Information has been regarded as property in Western society for hundreds of years, but can it really be owned? If you’re a movie studio, a software company, or a record label, the answer has to be “yes.” Russell Peterson submitted the following editorial contribution to osViews, which proposes that information can be too valuable to be privately owned, and discusses open source as the means of bringing it into public ownership.
Intellectual Property in the Real World
Submitted by Kelly McNeill 2004-01-27 Editorial 22 Comments
In the case of software, it’s not just an idea. It’s a product. It’s not just 1s and 0s, because they were formed into something useful. A book is not just trees and ink.
In the case of music and movies, those too are ideas and talent formed into something entertaining. A musician isn’t paid for playing random notes, they are paid for forming them into songs, working hard at being talented enough to perform them, and taking the time and effort to record them.
Now I’m not saying that software and media companies don’t get unfair from time to time (or for some of them it’s most of the time), but you have to keep a perspective on what went into these “intellectual properties”. Some things are worth the money, and some aren’t.
As are all concepts of property.
The very idea of property requires that the rights of all but one be restricted, and the one (owner) be given special protection by the government.
In the case of things like land and other physical things society has generally decided that this tradeoff is worthwhile (for the most part, though a vocal minority would disagree).
I think the jury is still out on intellectual property. Personally I think the whole concept is absurd and I think it’s pretty hard to justify either morally or practically when one really looks deep into the subject.
Particularly the issue becomes difficult to argue when it is realized that most of the money gained from intellectual property doesn’t go to artists or garage inventors — it lines the pockets of the executives (as the wage gap between workers and execs increases every year) who don’t really contribute anything physical to society — they certainly aren’t growing the food that feeds my family.
So perhaps there are two objections to ip — one is the moral. The moral argument is traditional in that it has been used for the last couple hundred years to argue against private property in general — ie ‘we are all born on this Earth, how can a man own it?’ It is indeed an ethical question which is hard to justify, but obviously people have had no problem getting over it, so I don’t think this is a serious issue.
The real issue that will effect people’s decisions around ip will be whether they percieve the system of ip to protect artists and garage inventors (which realistically do not exist anymore today with companies like IBM crapflooding the patent offices) or to give even more money to the rich who control the property. Obviously you can see where I stand on this issue, but I’m rather pessimestic that many share my views.
If you have an original idea and you don’t share it, doesn’t this make you the owner? I submit that it is, and that therefore intellectual property can be owned, even exclusively.
Should this be the only way of maintaining ownership of an idea? This is both a legal question and a question of ideals.
If ownership of intellectual property (hereafter called an “idea”) cannot be protected by the government, then some of the alternatives might include the following:
1. Share it (your idea) without asserting any rights over it,
2. Don’t share it at all, or
3. Demand non-disclosure agreements in the sharing. This transforms the ownership issue into a contractual one.
In the absence of government support, #2 and #3 will likely be chosen more often than at the present. Is it more important to make ideas free, or to make them available? The two are not the same.
intellectual property rights are not absurd per se – they provide a framework of rights that can be used to effect any number of outcomes. in the same way that traditional property laws also provide us with rights to demarcate our boundary between what’s private and what’s public – to effect our social contract with society and those around us.
as we see with GPL: IPR can effect open outcomes rather than closed. It’s all about the method of use, not about the rights that are there. the rights just provide the tools, they can be used for good or bad. the choice is with the creator – this respects your freedom in society to make a choice and enforce a choice about your outcomes : NOT to be “forced” into a position of either being entirely private (i.e. you can have full monopoly rights to your creations) or entirely public (i.e. everything you create is in the public domain). finding the balance in the middle is not always easy, especially at times of great change such as now with infromation technologies.
the same arguments you make about IPR (“morality, ethics, public/private ownership”) are actually the same veiled arguments made to support communism or other forms of socialist socieitial organisations where ownerships are shared. in some cultures, these sorts of socialisms work, but in other cultures they don’t. we’ve had long experiences with toiling with public/private property ownerships: most of those hvave been with tangible properties, but equally they apply to intangible properties. often the argument is made that intangibles (such as software) are so abundant and easy to create as a new technology that enforcement is difficult: wrong, because the technology that allows this abundance is always going to allow for mechanisms of protection at the same time. and, so far so many people cannot see that this is the benefical of protecting rights management inforamtion in DMCA style provisions: these protections work for open-IPR just as much as closed-IPR; they help prevent abuses of GPL and other licenses. they are our friend just as much as they are our enemy.
for this reason, i don’t think that there is ever going to be a reversal of IPR rights per se (i.e. retracted from statutory books / etc). to harbour any belief that there will be a reversal is to believe in a radical social outcome equivalent to reversing the country into a socialist state. such a change will have substantial consequences for all forms of economic activity. it will simply not happen. society is inevitably heading down a different path.
what can happen is that the effect if the GPL and related open source approaches to the USE of IPR will gradually changing the surrounding framework, so that the beneficial economics of open source approaches are becoming embraced and used. I don’t think this will even entirely eliminate closed-IPR, but it will certainly continue to increase in practice all forms of open-IPR. this is the type of change that can be realistically pursued and addressed by people right now – by impacting and adjusting business models. for example, we all know of the high profile cases: linux, mysql, etc. (although they are very limited to copyright, they have a surrounding economic context which is very relevant). everyone can do this, and in doing this, IPR continue to work, but now work towards a different social model. IPR itself is not the problem the problem is the framework of use and the social constructions.
I haven’t read the article yet. But already have learned that it is impossible to get the whole article on a single page. And that’s nine pages! When I click “Print”, it gives me the same page, one of 9, but without site decoration. OMG, I HATE THIS!!!
I think this article was too obsessed with IP in relation to toys like software and entertainment. Much of modern legislation is also driven by these two economic behemoths.
In the case of software, patents appear to be a problem, because patent offices allow patents that clearly fail the rules of novelty and invention (or perhaps the bar is too low given current techonolgy levels). Copyright on software isn’t a big problem, who cares if Bill Gate’s great grandkids will still own exclusive copyrights on MS-DOS.
Entertainment is more nebulous, certainly some entertainment retains some financial value almost indefinitely, but most is like computer games (arguably one of least valuable IP investments).
In fifty years, IP patents on software will probably be a moot point. All the useful software patents will probably be long gone and new patents will be rare and probably licensed to as many people as possible.
Copyright will linger on but most IP on entertainment loses value on a slightly longer timescale than patents. I would be more worried what happens with copyright if people stop dying. 70 years beyond 3 centuries of waiting for Eminem to croak could be a real problem.
The future usually lies somewhere between the Doom and Gloom merchants and those who believe Moore’s law is eternal and unavoidable. Only time will tell.
Comparing the ownership of a product to that of land is kind of pointless, since they cannot be looked at the same way. Whether or not you agree that land can be owned by any one person, how can you not believe that I should own something that I make, or that I have compensated the person who did make it? If the source code to software is made just as anything else, why should the maker not be able to own it? People get caught up in this idea that because software exists in a different physical state than, oh let’s say, a car that they are somehow different with regards to ownership.
But just think, the whole FSF and GNU projects came into being because RMS had some crazy belief that he automatically had some right to the source code (which he didn’t create) to a printer driver. This whole topic is pointless to argue because people will believe what they want, no matter how many good and valid points are made to the contrary.
There is benefit for patents in software, especially when you are dealing with something entirely novel and new. A case in point is something like an algorithm for compressing music, let say, that will allow me to retain the qulity of music at a fifth the size of a current mp3. Subject to certain regulations, such as the industry surrently does in the case of dvds, anyone can make a dvd player and license the technology for a SMALL fee.
I must hastily acknowledge that this is difficult with free software, but I think content providers should be the ones to pay for this. So the ordinary user does not pay to decode a song, only the company that does the encoding and makes a profit off it.
However, the patent is much abused by people who apply for vaguely worded patents like “A method of delivering motion pictures to individual computers” without as much providing much detail. I think that no patent application, especially for software, should be allowed to pass without a working prototype for the technology, or at least detailed plans, such as source code in this case. In this way, people can know exactly what to avoid the next time they have their own ‘eureka’ moments. This also encourages patent holders to license their technology favourably, or else have people working around their methods and avoid the fees. Right now, I could develop something that is patented somewhere deep in the USA, and have these patent documents thrown at me after spending much on what I believed to be an original implementation or idea. I would then incur two costs, to develop a technology from scratch, and ironically have to license it anyway.
I would propose a few remedies for the current patent system, especially with regardss to software.
1. Unlicensed patents should enter public domain far quicker than licensed patents.
2. Patents should have an application in a certain period of time before they lapse. This should be much quicker too than the normal. Like 5 years instead of 17.
3. People should have full access to the patents and be allowed to work around them. If a patent really solves a problem in a novel and cost effective way, it will be cheaper to license it than to work around the patent. This will also ensure that patents are licensed reasonably.
4. A patent aplication should be accompanied by a reasonable description of the technology to be patented, something not vague. This requirement could be something like a plan, a blueprint, or the source code for your algorithm in the case of software. There must be evidence of testing your design.
5. Frivolous patents must attract a charge for wasting the patent office’s time. This charge would become payable once you try to file another patent. Something quite punitive would be in order.
6. Losses in a patent suit by a patent holder should be borne by the holder. This discourages speculative lawsuits where someone sues in the hope of forcing a settlement, or just seeing what the outcome will be.
7. Nothing should be allowed to be protected by poth patent and by copyright. The act of applying for a patent should render copyright on that disallowed. Thus you could not have double protection for software items.
This whole software is information nonsense get annoying too. Software is, for the most part, an implementation of an idea just a an airplane is an implementation of the idea of human flight. An application’s source code show how that software was implemented. So does that mean that if I can take apart an airplane and learn how it works that it no longer can be considered an object that can be owned but should now be looked at as information?
Comparing ownership to land is valid. For instance in software the cost to to produce 1000 copies of software component is about the same as producing 1 copy. With regard to software ‘piracy’, copying some software does not deny the original owner his property as he still has an identical copy. This is why the notion of ‘copyright theft’ is so difficult legally (and therefore laws in vaious parts of the world may vary wildly). With an object, if i make an exact copy for myself (say a chair) then no one would consider i had done something wrong. Software and entertainment are treated differently purely because the ease of copying is so high, whereas with an object it tends to be very difficult. With land ownership you find in most countries the land is technically owned by the state, and you have either a timed lease (normally centuries) or a permanent lease of that land from the government (i.e. a title deed).
What does ease in copying have to do with comparing software ownership to land ownership? Software is a product, so I would have a legitimate claim to owning the software I produce. Land is not produced by people, so the only claim for ownership that people can make is “I was here first” or “I bought it from the person who owned it who bought from the person who was here first.” If software wasn’t so easy duplicated, would it then magically be more valid to claim ownership over it? Either way, it is a product.
Had you asked someone from the 14th century to weigh the value of a book’s information independent of the pages on which it was printed, you probably would have received a blank stare. Prior to the modern age, information was inseparable from the medium on which it was recorded.
I don’t agree with this. Books had been copied for centuries, even when they weren’t understood. Things that WERE understood (Aristotle’s works on logic; Plato’s dialogues; the Christian Scriptures) were memorized to make up for the shortage of books. There was an understanding that the information itself had an intrinsic value.
What does ease in copying have to do with comparing software ownership to land ownership?
This is 8th grade economics: the very definition of property is that it is a definable, scarce good. That means:
1. If you steal my land, I am deprived of its use.
2. I can physically defend my land from being taken.
An idea isn’t property, because you can’t own or steal it. To compare to the above points:
1. If you use my idea, I can still use it. If you copy my music, I can still listen to my own copy.
2. I cannot keep other people from using ideas, except by totalitarian control and round-the-clock monitoring of citizens.
Being allowed to own and defend real property is freedom. Being forced not to use ideas and being monitored for compliance is tyranny.
“In the United States, large intellectual property corporations have helped convince an entire society that they own valuable goods. Laws have been established for the purpose of protecting the interests of these companies. We have been conditioned to think that copying intellectual property is tantamount to stealing.
Society has decided that companies should have exclusive rights to their intellectual property, and such claims are not without merit. However, recent actions of influential IP enterprises have forced me to conclude that, as a whole, the IP industry has a limited understanding of how its products interact with the larger economy. ”
A completely unfounded statement about causality. The author hasn’t even considered an alternative viewpoint where it is in fact individuals who have developed the concept of intellectual property. This base assumption, that the very concept is so foreign and flawed that no individual could hold this belief without having been “conditioned to” or “society having decided” it.
There is a growing trend of a complete void of critical thinking surrounding open source and copyright. Echo chambers like Slashdot and blogs amplify radical but unworkable ideas until their progenitors lack even the perspective to weigh their own ideas.
The whole article is based on this basic assumption that goes unchalleneged–alternatives, even the obvious ones, are not even considered. It therefore falls short of a summary of position and weighs in as an opinion, providing little or no justification.
“This is 8th grade economics: the very definition of property is that it is a definable, scarce good. That means:
1. If you steal my land, I am deprived of its use.
2. I can physically defend my land from being taken.”
Your eigth grade economics failed to teach you a crucial point. Land has utility and land has value (the two are related, but independent concepts). When you take my land, you take both. Scarcity, again, is only one component in calculating true value.
“An idea isn’t property, because you can’t own or steal it. To compare to the above points:
1. If you use my idea, I can still use it. If you copy my music, I can still listen to my own copy.
2. I cannot keep other people from using ideas, except by totalitarian control and round-the-clock monitoring of citizens.”
Ideas, too, have all of utility, scarcity, and value. How much is knowledge about the future worth? How much is an economic model that can be used to make profitable investments worth? How much are the plans for machinery and business processes to increase your workers’ productivity worth? All such ideas have both utility and value that is based on scarcity. The scarcity is an important factor in a competitive environment. Knowledge about the future (at least in financial markets) is generally more valuable with the fewer people who know it.
How much is an original Rembrandt worth? Why is such a painting so valuable? What utility has it? Even though such a work of art has no intrinsic utility (i.e. you cannot use it as a tool to save you time or money), it has extraordinary value. Why? Because there is only one original. What if a Rembrandt could be copied absolutely faithfully to every micron of paint and aged exactly so that it was indistinguishable from the original? What if one million copies were made? Who could tell the original from a copy? How much is one worth now?
The whole point of intellectual property is not the reduction of utility, but the reduction of _value_ that occurs when the idea is spread or the media is copied.
I don’t know about you, but I think destroying the value of someone else’s idea, or media, or work of art, by any direct means, constitutes a violation of their rights. This is the point.
It’s value, stupid.
This will be my last comment on the subject.
Key concept: property is scarce by definition. Property may have value, or be valueless. Things other than property may have value. VALUE IS NOT A DEFINITION OF PROPERTY. Things that are not scarce include ideas, art (not to be confused with art storage mediums), facts, words, sound, and air. These things may or may not have value.
Scarcity is objective; value is subjective and arbitrary.
And more to the point:
1. You have confused scarcity with value. Scarcity means discrete, limited quantity of something. An idea – whether a song, a fact, or something else – has no inherent scarcity once it’s produced. Unlimited copies can be made without destroying the original or depriving the creator of its use.
2. Value is purely a mental notion you and others attach to things, whether they are property or not.
3. No one has the “right” to ensure that their property retains its value. I may buy stock for $100, but I don’t have the right to force others to value it at $100. I may think my wonderful music is worth millions, but I can’t force anyone else to place specific value on it.
A few things to think about:
a. When you buy at Wal-Mart, you are decreasing the value (gasp!) of Safeway’s products. Is this a violation of Safeway’s rights? No, it’s a weakness in their business model.
b. When you change channels during commercials, you are decreasing the value of Channel A’s commecial time. Are you robbing them of their rights? No, it’s a weakness in their business model.
c. If you buy a stock for $100, and a year later can only sell it for $50, it’s because others have deprived your stock of value! Have you been robbed of your God-given rights to retain your stock’s value? Hell no, it was just a poor investment decision on your part.
d. If you distribute easy-to-copy music on CD, and demand that people pay you $20 for each copy, and they don’t, are they robbing you of value? Only the value that you imagined. Maybe they’re buying the competition’s music, maybe they’re copying music for free, who knows. Either way, you have a flawed business model.
If you think value = property rights, then every economic decision robs someone of their rights. Of course that’s absurd. Property is based on scarcity.
Value is great, but property rights have nothing to do with value. I won’t stoop to calling you stupid, though.
Every thing in our world is physical, including our “minds”, including “information” stored there. The operating principle in the word “information” is “form”, which implies physicality. There is no such thing as “intellectual property” that is not completely and irrevocably chained to the physical medium of its purveyance, whatever that medium is, and however interchangeable it is with other media. Therefore, the sharing, or stealing, or dissemination, of information always involves the distribution of the physical media that purveys the information, including electricity organized into “bytes”.
Even if the medium of purveyance seems utterly transparent (an illusion) it influences, and sometimes even determines, the “content” of the information. We would have a very different feeling, for example, from watching Gone With The Wind if it had been originally made on video tape. And wouldn’t it seem strange to listen to an argument about the cause of the four seasons between two scientists who have presumed the sun orbits around the Earth? Below is a quote from the article which could also lead to endless irresolvable (circular) arguments, engendered by the acceptance of a single fallacy.
>>Since intellectual property doesn’t exist in the physical world, my ownership is based on convincing others that I can own something that is completely immaterial.<<
This idea is false. Intellectual property exists in the physical world. Information is stuff, and must be purveyed (presented in a perceivable form) via a medium which is also stuff. What that medium is is irrelevant. Again, the issue is about distribution. A song, considered to be “intellectual property”, whether modeled on analog tape, digitized on CD, or being performed live via hamburger and beer energy, is existentially inseparable from its medium of purveyance.
The more exclusive the medium is, the more “the medium is the message.” For example, is the actual information–words and gestures–of an exclusive interview with the president what is of (copyrightable) value? No. A recording of the interview is exchanged easily, freely, if illegally, whether on the internet, cassette tape, radio, etc. What is of value, however, is the access to that information, an access which cannot be separted from the information. The access to the president, and the information it engendered, is physical. It takes power to gain such access and this is why broadcast television remains an exclusive medium, its content easily protected by copyright law. McLuhan’s cooly glib statement, “The medium is the message”, is true in this case, the message being: “You will never gain access to the president (but perhaps you will enjoy our interview, and reward us by buying a car from our sponser).”
When once-exclusive technology, like CD production in a home recording studio, becomes “democratized”, when, anyone can easily and cheaply purvey their own “intellectual property”, the medium is not the message. Someday, when broadband internet becomes a commodity, everyone will have her/his own home TV station. There will be millions. The cheap medium may well preordain that the content also be cheap–don’t count on seeing a million exclusive interviews with the president–but the content (the intellectual property) should not be by default “democratized”.
As the medium becomes more of a commodity, so does the information it purveys. people assume the information is therefore “free”, and can be distributed at will–perhaps against the desire of its creator. But however easily come by it was, however easily distributed it is, the information is not free, in the same way the network’s interview with the president isn’t “free”. It’s up to the creator to determine how and to whom her/his information will be distributed. Again, this issue of “intellectual property” is about distribution, which always takes place on a physical realm.
Napster, for example, was not about copyright violation per se, but about unauthorized distribution–it was child’s play–of physical product, an activity tantamount to breaking into a musician’s garage, stealing her supply of CDs, which she planned to sell or give away at her own discretion, and handing them out on the street.
My main problem with the article was in identifying just what the “problem” really is (perhaps the mis-definition of “information”). Despite that, it was thorough and very well-written, clear as a bell. I have bookmarked it for future reference. Thanks to author Russell Peterson for a stimulating time.
Scarcity means discrete, limited quantity of something.
That is incorrect, although scarcity and a limited quantity of something often go together. In this context, scarcity means the market is not fully saturated with something.
No one has the “right” to ensure that their property retains its value.
Because it’s true that it’s impossible to set value, you set price instead to achieve the same effect. You do have the right to ensure that your property retains its price, even if nobody chooses to buy it. Don’t confuse price with value.
An idea…has no inherent scarcity once it’s produced.
Sure it does. If you have a secret and tell only a few people and take steps to ensure they don’t tell everyone, it has scarcity.
Back in the middle ages, professional storytellers took advantage of scarcity of books to make a living, even though (in fact, in part because) their product was immaterial. Yet what they sold remained scarce in this case because it was difficult to reproduce.
Nowadays, some immaterial things are simple to reproduce. That’s why all this has become a much bigger issue than it was before.
When you buy a movie on DVD, you’re purchasing the medium and a license to the content (but not the content itself). The studios know how difficult it is to prevent reproduction of the content, so they instead get you agree not to copy it. This is how they get around the problem of easy reproduction.
So saying you can’t own an idea that is made public may be true, but it is completely beside the point.
The issue is not whether or not I can dictate the value of something I have created. The issue is whether or not I, as the maker of something, have the right to control how and by whom it is used. If I write an application, does everybody else in the world automatically have a right to it once it is made? Should I have a right, as its maker, to limit who gets to use the application. Is it wrong to create terms (EULA) that must be followed by others (who did not make it) as a condition of its use? Should these agreed apon terms and conditions be subject to and made binding by law?
If all of these are true, by virtue of me being the owner of something I have made, then I can effectively control its scarcity, no matter how easy it might be to reporoduce.
Now of course, this all relies on people to actually respect the idea that I own something that I have made.
How about this:
Pantents (and copyrights) automatically expire at the end of the year in which they have returned their initial cost of investment (or a reasonable estimatation thereof, for private individuals who wouldn’t have especially accurate accounting records).
In other words, as soon as some invention/song/program/whatever has made as much money as it cost to develop, it’s copyright and/or patent expires at the end of that calendar year (this is to allow just that last little bit of extra reaming of the consumer by the IP owner).
The punishment for breaking this princple (most likely by “overestimating” the cost of investment) should be equally simple and abrupt. The *immediate* expiration of any copyrights and patents and a fine equivalent to the (incorrectly) estimated cost of investment plus any revenue derived from the work from the date of its copyrighting/patenting to the date of the guilty verdict.
The only exception to this is credit for the original idea – that should never expire (IOW, no-one should ever be able to legally claim they invented someone else’s work, merely copy/reimplement it with impunity).
To my mind, such a scheme would cut down on the gross profiteering by “IP corporations” like the RIAA and massively increase innovation and new research, because any organisation that wasn’t constantly coming up with new ideas would quickly find itself out of business.
Intellectual property, as a concept of trying to equate ideas/inventions to physical property, is inherently and obviously broken. However, I do agree that there needs to be some way of reasonably compensating people/companies for the time and effort they expend coming up with new ideas and inventions (today’s levels of compensation are ridiculously *unreasonable*).
So very very badly needs a reform.
Me, I would end all corporate ownership of any IP (s-corp doesn’t count.) All IP would have to belong to individuals.
However, if an IP were “comissioned” by a corporation or if a person were hired by a corporation for the express purpose of creating IP, it would be legal for a corporation to mandate that they have exclusive licence to it for a period not to exceed 10 years in any contract a person signs for them. At the end of 10 years, the creator of the IP can choose to extend or nor renew the licence.