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.)
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.
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.
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.
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.
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.
Legislators under the influence of the term “intellectual property”, however, have turned it into a scheme that provides incentives for advertising.
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!
People often say “intellectual property” when they really mean some larger or smaller category.
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.
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.
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.
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.
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.
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.
Thus, any opinions about “the issue of intellectual property” and any generalizations about this supposed category are almost surely 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.
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.
- 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?. [↩]
- 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. [↩]
- See The Surprising History of Copyright: Karl Fogel at Google Tech Talks. [↩]
- See Yet Another Study Finds Patents Do Not Encourage Innovation. [↩]
- See my The Death Throes of Pro-IP Libertarianism”, The Four Historical Phases of IP Abolitionism. [↩]
- “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” and “Are Patents and Copyrights Morally Justified? The Philosophy of Property Rights and Ideal Objects”; Roderick Long, The Libertarian Case Against Intellectual Property Rights. Also see Long’s “Bye-Bye for IP,” Austro-Athenian Empire Blog (May 20, 2010). See also “Against Intellectual Property After Twenty Years: Looking Back and Looking Forward”, the section “Resources, Properties, Features, and Universals“. [↩]