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 @ 10:18pm

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

    I think you're vastly overestimating the value of your one-size-fits-all philosophy.

    Weird. I'm not the one with the one-size-fits-all philosophy here. I'm the one saying that there are hundreds, if not thousands of business models that will make people better off if they let the free market decide, rather than relying on the "one-size-fits-all" strategy of using a gov't granted monopoly.

    My philosophy of software development is making everything as easy and flawless for the customer as possible.

    Indeed. I have nothing against that.

    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.)

    Well, then you worked for a dumb company that will quickly get destroyed by its competitors. That doesn't prove your point. There are lots of dumb companies out there. Let the market sort out that problem and they'll learn that they need to make software work better.

    And you need to understand the ecosystem of business models that exist in the real world.

    You do realize that I work with many companies helping them with their business models, right? I'm pretty familiar with the ecosystem of business models out there. I'm the one saying that they should look at the alternatives beyond your "one-size-fits-all-must-use-copyright" model. Explaining to them how some of those many other models can do much more.

    The same can be said of software: the majority of software companies make money by selling software.

    Actually, that's false. We were just talking about this:

    http://www.techdirt.com/articles/20080305/130159450.shtml

    Most software companies don't sell software.

    But, even if you were right, it wouldn't matter. The economic forces at play aren't hard to read. More and more companies are realizing that they're better off not selling software. Fewer and fewer software companies make a living selling software these days. The number is shrinking pretty quickly. It doesn't take a crystal ball to recognize which way the wind blows.

    I'm not talking about how I think things should work. I'm talking about the economic forces concerning how it will work. As more and more companies adopt these business models, companies that still try to charge will find it more and more difficult.

    Your services-based or advertising-based software ideas simply aren't going to work.

    But it is working. Widely. In fact, more companies are making use of it than you would imagine. And you are wrong to say it's a "services-based" or "advertising-based" model. Those are merely two examples of the hundreds of business models that involve using the infinite good to make the scarce good more valuable.

    Fundamentally, this is a problem caused by immoral or delusional people who believe digital = free.


    My goodness. What does morality have to do with a simple economic equation? Infinite means a marginal cost of zero. Price gets driven to marginal cost. This is econ 101. It's got nothing to do with morality, it has to do with basic economics. You can deny it all you want. That's fine. It won't change what happens. It doesn't matter what I think *should* happen or what I *want* to happen. It's what is happening.


    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?


    I never said they would support themselves with advertising. I said (quite clearly, I believe) that they can use the infinite good to make some other scarce good more valuable. I don't know that space well enough off hand, but I would imagine that with such a specialized software there would be strong demand for related services, having to do with manufacturing or rapid prototyping. I could imagine probably a dozen business models where it would make sense for a rapid prototyping firm to give away such software to increase demand for its business. Or for a construction firm to give such software to architects to increase demand for its business.

    Your one-size-fits-all philosophy simply can't work for most of the software ecosystem out there.

    Again, I'm not the one with the one-size-fits-all philosophy. I'm saying that with demand, as there is, there are business models that make sense. You're the one insisting that it has to be via copyright.

    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.

    If there is demand, there is a business model for it. We've seen it time and time again. I've yet to see an example of a digital product that shrinks a market when it goes free. I've only seen markets get bigger, because the free resource expands a market greatly and opens up many more opportunities to profit.

    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.

    I've yet to come across a business that couldn't adopt the model. I've also yet to come across a business that didn't adopt it and find it expanded their business.

    You have yet to give an example that shows the model doesn't work. I've given many to show why it would, plus pointers to economic evidence as to how it works on a larger scale, plus a rather detailed explanation of why it works. I'm curious as to why you still insist it won't work.

    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?"

    Again, it's not a one-size-fits-all-model. Quite the opposite. It's opening up the free market to adopt any one of thousands of business models. I'm not defining the business model -- just explaining how they can take advantage of their own unique situation. It's different for nearly every company.

    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.

    Again, the services model is merely one model of many. Why you can't seem to get this through your head, I do not know. In fact, I gave you a bunch of different examples. Google is not a services model. My company is not a services or advertising model. Why do you insist I say a 1 size fits all when clearly I have not.

    The only one who has suggested a one-sized fits all model is the person arguing that software companies need to have the price of software artificially inflated by a gov't monopoly.

    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.

    Not at all. Most software developers do not work on products that are sold. They work on products used to make their own companies more efficient. That, by itself, is yet another model for software production. It's not irrelevant at all. It's showing how software production occurs because the software is useful, either for the company itself or as a way to make money. The point is that if the software is useful to someone there are business models to get it made.

    The fact that you think it's irrelevant that most software developers don't get a royalty for every software sold shows a serious disconnect in your understanding about copyright. You were just insisting that copyright was necessary to get software made. Yet, my company produces a fair amount of software and we don't worry about the copyright, and my developers are well paid.

    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.

    Check your reading comp skills, because that's not what I said. I didn't say that freeloaders were going to undermine the industry -- I said that other software developers will recognize that they can be better off by ignoring copyright and adopting other models. In that case, because those developers realize this and adopt those models, the companies that choose not to will be in trouble.

    I said nothing about freeloaders.

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