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), 10 Mar 2008 @ 9:42am

    Re: Re: Re: It IS TOO Intellectual Property

    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.

    Charles, I don't know how many times I have to explain this, but you are wrong. If you learned a little basic economics, it would help. Start here:

    http://en.wikipedia.org/wiki/Supply_and_demand

    Price is set by the market. It's the intersection of supply and demand. Your incorrect definitions do not help this conversation.

    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.

    You seem to be confusing value with price again. We both agree that the market sets the price. You, unfortunately, seem to think price is market value.

    > 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?


    Charles, you total ignorance on economics is showing through here. I did not say that people would buy the $399 version. I said DEMAND would increase. You say "the market would evaporate" but that is wrong. A much higher QUANTITY of Microsoft Office would be much greater. You don't seem to know what demand means. Many more people would take the $0 version (though, some might pay $399 if Microsoft provided additional value for doing so, such as customer support). But the DEMAND (meaning the number of copies demanded) would clearly INCREASE. This isn't a point of debate. This is economic fact.

    ['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.]

    Not according to economics. Charles, you can't just redefine all economics to try to make your point. It makes you look silly. Giving away goods and services does not evaporate a market. It's a part of the market.

    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.

    That's what I said. It's the content that makes it valuable, but what you are buying is the book. You are proving my point here. The content (the infinite good) makes the book (the scarce good) valuable. Thank you for finally seeing the point.

    > 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.


    Charles. I give up. You clearly have a near total mental block on what I am trying to say. If you want to live that way, that is your choice.

    But I suggest you learn a little economics before you try having this discussion with anyone else. Your attempt to redefine the most basic economic concepts, and your followed confusion over what they mean makes this discussion impossible.

    Please go read a basic economics text, and then try to explain what you meant again. I don't know how many ways I can tell you this. You are wrong. And the reason you are wrong is because you do not understand the most basic concepts of economics, and you seem to have a near total blindspot to the idea of how a market works.

    I have never, not once, claimed that infringement is okay. I am merely saying that content creators will eventually recognize that using copyright is not necessary to make money.

    Infringement is not, has not been and will never be "theft," though it is illegal under current laws. I was not saying that it's not illegal. Do not make up what you wish I said just because you cannot seem to grasp what I am actually saying.

    For you to claim otherwise, is mere ignorance.


    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?


    Trademark is a consumer protection issue, not a property rights one.

    Furthermore, as I pointed to earlier, recent studies have shown that the knockoff market actually helps ADVERTISE the brand name market, making it a LARGER market where the brand name can SELL MORE.

    The fact that you return to the designer clothing example when the economic studies have shown the result is the exact opposite of what you claim (which I've already pointed out to you) would make me think you would maybe, possibly admit that you were wrong. Apparently not.

    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?

    Ask Paulo Coehlo.

    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.

    No, not his property. I'm saying why aren't you still earning money for the WORK he did in 1960.


    I fully understand the difference between price and value.


    You clearly do not. You said that price is not established by the market and that the seller has no control over value. These are both false.

    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.

    It is true in all cases. Any infinite good will impact the value of a scarce good. I have already pointed out, in fact, that it can increase the value of Levis jeans (and does so) and best selling novels (and does so). I have pointed to FACTUAL EVIDENCE that you are wrong in both cases. Will you finally admit that you are wrong?

    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.

    So, let me ask you this: If you open a restaurant selling pizzas for $10/pie and I open a restaurant next door selling pizzas for $5/pie and now no one will buy your pizzas. Would you claim that I have "denied you the choice" of selling your pizzas at $10? Somehow I think not.

    So, let's say that you have a restaurant selling pizzas for $10 and I invent a "replicator" device that lets me make pizzas for free. So I give them out for free. Have I "denied you the choice" of selling your pizzas? Somehow I think not.

    That is what I am saying here. If you base your business model on selling things that your competitors will eventually give away for free, you will no longer be able to sell your products.

    It's that simple.

    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.

    Your attempts at redefining theft notwithstanding, I suggest you learn the difference between scarcity and abundance. Otherwise you continue to look like a fool.

    It is not theft.

    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.

    Yes, if you are a fool, you will not benefit from it. I don't deny that there are stupid people out there who will misuse an infinite good and not benefit from it. But, that doesn't mean that you CANNOT benefit from it.

    The reason that we are even having this discussion in the first place should be evidence enough that no one has figured that out.

    No. It just means that you have not figured it out. We've pointed to plenty of examples, economic evidence and a detailed explanation of why it works.

    Charles. This discussion is going nowhere unless you learn a little basic economics. Your inability to grasp concepts as basic as price, value, market, theft and demand make the conversation difficult.

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