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Against Monopoly

defending the right to innovate

Monopoly corrupts. Absolute monopoly corrupts absolutely.





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New Book on Copyright

by Lior Zemer, The Idea of Authorship in Copyright . It appears to endorse a Lockean model of copyright. If so, it enters a growing field, which includes Adam D. Moore's Intellectual Property and Information Control .

The Zemer book is mentioned by Siva Vaidhyanathan at his blog .


Comments

Does "a Lockean model" mean a more restrictive than "normal", or less restrictive than "normal", "model"? I'm afraid the exact implications of your posting, and whether Zemer is batting for the wrong team, isn't exactly made clear to us lay persons.
From the website's summary of Lior Zemer's book (which I haven't seen):

The core argument is that since copyright works enjoy profit from significant public contribution, they should not be privately owned, but considered to be a joint enterprise, made real by both the public and author. It is argued that every copyright work depends on and is reflective of the author's exposure to externalities such as language, culture and the various social events and processes that occur in the public domain, therefore copyright works should not be regarded as exclusive private property. The study takes its organizing principle from John Locke, defining and proving the fatal flaw inherent in debates on copyright: on the one hand the copyright community is eager to arm authors with a robust property right over their creation, while on the other this community totally ignores the fact that the exposure of the individual to externalities is what makes him or her capable of creating material that is copyrightable. Just as Locke was against the absolute authority of kings, the expressed view of the study is against the exclusive right an author can claim.--

I'm not sure what's Lockean about this. While Locke oppposed the absolute authority of kings, he endorsed copyright in two letters. (But a recent wiki post by Lawrence Lessig cast doubt on whether copyright can be derived from Locke's theory of property. Go figure.)

Apparently Zemer holds that since written works are, I gather, "socially constructed texts," then copyright is not a property right, and "therefore copyright works should not be regarded as exclusive private property."

But note that there seems to be little or no recognition, at least in the summary, of the monopolistic basis of copyright, and the fact that copyright was part of the statute book after 1710.

So I gather Zemer opposes copyright (or maybe not); but if his argument skirts the monopoly angle and rests on the social construction of authored works, it might be weak. The essence of copyright is that it confers a monopoly on a copyright owner, which legally forbids non-holders from using their own property in certain ways that are consistent with their property rights absent the copyright statute.

The argument about the social basis of texts seems beside the point to me, and seems to violate Occam's razor.

Critics are on a fool's errand if they attempt to justify or attack copyright on the basis of originality, because it is clear that 'originality' can decompose upon close inspection into 'a lack of evidence for unoriginality'.

So, it's pretty much taken as read that all art is based upon the artist's experience of the art of man and nature, but that doesn't mean that there's no novelty to be found under leaf or upon canvas for the person who beholds it.

Copyright justifies itself by creating a supposedly more effective commercial incentive to publish - without let or hindrance save that enacted by copyright, i.e. an effective monopoly. Without copyright there's still plenty of commercial incentive, but it has to operate in the face of legitimate competition (no monopoly).

Unfortunately, attacking copyright on the basis of it being a commercial incentive is insufficient to attack intellectual property. If you're after this latter, bigger fish, you have to adopt the former authorial concept of copyright, i.e. that copyright represents recognition of the author's perpetual ownership of their intellectual property irrespective of publication.

To subtly allow copyright (as authorial right) to stand for intellectual property, in order to undermine IP by undermining copyright, is a dastardly ploy. Intellectual property is wholly natural. The fact that its publishers have been given unnatural commercial privileges does not make IP unnatural.

Copyright is the unethical artifice. All that remain are the art, its artist and their audience. The art that the artist had the freedom to appropriate into their private domain from the public domain. The artist's right to publish (or not), and the truth of their authorship (in part). And the similar liberties and rights of artists among their audience.

It is only on the basis of the commercial privileges given to the copyright holder (in the suspension of some of the public's property rights to art they've purchased) that copyright can be attacked. Whether art should or should not be property is a far more fundamental question, so let us recognise the difference between proponents of a free market in art, and proponents of art communism.

The Free Culture Principle

  • Seek culture, but not at the expense of liberty
  • Seek liberty, but not at the expense of truth
  • Seek truth, but not at the expense of privacy
  • Seek privacy, but not at the expense of life
  • Seek life, and enjoy free culture
Crosbie,

We've been down this roads before. You claim IP is a species of property, but that copyright isn't. The fact is that copyright is not only an "unehtical artifice," but also is inconsistent with the natural right to own tangible property, with all that ownership implies.

Copyright is a legislated grant of state monopoly privilege, not a natural right. So is a patent, a trademark, trade dress, and the so-called right of publicity.

Art clearly is property, but the copyright privilege that sometimes comes attached with a work of art is no more a property right that a slavemaster's right to buy, own, sell, and lease a slave is.

I don't think I've ever claimed that copyright wasn't property, I've claimed that the property of the transferable privilege that is copyright has been egregiously conflated with the property that is intellectual work.

Copyright may be property, and it may be a product of intellectual property law, but copyright is not intellectual property.

Intellectual property is naturally that class of intellectual work that observes all the necessary characteristics of any property, i.e. it has a recognisable owner that is able to control/deny access and use, and can securely transport the property, e.g. convey ownership in the process of exchange.

  • Copyright and patents comprise privileges over intellectual works and are concerned with their authorship.
  • Trademark comprises rights and a few privileges over the identity (naming and appearance) of publicly traded goods and is concerned with their authorship.

Copyright and patent may be considered to be 'intellectual property law', but that doesn't induct copyright and patent as intellectual properties themselves. Their transferability simply makes them legal or commercial properties.

Trademark has nothing to do with IP or IP law, despite many similarities and overlapping concerns, e.g. authorship.

I'm glad you recognise that art is clearly property. All art comprises intellectual property, and often the physical property of a physical medium.

I'm also glad we agree that copyright is not a property right but an unethical privilege.

However, we must be careful to recognise that the harm lies not in the right to privacy, the right to publication, nor to own property, whether physical or intellectual, but the privilege of suspending the liberty of human beings against their will. And one person's liberty ends where another's privacy begins.

Let us be against monopoly and other commercial privileges that suspend our liberty, but not against private property, whether intellectual or physical.

So I hope you can see why I am concerned to highlight the distinction between copyright and IP, in order that those antagonistic to IP are recognised as such - communists with their libertarian disguises removed.

Copyright may be property, and it may be a product of intellectual property law, but copyright is not intellectual property. ...

Let us be against monopoly and other commercial privileges that suspend our liberty, but not against private property, whether intellectual or physical.

Copyright is property is in the same sense that a slavemaster's title to his slave is property. A statute cannot create property; it can create only a state-granted privilege. The privilege can be sold only because of the statute which creates and defines it.

All property is physical. There is no such thing as intellectual property , because ideas--the basis of such property--can be experienced only, and not owned. The ideal objects in which "IP" is embedded are tangible property, e.g. books, inventions, and marks.

Fnuny how two people can work a line of reasoning to the exact same conclusion and contradict each other on almost everything along the way.
Look, I have a poem here.

It's my intellectual property. It doesn't matter whether I authored it or purchased it.

I can deny you access to it, or I can let you have it.

I can sell it to you. You can't have it simply by invoking your claim that IP doesn't exist. You can send the stormstroopers round to seize it, but that isn't really cricket now is it? And, I doubt they'd have an easy time trying to find the poem if I had a hunch they'd be coming for it.

You can have the paper it's written on after I've transcribed the poem onto another medium and then erased the poem from the paper. So, the poem is not the medium.

It's my poem and my intellectual property.

Why do you insist that the intellectual work (that is the poem) I have is not my intellectual property?

As far as I'm concerned, I own it. It doesn't matter how many times I experience it, or even whether I've never actually read it, it is a poem I've purchased and it's my property to dispose of as I wish.

I can control who can reproduce it and I can control who gets to make derivatives of it. However, this only lasts for as long as I own the intellectual property. The moment I sell it, is the moment I lose control over it, and such control passes to its new owner.

This isn't rocket science. It's just how things work without copyright or patent. All that happens is that monopolies disappear. IP remains a perfectly sound and ethically wholesome principle.

Just because it's difficult to conceive of IP without copyright, doesn't make IP invalid.

What if the poem (say an original copy of a very old poem) you purchased was in the public domain? That's not IP by the standard definition of IP even though it is an intellectual work, in the sense that it's a product of someone's intellect. What it is, is a piece of tangible property, i.e., paper with marks on it, perhaps wrapped in a plastic cover, as old literary works often are. Products of the intellect must be embodied in tangible property, even if only on a computer hard drive. Burn the tangible property embodying all copies of an intellectual work and all you have is a degrading memory of that work, because the tangible property that held them no longer exists.

You can't control who makes copies of a work in the public domain. And of course in libertarian theory, you couldn't control the disposal of other person's owned copies of your intellectual works at all. That's why there's no such thing as IP.

Remember, I'm talking about IP in an environment in which copyright does not exist, so everything I say about IP applies to all works of the intellect that are discretely held upon a medium (tangible or not) outside the intellect.

For you to say "Ah, but, what if it was a public domain work?" demonstrates you are still thinking in terms of copyright - and whether or not the term of its protection has expired.

It doesn't matter whether it's a 500 year old poem by Chaucer that I found in an old sea chest in a cave near Tintagel. When I transcribe that poem down into my notebook, it becomes my IP (Receiver of Wreck permitting). It doesn't matter if the poem immediately decomposes (upon exposure to oxygen), or not.

Now, of course, if I hadn't transcribed that poem, but had merely read it (and assuming I have a good memory and Chaucerian fluency), and this was the last and final copy of the poem to survive, then one can indeed say that the poem is no longer anyone's IP. However, given my excellent memory I may now write it down and this newly written poem from memory becomes my IP. Products of the intellect can be embodied within the intellect as well as in a physical medium. However, I would agree that intellectual property must necessarily exist outside the intellect in order to be classed as property.

I can control who makes copies of my IP or derivatives of it. And remember, this is in the context of no copyright.

As a libertarian, once I've sold an item of my intellectual property, I no longer control it (nor would I want to). Such control is enjoyed by its new owner. In this way (without copyright) IP behaves as any other property.

This is why there is indeed such a thing as IP.

If you are defining a work of IP as a product of the intellect, it has no meaning because all human action has some gray matter behind it. To define a poem as a work of IP, but a compilation of baseball scores as not being IP overlooks the fact that the compiler of the latter has to figure out what's relevant and to do some basic math (or maths, as they say in England). Is this not a product of the intellect?

When the president signs legislation or walks his dog, there is some gray matter at work.

You can control who makes copies of your property until you sell it, but that's not a defining characteristic of IP in any event.

There is no such thing as property that is not tangible property. "IP" is just a relation of state, as Murray Rothbard put it in Power and Market (even if ironically he didn't quite understand the implications of copyright).

It's a triangular intervention with one point of the triangle being the legislature, and the other two points being the original author- or inventor-cum-rent seeker, and every non-IP holder, who is being ripped off by paying higher prices and not being able to use his own property as he sees fit.

A compilation of baseball scores is an intellectual work (if a product of the intellect), and when discretely existing in some physical medium, tangible or otherwise, is an item of intellectual property.

We can move on to the distinction between 'what is art and what is not' if you want, but I don't think it helps in the issue of 'what is IP'. Art usually embodies IP, but IP doesn't necessarily constitute art. IP need only be apprehendable by the intellect and obey the characteristics of property. Art is necessarily created by the intellect, and as I have not yet imagined any art that isn't created by the intellect I can surmise that all art embodies intellectual work, and invariably, any work of art embodies IP, or provides a source from which IP can be extracted. As for art in nature, nature can only create nature. Any art in it is a discovery created by the beholder's intellect.

Back to intellectual property...

Being able to control the use of something until you sell it, is actually one of the defining characteristic's of property. As to tangibility, you don't need to be able to touch something to be able to control it. In my reliquary I may have a bottle containing the last breath of Jesus, but being unable to touch its content doesn't prevent me owning it or controlling its use.

While we both appear to agree that each person should be free to use their own property as they see fit, it is obviously critical that we define 'property', and in this context 'intellectual property'.

You don't seem to believe that I can own a poem, but can only own the paper it's written upon. This means that you don't believe I should control the poem (even if I can), only the paper.

Let's imagine I have a Scrabble set and in a moment of incredible inspiration discover a beautiful poem that can be formed by arranging the tiles (with only a few tiles left over).

Now, why do you believe that poem is not my intellectual property?

Do you believe instead, that it immediately belongs to the world?

And yet I plainly control that poem as I control access to the tiles and whether I allow anyone else to rearrange or add/remove letters. I can take a photograph of the tiles and thus copy the IP that is the poem - the photo also becoming my IP. I can transcribe the poem onto paper with the poem on the paper also becoming my IP (the paper was always my physical property, but had no poetic IP upon it until I put it there).

I can scrabble the tiles having memorised the poem, and consequently destroy the IP (no other copies existing). I can immerse the tiles in clear epoxy resin and sell it as a work of art, so I can transfer the IP. Selling the repacked Scrabble set merely transfers the game sans poem.

However, having sold the Scrabblified poem, I've sold the IP, so, as is naturally the case with property, the purchaser is then its new owner and is in complete control of the IP therein.

It is only copyright that attempts to prevent owners of IP enjoying their own property, by retaining the ability to make copies or derivatives as the exclusive privilege of the copyright holder. Without copyright, our intellectual property rights are restored, and behave just like our non-intellectual property rights.

Information exists and can be controlled. What can't and shouldn't be controlled are the people that you give it to. You can control a binary digit, but you can't affix a label to it that says "This bit not to be copied without permission from Fred", then (with Fred's permission) send fifty copies of that bit to fifty people and expect its label to be obeyed by every single person and the computers that do their bidding (even if it's actually several bits and is deemed to constitute original work). That is fricking lunacy.

This is why 99% of computer scientists don't get het up about copyright in the digital domain or other misapplications like DRM, because it's Feng shui for zeroes and ones that amuses legal departments and keeps them in the life to which they've become accustomed.

However, whether copyright is effective or not, is immaterial to the case for IP, because unlike copyright, IP isn't about controlling people, but controlling intellectual works, and the right for them to be recognisable as property.

I don't understand why it's taking you so much effort to explain your concept of "intellectual property," Crosbie. It seems natural to me.

Perhaps most of us have spent too much time arguing against intellectual property as it exists in our current legal system.

Kid, I don't understand why it's taking me so much effort either. It seems natural to me too.

I'm still looking for that 'simple explanation' that's easy to deliver and easy to digest. I haven't got there yet.

Do you have a way of explaining it that doesn't take so much effort?

Being able to control the use of something until you sell it, is actually one of the defining characteristic's of property.

Yes, as I have implied in my previous posts.

As to tangibility, you don't need to be able to touch something to be able to control it. In my reliquary I may have a bottle containing the last breath of Jesus, but being unable to touch its content doesn't prevent me owning it or controlling its use.

Jesus's breath doesn't exist unlike your dog's. I can't think of a type of tangible property you can't touch. In fact one of the parts of the definition of property is that is has boundaries. That means you have to be able to touch it.

You don't seem to believe that I can own a poem, but can only own the paper it's written upon. This means that you don't believe I should control the poem (even if I can), only the paper.

Where did I say you could't own a poem? You can't own the right to prevent someone else from copying or otherwise disposing of his own copy of the same poem, which is what copyright grants.

Let's imagine I have a Scrabble set and in a moment of incredible inspiration discover a beautiful poem that can be formed by arranging the tiles (with only a few tiles left over).

Now, why do you believe that poem is not my intellectual property?

Do you believe instead, that it immediately belongs to the world?

No, you clearly own the poem, and you can call it intellectual property, but that's not how the law defines intellectual property, nor is that by itself what everyone but you (and Kid?) mean by the term. There's a lot more to the legal definition of intellectual property. What it clearly is in any case, IP or no IP, is a piece of tangible property consisting of tiles forming a certain arrangement that happens to be a poem.

After you sell it, the purchaser owns the tangible property, or IP as you call it (even though it's not IP in the conventional sense, unless it has been copyrighted).

However, whether copyright is effective or not, is immaterial to the case for IP, because unlike copyright, IP isn't about controlling people, but controlling intellectual works, and the right for them to be recognisable as property.

IP as you define it is just tangible property that has been produced by the intellect, like a poem. This is necessarily arbitrary however. Where do you draw the line between IP (as you define it) and non-IP? All property is a product of the brain (and other action).

I think you should stop referring to IP and call it what it is--tangible property, some of which has more gray matter involved in its creation that other property.

As I said in my earlier post,

IP as you define it is just tangible property that has been produced by the intellect, like a poem. This is necessarily arbitrary however. Where do you draw the line between IP (as you define it) and non-IP? All property is a product of the brain (and other action).

More to the point, is all art intellectual property? What about the bad "art" produced by someone in a catatonic state, or by a mentally handicapped person, or by me when I was seven years old?

What is intellect? What about the art produced by the four-year old Marla Olmstead? By all accounts it's great art, but is it the product of her intellect or did she just "get it" from a frighteningly young age and intuit how to make very good art?

All the examples are about tangible property. Mine still exists somewhere, I think in my parents' attic, which is probably where it belongs.

The other thing about so-called intellectual property is that is smacks of a smarmy European sensitivity about intellectuals. Then it's but a small step to the hoary moral rights of authors and artists. Tom Palmer dispatched of all that nonsense here .

Bill, first you say

"You can control who makes copies of your property until you sell it, but that's not a defining characteristic of IP in any event."

and then when I respond

"Being able to control the use of something until you sell it, is actually one of the defining characteristic's of property."

You then say

"Yes, as I have implied in my previous posts."

Seems to be a weeny contradiction there.

And yes, 'tangible' is pretty synonymous with 'touchable', but it is not synonymous with 'physical'.

However, being able to touch something isn't necessary to control something. I can contain a poem in a set of scrabble tiles, but I can't really touch it. I can touch the tiles, but then I could always touch them, little tangible has changed because of their rearrangement into a poem. And yet, I can control the poem because it is held in a physical medium (the poem isn't tangible, but its medium is). Whether it's held as electrons in a silicon chip or as the arrangement of scrabble tiles doesn't matter, it's still amenable to control, and thus able to be classed as property.

And I note you are still appealing to copyright and patent to bolster your denial of IP, when I've said countless times IP should be understood outside of the context of copyright or patent, e.g. if it helps, in a hypothetical land in which such unethical privileges do not exist. If you are against such artificial monopolies you have to be able to think of a future in which they have been abolished. However, IP remains IP whether it is augmented by privilege or not.

A poem is not tangible, it is nevertheless controllable by its owner. It is property irrespective of copyright. Being an intellectual work it is obviously apprehendable by the intellect and is consequently, when in a discrete form, an object of intellectual property.

More to the point, is all art intellectual property? What about the bad "art" produced by someone in a catatonic state, or by a mentally handicapped person, or by me when I was seven years old?

"all art embodies intellectual work, and invariably, any work of art embodies IP, or provides a source from which IP can be extracted."

Work without thought is not intrinsically art. However, anything can become art if it is given thought. So, pissing in the snow is not intrinsically art because it is a product without thought. However, it may be given thought as art, and thus becomes art. And here 'thought' means sentient thought.

Therefore all your examples above constitute art, though the question of your sentience, whether seven or seventy, is open to debate. ;-)

What is intellect? What about the art produced by the four-year old Marla Olmstead? By all accounts it's great art, but is it the product of her intellect or did she just "get it" from a frighteningly young age and intuit how to make very good art?

It's art. Why wouldn't it be?

All the examples are about tangible property. Mine still exists somewhere, I think in my parents' attic, which is probably where it belongs.

If a work of art is held upon a physical medium, it is indeed likely that the medium is someone's property. It may have been your Scrabble set I borrowed, with which I composed my poem. That doesn't make it your poem. The poem is my art, my intellectual work, and my intellectual property.

The other thing about so-called intellectual property is that is smacks of a smarmy European sensitivity about intellectuals. Then it's but a small step to the hoary moral rights of authors and artists. Tom Palmer dispatched of all that nonsense here.

Intellectual work doesn't mean 'Work done by an intellectual' in the pejoratively chauvinistic or supercilious sense of the word 'intellectual'.

There are indeed moral or human rights that concern truth and privacy when it comes to art.

I've no doubt I'd agree with Tom Palmer against the creation of privileges such as copyright and patent.

Remember that three centuries ago the vector for diffusion of intellectual work comprised a few, readily controllable printing press owners (not, a global and instantaneous electronic communications network). I daresay it seemed very attractive (to state and commerce) to regulate the press via artificial monopoly on the pretence it was a natural right (strangely requiring unnatural protection) and beneficial to the progress of science and the arts in any case...

Crosbie,

There is no contradiction in my post. I define IP the way the law defines it, which grants the legal right to an IP holder to control the use of someone else's property after a patent or copyright has been issued on the protected work. Do you understand this? Obviously an unpatented invention or an uncopyrighted literary work is not IP by this definition (and this is my definition), even though they would be IP by yours (I think, correct me if I'm wrong).

"Being able to control the use of something until you sell it, is actually one of the defining characteristic's of property."

I should have written of tangible property, which is what I meant. There's no contradiciton in my two statements.

All property is tangible property, including your things that make up intellectual property as you define it, e.g., books and poems. I maintain there is no non-arbitary way to define IP as you define it. What's the distinction between IP and non-IP, as you define IP?

(It would be helpful if you gave a short one sentence definition of IP and then one for non-IP. And I mean short with just the essential elements.)

Btw, in case you define the performance of a play as IP, let me point out that a performance is an experience, not a piece of property. The players use tangible property, such as costumes, props, a stage, etc. but that doesn't make the performance itself property. See John Perry Barlow on this.

Tangible is synonymous with physical. Even someone's breath has chemicals in it and they can be analyzed.

Of course a tangible medium is property, including the scrabble poem.

In a future without IP, there would be no IP, only TP. Of course you can define books, etc. as IP, but where do you draw the line between IP and non-IP? You can't.

You state:

A poem is not tangible, it is nevertheless controllable by its owner. It is property irrespective of copyright. Being an intellectual work it is obviously apprehendable by the intellect and is consequently, when in a discrete form, an object of intellectual property.

A poem is embodied in tangible property, either a on paper, on a hard drive, or in someone's brain. Destroy the tangible media in which all copies of a poem are embedded, including the brains of the author and other people who have memorized it, and it no longer exists. All things are apprehendable by the intellect, including non-intellectual works.

I define IP the way the law defines it, which grants the legal right to an IP holder to control the use of someone else's property after a patent or copyright has been issued on the protected work. Do you understand this?

I understand that you obviously believe that the law defines 'Intellectual Property', when it actually only defines copyright and patent.

It is you that is insisting that copyright and patent define IP, when they are merely privileges that relate to IP. They do not define IP - they interfere with IP.

Obviously an unpatented invention or an uncopyrighted literary work is not IP by this definition (and this is my definition), even though they would be IP by yours (I think, correct me if I'm wrong).

Well, of course, if your definition of IP excludes the class of intellectual works that are not protected by patent or copyright, ...

Given that patent and copyright are unnatural, and that property has been considered natural for a very, very long time, a definition of intellectual property that not only includes, but comprises the class of all discrete intellectual works, irrespective of any unnatural privileges that legislatures may grant their authors or publishers, must be a more natural definition.

I'm sure an inventor considers their invention (manifest in designs, notes, drawings, prototypes, etc.) their natural intellectual property well before they get to the patent office in order to claim a transferable commercial monopoly. Many inventors actually consider the patent worthless, and prefer to keep their intellectual property to themselves. I daresay they'd be very unhappy if an 'IP communist' came along to seize their invention on the pretext that 'all IP is theft', etc.

I think it's useful to make a distinction between an instance of a concept, and the concept itself. Naturally, a concept itself cannot be owned.

Suppose, Crosbie, by chance, that someone else independently discovers the same poem while playing with another scrabble set.

Do you have rights over his poem? Of course not. So if you claim you own this poem, you really mean that you own a copy of the poem.

Now, I think, the key difference between intellectual property and tangible property is that intellectual property can be multiplied - even without the intervention of the owner.

Suppose that I see your copy of the poem while you have it laid out on your table. I write down the exact same poem. Do you have any rights over my copy of the same poem?

If the answer is "no," then ordinary property law suffices to protect all our intellectual property rights. The existence of "intellectual property" as a concept is then unnecessary. By occam's razor, we may as well forget about ownership of ideas.

Regardless, intellectual property, as disconnected from the monopoly privilege, still has a use in thought experiments. Especially to aid those that still think in copyright terms.

However, if the answer is "yes," then we have intellectual property law as before, save that you now own copies instead of the underlying concept. Intellectual property then needs a legal definition and protection separate from ordinary property law.

Kid writes,

Now, I think, the key difference between intellectual property and tangible property is that intellectual property can be multiplied - even without the intervention of the owner. --

Tangible property can be multiplied without the intervention of the owner. They're called copies or knockoffs.

If you make an umbrella, another umbrella entrepreneur can easily copy it without your involvement.

It seems to me that the difference between intellectual and tangible property, as Crosbie defines them, is that the former is a product of the intellect. This begs the question of what is intellect and what is its role in creating intellectual property, and even more importantly it begs the question of what is the dividing line between the two. A poem or book is obviously the former, but what about a house? Is a house not the product of the intellect? Ayn Rand would certainly say it is and she would use the example of a skyscraper.

In fact I can't think of anything that isn't the product of the intellect at some level. That's why Crosbie's use of the term doesn't cut any mustard with me.

Furthermore, demarcating the two types of property runs the risk of confusing folks who identify IP in the legal sense. In discussions with these people (the majority of people), Crosbie then has to backpedal everytime he uses IP in his sense and qualify his sense of the term. In doing so, he runs the additional risk of making the concept murkier and/or confusing people.

So Kid is correct in pointing out that the law is sufficient to protect our property rights, and that the existence of "intellectual property" as a concept is unnecessary.

Occam's razor does rule the concept out of bounds; and as John Perry Barlow brilliantly pointed out, ideas can't be owned anyhow, as they are not property, but rather are experiences. His March 1994 Wired essay, "The Economy of Ideas: Everything You Know about Intellectual Property Is Wrong," [reprinted in Adam D. Moore, ed., Intellectual Property: Moral, Legal, and International Dilemmas], is must reading on this, as is his 1996 follow up piece, "Selling Wine without Bottles: The Economy of Mind on the Global Net," in Peter Ludlow, ed., High Noon on the Electronic Frontier: Conceptual Issues in Cyberspace.

Barlow's essays seem to have been overlooked by the IP (in the monopoly sense) establishment (duh), although they carry weight among the technorati, I think.

It seems to me that the concept of IP (outside of the monopoly sense) should be abandoned. After all, the concept of tangible property is good enough to convey whatever it might mean in the non-monopolistic sense.

Btw, if we get rid of intellectual monopoly, then the concept of intangible property would also seem to be irrelevant. I'm going to have another look at Baruch Lev's book on Intangibles, on this point.

A final thought on this that can't be emphasized too strongly. Machlup and Penrose pointed out in their 1950 essay on patent history that the concept of intellectual property was invented as a figleaf to cover up the fact that patents were monopolies granted by the government. Let's not forget Santayana's point about what happens to people who forget history. Yes, let's ditch the IP concept other then as a figleaf for intellectual monopoly.

Sorry I've not yet answered all Bill's interesting points - not enough time, but I'm not trying to evade them.

Let's have a go at Kid's:

I think it's useful to make a distinction between an instance of a concept, and the concept itself. Naturally, a concept itself cannot be owned.

A concept can be owned, but it may not be property. I may think of a concept and own it within my mind. But, sure, it can't be property until it physically exists outside of the mind, in a discrete form. You can call this instantiation if you want.

Suppose, Crosbie, by chance, that someone else independently discovers the same poem while playing with another scrabble set.

We need some terms of reference to describe the relationship between two indistinguishable instances of a work.

Instance: A discrete intellectual work, or other intellectually apprehendable information, in physical form (outside of the intellect, in a tangible or intangible medium).

Copy: An instance created with reference to the original instance (directly or from memory). There is direct, contagious provenance between the copied instance, and the instance it was copied from.

Replica: An instance that is indistinguishable not because it was copied from another instance, but because it was created by the same artist/source (intentionally similar or not).

Double/Duplicate: An instance independently created, that is indistinguishable only through freak coincidence.

Original: An instance created independently with the intention to avoid duplication.

Derivative: An instance that has been created by copying from another, but is distinguishable.

Do you have rights over his poem? Of course not. So if you claim you own this poem, you really mean that you own a copy of the poem.

Everyone owns their own thoughts, even if they coincidentally happen to be indistinguishable from someone else's thoughts (if thoughts could be compared).

Each poet owns the poems they independently compose.

Each poet owns the original instances they produce. These are their original works, their intellectual property, and they control what may be done with those instances (until they sell them).

The poet owns all copies made from their original instances.

The poet also owns replicas produced, and any copies made from their replicas.

The poet also owns any derivatives made from their instances.

When I say 'their', I mean whilst they own those instances, whilst those instances are their property.

The moment the poet sells an instance, the new owner of that instance has the same rights over that instance that the poet formerly had.

Thus, if a poet publishes their poem in a newspaper, each purchaser of the newpaper obtains an instance of the poem for themselves. And they control copies and derivatives, and can decide whether or not to publish them, etc.

They get these rights because they obtained the intellectual property.

And ideally, there are no monopolies interfering with these rights, e.g. granting some of them to the copyright holder.

Now, I think, the key difference between intellectual property and tangible property is that intellectual property can be multiplied - even without the intervention of the owner.

IP is necessarily intangible, but always exists within a physical medium. IP is the informational component of our environment that we find interesting and can treat discretely.

We may have machines that can copy IP, but then we also have machines that can produce replicas (and to some extent copies) of physical property.

I don't think being able to be 'multiplied' without owner intervention is a good way of telling intellectual property apart from material property.

The only difference is that material property is fundamentally mechanical in nature, whereas IP is fundamentally cybernetic in nature. Solid matter vs information. This doesn't prevent either from being controlled or communicated mechanically or cybernetically, but they have different natures and are amenable to correspondingly different processes.

A brick is material property because it is a useful mechanical structure with which to build a house.

A brick embodies intellectual property because its dimensions can be useful in designing a house.

But, just because I own one brick, doesn't mean I own all bricks that coincidentally share the same dimensions. However, I still own the IP embodied in the brick and any copies or derivatives - until I sell the brick to someone else.

Suppose that I see your copy of the poem while you have it laid out on your table. I write down the exact same poem. Do you have any rights over my copy of the same poem?

As with any property, merely because the end result is the same doesn't make any means equally leigitmate. I may give you the candlesticks from my table or you may steal them, either way you end up with my candlesticks. Naturally, only if I give (or sell) them to you do they become your property. And if they're your property, you have every right to do with them what you please. I have no right to prevent you melting them down, selling them or manufacturing copies, though I may have some sentimental dismay if you melt them down.

The same thing happens with the poem. It depends if you are a burglar or a guest. It depends if you have entered the room with my tacit/explicit permission or not. It depends if I have first contracted you to constraint or not, e.g. if you were a press photographer. It depends if my table is in a room of your house (or at a stall in a public market). There are a lot of 'depends'.

But, let's say it's my house, room and table, and you're a guest that I have been pleased to show the poem to (without any stipulations against photography). I have not given you the Scrabble set. I have not given you a copy of the poem. However, I have communicated the poem to you by dint of exhibition. Perhaps you have a good memory, perhaps you take a photo with your camera/phone (subject to inevitable etiquette)? You thus have my tacit permission to view/memorise the poem and/or take a photo. I have no rights to any copies or derivatives you later produce whether from memory or photo. Those are yours. However, don't forget that the truth of my authorship remains inviolate.

If the answer is "no," then ordinary property law suffices to protect all our intellectual property rights. The existence of "intellectual property" as a concept is then unnecessary. By occam's razor, we may as well forget about ownership of ideas.

Regardless, intellectual property, as disconnected from the monopoly privilege, still has a use in thought experiments. Especially to aid those that still think in copyright terms.

However, if the answer is "yes," then we have intellectual property law as before, save that you now own copies instead of the underlying concept. Intellectual property then needs a legal definition and protection separate from ordinary property law.

The answer is "It depends", which perhaps triggers your "yes" contingency.

However, one can own a concept, but such ownership becomes joint with those the concept is communicated to. Naturally, two or more people may independently own indistinguishably similar concepts, without their ownerships interfering.

One can own instances of concepts as intellectual works (whether originals, copies, replicas, or derivatives), but ownership is necessarily transferred when you transfer these instances (as intellectual property).

Copyright is an artifice that could be interpreted as saying "In order to encourage the author to deliver/sell instances (originals/copies/replicas) of their original intellectual property to the public we will grant them a transferable privilege that suspends the public's right to make copies or derivatives from the IP that they purchase."

Patent, covering a different class of works, is pretty similar, but even applies to duplicate works (very nasty).

Copyright and patent apply to IP, but they suspend property rights in order to create a privilege. Because of this, they interfere with our liberty and freedom of speech. And in order to be enforced they also violate our privacy.

If copyright/patent abolitionists are not careful to moderate their fervour and decide to abolish intellectual property (simply because it is the basis of those unethical privileges built upon it), then this will be disastrous. It will destroy all property rights to an important class of work, i.e. intellectual work (as opposed to mechanical work or craftsmanship). This will become ever more important in the information age as we leave manual labour to machines and focus upon intellectual work.

If someone accidentally leaves their laptop computer on a train. Tell me why any other passenger has a right to copy its hard drive before they hand the laptop back to the lost property office? The IP communist will no doubt exclaim that there is no such thing as IP, and that the owner of the laptop shouldn't have left it on the train if they didn't want it copied. After all, they have their tangible property back. How can they be suffering any loss if someone else now also has the benefit of their intellectual work?

Instances of intellectual work - fair game or property?

Are you against only the artificial monopolies of copyright and patent, or are you also against the natural monopoly of intellectual property?

Perhaps we can classify proponents as follows: IP maximalists: Extend copyright/DMCA/patent as far as possible. IP reformists: Moderate copyright/patent with pragmatic compromise, fair use. IP naturalists: Abolish the unnatural privileges of copyright and patent, but retain natural IP rights. IP communists: All intellectual work belongs to the community. Any hoarding or artificial scarcity is abhorrent. IP must not be legally recognised.

A concept can be owned, but it may not be property. I may think of a concept and own it within my mind. But, sure, it can't be property until it physically exists outside of the mind, in a discrete form. You can call this instantiation if you want.

A concept can't be owned, because ownership implies the right to exclusive control of the use of the thing that's owned and the ability to alienate it, i.e. to dispose of it by sale or other legal means. You can own a house or computer, etc. and therefore exclude others from using them. A concept is different though, because you can't exclude others from having it also and using it as they wish, for example by making an invention. Keeping it under lock and key or otherwise making it impossible for others to obtain it from you doesn't prevent others from thinking of it independently or getting it from someone who has done so.

Having a concept within your mind doesn't mean you own it. It just means you experience it as per J.P. Barlow.

There we have it. That's the key difference between abolishing intellectual property altogether and just abolishing intellectual monopoly.

Like Boldrin & Levine stated in their book, the right of first sale is important to preserve even when abolishing copyright.

Bill, I have just had an original concept pop into my mind. I own this concept.

I've just thrown a pot out of clay, and I own this pot.

Why on earth are you so obsessed about what pops into other people's minds? Or what pots other people throw? And more importantly, the coincidence of whether the concepts or pots are similar or even indistinguishable?

How can my ownership of my concept or my pot be affected by someone on the other side of the planet? Similarly, how can my ownership of my concept or pot, affect them or their ownership of their concepts or pots?

This whacky morphic resonance that you're so concerned about that somehow enables ownership to pervade the universe on the basis of similarity is mumbo jumbo nonsense and you should exorcise it from your mind.

My own thoughts are my own. I own my own thoughts. Notice how the use of 'own' works here? I'm not saying my thoughts are transferable property, I'm saying I own them and I control to whom I give them, and none can take them from me.

If I think of a bread slicer, and someone on the other side of the planet thinks of a bread slicer, how can you possibly think I could claim to own the other person's thoughts or their concept of their bread slicer? Or them to own mine?

We can both own pots. It doens't matter if the pots are indistinguishable or not. We both own a pot.

We can both own concepts. It doesn't matter if the concepts are indistinguishable or not. We both own a concept.

Similarity is irrelevant to ownership. It's a ridiculous notion, a mental illness that afflicts people who've read too much on patent law, and it obviously has a brainwashing effect.

Perhaps you need A Cure for Copy-Blindness?

Humans are said to differ from our Neanderthal ancestors in that we are capable of abstraction.

We are capable of recognizing patterns and general concepts in what we see. We are able to recognize something as a special case of a more general principle that we know. We can take several different ideas and unify them, under one and the same.

It is not so that a different, but indistinguishable, generalization is created for every special case. Therefore, I do not think your copy-blindness applies to concepts. Rightly we recognize some objects as being instantiations of one and the same concept.

I may read a poem from arranged scrabble tiles, I may read the same poem in graffiti of a wall, I may read it as ink on paper. I am capable of recognizing that it is the same poem in each case. I am also capable of recognizing that each is a different copy of that same poem, and that these different copies can be manipulated independently of one another.

I think it's equally senseless to suppose that the copies are identical as it is to say a different but indistinguishable concept is associated with each copy.

Bill, I have just had an original concept pop into my mind. I own this concept. I've just thrown a pot out of clay, and I own this pot.

You own the pot because it's tangible property and it has a property title that says "Crosbie Fitch." You can sell it and exclude others from using it. You own the concept in this sense: you "own" it, note the quotation marks. But you have no legal title to it and you don't actually own it. You can't exclude others from it, nor can you alienate it. Yes, you can sell your copy of it (but not exclude others from experiencing and perhaps even using it), but what you are selling is your copy of an experience, which becomes a service (that can include follow up services, such as implementing and commercializing an idea), just like a lawyer or piano teacher sell their (bad word alert) non-propertized services (and contrary to David Friedman, who thinks IP involves propertizing ideas). Just as the lawyer and piano teacher retain their copies of the ideas they sell, so do you when you sell a copy of your idea.

Why on earth are you so obsessed about what pops into other people's minds? Or what pots other people throw? And more importantly, the coincidence of whether the concepts or pots are similar or even indistinguishable?

Ideas, which are not property, are not the same as pots, which are property. It's vitally important to make this distinction because the IP apologists want to analogize tangible property to intellectual property (in the way they define the latter). Pointing out that ideas (which are the root of IP, if not the substance) are not property cuts one prop out from under their argument.

The bottom line is you don't own your thoughts.

Crosbie,

I think you're hung up on the concept of the concept. Reading Barlow would get you out of this pickle. In his 1994 manifesto, he cites the Bulletin of the Atomic Scientists cartoon (I've never seen it) depicting a stick up man demanding of his hapless victim: "Give me all your ideas."

Clearly he could hand over his money or other property, but his ideas? It's not happening.

And as MB and DKL point out, there's a big difference between an idea and actual working knowledge.

"Give me all your working knowlege." Uh, will you take my wallet instead?

"I think it's equally senseless to suppose that the copies are identical as it is to say a different but indistinguishable concept is associated with each copy."

The difference between 'identical' and 'indistinguishably similar' is critical in the case of information.

You learn this early on in computer programming. Equality is distinct from identity.

It is ludicrous to suppose that two people in different parts of the world may have different concepts that do not interfere with each other, similar concepts that do not interfere either, until suddenly, when the concepts become indistinguishably similar, kazam! The concepts collapse into a singularity and become one and the same concept. And we must decide which of the two people actually owns this single concept, whereas just before the concepts became indistinguishable, each owned their own.

The truly peculiar notion is not that each person owns their own concepts, but that someone could believe that ownership was conferred by similarity, that it was actually possible for someone to claim that whoever in the universe had indistinguishably similar concepts to their own must concede rightful ownership to them, the master owner of such concepts. Or presumably, have a fight over it.

Each instance of a poem, whether copy, replica, or duplicate is a distinct instance. It is possible to have more than one author, if by coincidence two authors discovered/composed an indistinguishably similar poem.

It is unfortunate that the english language was (like copyright) developed way before information technology and our far better grasp of how information works. The word 'same' can either be used to mean 'indistinguishably similar' or 'equal in every respect' or it can mean 'identical', e.g. "This is the same person that I saw break the window". That's why I'm avoiding the use of the word 'same'.

Unless, we use precision in discriminating between copies and duplicates, we are going to find ourselves blinded by similarity, and unable to make coherent sense about intellectual works, intellectual property and the rights we have concerning them.

If you're confident that Homo Sapiens is capable of conceiving of abstraction, then no doubt it is capable of understanding the difference between equality and identity.

This means that people should be able to recognise that when I say "I own the poem I just thought of" I'm not trying to say "I own the poem I just thought of, including indistinguishably similar poems that other poets may have composed, or will compose, and irrespective of who I tell it to". I'm simply saying that I own my poem. Everyone else owns their poems (whether similar or indistinguishable). And each to whom I give my poem will also own it.

Poems are just like pots. Sometimes different, but sometimes indistinguishably similar. Owning one pot doesn't affect anyone else's ownership of their pot - irrespective of similarity.

Bill Stepp,

you seem to be missing here that even when you accept Crosbie's intellectual property, the IP apologists' position is still indefensible.

In fact, IP apologists call it "property," but intellectual property as it exists in our current legal system behaves nothing like property. When we sell tangible property, we no longer claim rights to it. This silly idea that you should be able to control property even after you have sold it, is, I think, the root of the problems. I think it is what has led Crosbie Fitch to say that copyright is interfering with his intellectual property rights. I think this is a fine way to point out the flaws in the system.

Copyright holds little water no matter how you look at it. You don't necessarily have to dismiss ownership of ideas to be able to attack it. I still think ownership of an idea is odd and unnatural - but not necessarily bad. It's one way to ensure that the "right of first sale" is protected.

I was undiplomatic in an earlier message. Let's try this approach: we both agree that intellectual monopoly is bad. Let's leave "right of first sale" to a later discussion, and try to dismantle the system step by step. I think much of our hurt will already be relieved when intellectual property starts behaving more like property (and transfers ownership when sold). If it is necessary, we can proceed with the rest later.

Before somebody calls me confused - by "Crosbie's definition of IP feels natural," I meant that it's easy to understand, and a logical step from IP as it exists now. Not that I think that ownership of ideas is a natural right.
"When we sell tangible property, we no longer claim rights to it."

Indeed. Copyright and patent have deluded people into thinking that when they sell a pot they don't also sell its (patentable) design and the (copyrightable) imagery upon its exterior (that these are retained by them or someone else). Without those nefarious commercial privileges, when you sell the pot, you sell the entire pot: its substance, design and the poem written upon it.

However, abolishing patent and copyright doesn't prevent the pottering poet owning the pot's substance, design, and exterior poem before they sell them. Nor does it prevent the purchaser of the pot, its new owner, owning the pot's substance, design, and exterior poem before they sell them.

People understand property and will rebel against communism.

I think it would be more popular to promote the restoration of intellectual property rights and to abolish commercial monopolies (intended for the benefit of corporations rather than citizens), than to regard all IP an abomination and to demand that every person must surrender their intellectual works and property for the benefit of their comrades.

Kid, I fully understand that Crosbie's defn. of IP is incompatible with the monopoly defn. and that the latter is based on a government-granted monopoly. But do you understand that, despite the fact that the latter defn. of monopoly rules out monopolizing ideas (at least in most discussions I've read), that there is confusion over this point, as for example, David Friedman's defn. of patents in his book Law's Order, in which he says that they are on ideas? He also made this claim once at the blog of Arnold Kling and Bryan Caplan. Since virtually everyone (except you and Crosbie) uses IP in the sense of monopoly, and since very few people use it in the sense you and Crosbie do, I say use it only in the monopoly sense. More to the point--and Crosbie still hasn't answered my previous objection and neither have you--there's a fundamental problem with IP the way you and Crobie use it, because there's no way to demarcate IP from non-IP. Presumably a book is IP in Crosbie's sense, but what about a pot? Well, why should a book be considered IP? It consists of paper, ink, a cover, and words (and maybe pictures and graphs) in a particular order. Is the ink IP? Take it away and can you have a book? If a pot and ink are not IP, are you saying they are not the product of intellect (and labor, etc.)? So Crobie's "IP" is a non-starter in my view. Of course, people are going to use IP in his sense, but that muddies the water and risks continuing to confer legitimacy on IP in the monopoly sense, at least in the mind of those who haven't learned what it's about. The fact that Crosbie thinks that ideas and concepts can be owned tells me that there's a deeper problem involved too. The way I see it, IP = intellectual monopoly, and is as illegitimate and criminal as any other type of monopoly.
We can think of "property" as "exclusive rights." Then we can avoid the confusing term "property" altogether.

Tangible property has exclusive rights associated with it: If you own a pot, you have the exclusive right to make use of the pot, you have the exclusive right to smash it to pieces, and only you can sell or give it away.

Under IP law, you have another exclusive right associated with that pot. The exclusive right to make use of the design embedded within it.

When you sell the pot, one would think you sell all the exclusive rights associated with it, including the right to smash it to pieces, and also including the right to make use of its design.

However, our current IP law has another nasty aspect, and that is intellectual monopoly. It allows you to sell property and retain some of the exclusive rights associated with it.

My guess is that if you throw out this intellectual monopoly, we already have a much better system.

The definition of what designs can be protected as IP is already taken care of by current law, or am I mistaken?

I've never heard of a pot having a design patent, but maybe a pot out there has one.

Overturning the IP regime would solve that problem. There would be no design patents in a free society, just as there would be no utility or plant patents.

Rand wouldn't like it one bit, but then she did refer to us libertarians as "hippies of the right."

Regarding the confusion over the notion ideas can be the subject of property--intellectual property--note the full title of Lysander Spooner's 1855 book:

The Law of Intellectual Property; or an Essay on the Right of Authors and Inventors to a Perpetual Property in Their Ideas .

It's in v. 3 of Spooner's Collected Works. He was an absolutist on the monopoly formerly known as intellectual property.

I'd still call it a design embedded within the pot if it was copyrightable artwork on it's exterior.
So when you sell a book, you're selling the exclusive rights to the cover, paper, ink. When you have an exclusive right to the text embedded within that book, you shouldn't be able to sell the book without selling that right with it.

Your solution, abolish exclusive rights to ideas altogether, solves this problem nicely. Everybody is already joint owner of the text, so nobody can sell a book and retain exclusive rights to its text.

However, it does create a new problem. How am I going to control access to my work? I don't think it's viable to tell people they should just keep it locked up safely.

What we both agree on is that selling or giving away your idea should mean you can no longer control what people do with your idea.

However, how do we handle the situation before I sell or give away my idea? Maybe somebody would like to see my idea before he buys it. Do I require him to sign a NDA? Do I sue the finder of my manuscript on the train - get a judge to order him to forget what he has read? Am I just out of luck?

I'm being an IP proponent. How embarrassing. This goes to show that I know what I'm talking about not nearly as well as most of those brave enough to comment here. I hope I'm not being a burden on anyone.

The laptop on train case may be solved by privacy law. I do not think you are allowed to rummage through somebody's stuff even if you have found it on the train. However, I do not know if such a law even exists or what it protects.

The publisher case obviously cannot be solved without a NDA either way. When you show him, you have given up your idea of your own free will, and trying to control it then would require intellectual monopoly.

So, this again makes questionable (in my mind) the use of intellectual property without monopoly.

We have:

The concept (of this there is only one) Objects in which copies of this concept are embedded

When such an object is sold or given away, naturally that copy of the concept is given away as well.

But how do we treat copying? Is the world better off when the owner has an exclusive right to copy his concept (applying only to that particular copy, not to all instances of the concept)? Or is this already case as soon as you abolish intellectual property?

When I take a file on my computer, make a copy of it, and give up that copy to somebody on the other end of the internet, then that copy now belongs to that person, and he may copy it himself and send it to millions of people, if he so pleases.

If, by mistake, I make accessible a copy on my computer, and somebody copies it, then that copy is still mine, and this person should give it back. However, these cases seem to be covered already - he is not allowed to enter my computer without my permission anyway.

If I am working on my book in my study, and my neighbor uses binoculars to copy my book as I am writing it, then he is invading my privacy - and that copy of my book is still mine.

I am curious, what happens under current law sans IP?

I would still like to be able to set people's mind at ease, that, even though one cannot own a concept, copies of that concept can still be owned, and that they need not worry that they will be robbed of it.


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