Intellectual Property Is Not An Enforceable “Right”

Internal problems in Brie. Some nasty, some trivial, all annoying. We’ll work ’em out, but time to think of something else for a while. How about huge cultural paradigm shifts?

Clearly, something’s going on in the area of intellectual property. The old models are not serving. Everybody’s got something to say. (Here and there are some current MIT community examples.) On the one hand, Apple tries to sue companies for using a Windows-Icons-Menus-Pointer (WIMP) look-and-feel that they themselves didn’t invent, and they won’t let me rip the songs I legally bought from them. On the other hand, they want to use the name “Apple” despite clearly being in competition with Apple Records in the music business, and they produce a variety of devices in the new-cultural rip-mix-and-burn chain. Are they schizo, or is it just opportunistic business? I think it’s another data point towards the conclusion that we’re waiting for Thomas Kuhn (in a broad sense) to point the new way.

How can we understand intellectual property rights in a digital age? I propose that we try to get at what we really mean in terms of some established axioms.

First, ordinary property rights allow people to lay claim to something tangible and specific. You can’t own the concept of “dirt” in general, but you can own the segment of the planet between some lines drawn on a map. You can’t own “the air”, but you can own the air in this particular SCUBA tank. Having purchased or grown the wood, you can own this chair that you built. You can dispose of any of this property by destroying it, transforming it to something else, giving it away, or exchanging it for money or other consideration. The first recognized possessor is assumed to have the first claim, but the state gets to say otherwise.

We don’t have to agree that this is a good thing. Lots of cultures don’t have property rights. I happen to be comfortable with the idea, and I believe that the system provides stability and incentives that give greater benefit to society than would the absence of such a principle. Regardless of the morality, though, it seems to me that tangible property rights are, in fact, the way things are. For the purpose of this discussion, I will take initial exclusive ownership for tangible property as an axiom on which to build our model.

Second, completely abstract ideas cannot be directly owned. No one owns “love” or “hate.” Material property rights are hard enough to enforce. As a practical matter, man can only claim those rights that he can enforce, and the abstract is (by definition) beyond our reach.

Now, if you get an idea for some invention, you can keep it to yourself. You might build a device that you keep in your home for your own benefit and not let anyone see it. For all you know, it may well be that your neighbor has independently had the same idea and has a similar device in his home. You can use the device in your business, perhaps swearing your employees to secrecy as a condition of their employment. You can sell the device you built to someone else, or multiple instances of it to multiple people, perhaps on the condition that they not tell anyone else. That’s a matter of contract between you and whomever you can find as a willing buyer.

There are a lot of complications in contract law. I do not propose to lay out principles under which, for example, we can decide whether a post-sale click-through license imposed by a monopoly producer is really a fair contract between willing parties. But for now I do accept the broad idea of commerce as a willing exchange of tangible property for due consideration, as specified by an implicit or explicit contract.

It is difficult, however, to construct such a contract between yourself and the world at large. Our collective governments have stepped in and offer a deal. We would like folks to be able to study the inner workings of your idea so that they might improve on them. In exchange for this disclosure, the government will recognize your ownership of the disclosure for a limited time. It’s a standing offer, and you are free to take the deal or not. The ownership is based on defining something specific and unique. If it turns out that your idea was not unique – e.g., your neighbors have all had the same idea and have been using similar devices for years in their homes – then the deal is off.

Patents take an abstract thing, which cannot be owned as ordinary property, and define a mechanism by which we can treat it as a concrete and tangible thing. Between the two axioms of exclusive material property ownership vs. no private ownership for intangible abstractions, it seems to me that all “intellectual property” law is an attempt to reify the latter. Reification is a very tricky thing. There’s a whole class of logic errors that you can get yourself into while doing this. Alas, I don’t have a general theory of how to tell when such reification is acceptable. In the case of patents, I purposely sidestep the issue by viewing the patent as being an agreement on the disclosure (which is written up in the patent itself), not on the abstract invention. The regulating consequence of this view is that if you can show that the device you use must have come from independent development rather than the disclosure (assuming due diligence by manufacturers), then the deal is off (i.e., the whole patent is invalidated). I can do the same dance for the originally intended use of copyright as a voluntary, limited-use protection in exchange for the physical disclosure of the particular wording and formatting of expression. But I can’t find a way to define a clean and un-vague model for mandatory indefinite ownership of the use of everything anyone has ever uttered.

There are people who would like to claim all sorts of odd ownership, such as control over my right to exist or where I may exist, or what I may think, as opposed to what I actually do to another person. As I wrote this, I was interrupted by a woman on foot at my door, who did not identify herself, but waved pruning shears around threateningly as she asserted her opinion as to whether and where my cat had a right to exist. She left without making any assertions about what my cat had done or could have done, and without waiting for any response from me. Go figure. She may well have had a point, but she failed to make it clear. Anyway, for this discussion, I’m sticking with material property yes, ideas no, and general theory of the rights of man to be out of scope entirely.

So how do we tell which reifications work, and which are too vague to be meaningful? I don’t know! Personally, I’m suspicious of any framework that is built on deriving value from artificially created scarcity. But that’s just me. (And no, I don’t know how to define “artificial.”) Everyone has an idea of what is right or proper or fair, but making them all work leaves us with a patchwork quilt full of holes, held together by hope and anecdote.

I do have a strawman practical suggestion. Suppose we vote on it. More precisely, we let the market decide. Suppose we simply choose to not pay for abstractions defined too vaguely to be enforced. I’m not talking about going out and trying to make money from pirated Disney DVDs. I’m just saying that I’m going to decide whether to reward a vendor with my business. And I’m leaving it for you to figure out whether that means making copies of something that I have bought, or letting my children use the things I bought, or giving them to 2 or 3 million of my closest friends. Man can only claim those rights he can enforce. Now, maybe we’ll decide that some kinds of ownership or limits on use are so important for society, that we will empower law enforcement to enter my home and monitor everything I do. If we collectively really want to go there, OK. Let’s see.

But in the meantime, the real point is to not go out of our way to reward the intrusion. If there’s no interest, the price will drop to the point where such “bad reifications” have no commercial value. It simply won’t matter. For example, some folks worry that unlimited sharing fails to build in enough reward. But they’re missing two points. First, basic calculus shows us that you can define a value that reflects an infinite number of uses, if the marginal utility decreases for subsequent uses. It’s called an asymptote. Second, basic economics shows us that a sale occurs when the price that someone is willing to pay (e.g., what it’s worth to the buyer) matches the price that a seller finds to be worthwhile (e.g., how much it costs the seller). It has nothing to do with the seller’s opinion of the buyer’s utility, nor the buyer’s opinion of what’s fair to the seller. If we aren’t willing to pay, the stuff is worthless, regardless of what someone thinks is theoretically appropriate, or what some legislature decrees.

Here’s a practical example, even if it is another one of those isolated anecdotes that we must be careful about extrapolating from. I hate “Fair” Isaacs. The credit reporting industry is morally disgusting. (And I say this usually being very far into the privileged end of the scale.) The idea is that you don’t own the personal information associated with your identity, and have no right to correct it. Well, from time to time Congress awards such rights, but without economic power behind it, most of us have no way to enforce our claim. So instead of rewarding this cult of power or trying to legislate it, let us simply make it worthless. Ebay has an open and transparent reputation system. They collect the data, but the marginal cost of collecting the data is essentially zero, and they do not attempt to charge for its use. Instead, the open and free system helps their claim as an “honest broker”, a “trusted third party”, which is their real source of value. Meanwhile, buyers and sellers all have an interest in maintaining the system, so they contribute. No one pays directly for the information, but they all benefit for their efforts, else they wouldn’t bother. If we can lower the costs sufficiently (e.g., through the Internet and some form of public persistence through DHTs or what-not,) then maybe we can do the same for all transactions. And then there would be no value in anyone paying for the closed systems.

So. Physical property can be protected. Pure abstract stuff can’t. How do you make an abstract thing specific enough to be protected? That’s tricky. In the absence of some other guiding principle, let’s use economics. If there’s a song you like, and you feel the money is going to the right place and is worth it. By all means, pay the price. If you don’t…don’t. Maybe others agree and can share their legal copy with you. Maybe the author wants attribution, and you can respect that. It doesn’t cost you anything to comply. Please do, and shame on you if you don’t. But if they want to charge you to use it, and you don’t think that’s right, then don’t pay. Let the value of hording the idea become worthless.

Enough. Another wine, and tomorrow I fix Brie.