(Un)intellectual Property

Yet another assault on the free-market has been averted, this time, against the internet by a motley collection of entrenched business interests that have failed to adjust their business models to the realities of the modern age.  Or is that a general description of the usual perpetrators of these kinds of things?  In any case, one would think with a good decade or so of fair warning, they would have made the transition by now. But no, they'd much rather ask Congress to pass an abominable package of laws that would have stripped users of the information highway of many of their freedoms with an appalling lack of due process, erecting barriers which these businesses can milk for easy revenues.  In the business, we call that rent-seeking.  So much for the dynamism and competitive spirit of entrepreneurship.  Well, at least of these particular entrepreneurs.

As is typical, their arguments were couched in terms which attempt to appeal to free-market sentiments.  Intellectual property, they claim, must be protected from acts of 'theft' and 'piracy,' else the whole edifice of of modern civilization will collapse.  Or something like that, as if it hadn't already, and mostly through the efforts of these very kinds of chumps to confuse the situation and confound our traditions so that they might be taken advantage of.  A violation of property?  What man of any decency could tolerate such a horror?  As it turns out, quite a few.  Over seven million people have petitioned Congress to tell these businesses to stuff it.  Apparently, there was a difference of opinion as to what constitutes decency in this particular situation.



And as is also typical, I would like to use this happening to ask the reader to consider a few rather radical propositions.  Namely, I'd like to take a look at what is meant by intellectual property -- and maybe even property in general.

There have been very many good essays on this site and others like it concerning the 'properties of property.'  Basically, most people instinctively know what these are as a matter of habit, but they haven't always thought about them deeply.  One of the more important of these 'properties of property' is that the holder of property has the right to exclude others from using it.  If he can't exclude them, it is taken that he has limited sovereignty over it, and the 'propertiness' of the purported property is thereby diminished.

But consider for a moment how this applies to something like a copyright or a patent.  Both of these 'properties,' come with a built in expiration date, which to most people I would think would be a very strange feature if they really thought about it.  Imagine if it applied to, say, one's car.  Imagine waiting outside a man's house for the strike of midnight on the day of that expiry, and when the moment had arrived, hopping in and drive off.  There would be nothing the purported 'owner' could say or do against you.  He had lost his right to exclude you from it.  But if patentable and copyrightable ideas really are property, that is basically how it works.

It seems to me that this is rather incoherent.  Either your property is yours until you choose to dispose of it, or it is not.  So, if an idea is property, it really ought to be property forever and ever into perpetuity, to be bought and sold and passed on to one's heirs.  Alternatively, it ought not to be property at all and freely used by anyone who likes.  But this in-between world makes little sense, and smacks of a contrived legal pretense. The 'expiration date' is obviously a recognition that actually treating ideas as property in the normal sense would be impractical.  So, allowing patents and copyrights to expire accomplishes a legal jamming of a round peg through a square hole.

It is quite clear what the interest is -- the restriction of markets, using the language of property to justify what would otherwise be immediately recognized as an attempt to assert a right to monopoly by legal force.  And, typically, that is exactly how intellectual property is used.  Worse, once a particular monopoly is established, it becomes a launching point for installing further market chokepoints.  The best example of this strategy which I can think of is the way Microsoft attempted to use its overwhelming marketshare in operating systems to attempt to shoulder out competition in web navigators and other software by making them incompatible with its OS.  This attempt eventually failed, but it provides a good example of the types of maneuvers that can be piggy-backed onto IP law to restrict markets for the purpose of rent-seeking.

As for the argument that the end of IP law would bring the free-market down around our ears, it is easy to see that this is not the case simply by looking at the digital media industry, where digital technologies have effectively blunted enforcement mechanisms.  Yes, major record labels, Hollywood studios, publishers and the like are seeing their profits eroded, and rather heavily at that.  But on the other hand, there is certainly no less media available for consumption as a result.  Far from it -- there appears to be far more of it than ever, and of greater variety than before.  Creativity and innovation have not been squashed, they appear to have been multiplied.

What has been squashed are the gatekeepers -- the media cartel which before had dominated and effectively homogenized media offerings in an attempt to maximize profits by limiting choice.  Among other agendas.  Up until recently, they also had the help of a large technological barrier.  But with effectively self-produced media approaching the quality of the professional stuff, it becomes difficult for the 'take it or leave it' model to work any longer.  The erosion of IP is only one aspect of an avalanche of economic effects which have been triggered by the digital age; others are at work as well.  But even so, it is still possible, certainly, for the big performers to make the big bucks through concerts, live appearances and such, but in order to do so, they will actually have to work for a living, as the strategy of rent-seeking through legal monopoly and technological barrier is slowly being taken off the table.

It might be argued that the scrapping of IP wouldn't just hurt the big publishing houses and the like, it's going to hurt the writers and other creative artists as well, who otherwise wouldn't be able to protect their ideas.  But in reality, very few of these people benefit from the restriction anyway.  Typically, for example, it is the publishing house which sees most of the benefit.  It uses the copyright to prevent other publishing houses from distributing its titles, of course, but unless you are a Stephen King, a publishing house is not likely to pass on the spoils to you because you have no negotiating power.  It is going to go looking for authors who are more desperate to have their works published -- of whom there are plenty.

But to take the argument to the next level -- let's forget about all this practical stuff and rhetoric, and get philosophical.  What if the 'in-betweeners' are just flat right?  What if all this market-restriction nonsense is exactly the kind of thing I'm accusing the IPers of doing -- attempting to couch an anti-IP argument in the language of the free market?  What if, in reality, there are some legitimate differences between types of property which necessitate a slightly different treatment, but on the whole, it really is right and proper to protect the property rights of creative sorts to their ideas?  What if not to do so is a very basic and fundamental abridgment of their rights and, as such, certain to be followed by serious, negative repercussions?

I think that what has happened is that this argument  -- like most political arguments -- has been trapped in a sort of ideological vortex.  I think that, like it or not, there is no straightforward answer that takes a form that most people would like, if this 'logical rhetorical answer' is the form that most people prefer, which it probably is.  Life, after all, is not a logic problem, and as the notion of what property is must depend strongly on the answer to the question as to what constitutes human nature, it should be plain that there isn't going to be a clear-cut answer given one has accepted the notion that human nature can be a variable as opposed to a constant.

As I wander down this path, questioning axioms as I go, I'm reminded of a certain thesis I once heard which I find to be quite brilliant -- that there are certain institutions which are given purely by human convention.  Sorry, I've lost the link, but it was by that Fran Porretto guy.  Three were named -- money, language, and marriage.  And I begin to wonder if perhaps property should not be added to this list.

I say this in the main because it is difficult for me to accept that the notion of property as articulated by the Enlightenment philosophers is the end of the argument when I see the medieval notion of property placed alongside it.  Clearly, if the one is valid, and we live in a world where such things are defined purely 'logically', then the other must be invalid.  Invalid, as in, not even close.  I find this very difficult to accept, and further, I find it difficult to accept that I can be thrown into such a logical conundrum over something as simple as a patent.  If property is as simple as that, this should be a piece of cake.

But if I take the view that property, like money, marriage, and language, is defined by the norms, traditions, habits of thought, and conventions of the society which institutes it, it provides me with a way to reconcile all of these notions.  In fact, it does so in a way that is rather useful.  Neither the philosophers of the Enlightenment nor the medieval traditions were wrong -- or, at least, not utterly wrong -- and I am free to see what good I can in any particular convention, to begin deriving ideas concerning the behaviors of property and people under different sets of norms, and understand the notion of property as something that changes with people and situations.

None of this is to say that property may be defined arbitrarily, or that any which way is perfectly valid.  Nothing could be further from the truth.  I perfectly accept, for example, that money is similarly defined, yet I will criticize our own norms and conventions about it until I am blue in the face.  I recognize what money was 'meant for,' how it 'works,' and how choosing silly and nonsensical ways to deal with it produces spectacularly reprehensible results.  Nevertheless, I fully acknowledge that no matter what I may say, or how 'illegitimate' I can argue our money system to be, at the end of the day, it is what it is.  If people accept bank deposits as money, then bank deposits are money and there is nothing I can do about it.  Except to repeat over and over that it is really, really stupid.  But people will just keep doing it.  Including myself.

Likewise with language and marriage.  There are good, sensible ways of doing things, and really, really retarded ways.  Evil, even.  I expect that property is the same way, and that it is perfectly valid to have very strong opinions on the subject, and that these opinions may be said to be 'correct' or 'incorrect,' if you see what I mean.  I just suspect that they do not take the form which I used earlier in the essay, and which most people tend to employ.  And now that I've completely philosophized myself out of my original argument and thoroughly confused myself about what I mean, I think I'll leave the reader to make up his own mind...