If Intellectual Property Is Neither Intellectual, Nor Property, What Is It?

from the rethinking dept

Continuing my ongoing series of posts on "intellectual property," I wanted to discuss the phrase itself. It's become common language to call it intellectual property, but that leads to various problems -- most notably the idea that it's just like regular property. It's not hard to come up with numerous reasons why that's not true, but just the word "property" seems to get people tied up. There are some who refuse to use the term, but it is handy shorthand for talking about the general space.

The main reason why I have trouble with the "property" part isn't just the fact that it leads people to try to pretend it's just like tangible property, but because it automatically biases how people think about the concept. As I've written before, the very purpose of "property" and "property rights" was to better manage allocation of scarce resources. If there's no scarce resource at all, then the whole concept of property no longer makes sense. If a resource is infinite, it no longer matters who owns it, because anyone can own it and it doesn't diminish the ownership of anyone else. So, the entire rationale for "property rights" disappears.

Even if you buy into the concept of property rights for intellectual output, a look at the history of property rights suggests that the laws are eventually forced to reflect the realities of the market. Our own Tim Lee just wrote up a masterful comparison of property rights in the early United States to copyright laws, noting how property rights in the US needed to change based on usage, rather than forcing everyone to follow the in-place rules. It's not difficult to see how the same may happen when it comes to "intellectual property" as well, if various companies who rely on those laws don't recognize the realities they face.

However, if we don't want to call it "intellectual property" what should it be called? Here are some of the contenders that people toss out:
  • Intellectual Monopoly: Popularized by economists David Levine and Michele Boldrin, who have a fantastic (and well worth reading) book called Against Intellectual Monopoly. As they point out, patents and copyrights really are monopolies much more than they are property rights. In fact, as we noted early on, that's exactly how Thomas Jefferson and James Madison referred to the concepts when discussing whether or not such monopolies should be allowed by the Constitution.
  • Intellectual Privilege: This one is being popularized by law professor Tom Bell, who is working on a book by the same title. While this is nice in that it retains the "IP" designation, it's also a bit cumbersome and requires a pretty detailed explanation for anyone to understand. For that reason, it may have a lot of difficulty catching on.
  • Imaginary Property: Another one that retains the "IP" designation, and is growing in popularity on some blogs. It's also a little troublesome because it's probably the least accurate (and may also imply something entirely different than copyrights or patents). It gets rid of the "intellectual" part, and keeps the property part, even while calling it imaginary. But, intellectual output isn't imaginary. It's very real. That doesn't mean it's property, of course, but imaginary property may set people off in an entirely different manner.
  • Others: Other suggestions are even less common, but deserve to be mentioned as well, if only briefly. There's use monopoly. Richard Stallman has suggested and rejected Imposed Monopoly Privileges (IMPs) and Government-Originated Legally Enforced Monopolies (GOLEMs), which are cute, but... not very practical. Some have even tried to tie the concept more closely to the "Promote the Progress" constitutional clause -- though, that really only covers copyright and patents. Besides, you again have the problem of it being cumbersome.
  • None of the Above: There's definitely something to be said for voting for none of the above and clearly separating out each of the different types rather than lumping them all together into a single bucket.
In the end, I don't think that there's really a good answer. I think it makes sense for it to be context specific. Using "intellectual property" too freely is definitely a problem, as it creates a mindset and a framework that isn't accurate for the type of rights provided by patents, copyrights and trademarks. Yet, all of the other options have their own problems as well. I tend to think that whenever possible, it's best to use the specific type being discussed (i.e., patents, copyrights, trademarks, etc.). In general, because of common usage, I don't think it's bad to use the phrase "intellectual property" just so that people know what you're talking about -- but we should be careful to not use it in a way that reinforces the concept that it's property just like other kinds of property.
Links to other posts in the series:
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Filed Under: copyright, imaginary property, intellectual monopoly, intellectual privilege, intellectual property, patents, techdirt feature, trademark


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  1. icon
    Mike (profile), 9 Mar 2008 @ 3:05pm

    Re: Re: Re: Re: It IS TO Intellectual Property

    You get a zero, bub.

    In what? Considering that you have shown that you do not even understand the most basic economic concepts, I hardly find you qualified to grade me...

    The VALUE is set by the market

    The price is set by the market, but good try.

    The value is a subjective point in the individual demand curve for each individual.

    The owner has very little to do with controlling the value

    You can't be serious.

    except in cases of monopoly which is why we generally disfavor them.

    Yes, we disfavor monopolies -- but it has nothing to do with the fact that the supplier can establish the value. It's because it interferes with an efficient market, meaning that the price (not value) is higher than is efficient for society.

    In the meantime, if you agree that monopolies are bad, why are you in favor of copyright and patents, which are monopolies?

    OTOH, the PRICE is set by the owner, at least initially, and is subject to negotiation between the seller and the buyer.

    The price is set by the market.

    Once again, I suggest you read a basic economics textbook. Otherwise this conversation will go around and around until you learn what these terms mean. You can continue to be ignorant, wrong and stubborn if you like, but it does not make you any more convincing.

    True in some cases but not others. Do you think that Microsoft would see an increase in demand for XP or Vista if it gave XP or Vista away for free? I don't think so.

    I can't believe you said this. YES, Microsoft would see a TREMENDOUS increase in demand for XP and Vista if it gave them away for free. I'm reaching the point where it's difficult to take you seriously. In what world would freeing these products not increase demand for them?

    Actually, the ideas were exactly what I acquired, not the physical objects, although the the physical objects contained the ideas.

    That is false. You bought the books, which were made more valuable by the ideas. But the ideas could have been acquired for free as well.

    In fact, two of the products, Seibel and Lamkins, are available for free, but I chose to purchase the books in large part to encourse these men by financial reward.

    And that's your decision. There's nothing wrong with that.

    I 'own' both soft and hard copies of Lamkins and Seibel, but that doesn't prove your point, as the purpose of these authors isn't to sell books but to promote Lisp. This was THEIR decision, not mine.

    Again, there's nothing wrong with that, but it does prove my point quite nicely. Lamkins and Seibel have realized that there are advantage to giving away the ideas for free, showing that there are other benefits to doing so.

    No? You are promoting theft, plain and simple

    I am not, in any way, promoting theft. That is an outright lie.

    First off, I am not promoting anything from the end-user perspective. I am merely suggesting that content creators learn that it is to their OWN economic benefit to give away infinite goods.

    Second, there is no "theft" involved. It is infringement, which I agree is illegal and I do not promote it in the slightest.

    As I have done before, I will quote Justice Blackmon noting that infringement is not theft:

    "Since the statutorily defined property rights of a copyright holder have a character distinct from the possessory interest of the owner of simple "goods, wares, [or] merchandise," interference with copyright does not easily equate with theft, conversion, or fraud. The infringer of a copyright does not assume physical control over the copyright nor wholly deprive its owner of its use. Infringement implicates a more complex set of property interests than does run-of-the-mill theft, conversion, or fraud."

    How in the h**l does a free, infinite supply insure a return to the performer?

    First of all, there is no way to ensure a return to the performer today in the past or in the future. To claim that copyright does that is false. We live in a capitalistic free market society, where you only have the right to TRY to get a return, not to get one. Do you really think otherwise?

    However, in the world of infinite supply, as I have made clear (how many times must I repeat this?), every infinite good will, by its very nature, make other scarce goods more valuable. So the way you make money is to use those infinite goods to make the scarce goods more valuable and you sell those scarce goods. It's as simple as that.

    In some cases, it increases demand, while in others it won't.

    Demand for what? Giving away an infinite good will always increase the demand for some other scarce good. That's not a point up for debate, no matter how much you think it is. It's a fact of nature.

    Example: recordings of the Beatles. Since they cannot perform in person, the only income they derive is from selling their recordings. How does giving away the digital form of the recordings help them (or their estates for the dead Beatles?)

    Two of the four Beatles are still around and performing -- and doing quite well. The more popular the Beatles are, the more popular both Paul and Ringo are. As for George and John, the more popular the Beatles are, the more in demand scarce goods relating to the two of them are. Yoko Ono has made a career on being John's widow. His popularity helped make her works valuable.

    As for the idea that the Beatle's works now need to support their estates now that they're dead, can I ask you how much money you still make from the work your father did in 1960?

    What you are arguing is that intellection work and the fruit, intellectional property, should be pricelss (free) and therefore valueless.

    Again, your inability to understand the difference between price and value makes this conversation difficult. Something that is free still has tremendous value to some.

    This is the ultimate insult to all thinkers and creators -- to say that BY LAW they cannot profit from their work.

    Not at all. Again, please DROP the INCORRECT statement that they cannot profit from their works. I am saying the opposite. I am saying they can profit GREATLY by using those works to make things that they sell much more valuable.

    It is not an insult. It is showing them how to make better use of their own work.

    What if the musician has disbanded, or disabled, or dead, or otherwise not performing?

    What if a factory work is disabled dead or otherwise not working?

    Suppose it's a reproduction of a one-of-a-kind, such as a painting or a sculpture?

    That's a scarce good.

    You have turned your original essay into a provocation for piracy, which I find absolutely reprehensible.

    Again, not at all. You seem to have trouble comprehending what seems like it ought to be a very simple concept. I am NOT talking about this from the point of view of the consumer, but from the point of view of the creator of the content in terms of how they can best monetize their works. How you can claim that's a provocation for piracy is close to incomprehensible, but speaks to your own reading comprehension skills.

    Nowhere do I say that it is okay to infringe on someone else's copyright. I am saying that from the point of view of the creator of the works, it is BETTER for them to ignore the copyright that the gov't grants them and to make use of better business models for monetization. I am also saying that as more content creators recognize this, then those who choose not to will find the market collapse for their attempts to artificially use scarcity.

    Suppose you tell your employer that you are willing to work for free, that you expect no return for your efforts, because that is EXACTLY the model you have just described.

    Not at all. My time is a scarce product, as is yours. You charge for scarcity. You give away what's infinite. So, no my model does not say that at all. For you to have read this far and still think that suggests you really need to start reading a little more carefully.

    Please understand the difference between scarce goods and infinite goods, and learn your basic economics. It'll help this conversation actually be worthwhile.

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