September 20, 2004

Property, Intellectual Property, and Free Riding

by Scott Rettberg · , 9:27 pm

I may be turning into an intellectual property law geek, but I found Mark A. Lemley’s Property, Intellectual Property, and Free Riding (click on “Go to Document Delivery” for full text) engrossing. Lemley rehearses some of the ground that Jamie Boyle and Lawrence Lessig cover about the origin of the idea of intellectual property law and the “tragedy of the commons,” explains some of the benefits of leaving room for “free-riding” in the distribution of intellectual property, questions whether property is an apt metaphor for what’s come to be known as intellectual property, and explores some other analogies that might be more appropriate.

One wonders if intellectual property law might have a different place in our culture if we referred to it simply as “idea law.”

9 Responses to “Property, Intellectual Property, and Free Riding”

  1. greglas Says:

    Scott> I may be turning into an intellectual property law geek…

    A fate worse than death! :-)

    The metaphorical language we use to describe new things is often highly influential in the way courts are willing to act with regard to those things. I’m not sure “metaphor” is really the right word to use, but I’m just trying to reference Lakoff & Johnson, who are often associated with this argument.

    This is especially true in the case of new technologies which lack completely analogous antecedants. The labels we assign to things may lead to the creation of a legal “truths” about those things with pernicious policy implications. See, for instance, the “real space” arguments made in the Intel v. Hamidi case, that seemed persuasive to 3 of the 7 justices.

  2. Kenneth Stein Says:

    One of the fundamental issues I see facing the IP community is the meaning of the term “property.” It’s an issue that isn’t going to go away. Moreover, it’s an issue that will ultimately result in the demise of what has come to be known as “intellectual property

    Ask a teen or a tween if an MP3 is someone’s “property” and listen carefully to the answer you receive. The fundamental problem with the term “intellectual property” (IP) is not that people are ignorant to what it means. The problem is that the term “IP” is definitionally INTANGIBLE. Even accountants, who can make substantive the most ethereal of concepts and vice versa, throw up their hands and shout, “We give up! It’s intangible. We can’t value it with enough specificity to put it on the books!!”

    The word “property” on the other hand is inherently TANGIBLE. It is that which allows each of us to distinguish one object from another, or to group elements into classes, etc.

    It’s an interesting phenomenon to observe. In essence, it’s a lexicographical war between those who WANT the term “IP” to take root and those who are resisting. Those who resist (probably even YOU on some level if you think about it for a moment) don’t do so out of malicious intent, although music companies might have you think so. The kids who are trading MP3s aren’t out there laughing their laugh of evil superiority while they download music. They just don’t feel the weight of the meaning. They don’t sense, or better, REALIZE the term “intellectual property.” [Note: the word “term” means ‘a word or expression for some particular thing’. It also means ‘a limited time’.]

    When I was in law school, I was taught that stealing requires the “intent to permanently deprive someone of their property.” Where’s the stolen property here? The time spent making the music? The intellectual or creative effort? The argument must be then that the money one would be due for selling the MP3 is the “property” of which we speak. Yet we’re not referring to any particular money, just the CONCEPT of money as any money that would total the amount asked for in a sales transaction that would satisfy the IP holder. Well, again, we’re right back to that which is inherently INTANGIBLE (maybe if we had stayed on the gold standard there’d be an argument FOR the tangibleness of money, but no longer).

    The fight will continue between those who want to enforce, extend (look at the life of copyrights for an example of the redefinition of IP) and enlarge the meaning of IP, and everyone else. However, the fight is not actually between them. The fight is between the lexicographer and human nature. The lexicographer has created a definition for a combination of words that inherently will not allow the attachment of the meaning. The intangibleness of the term “Intellectual Property” will not come to rest alongside the age-old meaning of the word “property.”

    It doesn’t matter how hard companies try to enforce intellectual property laws, ultimately IP will fall be the wayside. It won’t be soon, but then people aren’t the brightest creatures either. For my part, I’ll take a guess; 42 years.

  3. greglas Says:

    KS> The word “property” on the other hand is inherently TANGIBLE.

    There word “property” actually isn’t inherently anything — it’s just a word like any other word. Law operates by creating all sorts of distinctions that don’t otherwise exist and by coining terms that embody those distinctions. See “citizenship,” “free speech,” “due process,” etc. The issue with “IP,” as Lemley points out, is that the word itself gives rise to certain knee-jerk assumptions about economic realities that don’t in fact play out.

    Lemley points approvingly to Tom Bell’s comparison of copyright to welfare — this is probably the best way to conceptualize the copyright system. And I’m actually more inclined that Lemley to accept the mental associations that Bell’s comparison to “welfare” forms.

    Bell’s article is here, if anyone is interested.

  4. Kenneth Stein Says:

    greglas> The word “property” actually isn’t inherently anything…

    The word ‘property’ is from the Latin ‘proprietas’ (ownership) which is a translation of the Greek word ‘idiotes’.

    Well, that’s jest enough. The point I attempt to make, lighthearted as my approach might be, is that discussions (or arguments) can make anyone look foolish, especially when the topic is as central to thought and consciousness as is language.

    A ‘word’ is not a word unless it has a meaning. As such, the word “property” must, by definition of the word ‘word,’ (turn down that hip-hop music please!) have some inherent meaning. It has several, each considered a ‘sense’ of the word. Before the string of phonemes that is “property” had any meaning that string of phonemes wasn’t a word, it was ‘word potential.’

    Now, when we look up the word ‘inherent’ we find 1) Existing as an essential constituent or characteristic, 2) Present at birth but not necessarily hereditary; acquired during fetal development, and 3) In the nature of something though not readily apparent.

    There is an underlying and enduring nature to a word. Though it’s not always readily apparent what that underlying nature is, it’s present in the word itself. A person instantiates at least one word when coining a term (a word or expression used for some particular thing) in response to some phenomenon the person has experienced. It could be to name the phenomenon, or it could have been blurted out in immediate response to one’s perception of the phenomena.

    If there is a resonance between the term, its sound, its newly coined meaning and the people who hear the term, then the instant word and it’s new sense will appear in the general lexicon of the language. If not the term will disappear without ever graduating to the status of being a generally recognized word. For a ‘term’ is a subclass of ‘word’ and is destined to disappear once it’s term has ended.

    Of course, it might be that the term is used by a group of people in a certain discipline (i.e. law), in which case the term won’t disappear completely, but neither will it become a general sense of the word from which it was borne. And while it might be that the law points to, names, and relies upon various distinctions, the law does not ‘create’ the distinctions, they existed before they were named. A tree most certainly makes a sound even though upon hearing it fall, one fails to exclaim “Wow, what a sound!”

    Attorneys are lexicographers. Some attorneys (patent) are even neologists. It’s understandable that those tasked with terming new phenomena will stand by their work and defend it. However, such defense is of no moment to the 12 year old that rejects the definition of the term ‘intellectual property’ merely because it has been adopted by a group of attorneys. We can sue her for downloading music. We can make her pay. Will the term ‘intellectual property’ then take a vaunted seat in her vocabulary, or will she relegate it and those that so rely upon it to lexical obscurity?

    No, I do not think that in the mind of the 12 year old, the 20 year old, or the 42 year old for that matter, the term ‘intellectual property’ “…gives rise to certain knee-jerk assumptions about economic realities that don’t in fact play out.” I feel it’s a far simpler matter that the term doesn’t suit the words. Instead of defending ‘intellectual property’, we ought to exercise our creativity and courage and imagine a compelling future “after IP” (See “Gnu”, “Gutenberg”, “Free Software Foundation”, etc.) and coin a term that has a chance of flourishing.

    While I’m tempted, I’ll exercise prudence and refrain from making any specific terminological suggestions. It’s better not to embarrass oneself while in such esteemed company.

  5. mark Says:

    I always liked the classic argument from the Free Software Foundation, part of their list of “Confusing Words and Phrases that are Worth Avoiding”:

    Captures the essence of the argument in a nice concise page-long essay, IMO.

  6. greglas Says:

    mark> I always liked the classic argument from the Free Software Foundation…

    Yes, I like it too. And note that they cite an earlier article by Lemley… but what do you think about the argument re “open”?

    >>Please avoid using the word “open” as a substitute for “free software”. A different group, whose values are less idealistic than ours, uses “open source” as its slogan. If you are referring to them, it is proper to use their name, but please don’t lump us in with them or describe our work by their label—that leads people to think we are their supporters.

    Nothing wrong with this request per se — they’re free to request anything. But should I be so worried that by using the word “open source” and failing to make clear that FSF is not “open source”, I will mislead people into thinking FSF supports some other “less idealistic” group. Is that my problem? At some point doesn’t this remind you just a bit of Newspeak or of French language purists trying to strike out “microchip” and “hamburger” from dictionaries?

  7. mark Says:

    Well, the “open source” versus “free software” argument (some would say debacle) could fill volumes, but I suppose I could pontificate anyway. =]

    My understanding of the history is that “free software” is by far the older term, as the FSF was founded back in the 1980s. At some point in the 1990s Eric S. Raymond (ESR) and some others decided to coin a new term, “open source”, and founded the Open Source Initiative (OSI), with a new focus on the practical benefits of such software—more trust in your software, community goodwill, community product-testing and bugfixing, etc. The FSF, and Stallman in particular, saw this as a co-opting of their movement, and were especially disturbed by the attempt to reframe the debate in practical terms that completely removed the word “free” from the conversation, which was originally the entire impetus for the Free Software movement (the FSF preferred even _inferior_ software if it allowed its user freedom to modify and distribute, as it considered it a fundamentally important right—certainly superior software is that much the better, but it’s not their raison d’etre). So they felt a focus on Open Source would threaten the focus on Freedom and encourage people to take a freedom-agnostic view where they use “open source” software when it suits them, and proprietary software when it suits them. The ESR vs. RMS clash of the titans ego battle didn’t help matters either, I suppose.

    I personally keep using Free Software as a preferred term, because I consider it more in line with why I make my software available under free/open licenses, and partly I give some deference to the FSF for having been at it for 20 years now.

    On a side note, the debate is clearer in other languages, where there’s a word for “free as in freedom” (like libre), which is really what the FSF cares about. In English “free” vs. “open” sounds a lot more like pedantic quibbling.

  8. greglas Says:

    Right — I’m probably less familiar with the history of FSF than you are, and I’m sure that volumes have been written about free v. open, and many more will be. My point was just that, beyond a certain point, these debates over X must mean Y and can never mean Z can easily morph from something helpful and substantive about misleading connotations into something that looks more like pedantic quibbling and social turf protection.

  9. mark Says:

    Yeah, I definitely agree with that. RMS is dedicated, but he’s not exactly a diplomat or politician. The equally huge debacle over “Linux” versus “GNU/Linux” comes to mind…

    I’m not sure I personally have a better approach though. His viewpoint is that he wants to keep the movement dedicated to freedom, and he feels the term “open source” doesn’t help that. Similarly, he sees the current desktop “Linux systems” as the natural completion of the GNU project he founded in 1985, with the Linux kernel being the last missing part that was finally filled in (since the GNU project’s Hurd kernel was, and is, too ambitious) to an already otherwise-complete GNU operating system (complete with a written-from-scratch compiler suite and system library). He’s not good at making those arguments though it seems, and things get mired in an endless debate over wording.

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