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

    What do you mean by "IP"? That's the heart of the problem.

    Copyrights: I don't think I can even list all the problems. They outlive the authors. You get paid almost in perpetuity for something done only once. The rights are too broad (my TV can be too big per 17 USC 110???) and people are working to stifle fair use. It's difficult to remix things, and the minute somebody makes something valuable out of something that was utterly ignored prior to that, there's a money grab. There are crazy, draconian laws being drafted to enforce them online which aren't really enforceable, but which strip everyone of privacy even in the attempt. There are programs to try and enforce them, but they take over your PC and stop you from doing even legal things. The DMCA makes it too easy for people to take down any web page they don't like, put-back notices are hard to draft and not always honored, and you can flat-out lie on them and not get in trouble in any case I've ever heard about.

    Then you have unconstitutionally excessive statutory damages (see BMW v. Gore), not to mention all the things the RIAA is trying to do, both in asking for new laws and persecuting people with no computer. I realize that that last thing is more of a problem with the plaintiffs than the law, but please read http://recordingindustryvspeople.blogspot.com/ to see what a fellow lawyer thinks of what they're doing and how they're trying to make sure that people have little or no opportunity to defend themselves in court. Plaintiffs like them cause most of the ire towards IP that you find online.

    Need I go on?

    Trademarks: On the face of it, they're okay. Until some idiot gets a generic trademark, or trademarks some trendy new term, and tries to make everyone else stop using it. I'm surprised someone hasn't trademarked "Imaginary Property" and tried to go after me, except that I'm reasonably anonymous, barring a few subpoenas. Then there are those who go after anyone complaining about them online (see all the [trademark]-sucks.com domains that had to go through expensive legal fights before they won) and the danger that the term "commercial" is rather all-encompassing. So if you had your whatever-sucks.com domain hosted somewhere free that puts ads on your page, you're hosed because what you're doing is "commercial" even though you're not making a dime off of it.

    Statutory "super" trademarks are even worse: the Red Cross has asked video games to change their health-box symbols to green. Because, you know, we're really going to get confused some day on the battlefield as to whether that video-game ambulance is a protected non-combatant!

    The Olympics, well, I dislike the whole affair. They're nothing but a giant, international commercial with drug tests thrown in. They're very protective of anything that looks remotely like any of their symbols, force people to change their clothes lest a camera see the logo of any company that didn't pay them enough. And then there are all the restrictions about what those participating can and cannot comment concerning what they saw.

    Mind you, professional sports do this, too. The MLB and NFL have been ridiculously protective of their broadcasts and any "accounts or descriptions" of their games, even trying to copyright player stats which are NOT creative works per any definition I can make sense of. Hell, they went after someone for posting a video of their COPYRIGHT NOTICE on YouTube as a demonstration of overreaching copyright holders by a law professor for educational use! They wouldn't even apologize, they just kind of shut up after someone finally got enough attention to have their Counter-Notice actually get paid attention to.

    Patents: Within limits, they could be reasonable, but we have lots of people patenting well-known (but unpatented) things everyone else thought were too obvious. And instead of being written in a way that's useful to other inventors, they're written to be useful in court. So they're total gibberish to someone trying to learn from an expired patent. Moreover, you DON'T want to look at patents, otherwise you get hit with 3x the damages if they can prove that you knew about their patent! In Australia, someone managed to patent _swinging sideways_. In the US, they patented PB&J sandwiches with no crust, where the jelly is in the middle and peanut butter is on both sides to hold it together. How many mothers made that for their kids? So why does Smuckers have the patent??

    Software & Business Method patents are the worst, though. I have NEVER seen one that provided any useful code or anything I would ever be able to duplicate from the patent itself that wasn't trivially obvious. You have your one-click patent, patents for double-clicking (yes, seriously), and so many more I can't think of them all. Hell, IBM even patented patent-trolling! Talk about legal sarcasm. If you didn't already know, patent trolling is where you spin off some entity with no products that could be a target of counter-claims to sue someone. Novell did it to Microsoft once upon a time, as we learned from SCO v. IBM and the weird arrangements Novell had to control SCO. Of course, now SCO is being used as a proxy by Microsoft against Linux, so it's an odd reversal. They're not a true patent troll, though. SCO still sells products no one wants to use, but IBM dropped the patent counter-claims against them because they have no money and it wasn't worth it.

    Then we have forum shopping, where so many lawsuits get filed in the Eastern District of Texas, a court with ONE judge who is known to favor patent holders ridiculously much, thanks to the first-to-file rule that applies to patent lawsuits. There's been some indication that the appeals court might think about putting a stop to this, but they're a bit late.

    The GOOD stuff, by and large, wasn't ever patented! We have lots of computer science journals where people write this stuff for free, share this stuff for free, and help everyone make better use of their computers. The whole Open Source movement is a good example. True, the GPL relies on copyright, but RMS, the man who came up with the idea, has long maintained that if there were no copyright, the GPL would become unnecessary.

    Ship Hulls & Semi-Conductor masks: At last, we have some reasonable laws. Mind you, the Asian fabs they have making use of those masks probably just ignore them (leading people to develop things like that EPIC chip-lock system), but I haven't heard of too many people abusing these rights, so they're the least problematic of the lot. But they're hardly the first thing anyone thinks of when they hear IP! Most hardly know these rights exist!

    So that, my friend, is what's wrong with "IP" and that is why I don't believe in Imaginary Property. As a lawyer, I'm honestly surprised you aren't more aware of all the shenanigans going on. Except for one college course, my entire education in law (such as it is) has come from studying the reports of all the stunts people are pulling.

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