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May 19, 2003

The Intellectual Property Myth

Note: this is a post recovered from my old blog, before it died of an insufficient backup. Any comments/trackbacks on it have not been brought over, but can be seen with the original. The date is that of the original posting.

Aubrey Turner is conflicted about intellectual property, and uses the infamous (at least among geeks) XOR patent. My wife, earlier today, was complaining about the "copyright Nazis" on a homeschooling mailing list who scream "infringement" at everything. This is to the point that a person making a derivative product based on a well-known education-technique book was being taken to task on the presumption that the product wasn't "authorized".

We have created a system where the majority of powers and rights (collectively, let's call them Liberties) were vested in the individuals, with limited and enumerated powers granted to the States and the Federal government by their associated Constitutions. Those powers granted to the government (in our system, governments have no rights, just powers) were basically those necessary to guarantee the people's rights to Life, Liberty and the Pursuit of Happiness (which includes property rights). However, the Founders recognized that certain additional powers should be granted to the Federal government, in order to create a better society. These powers included the ability to create a postal system (to enhance communications), the power to regulate commerce between the States (to prevent interstate wars over trade) and the power to "secur[e] ... to Authors and Inventors the exclusive Right to their respective Writings and Discoveries", but only "for limited Times," in order "[t]o promote the Progress of Science and useful Arts."

The whole idea behind copyrights and patents was to encourage authors and inventors to write and invent. To encourage this, such people were given the sole right to their works, which means that they could make a profit off of the work. But this ability to profit was limited in time, so that an author or inventor could not retire from the profits of one work or invention. Thus, the author or inventor would have to create new works or inventions. In the meantime, the transfer of previous works or inventions into the public domain would "promote the Progress of Science and useful Arts," because now anyone could use those images, ideas, and methods.

You see, "intellectual property" doesn't exist: it's propaganda. Property is something I can deny you the use of. If I take your radio, you cannot listen to it. I have stolen your property. If I sing your song, or copy it to a CD, or give it away, I have not stopped you from singing it, or using your copies in any way you like, or even selling that song and making a profit. Thus I have not stolen from you, because songs are not property in any meaningful sense of the word.

It can still be argued, though, that it is a good idea to allow people a limited monopoly over works of art, books, actual representations of factual data (as opposed to the data itself), and ideas subject to patent. Granting such a monopoly encourages people to create new things. However, these rights must be balanced. Works must fall into the public domain while they are still available, so that they can be used and preserved. Rights must not be extended into areas where they make no sense; for example, it should not be possible to patent a discovery of some naturally-occurring organism, or part of an organism, or way of doing business. Rights should be granted to individuals, and should perish more quickly if held by organizations. Rights should only survive the rights holder long enough to remove an incentive for murder; not to grant a boon to the rights holder's grandchildren as is today the case (life + 70 years is, according to a recent Supreme Court decision, a "limited Time."

In actual fact, I do believe we have gone too far in granting these rights. We have three choices. Either the Supreme Court can strike down laws granting excessive rights on the basis that they do not meet the test of "promot[ing] the Progress of Science and useful Arts" or "for [a] limited Time[];" or Congress could wake up and begin to restore the balance between rights holders and the general public; or eventually people will take it into their own hands to redress that balance.

File sharing on the Internet is a warning shot. It has always been the case that people will seek redress and justice outside the system when the system does not provide them satisfaction. Indeed, that's one of the primary reasons for government to exist. If copyrights are not scaled back, people will begin to violate them wholesale. At this point, it will become virtually impossible to find a jury to convict someone of copyright violations. As far as I am concerned, that is as it should be. The law exists only to serve the needs of the public. When it does not do so, it should be abolished or ignored.

Posted by jeff at May 19, 2003 12:00 AM

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