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 @ 9:29pm

    Re: Re: Re: Re: What is the problem with IP or ???

    You're creating a false slippery slope by saying that we have to legalize, say, theft to be morally consistent here.

    What are you talking about? It was an analogy, not a slippery-slope argument. If I had saying destroying the Intellectual Property laws amounts to throwing out the baby with the bathwater, would you reply that you aren't going to throw out any actual babies?

    If you say that they can, find me a real case (not a made up one) and please find an exact dollar amount, giving a full justification of it.

    Yawn. I love how you add in words like "exact dollar amount" - because, if I can't give you an *exact* dollar amount, then it isn't theft?

    Many have pointed out that it's simply better for society as a whole if we change how we treat these things

    Well, there's a couple problems with that statement. The first, and most obvious, is that you're arguing that seizing people's property leads to benefits for the larger society. Uh, that doesn't mean it's right. If a bunch of poor people stole my car so that the six of them could drive back and forth to work everyday - arguably getting more use and value out of my car than I do, that doesn't mean it miraculously become right to steal my car. I'm drawn analogies between communism and the anti-copyright crowd before, and your statement makes it seem even more relevant. Our glorious society will be better off if we seize the assets of every farmer, factory owner, and creators -- that's the argument of the anti-copyright crowd and the communists. Guess what? It doesn't work. Communism has exactly the same economic problems as the anti-copyright philosophy, and both involve seizing the work of the creators.

    Also, I do most definitely think creators have lost money due to copyright infringement. I remember reading about one case where a creator had either failed to copyright or failed to patent something (back in the early 1900s), a company came along, snatched it up, and started selling it. They made millions off of something they didn't create. Also, I remember one software programmer who has a company. His software has to be registered in order to play his game. He put some fake registration codes on warez sites (places that were pirating his software). Then he watched as people tried to use his codes. He watched their IP addresses, and whether those same IP addressses came back to buy legitimate registration codes from him. About 1/3rd of the pirates came back and bought a copy of the game. With his registration-code setup, it's not hard to setup little tests like that. Those tests can help figure out what fraction of pirates would actually buy a copy - which can be used to help figure out sales lost due to piracy. Of course, that percentage would very from product to product. The fact that I can't prove a hard-number for each product doesn't mean losses aren't happening.

    so that people make money off of services, advertising and support instead of creating a legal fiction that attempts to make something scarce that isn't!

    It's ridiculous to suggest that all products *can* be shifted to a advertising/support business model, and that they can make anything close to their existing profits. The fact that people are willing to pay for these things says that they are worth the money. I used to have ad-supported internet through Net-Zero. They stopped doing that because they weren't making a profit, and I switched to high-speed internet (and was happy to pay the money). You come along and suggest that everything can be ad or support based? Ridiculous.

    Thus, it makes more sense to accept reality than to rail against it.

    What are you arguing this "reality" is? That IP shouldn't exist, or that piracy will always be a problem? I'm not going to argue against you if you can't define what the problem is.

    This is why I choose not to believe in a legal fiction and live in the real world.

    (Roll eyes) People know full well what IP infringement is. In fact, I recently saw a story on slashdot - "Olympic Web Site Features Pirated Content". I thought it was funny that person after person recognized that what the Chinese did was a blatant rip-off and were viscerally angered by it. But, when it comes to pirating content off the internet, the Slashdot crowd is usually very pro-piracy. It's pretty ridiculous to say, "I know it's bad when the Chinese do it, but it's perfectly okay when I do it." It's obvious that "free stuff for me" influences their opinions on the matter. When they aren't profiting from it, they recognize that it's very wrong. How can you possibly rectify the fact that people recognize that IP theft is wrong (in the Chinese case), with eliminating the laws against it? You can't. You've chosen to live in the belief that IP isn't real. Sure, there are things that morally outrage us, but we don't legislate, but those cases tend to be very messy with no clear lines. Clear lines exist in the case of IP theft.

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