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Friday, January 27, 2012
(Un)intellectual Property
Yet another assault on the free-market has been averted, this time, against the internet by a motley collection of entrenched business interests that have failed to adjust their business models to the realities of the modern age. Or is that a general description of the usual perpetrators of these kinds of things? In any case, one would think with a good decade or so of fair warning, they would have made the transition by now. But no, they’d much rather ask Congress to pass an abominable package of laws that would have stripped users of the information highway of many of their freedoms with an appalling lack of due process, erecting barriers which these businesses can milk for easy revenues. In the business, we call that rent-seeking. So much for the dynamism and competitive spirit of entrepreneurship. Well, at least of these particular entrepreneurs.
As is typical, their arguments were couched in terms which attempt to appeal to free-market sentiments. Intellectual property, they claim, must be protected from acts of ‘theft’ and ‘piracy,’ else the whole edifice of of modern civilization will collapse. Or something like that, as if it hadn’t already, and mostly through the efforts of these very kinds of chumps to confuse the situation and confound our traditions so that they might be taken advantage of. A violation of property? What man of any decency could tolerate such a horror? As it turns out, quite a few. Over seven million people have petitioned Congress to tell these businesses to stuff it. Apparently, there was a difference of opinion as to what constitutes decency in this particular situation.
And as is also typical, I would like to use this happening to ask the reader to consider a few rather radical propositions. Namely, I’d like to take a look at what is meant by intellectual property—and maybe even property in general.
There have been very many good essays on this site and others like it concerning the ‘properties of property.’ Basically, most people instinctively know what these are as a matter of habit, but they haven’t always thought about them deeply. One of the more important of these ‘properties of property’ is that the holder of property has the right to exclude others from using it. If he can’t exclude them, it is taken that he has limited sovereignty over it, and the ‘propertiness’ of the purported property is thereby diminished.
But consider for a moment how this applies to something like a copyright or a patent. Both of these ‘properties,’ come with a built in expiration date, which to most people I would think would be a very strange feature if they really thought about it. Imagine if it applied to, say, one’s car. Imagine waiting outside a man’s house for the strike of midnight on the day of that expiry, and when the moment had arrived, hopping in and drive off. There would be nothing the purported ‘owner’ could say or do against you. He had lost his right to exclude you from it. But if patentable and copyrightable ideas really are property, that is basically how it works.
It seems to me that this is rather incoherent. Either your property is yours until you choose to dispose of it, or it is not. So, if an idea is property, it really ought to be property forever and ever into perpetuity, to be bought and sold and passed on to one’s heirs. Alternatively, it ought not to be property at all and freely used by anyone who likes. But this in-between world makes little sense, and smacks of a contrived legal pretense. The ‘expiration date’ is obviously a recognition that actually treating ideas as property in the normal sense would be impractical. So, allowing patents and copyrights to expire accomplishes a legal jamming of a round peg through a square hole.
It is quite clear what the interest is—the restriction of markets, using the language of property to justify what would otherwise be immediately recognized as an attempt to assert a right to monopoly by legal force. And, typically, that is exactly how intellectual property is used. Worse, once a particular monopoly is established, it becomes a launching point for installing further market chokepoints. The best example of this strategy which I can think of is the way Microsoft attempted to use its overwhelming marketshare in operating systems to attempt to shoulder out competition in web navigators and other software by making them incompatible with its OS. This attempt eventually failed, but it provides a good example of the types of maneuvers that can be piggy-backed onto IP law to restrict markets for the purpose of rent-seeking.
As for the argument that the end of IP law would bring the free-market down around our ears, it is easy to see that this is not the case simply by looking at the digital media industry, where digital technologies have effectively blunted enforcement mechanisms. Yes, major record labels, Hollywood studios, publishers and the like are seeing their profits eroded, and rather heavily at that. But on the other hand, there is certainly no less media available for consumption as a result. Far from it—there appears to be far more of it than ever, and of greater variety than before. Creativity and innovation have not been squashed, they appear to have been multiplied.
What has been squashed are the gatekeepers—the media cartel which before had dominated and effectively homogenized media offerings in an attempt to maximize profits by limiting choice. Among other agendas. Up until recently, they also had the help of a large technological barrier. But with effectively self-produced media approaching the quality of the professional stuff, it becomes difficult for the ‘take it or leave it’ model to work any longer. The erosion of IP is only one aspect of an avalanche of economic effects which have been triggered by the digital age; others are at work as well. But even so, it is still possible, certainly, for the big performers to make the big bucks through concerts, live appearances and such, but in order to do so, they will actually have to work for a living, as the strategy of rent-seeking through legal monopoly and technological barrier is slowly being taken off the table.
It might be argued that the scrapping of IP wouldn’t just hurt the big publishing houses and the like, it’s going to hurt the writers and other creative artists as well, who otherwise wouldn’t be able to protect their ideas. But in reality, very few of these people benefit from the restriction anyway. Typically, for example, it is the publishing house which sees most of the benefit. It uses the copyright to prevent other publishing houses from distributing its titles, of course, but unless you are a Stephen King, a publishing house is not likely to pass on the spoils to you because you have no negotiating power. It is going to go looking for authors who are more desperate to have their works published—of whom there are plenty.
But to take the argument to the next level—let’s forget about all this practical stuff and rhetoric, and get philosophical. What if the ‘in-betweeners’ are just flat right? What if all this market-restriction nonsense is exactly the kind of thing I’m accusing the IPers of doing—attempting to couch an anti-IP argument in the language of the free market? What if, in reality, there are some legitimate differences between types of property which necessitate a slightly different treatment, but on the whole, it really is right and proper to protect the property rights of creative sorts to their ideas? What if not to do so is a very basic and fundamental abridgment of their rights and, as such, certain to be followed by serious, negative repercussions?
I think that what has happened is that this argument —like most political arguments—has been trapped in a sort of ideological vortex. I think that, like it or not, there is no straightforward answer that takes a form that most people would like, if this ‘logical rhetorical answer’ is the form that most people prefer, which it probably is. Life, after all, is not a logic problem, and as the notion of what property is must depend strongly on the answer to the question as to what constitutes human nature, it should be plain that there isn’t going to be a clear-cut answer given one has accepted the notion that human nature can be a variable as opposed to a constant.
As I wander down this path, questioning axioms as I go, I’m reminded of a certain thesis I once heard which I find to be quite brilliant—that there are certain institutions which are given purely by human convention. Sorry, I’ve lost the link, but it was by that Fran Porretto guy. Three were named—money, language, and marriage. And I begin to wonder if perhaps property should not be added to this list.
I say this in the main because it is difficult for me to accept that the notion of property as articulated by the Enlightenment philosophers is the end of the argument when I see the medieval notion of property placed alongside it. Clearly, if the one is valid, and we live in a world where such things are defined purely ‘logically’, then the other must be invalid. Invalid, as in, not even close. I find this very difficult to accept, and further, I find it difficult to accept that I can be thrown into such a logical conundrum over something as simple as a patent. If property is as simple as that, this should be a piece of cake.
But if I take the view that property, like money, marriage, and language, is defined by the norms, traditions, habits of thought, and conventions of the society which institutes it, it provides me with a way to reconcile all of these notions. In fact, it does so in a way that is rather useful. Neither the philosophers of the Enlightenment nor the medieval traditions were wrong—or, at least, not utterly wrong—and I am free to see what good I can in any particular convention, to begin deriving ideas concerning the behaviors of property and people under different sets of norms, and understand the notion of property as something that changes with people and situations.
None of this is to say that property may be defined arbitrarily, or that any which way is perfectly valid. Nothing could be further from the truth. I perfectly accept, for example, that money is similarly defined, yet I will criticize our own norms and conventions about it until I am blue in the face. I recognize what money was ‘meant for,’ how it ‘works,’ and how choosing silly and nonsensical ways to deal with it produces spectacularly reprehensible results. Nevertheless, I fully acknowledge that no matter what I may say, or how ‘illegitimate’ I can argue our money system to be, at the end of the day, it is what it is. If people accept bank deposits as money, then bank deposits are money and there is nothing I can do about it. Except to repeat over and over that it is really, really stupid. But people will just keep doing it. Including myself.
Likewise with language and marriage. There are good, sensible ways of doing things, and really, really retarded ways. Evil, even. I expect that property is the same way, and that it is perfectly valid to have very strong opinions on the subject, and that these opinions may be said to be ‘correct’ or ‘incorrect,’ if you see what I mean. I just suspect that they do not take the form which I used earlier in the essay, and which most people tend to employ. And now that I’ve completely philosophized myself out of my original argument and thoroughly confused myself about what I mean, I think I’ll leave the reader to make up his own mind…
Comments
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Posted by Mark Alger on 01/28/2012 at 02:22 AM
Scott, yep, you turned me around by the end of the essay and confused me as usual - but in a good way!
I suppose if I found your essays on moveon.org I wouldn’t reread them so many times. . . I admit to judging books by their covers.
And to get to a point where the “properties of property” are given purely by human convention? Blasphemy!
For my patchwork conservatism, property is one of the bedrocks upon which the rest is based. From it flows the idea that a free market is where free people choose to do as they will with their property. Since I’m not a real Christian, my notion of property even defines - to a tangible extent - who I *am.*
One of my lazy ways of avoiding to have to think too hard too often is to disregard all notions of moral relativism. If even the notion of property is subject to interpretation, I’m pretty much doomed.
P.S. I find Mark’s post above very Zen, and at least as well-thought out as mine.
Posted by .(JavaScript must be enabled to view this email address) on 01/29/2012 at 12:52 PMI am a DJ and Musician, and I was actually heavily involved in the Napster lawsuit back in 2001… I was defending Napster.
I was pretty popular back in the day, between my websites and file-sharing services like Napster, my music was distributed to over half a million people. I made my music freely available in such mediums, and as a result, I made a profit. It was modest, something like $1200/month, but for a struggling college student that was like pure gold. I made most of my money DJing (actual, physical work), but my name would never have been known without the distribution of free music online. And I still sold many CDs to loyal listeners who wanted my music in the highest quality format (compression was pretty bad back then).
I still DJ professionally today, and make a good side-income from this.
If I had “protected” my music, no one would have ever heard any of it, except me. No label was ever going to sign me, because my music wasn’t in the mainstream.
My point with this story is quite simple… existing fraud laws are sufficient for IP. If someone took my recordings and tried to pass them off as their own works, that would be fraudulent, and the law should protect me and penalized the conman. But if people are passing around my music over the internet, or posting it to their websites, crediting me… it actually works in my favor.
Yes, IP needs some different treatment. There IS something to it. But it’s not a piece of physical property, and to treat it as such is fundamentally flawed. SOPA and the related bills were utter non-sense.
Enforce IP as you would fight fraud. Make sure people cannot take your work and pass it off as their own, or take your work and sell it without your permission (this is fraud). But take it no further than this. No Big-brother enforcement. No prosecution of 12 year olds and grandmothers for downloading a song. No prosecution of the college kid who pirates a piece of software. And if people are posting it to their websites, dropping it in YouTube, passing around mixtapes… don’t penalize them. They are HELPING YOU market your product. It would be foolish to fight them.
Of course it would help if more of our courtrooms weren’t staffed by bribable idiots who barely even know what IP is, much less can make any competent ruling on the subject. But that’s a different ball of wax.
Posted by Xealot on 01/30/2012 at 11:27 AMScott,
I’ve wrestled with the concept as well, and until recently haven’t liked anything I found or thought.
Now I think there is a way of thinking about it that makes more sense, and that is centered around act/potency. Ed Fesser has a great post on the subject.
The upshot is that IP is potency, not an act, and there should be a way to protect that, but not treat it as an act.
It might be a stretch, and a big one at that, but there seems to me a way of thinking about IP as a ‘primary actuality’ intrinsic to the person and therefore cannot be treated as a material object, but enjoys the same protection as anything personal, whilst the ‘secondary actuality’ would be a physical manifestation of the IP, and therefore subject to property laws. I haven’t found anything expressing or developing this idea, so I might be way off base here.
“What about digital music|movies|files?”
I’m not sure, I’ll have to chew on it longer. But surely we can be more like Aristotle who “steers between Parmenides, who denies the reality of motion, and Heraclitus, who makes motion and change the one reality.” (http://www.thesumma.info/reality/reality6.php)
Anyway, I hope this confuses you even more!Posted by Russell on 01/31/2012 at 02:38 PMI had been thinking that Mark’s comment was a glitch or something. But if it is a ‘this thing is beyond comment,’ or something like that, that is very clever, too.
The point about finding another way to make a profit off of ideas is an excellent one. There are an enormous number of economically productive, wealth creating activities which simply make poor business models—cleaning public spaces, righting injustices like a superhero, etc. Maybe people just need to think a little bit harder about how to profit from these very worthwhile activities. Where the economics may often be straightforward, the actual business isn’t always easy…
Maybe it is true that people like Bill Gates really ‘should’ be able to prevent other people from copying their products, but not use this ‘right’ to go and completely strangle the software industry, and college students really ‘should’ respect the copyrights of musicians and actually pay for the songs they want. I don’t know for sure. But in practice, neither group observes such courtesies, and in my opinion (and experience…I have also been involved in this stuff) the present state of things brings seems to be bringing out the worst in people and in markets.
At some point, a libertarian/conservative trying to defend the ‘propertiness’ of IP is going to look like a communist complaining that The People are these dirty rotten things that keep stealing from the Collective and won’t work hard and be equal like they’re supposed to, and that’s why Utopia doesn’t work. If society suddenly decides that what was once property suddenly isn’t, and if people en masse simply aren’t going to recognize a type of property, I don’t think there is much to be done. As with money, there is very little the law can do about it. That seems to have happened over the last few years with respect especially to the Napster affair and digital media, which led me to think about property as a social convention. Also, some reading of Michael Oakeshott also spurred me in that direction.
Once I got going, it started making a great deal of sense. If you really are a conservative, tradition is absolutely not something to sneeze at, and in this age of over-scientizing things, it is a very common rhetorical trick to try to embed something we cherish in the laws of physical reality or objective logic or whatever when it really isn’t. But on the other hand, I’m not entirely sure I like where this train of thought is leading…
Posted by Scott Angell on 02/02/2012 at 10:51 PM
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