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.
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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
    Charles Carter, 10 Mar 2008 @ 6:42am

    Re: Re: It IS TOO Intellectual Property

    >> You get a zero, bub.

    > In what?

    You said, and I quote:
    >>>> However to say that the builder cannot raise the
    >>>> "value" is incorrect. The value is not set by
    >>>> the market, the price is.

    The 'value' is determined by the market. A million dollar house (cost-wise) in a slum wouldn't be worth nearly as much as the same house surrounded by five million dollar homes. Likewise, the 'price' is not set by the market but by the owner or by and agreement between the buyer and seller. Wrong on both counts, which is a zero.

    >> The owner has very little to do with
    >> controlling the value

    > You can't be serious.

    I'm dead serious, at least when it comes to market value. The only way the owner can control the value is when he controls the market.

    > 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.

    Except for so-called natural monopolies, such as utilities.

    > The price is set by the market.
    > Once again, I suggest you read a basic economics textbook.

    It's you that needs remedial economics. Prices are initially set by the seller and negotiated between sellers and buyers.

    > 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?

    You our simply out of your effing mind and I am beginning to doubt the wisdom of continuing this discussing. If you set two identical products side by side, say WinXP, one with a PRICE of $0.00 and the other with a PRICE of $399.00, and people could either pay $0 or $399, you think that people would choose to pay $399? Man, you must have gotten drool on your IQ test. People will not pay for a product they could get for free. The market for WinXP would absolutely evaporate instantly. In fact, Microsoft claims that its biggest competitor is pirated and unlicensed MS software, proving this point that people will not pay for something they could get for free. ['Market' means a marketplace where exchanges are made, a place where no exchange is made, i.e., where you give away goods, is not a market.]

    >> Actually, the ideas were exactly what I acquired,

    > 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 point of fact, when you buy books, you purchase the ideas, not the paper and ink. Okay, if you buy a diary with blank pages you purchase the physical paper, but the book does not contain any ideas. It's the CONTENT of the book that sets it apart and makes it valuable, not the paper and ink.

    > 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.

    That is not the position you took at the beginning, when you claimed that IP is not property. It's fair to change your mind during the course of a discussion, but it's not fair to change your mind and claim that you haven't. You can suggest that content creators learn to give away their content, but to compel them to do so ~is~ theft -- theft of their work product, their creativity and imagination, and their time and labor. Strictly from a legal standpoint, the only way to protect the content is to grant the creators property interests in their work, which is exactly what IP does.

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

    I wrote a book, published it, and had it distributed through retail outlets. It was a very small book -- it contained arrangements of tunes, all of which were more than 150 years old. I derived some small income from this book. One day my distributor called me and told me that someone was selling photocopies of my book on eBay. I checked, and sure enough, he had made copies of my book and was selling them on eBay, without my permission and without sharing any revenue with me. He was a thief, and what he stole was the income that I would have derived from the sale of those books had his buyers purchased them from my distributor rather than from him. Call it infringement if you want, but the prosecuting attorney called it theft. I will defer to the prosecuting attorney.

    > 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."

    Which establishes the falsity of your claim that IP isn't property. Surely you won't disagree with Blackmon.

    > 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?

    Laws against murder don't stop people from killing. Do you think we should also repeal the laws against murder?

    > 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.

    Okay. The Levis red tab is an 'infinite supply.' Anyone and everyone can make jeans with a red tab that says 'Levis.' How does this benefit Strauss and Co? What scrace goods become more valuable that Strauss and Co can sell? How can Strauss and Co distinguish its product to buyers who wish to buy a pair of Levis?

    > 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.

    Say I'm John Grisham and I write best selling novels. I can produce an infinite number of copies of each novel I write. How does 'giving away' those copies benefit me? How do I earn my living if I stand on the street corner and pass out free copies of my work? What other 'scarce good' do I have that will increase in value if I give away an infinite number of copies of my novel?

    > 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?

    At the moment I am enjoying the benefit of the estate I inherited from him. I wasn't a particularly large estate, but I anticipate that I will pass on some portion to my children on my death and they will also enjoy the benefit of his estate.

    > 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.

    I fully understand the difference between price and value. The reason that an item sells is that the value to the seller is less than the price and the value to the buyer is greater than the price. This is elementary economics. I agree that many things have tremendous value and are free, while other things have no value and are extremely costly, my asbestos laden building being an example. This is not an argument that intellectual work should have no protection by law.

    >> 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.

    This is true in some cases. MySQL and McAfee come to mind. This is NOT true in other cases, as my illustrations of Levis jeans and Grisham novels.

    > 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.

    Nice try, bub, but no cigar. The creator should have the CHOICE to either sell or give away his creation. If he wishes to sell it (or try to sell it) and you deny him that choice by declaring that his idea is not ~property~ that he has a legal interest in, and can enforce legal right to, you have stolen his time, creativity, and talent.

    > Nowhere do I say that it is okay to infringe on
    > someone else's copyright.

    Um ... that's EXACTLY what you said. You said, and I quote:
    >>>> 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.

    If an idea isn't property, it isn't protected, and anyone can use it at will. 'Infringement' is misappropriation of another's property interest in intellectual property. If I misappropriate my employer's bank account, I have committed theft. If I misappropriate Levi's trademark, or Grisham's novel, or Misrosoft's software, I have infringed their rights, but let's cut the BS and call it what it is: theft.

    > 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.

    What you are saying is that you want to deprive them of their ability to enforce their property rights in their intellectual work product. Why not give them the CHOICE to either ignore their rights or enforce their rights?

    > Please understand the difference between scarce goods
    > and infinite goods, and learn your basic economics.

    The fact that I have a product that can be made infinite, such as a Levis trademark, or a Grisham novel, or a computer operating system, doesn't mean that I will necesssarily benefit from making it infinite. In some cases, as for MySQL and McAfee, yes. In other cases, no. If someone figures out a way to generate revenue by giving stuff away, everyone else will follow suit. The reason that we are even having this discussion in the first place should be evidence enough that no one has figured that out.

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