Intellectual Property Isn’t (Property, that is)

Raganwald’s points out this interview with Richard Stallman, in which RMS says:

Copyrights exist, and I have opinions about copyright law. Patents also exist, but patent law is almost completely different from copyright law. My opinions about patent law are also completely different from my opinions about copyright law. Trademark law exists too and it has nothing at all in common with copyright law or patent law. If you want to think clearly about any of these laws, the first step is firmly insisting on treating them as three different subjects.

If you say something about “intellectual property,” you are trying to generalize about three laws that are totally different. Whatever you say will be a foolish over-generalization, because that term only leads to such. I’ve decided to avoid that pitfall by never using the term. [See http://www.gnu.org/philosophy/not-ipr.html for more explanation.]

Stallman argues, both in the above article and in this article, that the biggest problem with the term “Intellectual Property” is that it overgeneralizes- combining three different sets of laws under one broad umbrella. I respectfully disagree- the problem with the term is that it is deliberately deceiving. Rant to follow.

Before we go any further, let it be known that I am not a lawyer- and taking legal advice from a programmer is about as good an idea as using code written by a lawyer.

There is a theory that all law is property law. The problem with this is that the theorists who talk this way have a different meaning of the term “property law” than the naive layman has. I could, with equal justice, claim that all computers are Turing machines- and in theory this is correct. But if you were to crack open your core two duo looking for a little magnetic tape going back and forth (really really fast), you’d be disappointed. That’s not how computers really work. And the common understanding of how property works- the laws that govern your house, say- work differently than the laws that govern copyright and patents and trademarks- which, as Stallman correctly points out, are three different sets of laws that are different from each other.

How is “Intellectual Property” different from normal property? Let’s start with the obvious- all property is owned by someone. Sometimes the owner is a government, sometimes a corporation or other social organization (such as a religion), and sometimes the owner is an individual. Sometimes the land is open to (some) uses by the public- for example, parks, malls, and churchs. And sometimes the public has no rights at all, for example military bases or private residences. But the point here is that all “normal” property has an owner- and always will and (practically) always has. Anyone who has bought a house or other property knows about the chain of deeds you need to get to prove ownership, and transfer of ownership. Ownership of a peice of property can transfer from party to party, but it doesn’t go away- someone (or some organization) owns the property.

This isn’t true with intellectual “property”. There is intellectual “property” which is not owned by anyone or any organization. Shakespeare, for example. Or- to Disney’s great relief- the collected works of Hans Christian Andersen and the Brothers Grimm. There is the idea of a public domain- of ideas and works not owned or controlled by anyone- and the expectation that all works will (sooner or later) enter into that domain. And that expectation isn’t just because I’m some radical college-punk claiming that “information wants to be free”, that expectation arises directly out of the Constitution- another document no one owns, and thus I am free to quote Article I, Section 8 (emphasis mine):

To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries

You do not simply wake up one day and discover that not only do you not own your house, no one does, and anyone has the right to come in a do what they wish with your house. But that’s the way it works with intellectual “property”. One day, in theory at least, your copyright or patent will fall into the public domain, at which point anyone and everyone will have the right to do with it as they please, without even so much as a “by your leave”.

But even before that day comes, you have fewer rights to your intellectual “property” than you do to your realestate “property”. If you own a peice of land, I have no rights to that realestate property at all- only those priveleges that you decide to grant me, which can be revoked at will and for any reason or no reason at all.

Again, this isn’t the case with intellectual “property”- where, surprisingly enough, I do have some rights to use your intellectual “property”. Again, the US Consitution (the DNA of our legal system, the core Operating System code):

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

It can (and has) been argued that if I want to, say, publish a book that just happens to say the exact same thing as that book you wrote, that preventing me from doing so is abridging my freedom of speech. After all, doesn’t the right to free speech include the right to say what I want, how I want to? And doesn’t the Constitution explicitly forbid the government from preventing me from doing so? On the other hand, the Constitution also explicitly says that Congress has the right to grant you exclusive rights to your work, and they have. And by me publishing a book that says the exact same thing, with the exact same words, I’m violating your exclusive rights. One night only, the irresistable force of free speech meets the immoveable object of copyright, both with strong Constitutional justification, tickets available at Ticketron.

The resolution of this fundamental Constitutional conflict is called “Fair Use”. And note, despite the numerous scurrilous slanders against fair use, it was not the wholesale invention of artist-hating activist judges who’ve never read the Constitution. Instead, it’s the balancing act the courts have struck between these two competing parts of the Constitution. If you want to know the gory details, I recommend talking to your friendly neighborhood lawyer- but one thing is clear, that I do have some rights to use your copyright without your consent. For the purposes of commentary, for example. I didn’t ask RMS (or PC World) permission to copy the quote I opened this article with, because their consent is irrelevent. I have free speech rights to quote limited portions of their copyrighted work, and they can just suck it. Not that RMS likely would object- the point is that he doesn’t get a say.

And this is a good thing. Not to put too fine a point on it, Disney (one of the leading advocates of ever longer, ever stronger copyrights) has made an industry out of mining the public domain. Without Shakespeare being in the public domain, we wouldn’t have West Side Story. All artists work within the environment of a shared (and freely available) culture.

Another difference between realestate property and intelletual “property”- there is a set, known, not too onerous, method for determining the current owner for any given peice of realestate. – which involves writting or going down to the local (to the property) court house, paying a reasonable fee, etc. And what you get for this not large amount of work is reasonably current contact information for who the current owner is. This isn’t available for copyright.

For example, say you stumble across this picture of the New York skyline at sunset:

“My,” you think to yourself, “what a pretty picture. I’d like to use that picture in a way that isn’t covered by fair use. Gee, I wonder how to go about finding out who owns the copyright to that picture, so I can ask them permission to use the picture legally.” Well, keep wondering. It used to be you had to register your work in order to get a copyright on it- so you could (in theory, at least) ask the copyright registry who owned the work. But that isn’t the case anymore. There is no place you can go to look up that the above photo is copyright Brian Hurt, and that you have to come ask me for permission to use it. And, if the photo was taken long enough ago, the original copyright owner might be dead, and the copyrights not explicitly assigned in the will- at which point, current ownership of the copyrights may be murky at best even if you do find out who the original copyright owner was (copyrights are generally not assigned in wills, I comment).

And there is no limit to the amount of work you need to do to determine who owns the copyright- there is no point where you can stop and say “I’ve done enough, I can’t determine who owns this work, therefor I can assume I can use it”. No, if you stop at any point short of determining who owns the work, you have to assume you can’t use it. If you go ahead an use it anyways, the “real” copyright owners can come out of the woodwork at some later time and sue you for all you’re worth. In computer science terms, the algorithm for determining ownership of realestate property is a constant amount and always terminates, while the algorithm for fetermining ownership of intellectual “property” often does not terminate.

And the situation is getting worse, as the definition of ownership is changing. For example, despite the fact that I, Brian Hurt, took the above picture myself, I may not have right to publish that photograph. You see, architecture itself is now copyrightable, which means if any of those buildings happens to be copyrighted, I (arguably) need the permission of the copyright owner of the building in order to publish a photo of that building. Realestate property has easily definable limits- I own this square foot of land, you own that one. And just because I own this square foot of ground doesn’t necessarily mean I have ownership rights to the next square foot of ground over. Ideas have a lot more reach, a lot more fluidity, a lot more associativity, than land does- while land relationships are two dimensional, idea relationships are infinite-dimensional. As such, it becomes much harder to draw boundaries, draw property limits, around ideas.

When you think of copyrights and patents and trademarks as “property”, there is a natural tendency to reason by analogy, and to assume it does, or at least should, work like property law. Unfortunately, a faulty analogy can then lead you astray. Copyrights and patents aren’t property. They never were, and they never should be. And we can’t have the discussion of what rights and what limits should copyright and patents have until we get past this very basic fallacy.