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. icon
    Mike (profile), 9 Mar 2008 @ 5:39pm

    Re: : Re: It IS TOO Intellectual Property

    This is just getting goofy, so if you will permit me to make a few points and pass over most of what you said, I'll to that -- and besides, my time now is extremely limited.

    What is getting goofy? So far, you have repeatedly shown that you simply have misread nearly everything we have written.

    That is exactly what you said when you said that intellectual property is not 'property.' The protection of property rights is one of the essential tasks of the commonwealth, even in primitive societies.

    Yes, for PROPERTY. Not for ideas. And the reason why property rights are an essential part of even primitive societies is to ensure the efficient allocation of SCARCE resources. Property rights are not necessary for infinite resources because there is no question of efficient allocation, since anyone can have as much of the resource as they would like.

    If you declare that the product of the mind no longer deserves protection, you have deprived the person who thinks for a living the right to support himself by thinking.

    Charles, for the last time, go back and read what I actually wrote. I did not say what you say above. I have said the OPPOSITE. I am not depriving anyone the right to earn a living. I am saying that there are business models where they can EARN MORE by not relying on artificial scarcity, but to embrace the reality of infinite goods. For you to keep saying that we are talking about depriving someone the right to earn a living is fallacious. The fact that we have pointed this out to you repeatedly, and yet you insist that it remains true makes me wonder about your own reasoning facilities.


    I am merely suggesting that they need not use artificial scarcity to do so. There are many examples that prove this to be true. Your continued insistence that artificial scarcity is the only way to earn a living is false. Since it's an absolute, it only takes one example to prove false -- and we've already provided many more than 1.

    So, please, stop falsely claiming that we have ever said that someone has no right to try to earn a living from what they produce. That is simply not true. We are merely saying the way to earn that living is to use the infinite goods to make scarce goods more valuable, and then sell those scarce goods.

    A patent or copyright gives the owner to control the availability of the resource. The government does not dictate what the owner of the copyright or patent does with it. Besides, the theft laws are just an 'artificial limit' on the control of a person's property.

    No. Theft laws are to deal with a REAL scarcity to prevent that scarcity from being abused. Patents and copyrights create an ARTIFICIAL scarcity in the belief that it encourages more creation.

    Try to understand the difference.

    What I said was that GIVING AWAY the product decreases the demand. If there is a demand for a million gallons of milk, and I give away a million gallons of milk, the demand for milk decreases. It might not fall to zero, but it will decrease.

    Charles, I believe you are confusing diminishing returns with demand. They are two different concepts. Please crack open an econ text book. Demand does not decrease. Demand increases in the situation you describe above because more people will be willing to get the product at the new market price. The utility of each unit will decrease thanks to diminishing returns, but the overall demand increases.

    This is econ 101 stuff. Seriously, go buy a textbook.

    My point is that, if you take away the ability to earn an income for producing a product, you take away the incentive to produce the product.

    Sure. IF YOU ACTUALLY ARE TAKING AWAY THE ABILITY TO EARN AN INCOME. But we are not. We are pointing to a way to earn a BIGGER income. I've said that. Over and over and over and over and over and over again. Why you insist that I said something different, I do not understand.

    You seem to have a huge blindspot in thinking that the only way to make money from the production of content is to sell that content directly. That is simply not true, and for most of the history of mankind has not been true -- and yet content gets produced through a variety of other business models, many of which are more efficient and allow the creator opportunities to make more.

    You said it when you claimed that protection of IP was an artificial government monopoly. What the government does, and should do, is protect the owners from those that would trespass upon and take away their property.

    I am not "claiming" that IP protection is an artificial gov't monopoly, it is a FACT. It is exactly what IP protection is. It's putting an artificial gov't monopoly on the concepts covered by the law. That's not a debatable point.

    And no one is "taking away" property. The originator still has it.

    The point you are making is that the creator has no property rights in his creation, and that others can steal it and use it to their benefit without giving squat to the creator. Do you really think this is right by the person without whom the creation wouldn't exist?

    Charles, I have already pointed out to you that you are confused over the terminology between theft and infringement. The fact that you refuse to change your language makes me wonder.

    Charles, I assume that you went to school at some point to learn how to program. Every time you collect a salary, do you give money back to the people who taught you how to program? Based on your question above, if you are not giving a piece of your paycheck to every teacher you have had, then clearly, you are being a hypocrite.

    The point of an infinite good, Charles, is that you do not need to compensate someone every time it's used.

    That does NOT mean (as I've already said a bunch in this comment alone) that that person cannot make money. They just need to embrace a business model where the widespread distribution of those infinite goods makes a scarce good that they control much more valuable. And from that, they can profit greatly. That's just the free market at work.

    Shouldn't this be the decision of the artist or inventor? They are free to do what they want with their IP. Just don't allow others to make that decision to the detriment of the creators.

    No, Charles, in the end, it's the decision of the market.

    The creator can set a price, but if the market doesn't support it, then, no, it is not the decision of the artist. Again, nowhere am I saying that anyone has the right to infringe if the creator does not want them to -- but I am saying that the market will determine that those who do not offer up their infinite goods for free will find themselves without a workable business model.

    The only decision that's been made that's to the detriment of the creators is one where they get to rely on artificial scarcity. That LIMITS their opportunities to make money.

    Alright, this is just plain loony. For the sake of argument, grant that all intellectual work is freely distributed in infinite quantity with no return to the worker.

    I won't grant that, because I never said that. There are plenty of ways that a return goes to the worker. I have said so repeatedly. Your inability to understand it notwithstanding, I think you should practice a little reading comprehension and try to read what I wrote once again.

    (1) software developers who write software for a living (I am one of these.)

    Lots of folks make money as software developers without relying on IP. I employ a team of software developers who develop software that makes my business run. My developers get paid, and I use the software to run my business. None of that has anything to do with IP.

    IBM makes a ton of money by offering services around Linux, and they contribute many programmers to Linux development, because they offer consulting services that are made more valuable by Linux.

    Google employs a ton of software developers and they give away their product for free and make money on advertising.

    Notice a pattern? In every case there are business models that do not rely on IP protections, but on using the software to make something else (something scarce) valuable.

    (2) composers who write music for a living.

    They still get paid to compose. There is still tremendous demand for music and there are lots of people looking for good songs. Lots of producers and singers are willing to pay for good new songs and can pay composers to compose those songs for them.

    (3) inventors who license their inventions for a living.

    Well, here you have set the conditions too narrowly. There need not be licensing inventions. You make money by selling products in the market. Yet, for the inventors, there are still many ways to make money by selling their expertise to help build the products, improve on the products, etc.

    (4) designers who make exclusive lines of clothing.

    Odd that you chose this one again, as I've already pointed out the recent research that noted the whole reason why designer clothes are so valuable is BECAUSE of the lack of copyright protection when it comes to clothing design and the rise of knockoff products. The fashion designers are doing just fine without copyright. In fact, it's a great example that proves my point. Their brand, and the brand identification of having an *authentic* version of a designer product has tremendous value, and that value is then reflected in the price.

    (5) artists who produce limited editions of etchings and lithographs.

    That's a scarce product. What's the problem?

    (6) owners of brands like Sony, BMW, and Johnson & Johnson who rely on the premium of their brands over store and generic brands.

    Again, they still retain that brand. As I said, trademark is a totally different issue having to do with consumer protection. So, if someone copies a Sony product and declares it a Sony product, I have nothign against that being stopped for the sake of consumer protection. And then, the authentic products still retain their value.

    See, even by not granting your assumption I show how you are wrong on every point.

    How then can these individuals protect their intellectual property?

    This is like banging my head against a wall. They DON'T NEED TO PROTECT THEIR IP. They use the fact that their IP is infinite to make SOMETHING ELSE, something SCARCE much more valuable.

    If it were tangible goods, the taking of the goods without payment would constitute theft.

    Yes, because those goods are scarce and once taken are no longer there. That's not the case with an idea. That's why it's not theft.

    Why shouldn't intangible property also be protected?

    Because of that very reason. Because property is only needed for the allocation of scarce resources.

    The 'government monopoly' you refer to isn't a monopoly at all, but the protection accorded to a creator of intangible property in the same manner as protection accorded to a creator of tangible property.

    It is very much a monopoly and there is no debating that point. It is an attempt to artificially make an infinite resource act like a scarce good. But limiting infinite resources, by definition, shrinks a market.

    Please explain how the involuntary appropriation of another's effort without payment is not exploitation. OF COURSE it's exploitation!!

    There is no involuntary appropriation. Whatever gave you that idea? We are saying that the person themselves should recognize that they can earn more by giving away the good. They WANT TO give it away because it will earn them more money.

    Since when is earning more money exploitation?

    In fact, there is a balance, which you don't want to admit. As a society, we need to balance the rights of creators to their creations against the right of others to realize the benefits of the creations.

    There only needs to be a balance if it's a zero sum world where the rights of consumers conflict with the rights of producers. If you can show that's not the case, then no balance is needed.

    Charles, your level of misunderstanding here seems to get worse with every comment. I seriously suggest that you learn some basic economics before trying to reply again.

    At the very least, try to take a minute to read what I have actually written rather than assuming, incorrectly, that I have said that we should deny anyone the right to make money. It's making you look foolish. Clearly, you are trying to think this through, but you seem to be arguing against a strawman. Read what I have actually said. Learn a little economics and then try again.

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