Nice post from 2009 by Chad Perrin/”apotheon”: The Mythology of Intellectual Property
Note: I originally re-posted the original but the author complained and cited some copyright-backed requirement that even I, an 18 year IP lawyer, do not quite get, so I just removed it. Click the link above and read it if you want.
Note 2: as seen in the comments apparently I misunderstood his note to me. I have re-posted his original post below. As also seen in the comments he seems to want some “OWL” license included, which I have been unable to fully grok–“The text of this may be redistributed under the terms of the Open Works License, as indicated on the page from which it was harvested. The Open Works License should have accompanied this copy of the article.” FWIW.
The Mythology of Intellectual Property
Intellectual Property may be the most pernicious myth of our time. The lies, misunderstandings, and myths of Intellectual Property so obscure the truth about copyright, patent, and trademark law that even those of us who oppose such legalisms must still work to shake loose our last remaining illusions. It seems like every few months I stumble across yet another insight into the nature of so-called Intellectual Property that leaves me surprised I never noticed the flaw in my thinking, and aghast at how deeply rooted the mythology of Intellectul Property has become.
The Product of the Intellect Isn’t Property
The first, most obvious, and perhaps most difficult to fight among all the superstitions surrounding Intellectual Property is the notion that it is property at all — at least in the way people talk about it being a matter of property. People talk about “owning” copyright, and needing the protection of law to defend one’s ability to profit from what one “sells”. The truth of the matter is that copyright and property laws have nothing in particular to do with each other. They are entirely distinct bodies of law.
Even the law doesn’t recognize copyright as “property”. If you violate copyright laws, it is not called “theft”; it is called “copyright infringement”.
Here’s a quick litmus test for your notion that copyright is property: Why does copyright have a limited period under law, while property is forever? While you’re at it, look into the US Supreme Court rulings on the subject starting with Wheaton v. Peters.
People Who Oppose Copyright Aren’t Thieves
Try disabusing someone of notions of the “obvious” moral imperatives of copyright law in a public online discussion forum, and you will almost certainly find yourself being called a thief. The “argument” tends to go something like this load of claptrap:
[You] like to steal things that [you] like. [You] have come up with several longwinded rationalizations for why [you’re] entitled to have everything that anyone in the world creates without paying for it.
Cries of “Thief!” are apparently the equivalent of calling someone a Nazi when it comes to a discussion of the ethicality of copyright law. Similarly to Godwin’s law, we seem unable to escape from the Law of Copyright Discussion Fallacy: As a discussion of copyright law grows longer, the probability of someone’s argument being fallaciously dismissed as mere justification for theft approaches one. The thief card gets played more often and with greater certainty in discussions of copyright than the Nazi card ever did in Usenet, and it doesn’t prove a thing about the rightness or wrongness of copyright law. Try telling that to some self-satisfied copyright-wing conservative who isn’t willing to actually think through the opposing argument, however.
Patents Don’t Encourage Innovation
Milton Friedman once articulated the core economic fallacy of patent law quite clearly:
For one thing, there are many “inventions” that are not patentable. The “inventor” of the supermarket, for example, conferred great benefits on his fellowmen for which he could not charge them. Insofar as the same kind of ability is required for the one kind of invention as for the other, the existence of patents tends to divert activity to patentable inventions.
In short, patents don’t encourage innovation; they simply skew market activity toward patentable innovations.
I remember, back in the ’80s, that the Big Thing for eco-hippies to complain about was the vanishing rainforests. All kinds of crazy excuses were advanced for why we should stop the slash-and-burn farming practices of South America, including the lunatic notion that we’d destroy the Earth’s ability to renew the oxygen content in the air and we’d all end up suffocating as a result, completely ignoring the fact that the vast majority of plant-based oxygen production happened in the ocean. Such arguments ultimately only harmed the eco-hippies’ case, when arguments based on real concerns over vanishing rainforests would surely have been much more successful. One such crazy argument was that the cure for cancer could be hiding in that forest, waiting to be discovered, amongst its many uncategorized species of life, and all we had to do to preserve it is ensure that nobody ever destroys plants in the Amazon rainforest again.
The real problem there, however, is that nobody will fund the search for a cure for cancer (or HIV, or ebola, or whatever) that comes from a natural source. Extracts from natural sources are not patentable. Only the process of creating synthetic compounds is patentable, which makes pharmaceutical research focus much more on developing saleable synthetic compounds rather than cures for the most problematic diseases. An artificial advantage has been granted to any pharmaceutical research firm whose focus is on convenience synthetics, creating a skewing of market forces away from pursuit of necessary cures regardless of source.
Copyright Isn’t the Natural State
People seem, for some reason, to think that copyright is an integral part of a natural state of property ownership. Self-styled libertarians in particular are often guilty of this line of thinking, particularly when the “we have rights because we own ourselves” set starts jawing about Intellectual Property. The truth is that copyright isn’t about property at all; it’s about censorship.
People may balk at the notion that copyright is censorship. They think of censorship as being something government does to suppress original speech. The truth of the matter, though, is that speech doesn’t have to be original to be censored. Simply repeating something you were told is a form of free speech — and if someone else said it first, that person has the power of law on his side to censor what you’re saying.
Even when confronted by obvious evidence of the fact that copyright is just a subset of censorship policy, as in the case of people who are threatened with DMCA takedown notices when they post customer service emails online while complaining about the company that sent the emails, people typically express their dismay that copyright is being “abused” to enact “censorship” when that’s “not what copyright is for at all”. Bad news, sweetie; that’s not abuse of copyright. That’s just the way copyright works.
Copyright is, in fact, such an unnatural state of affairs that it didn’t even exist as a policy until a mere 77 years before provision for copyright and patent law was written into the US Constitution, with England’s Statute of Anne.
Trademark Law Is Not Trouble-Free
Even many who oppose copyright and patent law subscribe to the notion that trademark law is the exception to the “Intellectul Property law is bad” rule. It seems clear, at first glance, that trademark law just protects us against fraudulent behavior. The truth of the matter is much more insidious, however.
Trademark law is not at all necessary to protect us from such fraud. The law should simply recognize malicious deception as a violation of rights in and of itself, regardless of any trademark claims. Meanwhile, trademark law has been used as a means of circumventing grants of license when distributing derivative works. An accidental case of this sort of problem is that of the trademark brouhaha over Firefox that caused the Debian project to rebrand it as Iceweasel. A much more intentional and malicious case is that of the way some third-party publishers deal with the OGL.
Take a look at the “open content” and “product identity” statements accompanying the OGL inside your D&D-derived game books at some point in the future (if you have any). Many of them will contain severely limited language about what qualifies as “open content”, such as the following from the Iron Kingdoms Character Guide, published by Privateer Press:
“Open Game Content” means the game mechanic and includes the methods, procedures, processes and routines to the extent such content does not embody the Product Identity and is an enhancement over the prior art and any additional content clearly identified as Open Game Content by the Contributor . . .
This boils down to saying “Anything copyrightable isn’t Open Game Content unless we specifically say it is, and anything that falls more into the realm of patents is Open Game Content.” Considering that there’s already case law pointing out that anything that falls under the rubric of patent law isn’t subject to copyright anyway, Privateer Press is just saying “Yeah, all that OGL stuff? Fuck you.” The publisher is just trying to get away with something. In fact, I’m pretty sure that if WotC/Hasbro wanted to, it could destroy the entire Privateer Press line of Iron Kingdom RPG books and do some severe financial damage to this third-party publisher by taking it to court over violation of the OGL.
It gets worse when you see the Product Identity identification:
“Product Identity” means product and product line names, logos and identifying marks including trade dress; artifacts; creatures characters; stores, storylines, plots, thematic elements, dialogue, incidents, language, artwork, symbols, designs, depictions, likenesses, formats, poses, concepts, themes and graphic, photographic and other visual or audio representations; names and descriptions of characters, spells, enchantments, personalities, teams, personas, likenesses and special abilities; places, locations, environments, creatures, equipment, magical or supernatural abilities or efects, logos, symbols, or graphic designs; and any other trademark or registered trademark . . .
Hell, I’m probably violating their asinine license-violating version of the license by discussing it with you, all because of this misuse of “product identity” — which is essentially a euphemism for “pseudo-trademark”. For those of you familiar with Microsoft’s antics, think “look and feel”.
Plagiarism Isn’t a Subset of Copyright Law
Plagiarism is deception. Copyright infringement is copying. Even giving credit to someone is copyright infringement if you copy the part of the work that gives credit to the original author. Ironically, leaving out attribution for the original author actually reduces the amount of copyright infringement of which you’re guilty. I have no fucking clue how anyone can possibly think that eliminating copyright law is the same as endorsing plagiarism. If you copy something and redistribute it, as long as you don’t claim you created it when in fact someone else did, you aren’t committing plagiarism.
For some incredibly stupid and unfathomable reason, some people actually think that without copyright law plagiarism is “okay”, though.
Copyright Law is Not Enforceable
I recommend giving my recent TechRepublic article The Pirate Bay is back with a vengeance (which you’d already know about from an email if you were involved in the copyfree community . . .) for more on this subject. I’ve written about it before, and don’t feel like padding the word-count of this SOB entry much more.
And So On
I’m sure I’ve left a lot out that I could say. I could write a book on the subject, but you’re not here to read a book, and I have other stuff to do tonight — like eat dinner and do some work on some RPG materials (which I will be releasing under an open content license when it is “done enough” to bother).
Disclaimer
I am not a lawyer. None of this is legal advice.
Very informative article; however, Intellectual Property law is one of the most lucrative fields of practice. For an attorney practicing IP Law exclusively, the scope of operations determines the remuneration. An attorney with scientific background usually gets a higher remuneration than a normal lawyer.
I’m the author of this piece, Chad Perrin. Someone pointed out to me today that it was republished here. I’m glad it’s getting spread around a bit; it’s an important message that more people need to encounter.
The text of this may be redistributed under the terms of the Open Works License, as indicated on the page from which it was harvested. The Open Works License should have accompanied this copy of the article.
I encourage people who like the message of this article to check out the copyfree site, which discusses a licensing policy intended to emulate the conditions of a copyright-free world.
Chad, I don’t understand your comment. The OWL is incomprehensible and relies on copyright. I have removed your post because of your bizarre and hypocritical copyright threat. Congratulations.
Wait — seriously?
It “relies on copyright” only in that it offers a legal guarantee that recipients will not be sued for reproducing, modifying, and redistributing the content. Without such a license, any work is legally considered to fall under the protections of copyright, thus making it subject to copyright enforcement. A license like the OWL is the polar opposite of a “bizarre and hypocritical copyright threat”.
By reproducing the text I wrote without at least providing a link to the OWL, you are basically leaving your readers with no idea whether someone will hunt them down and sue them if they redistribute the content in question.
If you want to post the entire article *without* the license, I won’t sue you or otherwise threaten you. I had no intention of getting you to remove it from the site. I just wanted to point out that the OWL (as a protection for readers and redistributors) technically should have been included with it.
Yeah, seriously.
OWL is incomprehensible. Just use CC if you want to be clear.
The threat is not your OWL it is your comment posted here: “The Open Works License should have accompanied this copy of the article.” I don’t agree that it “should have”; this is normative. So your only meaning can be to tut tut and chastise me for violating your copyright. Since you have used the illegitimate right granted you by copyright to insist on what I should do, to quasi-threaten me, I’ve complied.
I had a link to your piece. That is enough.
That is not a legally binding comment. It is just your prediction. I can’t rely on it.
In the future you ought to be careful not to use the copyright threat against people if you don’t want them to perceive it this way.
That’s funny, considering OWL is about 150 words of mostly plain English and the simpler CC licenses run past 2500 words of dense legalese, on top of which they generally include (unwanted) restrictions on how something may be displayed. I’ve actually read the CC licenses I might consider using, and they pretty uniformly suck that way.
That wasn’t a threat. It was a statement. A threat would be “If you don’t include the license, something bad will happen,” which I did not say.
Fair enough. My meaning was more along the lines of this:
“It would be a service to your readers to include at least a link to the license so that they will have some kind of notice that they are legally encouraged to fold, spindle, or mutilate the work and redistribute it to their heart’s content, rather than being discouraged from doing so under threat of litigation.”
Incorrect. You would not know my “only meaning”, apparently, because you failed to ask.
I have not threatened you. I do not recognize it as a right; it is a privilege granted by an unethical law, and one that I attempt to defuse in a public, recipient-empowering manner by attaching a license disclaiming any privilege to sue people for redistributing my work. That’s it. I’m a little confused as to why you seem intent on insulting me and trying to make an enemy out of someone who’s just trying really hard to tell people “Here, use this, distribute it, incorporate it into derived works, be my guest; I would consider it an honor.”
In a sane world, it would be. In this world . . . well, it’s enough to make me grateful you reposted the content, rather than merely ambivalent, but it’s not quite enough to make it clear to your readers that the author won’t try to sue them for redistributing it. If I have any complaint, that’s it. I certainly offer no threats, no matter how often you try to put threats in my mouth.
The license is the legally binding comment, to the extent there is any such legally binding comment that can be made short of a signature. If you like, I can offer some other license as well, just for your benefit. What do I need to do to cause you to accept that I want you to redistribute what I said and am willing to forego any future legal action? So far, it seems like you were willing to repost only so long as there was a chance you might get sued, because until the existence of a license that specifically encourages you to republish was mentioned, you shared it with others. Now that I tell you I have specifically attempted to grant it to the world, you have — I’m pretty convinced, at this point — decided that what you want to do is “punish” me by refusing to share it with my blessing. If that’s not what you’re trying to do, tell me what I need to do to make you stop insulting me and just share what I have offered freely.
In the future, you should probably try assuming good faith once in a while, rather than taking the absolute worst interpretation of something someone said and adding additional assumptions to it just to make it worse.
I respect you as an advocate for saner law (or, rather, absence of ludicrous laws), and am a fan of many of your writings. I was happy you thought something I said worth sharing. I am baffled by your attitude hell-bent on alienating me and discouraging others from reading what I’ve written when it essentially agrees with everything I’ve seen you say on the matter.
I wish I had not said anything at all in response to this, despite the fact that my only intention was to be helpful.
Apotheon, I think I understand now what you are saying. Apologies for jumping to conclusions. I apparently did misread your comments. I think you ought to just use CC-BY or CC0, but that’s just my view. I’ll restore your post. Sorry for the misunderstanding. The reason I don’t assume good faith is … just experience!
Thanks, Stephan.
I would like to discuss what you see as problems with the OWL at some point, if you are interested in having that discussion, but do not wish to clutter up comments on this article any further by trying to have that conversation here. You may note the current version of the license is marked as 0.8; I’m still in the process of trying to perfect it. Feel free to contact me via the email address I used when submitting comments, if you feel the urge.
It was an excellent article!
I’m grateful to Stephan for introducing me to another copyright abolitionist. The count is now extended to the fingers of my other hand.
One day Stephan might link to my articles too. :-p
As for a license, this is what I use, and only for those who insist upon being given one.
License
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