“Intellectual Property” as an umbrella term and as propaganda: a reply to Richard Stallman

by Stephan Kinsella on February 10, 2012

Free software advocate Richard Stallman, a critic of some aspects of IP law (though not completely consistently, and not from a libertarian perspective),1 emailed me recently to suggest that we opponents of IP should not use the term “Intellectual Property” to include patent, copyright, trademark, trade secret, etc., for two reasons. First: the term is biased in favor of the legitimacy of various IP laws. Second, it is inappropriate to treat various legal regimes under a common heading, as they are all very different. I agree with the first but not with the second point.

In support of his contentions he cited his article  Did You Say “Intellectual Property”? It’s a Seductive Mirage for the reasons. Below is an edited version of my response to his article.

***

Thanks for your comments. My book Against Intellectual Property [which Stallman had referred to but had not read] is online here http://c4sif.org/resources/ along with shorter pieces.

I have admired your work in the area, by the way, and your general skepticism of copyright, though I believe my view goes further than yours and has a different base, as my remarks below will reveal.

Here is my take on this issue.

I don’t like the term IP because it is a propaganda term used to justify state monopolies. But the fact I don’t like it doesn’t change the fact that words have meanings and we need to use them to communicate with others. Though I have flirted with other names and often call them pattern privileges, censorship, monopolies, and so on.

My main targets are patent and copyright, and I do think they bear some similarities. When I write they are usually the main things I attack and I treat them together since they suffer from similar flaws, and wreak similar damage. And I usually am careful to say “by IP I mean patent and copyright”.

But the fact is I oppose all IP of all types (and there are many types)—not only trademark and trade secret but other things like defamation law etc. I would abolish all of them as they all violate property rights, and in similar ways (I am a libertarian). I would abolish trademark and trade secret as well. The worst of all is copyright, and the next worst is patent. The others are all far behind, but are all unambiguously bad. I have tried to present a very coherent and consistent framework of justice and property rights (“Intellectual Property and Libertarianism”, “What Libertarianism Is“) and explain from that framework what is the nature of so-called IP (or pattern privileges) and why they are all completely unjust.

So I would agree that I don’t like the loaded term IP, and would prefer another term; but I would still use an overall umbrella concept to refer to the various types of IP, all of which are statist and amount to theft of real property. That is because my approach is a principled, systematic one, and I want to totally abolish all these forms of false property, for the same reasons, more or less. That said, as a practicing patent/IP attorney I can assure you I know the differences and point it out when necessary, e.g. when giving examples of how various types of IP cause harm (The Patent, Copyright, Trademark, and Trade Secret Horror Files) or when recommending incremental reform (How to Improve Patent, Copyright, and Trademark Law).

Let me address some of the claims in your article you linked, though not comprehensively, as my general stance is probably already evident from the above comments.

It has become fashionable to toss copyright, patents, and trademarks—three separate and different entities involving three separate and different sets of laws—plus a dozen other laws into one pot and call it “intellectual property”. The distorting and confusing term did not become common by accident. Companies that gain from the confusion promoted it. The clearest way out of the confusion is to reject the term entirely.

That is a strategical matter and I cannot claim to be an expert on this. If I opposed only patent, or copyright, or both, or only wanted reform instead of abolition, you might be right. I would be against drug laws, taxes, copyright, and patent, or for reform, and could not lump them all together (but actually I could: they all violate property rights; but patent and copyright do so in a similar way by a triangular intervention in the market by the state that grants a monopoly privilege to someone). But I am for abolition of all types of IP. Not just tinkering or improvement or reform.

What should I have called my book? Against Patent, Copyright, Trademark, Trade Secret, Boat Hull Design, Database Rights, Moral Rights, Defamation Law…? If there is nothing in common, why not throw in drug prohibition? If there is something in common, what general term would you propose? I could have called it Against Monopoly (and in fact Boldrin and Levine did call theirs Against Intellectual Monopoly) but I am not sure everyone knows what that means, and if I am writing against monopoly I would have to include the state’s monopoly status over courts, military, roads, etc.–yet that was not my focus. Or I could write one book on patents, one on copyright, and so on. Which seems the wrong approach.

Seriously: if I oppose the big 4: patent, copyright, trademark, and trade secret, what term would you recommend…? Your proposal below of GOLEM is not serious; no one would know what I am talking about. I don’t think becoming a lexical crank is going to help me communicate with people I am trying to communicate with. I prefer to just identify something by its common name, and then state clearly why I think it is wrong. I don’t think social security is really security, but I use that name. I don’t think the PATRIOT act is really patriotic. But that’s it’s name.  I don’t think the Dept. of Defense is engaged in defense, but rather aggression and war. I don’t think the No Child Left Behind Act really leaves no children behind. But I can’t pick the names of these statutes–their authors do.

According to Professor Mark Lemley, now of the Stanford Law School, the widespread use of the term “intellectual property” is a fashion that followed the 1967 founding of the World “Intellectual Property” Organization (WIPO), and only became really common in recent years. (WIPO is formally a UN organization, but in fact represents the interests of the holders of copyrights, patents, and trademarks.) Wide use dates from around 1990. (Local image copy)

The term carries a bias that is not hard to see: it suggests thinking about copyright, patents and trademarks by analogy with property rights for physical objects. (This analogy is at odds with the legal philosophies of copyright law, of patent law, and of trademark law, but only specialists know that.)

Well Richard Epstein would disagree with you on the analogy issue, but then he is pro-IP. But I disagree with him (Classifying Patent and Copyright Law as “Property”: So What?), and I agree with you here. But it is the term “property” that is the problem–implying that IP laws are types of property, as legitimate as property, analogous to property–not the fact that these 4+ areas of law are treated as part of a common grouping. If we called them monopoly privileges, or something like that, that would be fine. It would not carry a bias other than that these various types of law all share some features in common.

These laws are in fact not much like physical property law, but use of this term leads legislators to change them to be more so. Since that is the change desired by the companies that exercise copyright, patent and trademark powers, the bias introduced by the term “intellectual property” suits them.

Again, agreed. And I do not like the term. But I do not know a better one to use that can still communicate with others; so I try to be crystal clear that I disagree that IP is really property or that it should be, and to throw in pejorative synonyms for IP, such as intellectual monopoly or pattern privileges, to make sure I am not endorsing the legitimacy of such laws.

The bias is reason enough to reject the term, and people have often asked me to propose some other name for the overall category—or have proposed their own alternatives (often humorous). Suggestions include IMPs, for Imposed Monopoly Privileges, and GOLEMs, for Government-Originated Legally Enforced Monopolies. Some speak of “exclusive rights regimes”, but referring to restrictions as “rights” is doublethink too.

Some of these alternative names would be an improvement, but it is a mistake to replace “intellectual property” with any other term. A different name will not address the term’s deeper problem: overgeneralization. There is no such unified thing as “intellectual property”—it is a mirage. The only reason people think it makes sense as a coherent category is that widespread use of the term has misled them.

I just don’t see this. You may be right, but I don’t see it. Certainly in my case it did not mislead me. I never thought they were legitimate because they had an umbrella term.

The term “intellectual property” is at best a catch-all to lump together disparate laws. Nonlawyers who hear one term applied to these various laws tend to assume they are based on a common principle and function similarly.

But they do and are. They are mostly based on various utilitarian and other mistakes: basically the mistaken idea that labor is property or that value is property or the labor theory of value, and similar ideas; all because of failure to have a clear understanding of the function and purpose of property as permitting conflict-free use of SCARCE resources.2 All of these laws try to grant rights in non-scarce patterns of information, but since this is impossible they end up transferring property rights in already owned scarce resources from the owner to some new IP claimant: i.e. they all redistribute wealth in the name of some monopoly privilege.

Nothing could be further from the case. These laws originated separately, evolved differently, cover different activities, have different rules, and raise different public policy issues.

I agree with all except the last. They did arise differently but so did alcohol prohibition, cocaine prohibition, and tobacco regulation, but there are commonalities to all and they are all immoral and unjust for similar reasons (and cause similar problems). Can I not say I am against all state laws that regulate or prohibit the ingestion of harmful substances? Or must I list that I am an opponent of laws banning marijuana, alcohol, cocaine, crystal meth, LSD…. and keep listing forever?

Copyright law was designed to promote authorship and art,

No it wasn’t. Originally it was for thought control.3 And as for what it “was designed” to do in the Constitution in 1789, we know what the stated purpose was but I don’t take the state’s word for its real purposes; if indeed there can be said to be any real purposes to a cobbled together statute assembled by a bunch of self-interested politicians each with their own agendas and the result of compromises often intended to introduce ambiguity on purpose just to permit a compromise to be made.And there was then not and is not now evidence that copyright promotes creativity or art4 –so how can you say the Framers really believed it would do this? They had no reason to know this. I don’t think they were sincere. They were making deals and compromises, wielding power and making arbitrary decrees and decisions.

and covers the details of expression of a work. Patent law was intended to promote the publication of useful ideas, at the price of giving the one who publishes an idea a temporary monopoly over it—a price that may be worth paying in some fields and not in others.

It is not worth paying, ever. The fact is that there are differences, but they are irrelevant to the basic issue of why they are unjust. Someone holding a copyright can censor me and tell me not to use my own property (body, hands, voice, paper, ink) in a certain way. It basically gives a negative servitude (a type of property right) to a third part, in my property. They become co-owners with me over my own property. That is why it is wrong. Same with patent: the patent holder can tell me how not to use my own property in a certain way: I cannot use my hands to make a mousetrap of a certain shape, even using my own raw materials.Same with trademark: Chanel can tell me not to make a certain handbag of a certain shape, even if I am selling it to someone who knows it’s a knockoff and thus is not being defrauded.

Same with trade secret: a company can get a court order forcing a third party not to reveal or act on information he receievd from the company’s ex-employee, i.e. the company has a partial ownership in the body and property of the third party.

And it is the same with reputation rights (defamation): A can tell B that he cannot use his body or paper to communicate certain words to C, even though these words do not commit aggression against either A or C.

Of course it is the same with boat hull designs, with moral rights, and with anti-circumvention technology prohibitions of the DMCA, or the anti-dilution provisions of the Lanham Act, or the proposed database rights, bartender/chef recipe rights, newspaper headline rights, and fashion design.

Trademark law, by contrast, was not intended to promote any particular way of acting, but simply to enable buyers to know what they are buying.

This is not true. Fraud law is sufficient for this purpose. Trademark law gives the cause of action not to the buyer, but to the trademark “owner.” Why? The buyer is the one victimized by deceit or fraud, not the trademark owner. And trademark law allows lawsuits when the buyer is not confused at all, such as the knockoff purse example noted above. And it now has antidilution provisions (since 1995 IIRC) which has nothing to do with buyer confusion.

Legislators under the influence of the term “intellectual property”, however, have turned it into a scheme that provides incentives for advertising.

Legislators and their cronies themselves came up with this propaganda term. It is not the influence of their own propaganda word that has made them bad. It is that they are bad and corrupt that the term arose in the first place–and, worse, the laws covered by the term. The problem is we have a socialist-statist government that claims the power and right to take property from people by legislative fiat. Naturally such a criminal state (or do I repeat myself) will find itself lobbied by people that it can help, like corporations and special interests, much like Disney got Congressmen in its pay to give Mickey Mouse more life, and much like the fascist RIAA and MPAA almost got congress to enact SOPA, which doesn’t really matter since they already got fascist pig Obama to sign ACTA and the TPP is coming along anyway.

Since these laws developed independently, they are different in every detail, as well as in their basic purposes and methods. Thus, if you learn some fact about copyright law, you’d be wise to assume that patent law is different. You’ll rarely go wrong!

Actually, Dr. Stallman, now that I think about it, I think treating these laws separately helps the state because it is a divide and conquer technique. Nobody can keep them all straight so they defer to the experts. And you can’t have a general case against all of them, you have to find a separate argument–usually empirical, unprincipled, non-radical, and utilitarian–against each of them. The state benefits by miring the populace in irrelevant details and specialist arcana and jargon, instead of letting them see the general case and why it is essentially wrong. The details do not matter. Since I have become a public and somewhat prominent IP abolitionist–about 11 years ago but more and more prominently in the last 5 years—I cannot even recount how many people I have seen come resoundingly to my position. (Here’s the latest.) The message does work.5

People often say “intellectual property” when they really mean some larger or smaller category.

Well the law is confusing; that is true. Like the tax code is. Another problem is business people often use “IP” to refer to their knowhow or technology. Like a form of metonymy, they refer to the thing protected by IP law, as IP itself. It does get confusing. I agree. IP is the wrong term. But a single umbrella term is justified, IMO.

For instance, rich countries often impose unjust laws on poor countries to squeeze money out of them. Some of these laws are “intellectual property” laws, and others are not; nonetheless, critics of the practice often grab for that label because it has become familiar to them. By using it, they misrepresent the nature of the issue. It would be better to use an accurate term, such as “legislative colonization”, that gets to the heart of the matter.

You might be right but this is a problem of legislation in general–the state always lies and distorts and propagandizes, not that it’s very hard to do so after dumbing the populace down through government schools.

Laymen are not alone in being confused by this term. Even law professors who teach these laws are lured and distracted by the seductiveness of the term “intellectual property”, and make general statements that conflict with facts they know. For example, one professor wrote in 2006:

Unlike their descendants who now work the floor at WIPO, the framers of the US constitution had a principled, procompetitive attitude to intellectual property. They knew rights might be necessary, but…they tied congress’s hands, restricting its power in multiple ways.

That statement refers to Article 1, Section 8, Clause 8 of the US Constitution, which authorizes copyright law and patent law. That clause, though, has nothing to do with trademark law or various others. The term “intellectual property” led that professor to make false generalization.

I’d say intellectual laziness or sloppiness had. Some types of IP are authorized by the Constitution (patent and copyright), others are not, like trade secret and trademark, though the corrupt government courts have said the feds do have the power via the interstate commerce clause.

The term “intellectual property” also leads to simplistic thinking. It leads people to focus on the meager commonality in form that these disparate laws have—that they create artificial privileges for certain parties—and to disregard the details which form their substance: the specific restrictions each law places on the public, and the consequences that result. This simplistic focus on the form encourages an “economistic” approach to all these issues.

I disagree. In fact it is the unprincipled econometric/utilitarian type approach to evaluating all law that leads to a concrete-bound need to assess the economic merits of each particular policy and never to strike at the root. Consequences are used, by me, simply to illustrate the harm that comes from unjust policies. But the essential case against all these forms of IP is not consequentialist or that of a simpleminded utilitarian: it is a principled one that recognizes these laws trample on individual property rights.

Economics operates here, as it often does, as a vehicle for unexamined assumptions. These include assumptions about values, such as that amount of production matters while freedom and way of life do not, and factual assumptions which are mostly false, such as that copyrights on music supports musicians, or that patents on drugs support life-saving research.

Yes, the defenders of IP law come up with a host of dishonest, makeweight arguments for these laws.

Another problem is that, at the broad scale implicit in the term “intellectual property”, the specific issues raised by the various laws become nearly invisible. These issues arise from the specifics of each law—precisely what the term “intellectual property” encourages people to ignore. For instance, one issue relating to copyright law is whether music sharing should be allowed; patent law has nothing to do with this.

Except when patents might shut down the Internet (The Patent Threat to the Internet).But the argument against copyright is not that it hampers music sharing. That is just an illustration of the damage done by granting rights in so-called “ideal objects” or universals–patterns of information (a song).6 But the same reason that it is wrong to grant a legal right to a song is the same reason it is wrong to grant a legal right to an invention: they are both ideal objects, or patterns of information, that someone aware of the information is not permitted to use to guide his actions as he sees fit.

Patent law raises issues such as whether poor countries should be allowed to produce life-saving drugs and sell them cheaply to save lives; copyright law has nothing to do with such matters.

Unless the copyright restrictions and the corporatist gatekeeper publishing industry that prohibits the open dissemination of information ends up with some less educated scientists in the other countries who are less able to figure out how to make the drugs in the first place.

Neither of these issues is solely economic in nature, and their noneconomic aspects are very different; using the shallow economic overgeneralization as the basis for considering them means ignoring the differences. Putting the two laws in the “intellectual property” pot obstructs clear thinking about each one.

I think you are right in part that grouping these things may aid the state and proponents of IP; but it also aids us in making a principled opposition to all these horrendous laws.

Thus, any opinions about “the issue of intellectual property” and any generalizations about this supposed category are almost surely foolish.

I don’t think I or my arguments are foolish.

If you think all those laws are one issue, you will tend to choose your opinions from a selection of sweeping overgeneralizations, none of which is any good.

There is nothing wrong with conceptualization, appropriate generalization, and thinking in principles and in clear, coherent, systematic concepts.

If you want to think clearly about the issues raised by patents, or copyrights, or trademarks, or various other different laws, the first step is to forget the idea of lumping them together, and treat them as separate topics. The second step is to reject the narrow perspectives and simplistic picture the term “intellectual property” suggests. Consider each of these issues separately, in its fullness, and you have a chance of considering them well.

The problem is I am a perfect counterexample to your assertion, because I think very clearly about these issues and have helped open the eyes of a large number of libertarians, at least.
All my best,

SK

  1. See my posts Stallman: An Internet-Connectivity Tax to Compensate Artists and Authors; Eben Moglen and Leftist Opposition to Intellectual Property; and An Open Letter to Leftist Opponents of Intellectual Property: On IP and the Support of the State; also Nina Paley’s “Rantifesto”: Why are the Freedoms guaranteed for Free Software not guaranteed for Free Culture?. []
  2. See my posts On the Danger of Metaphors in Scientific Discourse; Hume on Intellectual Property and the Problematic “Labor” Metaphor; Objectivist Law Prof Mossoff on Copyright; or, the Misuse of Labor, Value, and Creation Metaphors; Locke, Smith, Marx and the Labor Theory of Value. []
  3. See The Surprising History of Copyright: Karl Fogel at Google Tech Talks. []
  4. See Yet Another Study Finds Patents Do Not Encourage Innovation. []
  5. See my The Death Throes of Pro-IP Libertarianism”, The Four Historical Phases of IP Abolitionism. []
  6. “Ideal objects” is Tom Palmer’s term; Roderick Long notes there should not be property in information because information “is a universal, existing in other people’s minds and other people’s property, and over these the originator has no legitimate sovereignty. You cannot own information without owning other people.” See Tom Palmer, “Intellectual Property: A Non-Posnerian Law and Economics Approach”Download PDF and “Are Patents and Copyrights Morally Justified? The Philosophy of Property Rights and Ideal Objects”Download PDF; Roderick Long, The Libertarian Case Against Intellectual Property Rights. []
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José Eduardo Silva February 11, 2012 at 5:12 am

Richard Stallman agrees with the government of Brazil, that it should levy a tax on the people living there to “support the arts” in exchange for the State leaving the Internet users free to copy:

Dear President Elect Rousseff and the Citizens of Brazil

In Brazil’s debate over copyright law, a momentous improvement has been suggested: freedom to share published works, in exchange for a fixed levy collected from Internet users over time. To recognize the usefulness to society of Internet file sharing among the citizens will be a great advance, but that plan raises a second question: how to use the funds collected? If used properly, they provide the chance for a second great advance, in support for the arts.

Publishers typically propose to use the money to “compensate” the “rights holders” — two bad ideas together. “Rights holders” is a disguised way of directing the money mainly to publishers rather than artists. As for “compensate”, that concept is inappropriate, because it means to pay someone for doing a job, or to make up for taking something away from him. Neither of those descriptions applies to the practice of file sharing, since listeners and viewers have not hired publishers or artists to do a job, and sharing more copies does not take anything from them. (When they claim to be harmed, it is by comparison with their dreams.) Publishers use the term “compensate” to pressure others to view the issue their way.

There is no need to “compensate” anyone for citizens’ file sharing, but supporting artists is useful for the arts and for society. If Brazil adopts a sharing license fee system, it should design the system for distribution of the money so as to support the arts efficiently. With this system in place, artists will benefit when people share their work and will encourage sharing.

What is the efficient way to support the arts with these funds?

First of all, if the goal is to support artists, don’t give the funds to publishing companies instead. Supporting the publishers does little to support artists. For instance, record companies pay musicians little or nothing of the money that comes in from sale of records: the musicians’ record contracts are cunningly arranged so that musicians do not receive “their” share of record sales until a record sells a tremendous number of copies. If file sharing levy funds are distributed to record companies, they would not reach the musicians. Book contracts are not quite as outrageous, but even authors of best-sellers may get little. What society needs is to support these artists and authors better.

I propose therefore to distribute the funds solely to the creative participants, and ensure in the law that publishers cannot claim it back from them or deduct it from money otherwise owed them.

The levy would be collected initially by the user’s Internet Service Provider. How should it travel to the artist? It might pass through the hands of a state agency; it might pass through a collecting society, provided that collective societies are reformed so that any group of artists can start their own.

However, artists must not be compelled to work through the existing collecting societies, because these may have antisocial rules. For instance, the collecting societies of some European countries forbid their members to publish anything under licenses that permit sharing (for instance, using any one of the Creative Commons licenses). If Brazil’s fund for supporting artists includes foreign artists, they must not be compelled to join those collecting societies in order to receive their shares of Brazilian funds.

Whatever chain the money follows, none of the instutions in the chain (ISP, state agency, or collecting society) may have any authority to alter what share goes to each artist. That should be firmly set by the rules of the system.

But what should those rules be? What is the best way to apportion the money among all the creative participants?

The most obvious method is to compute each artist’s share in direct proportion to her work’s popularity. (Popularity can be measured by inviting 100,000 randomly chosen people to provide the lists of the works they have played.) That’s what “compensate the rights holders” proposals typically do. But that method of distribution is not very effective for promoting the arts, because a large fraction of the funds would go to the few superstars, who are already rich or at least comfortable, leaving little money to support all the artists who really need it.

I propose instead to pay each artist according to the cube root of his or her popularity. More precisely, the system could ascertain the popularity of each work, divide that among the work’s artists to get a figure for each artist, then compute the cube root of that, and set the artists’ shares in proportion to these cube roots.

The effect of this would be to increase the shares of moderately popular artists by reducing the shares of superstars. Each individual superstar would still get more than an individual non-superstar, even several times as much, but not hundreds or thousands of times as much. With this offsetting, a given total sum of money will adequately support a larger number of artists.

Promoting art and authorship supporting artists and authors is the proper goal of a sharing license fee because it is the proper goal of copyright itself.

A final question is whether the system should support foreign authors and artists. It would seem natural for Brazil to demand reciprocity from other countries as a condition of giving support to their authors and artists, but I think that would be a strategic mistake. The best way to convince other countries to adopt a plan like this is not by pressuring them through their artists–they won’t feel the lack of these payments because they are not accustomed to receiving any–but rather by educating their artists about the merits of this system. Including them in the system is the way to educate them.

Another option is to include foreign artists and authors but cut the payment down to 1/10 when their coutries do not join in reciprocal cooperation. Imagine telling an author, “You have received $50 from Brazil’s sharing license levy. If your country had a similar sharing license levy and made a reciprocal agreement with Brazil, you would have received $500 from Brazil just now, plus the amount from your own country.”

I know of one possible obstacle to adopting this system in Brazil: Free Exploitation Treaties such as the one which established the World Trade Organization. These are designed to make governments act for the benefit of business rather than that of the people; they are the enemies of democracy and of most people’s well-being. (We thank Lula for saving South America from ALCA.) Some of them demand “compensation for rights holders” as part of their general policy of favoritism for business.

Fortunately this obstacle can be surmounted. If Brazil finds itself compelled to pay for the misguided goal of “compensating rights holders”, it can still adopt the system presented above. Here is how.

The first step towards ending an unjust dominion is to deny its legitimacy. if Brazil is compelled to “compensate rights holders”, it should denounce that imposition as wrong and yield to it temporarily. The denunciation could be stated in the preamble of the law itself, like this:

Whereas Brazil wishes to encourage the useful and helpful practice of sharing published works on the Internet.

Whereas Brazil is compelled by the World Trade Organization to ransom this freedom from the rights holders, even though that money will mainly enrich publishers rather than supporting artists and authors.

Whereas Brazil wishes, aside from that imposed requirement, to support artists and authors better than the existing copyright system does.

Then, after establishing a levy for the sake “compensation”, establish a second additional levy (equal or greater in amount) for supporting authors and artists. The wasteful, misdirected plan for “compensation” should not be a replacement for the useful, efficient plan. So implement the useful, efficient plan that supports artists directly, because that is good for society, and implement the “compensation” required by the WTO but only so long as the WTO retains the power to impose it.

This will begin the transition to a new copyright system that suits the Internet age.

Thank you for considering these suggestions.

My first proposal for a plan like this was a response to the US tax on digital audio tapes in 1992. Here are other ideas along similar lines. I just wish this article did not refer to published works as “content”.

Copyright (c) 2010 Richard Stallman Verbatim copying and redistribution of this entire page are permitted provided this notice is preserved.

http://stallman.org/articles/internet-sharing-license.en.html

Alexandre Oliva February 11, 2012 at 12:41 pm

Interesting post… I’ve learned a lot from your various writings while expanding my thinking from Free Software matters to broader issues, on my path to becoming a copyright and patent abolitionist. I thank you for that. Now, while reading this posting, I seem to have detected a disturbing inconsistency, which I’d appreciate your clarification on. You wrote:

> The fact is that there are differences, but they are irrelevant to the basic issue of why they are unjust. Someone holding a copyright can censor me and tell me not to use my own property (body, hands, voice, paper, ink) in a certain way. It basically gives a negative servitude (a type of property right) to a third part, in my property. They become co-owners with me over my own property. That is why it is wrong

Now, I pretty much agree with the conclusion that copyright is wrong, but I feel something’s missing in the reasoning here, because one could make a similar argument about actual property, and from that conclude that actual property is just a wrong and unjust:

Someone owning a house or a building can stop me from using my own property (body, car, etc) in a certain way, e.g. stopping me from parking my car in their house or building. It basically gives a negative servitude (a type of property right) to a third part, in my property. They become co-owners with me over my own property. That is why it is wrong

So, what’s the flaw in this similitude? My guess is that it has to do with scarcity, which you approached elsewhere in this post. But then, the scarcity argument can also be turned around to support monopolies: just like actual property is a state-granted power to exclude others from performing certain actions with a certain good because the good is scarce, so are copyright and patent monopolies; it’s not that the covered goods are scare, but the *monopolies* are.

Help?

Oudeicrat Annachrista February 15, 2012 at 12:31 pm

The flaw is that “parking my car in their house” is not “using my property”, it’s using both my and their property. The problem is in using their property rather than using your own property.
However when I copy, I only use my own property, I in no way use or even touch anybody else’s property. In fact, I can be hundreds of miles away from anybody else’s property (if I owned a large enough land.)

But this is an argument why granting monopoly privileges to copying is immoral. It’s not a reason why ideal objects are not property. The argument against the possibility of owning ideas has to do with scarcity as you already pointed out.

PeaceRequiresAnarchy February 11, 2012 at 2:46 pm

“Copyright law was designed to promote authorship and art…” -Richard Stallman
“No it wasn’t. Originally it was for thought control.” -Stephan Kinsella

When Kinsella said this in reply to Stallman I immediately thought of Karl Fogel’s Google Tech Talks presentation “The Surprising History of Copyright and What it Means for Google.” I remembered his slide stating:

“Copyright was designed to subsidize distribution, not creation.” -Karl Fogel

And then I saw that the superscript “3″ at the end of Kinsella’s statement brought me straight to the very same talk. But, wait a second–Kinsella said that it was for “thought control.” What does that mean? And then I remembered. In Karl Fogel’s talk he not only talked about how copyright was designed to subsidize distribution rather than creation, but he also talked about the “chaos” during the time that the printing press first came to be. All of a sudden it was so much easier for people to print things and distribute information that some people (was it the Catholic Church? Or was it the government itself that didn’t want people printing out pamphlets critiquing the government to start uprisings, etc? I forget…) ended up coming up with this concept of “copyright” for “thought control” as Kinsella says, and Fogel talked about in his lecture.

Bob Robertson February 13, 2012 at 12:43 pm

Peace,

The reason it’s thought control is because the first uses of copyright were to PREVENT the copying and distribution of un-authorized books and papers. Censorship was specifically and deliberately about stopping the spread of dangerous ideas.

Thought control.

PeaceRequiresAnarchy February 14, 2012 at 11:17 am

Ah yes, that was what I was trying to get at.

Oudeicrat Annachrista February 13, 2012 at 12:40 am

I suspect a possible reason for a person to oppose “lumping all IP together” and mounting a principled attack against it might be if he agrees with some of the forms of IP

Luís Marques February 15, 2012 at 4:04 pm

Yes, I think that’s the gist of it. Stallman has a utilitarian view of the various Intelectual Monopoly mechanisms. Since his utilitarian conclusions differ for each mechanism (Copyright, Patents, etc), he opposes grouping them. That’s because when they are grouped the different (utilitarian) pros and cons are no longer obvious. Since Kinsella takes a principled opposition against all this mechanisms, and attacks the common source of the problem (infringement on actual property rights), the grouping does not become a problem for him.

Elliott February 13, 2012 at 1:43 am

To advocate replacing the current IP regime with nothing at all is to deny the common-sense ethical proposition that plagiarism is wrong. The present system with its flaws does not prevent you from doing your _own_ thing with your own paper, ink, etc.

Also, it does not prevent you from deriving a better product from an existing, protected one. The point is that you have to make a contribution of your own to acquire an interest in protected work during the period in question. (I’m not a lawyer, and there may be many technical legal “gotchas” there, but I believe that’s the motivating idea behind “derivative works” policy.)

Other points that are problematical for me in the foregoing analysis are (1) the idea that property rights are related to, or derived from, economic scarcity. I don’t see how this can be true. What’s mine is mine regardless of how abundant it is, how easily obtained, whether like units of it cost dearly, next to nothing or are literally costless. If I dip a cup in the ocean and walk away with it, nobody better try to take it from me. And one can’t say that “my cup” suddenly makes the water contained in it scarce, because that would engender a circularity. If someone tried in some Rube Goldberg manner to syphon the water from my cup without touching it, that would still be attempted theft. Some types of property are scarce and some aren’t. No big deal.

The contents of the universe can be divided into two classes: People and Property. Physically, work is defined as energy expended over time. E=MC^2 (energy has material existence). Anything that exists and is not a person is property. (One might make the case that animals have a limited sort of personhood in this context, thus some limited animal rights. :)

Point of issue (2) would be that “work” has no “value” as “property.” To continue in the seaside setting, let’s say Kid A is having fun carefully building a fantastic sandcastle, and Kid B runs up and smashes it. Obviously, Kid B is a scumbag little jerk who badly needs a spanking (at least a metaphorical one). That alalogy isn’t _exactly_ right, since one might say that Kid A was wrong to expect “security.” He doesn’t own the beach, and he’s leaving at the end of the day. But we still respond to a basic notion of fair play and respect for effort expended: Kid A has “homesteaded” his castle plot for the duration.

The reason we respond that way is because effort does have value (people _do_ get paid for it at work), and people have a fundamental right to the fruits of their labor. And if you want the fruits of someone else’s labor, you’d better pony up. It’s silly to distinguish between “intellectual” effort and “physical” effort. Both take place in the physical world, and both take physical time and energy. The time and energy (and whatever incidentals like paper, ink etc) are the input _property_, and the completed thing (the “work”!) is a derivative output _property_.

The value that we thus regcognize for labor expended is a property right, not a value at market. I agree with Mr. Kinsella that the labor theory of value is worthless. People don’t have a right to a specific price for their labor. But anything sold on the market must be _owned_ by the seller in the first place, including effort. Both mental and physical effort can result in a work product that provides value at market or none at all. This can easily be seen by example: no sane person would pay (much less be forced to pay, WPA-style) for a three foot-deep ditch dug by hand from New York to L.A. despite the tremendous amount of physical labor expended.

In my view, the producer of something has in general the right to dictate the terms by which it is made available to others. I’m confident that intellectual effort results in some kind of intellectual property. But insofar as intellectual property differs from physical property in certain characteristic ways (e.g. non-scarcity in the technical sense), what is the particular ethical status of it?

Bob Robertson February 13, 2012 at 12:45 pm

Elliott, your objections are easily covered by fraud.

Register your work with one of the many reputable registries, then enforce the fact that no one may use your work without attribution. Or at least, without claiming it as their own, since that would be fraud.

Elliott February 14, 2012 at 11:28 pm

Thanks, Rob. I don’t have objections so much as concerns. I agree that plagiarism is a kind of fraud, and therefore potentially actionable as such. I almost did add a paragraph to the above considering whether an attribution requirement were sufficient. My opinion isn’t well-formulated enough and also I don’t want to abuse the privilege of posting comments by submitting a book.

Since we’re talking not just about artistic works but IP in general, inventions, etc my feeling continues to be that creators deserve more legal consideration than mere attribution. The conversation around this is almost always “pragmatic” and utilitarian, which approach I dislike. But since I don’t have a better one to offer yet… Some folks feel that patent law exists to protect entrenched interests. While I agree that the establishment will always manipulate whatever system prevails, what would happen to the garage inventor in the absence of patent protection? I put it to you that large commercial interests would simply “steal” the ideas and products they liked. Contrary to what some believe, there is no first-to-market advantage that can compete with vastly greater resources intent on undercutting smaller competitors. Not only that, but being first to market is often more of a liability than an advantage for a truly novel product, so a lot of blood, sweat and tears go into penetrating the market.

In the absence of patent protection, I suspect that many grassroots inventors wouldn’t even bother trying, and all we’d have left would be the very establishment that we’re all so worried about. As a sidebar, I do appreciate the open-source hardware movement and what it has accomplished so far. I’m a programmer by trade, and I will tell you that open-source software is wonderful but it doesn’t put food on the table for very many. I would be hard-pressed to support myself on an open-source or FSF model and continue to do what I enjoy, which is writing code, not e.g. doing customer service.

Thanks for your consideration. :)

coturnix19 February 18, 2012 at 3:22 pm

I am having trouble with one of the arguments you put forward, namely: that IP prohibits you from exercising control upon your own property in they you want. But that’s not exclusively IP’s vice. There are lots of thing that you can’t do with your own property, like for example, you can not shoot your bullets through space that is at the moment occupied by some other person, because they have property of their own body, and that your action would irreparably damage it (not to mention kill them). So other’s people non-IP property actually severely limits your own usage of your own property. Therefore the argument that Ip is somehow vicious because it gives co-ownership of your property to random other people is absolutely useless, because it is what ANY property does.

Rombo May 25, 2012 at 12:56 pm

“tax to support the arts” my ass. Will turn into yet another tax employed to raise the numerous pirate kids of unemployed folks… I mean, folks employed in the procreation and poorness-spreading industry.

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