A Radical Theory of Property

Intellectual property is the least respected form of property in our society. I think that's because it jars with some people's traditional sense of what property is. They live in the physical world and the non-physical is counter to the intuitions that life engenders.

When you steal a car, the former owner loses the car. The reasons for property here seem clear to all but the most communist of thinkers. But when you copy a copyrighted work, the original owner still has their copy. Nothing physical is stolen, so it seems very different.

And indeed for many people, that difference is enough to treat intellectual property (IP) with disrespect. Many people who would return a Rolex they found lying on the ground -- or be racked with guilt if they didn't -- will happily make illicit copies of software.

Yet IP is becoming vastly important in the modern world, and the foundation of a growing chunk of the world's economy. This growth has led for all sorts of diverse movements. Some feel we should just abandon most concepts if IP. Some want to strengthen them to deal with the disrespect they receive. Some wish to try technological approaches of various sorts.

I want to put forward two notions; one straightforward and one radical. The first is that to understand IP, one must realize that property is about control, not possession. The second is the notion that perhaps intellectual property is the "real" property and physical property the illusion.

It's not possession, it's control

Many people tie up the concept of property with possession. This causes confusion because property -- and even intellectual property -- is really about control. You want to own something so you can control it. And in many cases, you want to control it when it is not in your possession.

Indeed, most money is made off property that people don't have a strict physical handle on. Because they don't have this handle on it, they need something else to secure their rights -- and so we get a law of property. Many people own land they hardly ever or never set foot on. Some own land that nobody ever sets foot on -- it's just there to look at. But they want to control who can go on it.

Intellectual property is really about control. Yes, once put in tangible form you have something you can actually hold in your hand, but nobody pretends the particular bits on a floppy disk or tape, or ink patterns on a page are what is valuable. The real value is in the intangible.

IP rights are the rights of a creator to control their own creation. With copyright, it's the right to control who can make copies. So when people "pirate" a compact disk or software package, what they are doing is appropriating the author/owner's right to control what is done with it. A copy remains with the owner, but something indeed was taken.

A concept halfway there is trespass. If I walk on your driveway, especially when you aren't home, nothing physical has been taken from you. What I violated was the right to control your land that came with it being your property. Even if you are home, I may disturb your privacy and annoy you, but I don't remove something physical. Owning land is not about holding dirt in your hands, and owning copyright is not about owning individual copies.

This confusion is understandable because the IP law most people encounter is copyright law, which is written in terms of restricting copying. The ability to make copies is just one thing a creator might control about a creation, but it's one of the most commercial. Copyright law makes people think IP is about making and having copies.

Intellectual Property as the true property

Philosophers argue about what property is, why we should have it and how it should be allocated, owned and protected. Of course, in some philosophies property is viewed as inappropriate. Early socialists like Prudhon felt that "Property is theft," because one person's control of property deprived the rest of the world of it.

For various reasons, most people hold different views. However, one of Marx's concepts, the labour theory of value, holds the germ of a different understanding of intellectual property.

We must first ask ourselves, when something is valuable as a piece of property, why is it valuable? I will assert that while the raw materials that comprise it hold some value, the true value comes from how those raw materials have been arranged. This derives both from the work to arrange them, and the design of how they are arranged.

We value a new car far more than the squashed cube it can become in the wrecking yard, yet materially it is the same stuff. Two meals, made from the same raw ingredients, by the very same person in the same amount of time -- but with two different recipes, may differ vastly in value. The value is partly from the materials and labour but most of it comes from the recipe.

Indeed the bulk of the true value of almost everything artificial resides in its design and the ideas behind it. Natural property (such as "real" estate) is another matter as you'll see later.

With intellectual property, like books and films, this becomes even more clear. Physically, and from a labour standpoint, two cd-roms or video tapes are identical. The intellectual property, represented as magnetic ghosts on the tape, makes all the difference. With the internet we're now used to receiving IP without any physical storage medium at all, and it becomes even clearer where what we value is.

It's also worth considering that in the end, all matter is composed of just a very small number of absolutely identical fundamental particles -- protons, electrons and neutrons. What really makes one thing different from another is just the numbers of these particles and how they are arranged with respect to one another. What's valuable or meaningful is not the particles themselves, but the information about how they are arranged. Some feel that in the future we will possess a technology of "molecular assembly" -- vaguely analogous to the replicators on the TV show "Star Trek: The Next Generation." In that world, the concept that the true value of things is mostly in the information, and not the matter, becomes crystal clear.

Now these theories of value derive from a basic principle that most people agree with. You own your own self. This concept sits at the base of not just property and liberty, but also most civil rights. The law chips away at it, but few argue that whatever ownership means, it starts with ownership -- control -- of one's own body and mind.

To own yourself is to own your thoughts, at least while they are inside your head. And thus we come to the first insight of IP as the "true" property. The relationship between a person and the thoughts they create is the most real relationship in the world. Unlike all the other forms of property, especially real estate, my ownership of the creative thoughts in my own head exists without law, without society, without philosophy. Even solipsists accept this relationship between creator and creation!

My ownership of my land, my so called "real" estate is much more dubious. I just paid money for it, down through a chain to somebody who got assigned it by a government, which conquered the region it's in from tribal groups who, while they had it in their "territory" were using it marginally if at all. I need have no intrinsic relationship to my land. I get to claim it as property because there is a document down at the County which society will accept and back up with police.

The thoughts in my head are mine without police, without documents, without society.

Sharing thoughts

Of course, if I reveal my thoughts to others, they can have them in their heads too. And, unlike physical objects, in some cases they can come up with very similar thoughts of their own independently of me. So while the relationship is intrinsic, we do need to create philosophy and laws to govern just what control of shared thoughts means.

When it comes to complex creative works, like stories, or software, the odds of somebody else thinking up exactly the same novel are so slim that it's safe to reflect the creator-creation relationship in law, and that law is copyright.

Simpler concepts which can be thought up by multiple parties - inventions - are harder to deal with, so patent law must be more complex. In a fair system two people who thought up an idea on their own would both have rights to it. But since there is no way to safely determine that, society has instead put rules on what can be patented and simply arbitrarily granted the right to the first to invent or the first to file a patent.

Indeed, this theory of intellectual property as the "true" property doesn't greatly affect how we try to build our property laws. We still live in society constrained by pragmatism. The difference comes in how we think of things, and decide what's moral.

Why don't we steal? For most of us, it's not the police or the law or the fear of getting caught. It's because we were taught the basic ethical principles of our society on our mother's knee, and perhaps later in life came to see why they are good for ourselves. Most aren't taught as children to respect intellectual property as the true property, and so we don't. The current generation isn't being taught this either, but this may change. In the end that's the only way the rights of others ever get respected.

Napster tells us, however, that when presented with no risk, and a good user interface, and particularly with more convenient access to material that otherwise is locked up and hard to use, large numbers of people have little interest in obeying the wishes of the creators of music and their control over who gets copies.

Anti-Property

Of course, many feel that there should be no such rights, and would bristle at the idea of working to teach children to respect them. The issue is far from simple. Because information can be trivially copied, the economics of intellectual property differ greatly from those of traditional property. The world still hasn't figured out the rules.

Even the most rabid opponents of intellectual property, however, seem to support some element of creator's rights. Most feel that creators have a firm right to credit for their work, and view plagiarism, or even stripping the creator's name off the work as pretty nasty sins.

Some people -- myself included -- have made good money from intellectual property, without any need to file lawsuits or put technical protections on the material. This leads some to think that perhaps we should not bother with protections at all. After all, if value resides in information, and information can be duplicated without limit, the whole world can immediately be rich.

It is not, however that simple. In spite of claims that "information wants to be free" the fact remains that proprietary information gets far more distributed and far more widely used than free information. Microsoft Windows still is vastly more deployed than Linux. It's rare to find free software that doesn't have a more widely used commercial counterpart. Tom Clancy sells more books than Shakespeare. And this is all because the proprietary information is allowed to make money to promote its own distribution. Like a bacterium, it needs food to grow and replicate, and money is that food.

There are some exceptions. The bible and other religious books certainly are well distributed, but there are clear other factors that led to this, and those who distributed these books actually did well materially from them. There are a few free software packages without commercial counterparts. But these are the exception, not the rule. People who make their software free "so more people can use it" often end up getting fewer users than those who charge for their software.

Indeed, while the principle above was very solid until the 1990s, the internet made distribution so easy and cheap that the balance is shifting, and making something copyright-free is no longer the counter-intuitive shackle on its wide distribution that it used to be. I don't think the balance has shifted entirely the other way, but the trend is evident. There are some areas where copyright-free materials are surpassing their more controlled counterparts, and these areas may grow.

In addition, a philosophy of support for the ability of creators to control their creations doesn't imply that that control can or should be absolute, since once information is in my hands, such control implies control over me and my thoughts. And in particular, defending the rights of the creator does not imply that all information should be locked up in an encryption Alcatraz with the tools that manipulate the content made illegal.

More on this later -- this essay is a work in progress.