Intellectual Property

The Issue Explained

All the citations are from Benjamin Mako Hill at http://mako.cc/talks/20060428-information_freedom/information_freedom-talk_notes.html

Forms of Intellectual Property

"Private property in ideas comes in variety of ways. Most notable amount these are intellectual property:

• Copyright: Long-term (i.e., up to 100+ years) monopolies in a particular type of expression.

• Patents: Medium-term (i.e., 20 years) monopolies on an idea.

• Trademarks: Unlimited or "as need be" monopolies on marks used to keep consumers from being confused.

• Trade secrets: Secrets.

Each of these gets special and particular legal protection." (http://mako.cc/talks/20060428-information_freedom/information_freedom-talk_notes.html)

The Second Enclosures or the extension of IP in recent decades

"Each of these areas is expanding in scope and duration:

• Copyright lasts decades longer.

• Business methods and software is now patentable.

• DRM systems make it so that your technology no longer respects your wishes when those clash with the wishes of the people who created your computer or the content that you have put onto it.

In an unprecedented development, this protection has been merged with global trade (e.g., agreement to IP in the TRIPS agreement is part of joining the WTO)." (http://mako.cc/talks/20060428-information_freedom/information_freedom-talk_notes.html)

"Each of these areas is expanding in scope and duration:

• Copyright lasts decades longer.

• Business methods and software is now patentable.

• DRM systems make it so that your technology no longer respects your wishes when those clash with the wishes of the people who created your computer or the content that you have put onto it.

In an unprecedented development, this protection has been merged with global trade (e.g., agreement to IP in the TRIPS agreement is part of joining the WTO)." (http://mako.cc/talks/20060428-information_freedom/information_freedom-talk_notes.html)

Proposed solutions and IP-related movements

"There are three major classes of methods by which people "resist" current ownership of ideas:

1. Alternative Approaches: Groups to attempt to live the world now by creating and releasing information freely and by refusing to participate, either through production or consumption, in proprietary communities. They define essential freedom and then live in that world.

Examples

• The free and open source software movement. If you're heard of GNU/Linux, then you know what I'm talking about.

• The Science Commons project or Open Access journal movement.

• Arguably, some aspects or sub-groups within the Creative Commons movement.

2. Transgressive Approaches: Frequently, this boils down to piracy. In addition to systems like Napster, this is the process through which the vast majority of the world produces and consumes content. In a sense, what is happening is that the group simply ignores the current exclusionary approaches to IP. Some argue that this will kick the legs out from under the current system in the process.

Examples

• The way that media is consumed in the vast majority of the world.

• Napster and most up-to-date P2P technology. Getting involved is as simple as participating.

• Groups like the Pirate Bay which is run by a group in Sweden called Pirat Byran which now has a political party.

3. Progressive Approaches: These are primarily approaches that involve "working within the system" in one way or another. This can include anything from consumer campaigns to put pressure on recording companies to constitutional challenges to copyright extensions in front of the Supreme Court.

Examples

• Creative commons through creating licensing.

• The work of groups like the Electronic Frontier Foundation (EFF), Public Knowledge, and others who are working to put checks on the expansion of IP law and the "enclosure" of the public domain."

(http://mako.cc/talks/20060428-information_freedom/information_freedom-talk_notes.html)

The Arguments in the Debate

Justification of Property in Immaterial Goods

"Why have property? Property feels right to many of us because of a sense that each of us should own the fruit of our labor. But this is at least not the whole story, because some property - such as land - wasn't created by its owners. Say there's a large stretch of land that's commonly owned, such as the West of the U.S. once was. The government decided to open the land for private ownership. It didn't have to do it; it could have kept it as a giant park, and no-one's property rights would have been harmed. But it gave or sold the land to people who didn't create it, thus limiting the freedom of action of all others. The reason for this was incentive: If people have the right to exclude others from their land, they'll have more incentive to invest effort in improving the land - build homes, plant crops, and so on...So far, the argument tracks copyright and patent law quite well. The theory of intellectual property is likewise that giving people the right to exclude others from new works or inventions will give people an incentive to invest effort in creating and inventing." (Eugene Volokh - Cited by David Levine [1])

Intellectual Property is a unjustifiable Intellectual Monopoly - David Levine

"Intellectual property law is not about your right to control your copy of your idea - this is a right that we have just pointed out, does not need a great deal of protection. What intellectual property law is really about is about your right to control my copy of your idea. This is not a right ordinarily or automatically granted to the owners of other types of property. If I produce a cup of coffee, I have the right to choose whether or not to sell it to you or drink it myself. But my property right is not an automatic right both to sell you the cup of coffee and to tell you how to drink it.

It is important to distinguish between property rights and contractual agreements. You could sell me the delicious cup of coffee you just made, and have me sign a contract agreeing not to drink the coffee after 4 pm. But if I were to violate this agreement it would not be theft. As a matter of law, you could not send the police after me. You could sue me for breach of contract - and the courts might or might not decide the contract was valid. But there would be no question of theft or violation of property rights.

So what is the contractual arrangement in current intellectual property law? The most significant feature is the agreement not to sell copies of the idea in competition with the person who sold you the idea. Outside of the area of "intellectual property" such an agreement would be called anti-competitive, and a violation of the anti-trust law. If you reach an agreement with someone else not to compete with them, not only would the courts refuse to enforce such a contract, but you would be subject to substantial civil and criminal penalties. "Intellectual property" in other words, is not about property at all, it is about legal monopoly.

Some economists would argue that any contracts voluntarily entered into should be enforced. That is what lead them to argue that, if I agree not to redistribute your book, then I should be bound by that agreement. In this view, the copyright law simply codifies the contract that sellers of embodied ideas would wish to bind their buyers to, and so saves on private transaction costs. While this argument is substantially different, and more coherent, than the one equating intellectual monopoly with private property, it is equally faulty from an economic standpoint. In fact such intellectual property "contracts" create substantial and difficult transactional problems - and in our view this is one of the most important reasons for eliminating both copyright law and private contractual arrangements that limit the downstream rights of buyers of ideas. Let us see why.

The closest case is that of slavery. That is, the courts will not enforce a contract in which you sell yourself into slavery. In the case of slavery, as in the case of intellectual "property" we believe that the economic and moral arguments point in the same direction for the same reason. Your labor is irrevocably bound to your person. To enforce a contract in which you sell yourself to someone else requires them to enforce the contract by intrusive, expensive, and morally offensive measures. Hence we allow you to rent your labor, but not sell yourself. This is not only a "morally just" prohibition, as many economists have argued, it is also an economically efficient one.

Just as your labor is bound to your person, so is your knowledge of ideas, regardless of whether such knowledge may have been acquired directly or by learning from someone else. Once the ideas have been voluntarily transmitted to you, and the established market price paid, those ideas are bound to your person as much as your labor is. Preventing you from freely using such knowledge is logically equivalent to forcing your mind into slavery. Even in the case of objects you voluntarily purchased in the market at the asked price, such as books, CDs or computer files, these typically reside in your house, your office or some other space which belongs to you. They are your private property very much in the same way that the cup of coffee you are drinking is your private property. To enforce an intellectual monopoly restriction on the usage of those objects requires intrusive, expensive and morally offensive measures. It is no coincidence that intellectual property law is everywhere the enemy of privacy and freedom. Contrary to the rhetoric of those who advocate the current law, it is not theft to make copies of a book legally acquired. On the other hand, the measures used and proposed for preventing the owners of those books from making copies are akin to breaking and entering.

Intellectual property law is not about your right to control your copy of your idea - this is a right that we have just pointed out, does not need a great deal of protection. What intellectual property law is really about is about your right to control my copy of your idea. This is not a right ordinarily or automatically granted to the owners of other types of property. If I produce a cup of coffee, I have the right to choose whether or not to sell it to you or drink it myself. But my property right is not an automatic right both to sell you the cup of coffee and to tell you how to drink it.

It is important to distinguish between property rights and contractual agreements. You could sell me the delicious cup of coffee you just made, and have me sign a contract agreeing not to drink the coffee after 4 pm. But if I were to violate this agreement it would not be theft. As a matter of law, you could not send the police after me. You could sue me for breach of contract - and the courts might or might not decide the contract was valid. But there would be no question of theft or violation of property rights.

So what is the contractual arrangement in current intellectual property law? The most significant feature is the agreement not to sell copies of the idea in competition with the person who sold you the idea. Outside of the area of "intellectual property" such an agreement would be called anti-competitive, and a violation of the anti-trust law. If you reach an agreement with someone else not to compete with them, not only would the courts refuse to enforce such a contract, but you would be subject to substantial civil and criminal penalties. "Intellectual property" in other words, is not about property at all, it is about legal monopoly.

Some economists would argue that any contracts voluntarily entered into should be enforced. That is what lead them to argue that, if I agree not to redistribute your book, then I should be bound by that agreement. In this view, the copyright law simply codifies the contract that sellers of embodied ideas would wish to bind their buyers to, and so saves on private transaction costs. While this argument is substantially different, and more coherent, than the one equating intellectual monopoly with private property, it is equally faulty from an economic standpoint. In fact such intellectual property "contracts" create substantial and difficult transactional problems - and in our view this is one of the most important reasons for eliminating both copyright law and private contractual arrangements that limit the downstream rights of buyers of ideas. Let us see why.

The closest case is that of slavery. That is, the courts will not enforce a contract in which you sell yourself into slavery. In the case of slavery, as in the case of intellectual "property" we believe that the economic and moral arguments point in the same direction for the same reason. Your labor is irrevocably bound to your person. To enforce a contract in which you sell yourself to someone else requires them to enforce the contract by intrusive, expensive, and morally offensive measures. Hence we allow you to rent your labor, but not sell yourself. This is not only a "morally just" prohibition, as many economists have argued, it is also an economically efficient one.

Just as your labor is bound to your person, so is your knowledge of ideas, regardless of whether such knowledge may have been acquired directly or by learning from someone else. Once the ideas have been voluntarily transmitted to you, and the established market price paid, those ideas are bound to your person as much as your labor is. Preventing you from freely using such knowledge is logically equivalent to forcing your mind into slavery. Even in the case of objects you voluntarily purchased in the market at the asked price, such as books, CDs or computer files, these typically reside in your house, your office or some other space which belongs to you. They are your private property very much in the same way that the cup of coffee you are drinking is your private property. To enforce an intellectual monopoly restriction on the usage of those objects requires intrusive, expensive and morally offensive measures. It is no coincidence that intellectual property law is everywhere the enemy of privacy and freedom. Contrary to the rhetoric of those who advocate the current law, it is not theft to make copies of a book legally acquired. On the other hand, the measures used and proposed for preventing the owners of those books from making copies are akin to breaking and entering.

In "intellectual property" law, not only does the purchaser implicitly agree not to compete with the seller, but this agreement is binding on third parties. That is if the purchaser violates their agreement, and sells the their copy of your idea to me, I am still bound by the original agreement. If a purchaser violates their agreement using my network, I am liable for violating a contract I never agreed to in the first place. No sane person can look at the laws on intellectual property as they exist and are argued in court and reach any conclusion other than that on the face of it they are absurd." (http://levine.sscnet.ucla.edu/general/intellectual/coffee.htm)

More Information

an overview of intellectual property regimes and their evolution, by economists of the Regulation School, at http://www.upmfgrenoble.fr/irepd/regulation/Lettre_regulation/index.html

Theories of Intellectual Property, by William Fisher, at http://cyber.law.harvard.edu/people/tfisher/iptheory.pdf

Copying and Copyright, by Hal Varian, at http://www.sims.berkeley.edu/%7Ehal/Papers/2004/copying-and-copyright.pdf

Legal aspects of peer to peer technology, by Pamela Samuelson, at http://www2.sims.berkeley.edu/academics/courses/is296a-2/s05/

Additional Information

David Levine's blog against Intellectual Monopoly, at http://www.againstmonopoly.org/

Key Books to Read

1. Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity

by Siva Vaidhyanathan

"A fascinating journey through the cultural history of copyright law. Copyrights and Copywrongs is remarkably readable, mercifully free of legal jargon, and entertaining. It is also thoroughly researched and includes extensive notes and references. This text belongs on the shelf of anyone interested in the ethics and development of copyright." - International Journal of Law and Information Technology

1. Boldrin, Michele and Levine, David. Against Intellectual Monopoly. 2005

Available online at http://levine.sscnet.ucla.edu/general/intellectual/against.htm

"It is common to argue that intellectual property in the form of copyright and patent is necessary for the innovation and creation of ideas and inventions such as machines, drugs, computer software, books, music, literature and movies. In fact intellectual property is not like ordinary property at all, but constitutes a government grant of a costly and dangerous private monopoly over ideas. We show through theory and example that intellectual monopoly is not neccesary for innovation and as a practical matter is damaging to growth, prosperity and liberty."