishing would adapt: Books might be serialized so that subscribers get
first access on a continuing basis. Or frequent editions (which you might see
anyway, with e-books) might become the norm.

Apart from the handful of authors of "blockbusters" the book publishing
economy would not change that much. We have made, and are protecting at great
expense a novel result: A small number of authors, musicians, motion-picture
makers, etc. can make big money through mass-reproduction of their works.

Is that an advancement of civilization worth subverting all the potential for
free expression the Internet provides, or not?

~~~
antiterra
What if you wrote fiction?

------
FrojoS
In my mind kickstarter.com is the solution to the intelectual property
problem. How can, knowledge workers, for instance musicians, earn money in the
21. century? Simple, charge upfront before publishing.

Imagine a popular band like U2 would ask for the money, they expect from their
next album, upfront. I think, their fans, including me, would do what ever it
takes to raise that money together. Et voila, you can still become rich as
musician without mega concerts or a police state.

I've been talking about this solution with my friends for years. We never made
it happen. Now kickstarter.com is here. But I'm still waiting for a large
adaptation in industries like music or software and video games. Is it just a
question of time and promotion or am I'm overlooking something important?

PS: I posted this a few seconds ago at
<http://news.ycombinator.com/item?id=2723374> but then realized it would fit
better here.

~~~
andrewflnr
That does sound like an interesting model. Producers would, I suppose,
initially have to establish their reputations by releasing things for free.
The dynamics of choosing prices would be completely different, more like
selling equity.

One thing that would worry me: a lot of people would have to be involved in
getting a piece to a point where it could be sold. How would it be protected
while all these people are looking at it and working on it?

Also, if you work out one of these deals with a publisher, and transmit it
over the Internet, are you legally protected against people stealing it en
route?

~~~
FrojoS
_That does sound like an interesting model. Producers would, I suppose,
initially have to establish their reputations by releasing things for free._

Yes.

 _One thing that would worry me: a lot of people would have to be involved in
getting a piece to a point where it could be sold. How would it be protected
while all these people are looking at it and working on it?_

Based on trust, just like today. How is this different from how music, books,
games etc. are produced now?

 _Also, if you work out one of these deals with a publisher, and transmit it
over the Internet, are you legally protected against people stealing it en
route?_

Not sure if you got me. No publisher required. Its direct b2c. Just like
kickstarter.com works today. I'm only missing the "big fish".

And no one could "steal" it. Once its published its published. Free like any
information thats published into our world today. A free license like BSD
would be appropriate.

~~~
andrewflnr
> Based on trust, just like today. How is this different from how music,
> books, games etc. are produced now?

Currently, if someone violates your trust, by releasing their own version of a
song you wrote, for example, you can sue them. It's not clear to me that this
would be the case in a copyright-free world. You would have to explicitly have
to make a contract with everyone who ever comes in contact with your work
before it's ready. That would be tiresome, at best.

And it doesn't cover people who steal/stumble across pieces of it in progress.
There is no way I would not be working on something before it was paid for.
Before I even put an idea up for funding, I would have notes and such. If
someone takes these and makes a derivative work, I get to prosecute them
for... stealing paper, because I'm not allowed to claim the information
content of the paper as my own.

Artists not skilled in secrecy are going to be in serious trouble.

> Not sure if you got me. No publisher required. Its direct b2c. Just like
> kickstarter.com works today. I'm only missing the "big fish"

No, I didn't quite understand that model. So if there is any large-scale
physical production, say printing books or burning CD's, that will be handled
by third parties and the artist won't have anything to do with it? And people
who want the physical form will have to pay two parties?

One problem you'll run into is that everyone benefits equally no matter how
much they put in, including those who didn't put anything in. That sorta sucks
for anyone who put in a lot, who then watch those who didn't help at all
benefit from their money. You're essentially relying on charity, and that's a
worrisome business model.

I wonder if the reliance on idealism would have a positive effect on the
quality of work produced.

I need to think about this more. And I should probably give Kickstarter a try
for one of my own projects.

~~~
FrojoS
_No, I didn't quite understand that model. So if there is any large-scale
physical production, say printing books or burning CD's, that will be handled
by third parties and the artist won't have anything to do with it? And people
who want the physical form will have to pay two parties?_

Whats wrong about paying two parties? Actually, most people would never pay
the first party, because the work is already released. And the profit margin
for the second party (publisher) would be small at best. First, because there
will be a lot of competition and second because information delivery is almost
free today.

Why burn CD's in 2011? Download the mp3's and play them wherever you want.
Since I have a Kindle, I don't really want printed books anymore either. I
also printed a lot of free books at the local copy shop in the past.

The problem with trust, I believe is not a bigger one than it is today. It
should actually be smaller. Where is the problem if I paid someone over
kickstarter.com to do XYZ and then XYZ gets published by some bad guy earlier
than planed?

------
sp332
Here's the rest of that letter from Thomas Jefferson. [http://press-
pubs.uchicago.edu/founders/documents/a1_8_8s12....](http://press-
pubs.uchicago.edu/founders/documents/a1_8_8s12.html) It's interesting to
realize that even such a fierce supporter of personal rights in our country
didn't recognize ideas as something that should be "protected" like personal
property.

~~~
m__
Actually, "protecting" ideas as if they were property is in direct opposition
to personal rights, so this should be expected.

It's weird how "intellectual property" somehow got associated with personal
liberty, the free market etc., when in fact it totally goes against those
ideas.

~~~
sp332
Well, I've heard that in Britain, IP is considered an inherent right just like
personal property. If I own the result of my own physical labor, why wouldn't
I own the result of intellectual labor as well?

~~~
Vivtek
Because if you physically make something and it's taken from you, you no
longer have it. Information can't be taken from you - granted, a medium on
which it's stored could be, but again, that would be a physical, not an
intellectual loss. You can't be deprived of the knowledge that allowed you to
create the item in the first place.

Unless, of course, somebody else is granted the intellectual property rights
to it.

~~~
michael_dorfman
But that's not quite the argument.

If I compose a poem or a play, and contract with a publisher to publish said
poem and pay me a portion of the proceeds (or contract with a theater company
to perform the play, and similarly pay me a portion of the proceeds), and some
third party takes the poem/play and publishes/performs it without paying me, I
have, in fact, been deprived of something, i.e., income.

And, if my reading of history is not mistaken, it is precisely from this use
case that the notion of intellectual property (in the initial form of
copyright) takes its foundation.

~~~
Jach
Interesting you chose the word 'deprived' instead of the more typical 'stole'.
I think it's hard to justify stealing when only a copy was copied. So then
'deprived of income' in the sense of withheld income. Who is doing the
withholding, and why do you think you're entitled to what they're withholding?
And how much? (While the third party didn't have to write your work, they
nevertheless would have to do a lot of work themselves to make a profit from
it.)

Here's an economic quote but I don't remember the source: "Profit is not
determined by how much value you create, it is determined by how much of that
value you can capture." Edit: Ah, looks like it's an Eliezer quote not from an
economics text.

~~~
michael_dorfman
In the example I offered, the economics are no mystery, but if it helps you to
put numbers in the picture, let's go for it.

Suppose I write a book of sonnets. I negotiate with a publisher whereby he has
the exclusive right to print, distribute, and sell said book of sonnets for a
period of five years, and I will be paid $1 per copy sold. The book proves
popular, and a pirate publisher produces, distributes, and sells an identical
edition, but fails to pay me the $1 per copy sold.

In this case, I am being deprived of the income (by the pirate publisher) to
the tune of $1 per copy that they have sold during the period in question.

Clear?

~~~
Jach
Not really. Why is it $1? Suppose you make a contract with one publisher who
will pay you $1 per copy sold and also negotiate with a different publisher
who will pay you $2 per copy sold. How much are you deprived then, $1.50? $2?
You're assuming that every copy the pirate sold could have been sold by your
current publisher(s) but wasn't.

~~~
michael_dorfman
Because I stipulated that the contract was exclusive and time-limited. In
other words, the assumption that every copy the pirate sold would have been
sold by my current publisher is accurate-- hence the simplicity of the
hypothetical.

~~~
gnaritas
> Because I stipulated that the contract was exclusive and time-limited

And why should you have the right to control that?

------
Tycho
Property underpins our ability to survive. All wealth is ultimately a product
of the mind (whether it's writing a novel, or finding some oil and knowing how
to use it), so as a general rule if a man cannot control the produce of his
mind, he can't expect to survive. I see intellectual property as pretty
fundamental to any society that respects individual rights.

------
aaavw
Given that (1) most people are or are becoming "authors" now that the tools to
create and distribute have become much more distributed then ever before; that
(2) the way copyright works at the moment is to reward only popularity, not
original creativity; that (3) for any author obscurity is a much larger
problem then infringement ever could be; that (4) creativity may not need
encouragement as becomes obvious seeing how much is intentionally produced to
be widely distributed for free (open source, creative commons, youtube, etc)?;
that (5) only a very tiny percentage of authors will ever get "rich" of their
work.

So perhaps we need to look at another solution?

An unconditional basic income for all would support authors/artists/anyone
exactly at the moment they need it to do their work. It will not make anyone
rich, but it will enable works that can't be created at the moment (because
the artist needs to do other work instead). When an author does become
populair they will not have been forced into an unfavorable contract with a
publisher when they where broke, working poor.

An unconditional basic income would enable people to be creative, it would pay
just enough so that money isn't an issue anymore. This would be more effective
way to promote the arts and sciences then copyright in its current form.

~~~
uriel
Your idea sounds a bit like Milton Friedman's negative income tax.

------
Symmetry
A "right to sue" could be considered property if you squinted hard enough, but
of course when people talk about intellectual property they're talking about
"UNIX" or Windows or the Mac OS look and feel, not the legal mechanisms
themselves.

~~~
Sharlin
Yes, juridically, the word "property" in "intellectual property" actually does
refer to the _rights_ , not to the immaterial entities governed by those
rights. "Intellectual property rights" is just tautological.

~~~
Symmetry
Thank you, it always seemed to me that it would make sense if it was supposed
to be that way, but I didn't realize that that was the actual law.

------
kanzure
What if patents granted tax benefits instead of granting a monopoly? Would
this work?

------
naughtysriram
easiest way for a government to bag some money is to liberalize to the private
by means of copyrights. but what it does it slowly slaving it self to the
private. one fine day the private will own the public completely and even
copyright the constitution. so no other country can have its right to have
rights.. pathetic system.

