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. identicon
    BiC, 9 Mar 2008 @ 8:05pm

    Re: Re: Re: Re: Re: Imaginary Property

    I think you're vastly overestimating the value of your one-size-fits-all philosophy. Most of the service-based software models seem to work when you're selling your products to (cash-rich, risk-adverse) companies and you're selling a complex product. My philosophy of software development is making everything as easy and flawless for the customer as possible. Guess what? That undermines the "services" model of software development. (In fact, one company I worked for did a lot of services-based pricing - at $200 an hour - and there was an obvious disapproval of making software the right way: easy-to-use with complexities taken care of my the software instead of pushing them onto the user.)

    Google gives away its software for free, but its model is built on advertising, and it's turned out to be rather profitable, don't you think? The scarce good there is people's attention, which Google has monetized rather nicely.

    And you need to understand the ecosystem of business models that exist in the real world. You're like a person who says, "the bison did quite well in the great plains - thus, we should cut down the rainforests because other animals manage to survive in the plains." You conveniently ignore the fact that rainforests contain far more biodiversity than the plains. The same can be said of software: the majority of software companies make money by selling software. Your services-based or advertising-based software ideas simply aren't going to work. Fundamentally, this is a problem caused by immoral or delusional people who believe digital = free.

    How about this: I use a piece of software for 3D design. It's a very complex piece of software and it retails for $3000. It costs that much for a variety of reasons - partially being the specialization of the software (meaning fewer users). Are they going to support themselves with advertising? How many ads would they have to show each user to recoup their costs? I have never had to use their technical support. Your one-size-fits-all philosophy simply can't work for most of the software ecosystem out there. Yet, people obviously want those products -- proven by the fact that they're being supported by people paying for it. The "there should be no IP" approach undermines these businesses, will ultimately undermine those parts of the software world, and everyone will be worse-off because of it. Your one-size-fits-all philosophy simply isn't going to work for most products.

    Again, there are tons of examples of ways in which companies developing software make money.

    I don't care if you can say "companies x,y, and z do it". The problem is this: most products can't do it. What I want is this: randomly pick 1000 products and ask "what percentage of these products can (1) be switched to your one-size-fits-all model and (2) manage to maintain anything close to their original profitability?" My answer is: not many. Additionally, the software-services model undermines making products correctly: easy-to-use, hiding complexities from the user, working flawlessly. Ideal software would not need any services or support. The software-support model requires that these problems always exist.

    And, I'd also argue that your initial point is even sillier. There are very, very few software developers who make a royalty on each of their products. Most are paid a flat salary by their employer.

    What's your point? If individual software developers aren't getting paid per-sale, then the company is. Your entire sentence here is completely irrelevant once you realize that.

    Again, as a content creator you can choose to ignore these things and try to focus on a business model that relies on copyright or patent -- but when your competitors work out business models that do not, it will be much tougher for you to compete. That's your choice, of course, but it doesn't seem like a wise choice.

    Uh - I hate when the anti-copyright crowd suddenly abandons one argument to make a different argument. The very idea that IP should be public-domain is a VERY different point than saying that freeloaders (who should be condemned for their actions) are going to undermine the industry. Pick a point and stick with it. If you want to argue that all IP should be public-domain, then argue it. If you want to argue that piracy is evil, but we need to come up with innovative ways of dealing with it because it's undermining the industry, then argue that point. I don't feel like running around trying to whack down your different arguments like a game of whack-a-mole.

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