There’s been some talk among the sciencebloggers about the idea of intellectual property, and Bora over at “A Blog Around the Clock” asked me to convert
my thoughts into a post. It’s a serious topic, which is worth giving some deep consideration, and it’s
something that I’ve given a lot of thought to. Back when I was at IBM, I worked on some projects that were
internal and confidential, and also spent several years working on open-source. I’ve got two software
patents to my name. I didn’t do any of that lightly; I spent a lot of time thinking through the morality
of what I was doing, and I’ve been careful to stick with what I think is right.
I’ve got some good friends who believe whole-heartedly that the entire
idea of “intellectual property” is nonsense, and that copyrights (much less patents) should not exist at
all. I can’t agree with that, not on any level. The short version of my disagreement is that the most
basic idea of property is that when I produce value, the value produced is mine. If I take wood, and I do
the work of turning it into a chair, it’s my chair, and my work created a valuable artifact. That artifact, the product of my work, is mine, and I can use it or sell it as I desire. I don’t think that
the fact that a work in intangible changes the essential nature of that: if I write a book, then
my work has created something of value, and it’s up to me to decide whether to keep it, or sell it,
or give it away.
When you get into discussions of this, one of the things that frequently comes up is the idea that
“intellectual property” is a meaningless or misleading term. I’ll refer to this below as the linguistic
problem with IP. I’ll dispense with this quickly: under the law, intellectual property represents
several very different things: copyright, patent, trademark. The linguisting argument is that because each
of those three is very different from the others, muddling them together under a single term is
misleading. In fact, some people, like Richard Stallman, go so far as to say the the term is part of a
scheme perpetrated by the companies that benefit from IP law to advance their own agendas.
I think that’s a pile of rubbish. All of the kinds of IP are, essentially, the same thing: they are
all forms of intangible products of human work that have some kind of value. To me, that’s the really
essential thing. We’re talking about things that are the result of real, value-producing work by a
creative person. They’re covered by different kinds of laws depending on exactly what kind of
value they have. But they’re the same essential concept. A copyright protects something where the
intangible itself is the value: a book, an image, a melody. A patent protects something where the
intangible is a description or means of producing a tangible item: a new way of making an engine. In the
case of copyright, what the law protects is the value to the creator of the intangible itself: if you want
a copy of my book, you need to pay me for it. In the case of patent, what the law protects is the ability
of the creator to use his or her idea to create items that they can then sell: I designed a new type of
engine, so I should have the opportunity to produce it and get it onto the market before anyone else.
In tangible property, I can own objects – books, cars. I can own places – homes, land. I can
own businesses or parts of businesses. They’re all different kinds of property, and different kinds of ownership. But we group them all together under the banner of property – because, ultimately, they’re
all tradeable things with value. They’re covered by very different kinds of laws – just look at the difference between the laws about home ownership versus the laws about vehicle ownership. I don’t see why the fact that we group together the different kinds of tangible property under the banner of “property” is reasonable and appropriate, but the way that we group together the different kinds of intangible possessions as “intellectual property” is deceptive and illegitimate.
Moving on, there’s also a lot of people who believe that the entire idea of intellectual property is,
itself, invalid immoral.
This I disagree with even more strongly than the linguistic argument. I think that it’s a case of
“throwing the baby out with the bathwater”. There are a lot of sleazy big businesses, and it’s absolutely
true that they’re using their influence over the legal system to game it to their advantage. And it’s also
absolutely true that they’re doing a lot of harm by abusing IP law to do awful things. But As much as I
hate the various media companies, and deplore the way they abuse copyrights to cause trouble, I don’t
think it changes the essential point. There’s a huge distance between “a bunch of big businesses have
found a way to exploit a notion of property to screw people over” and “no such notion of property should
Big business and big money can always find ways to game the system and exploit it to their benefit.
The fact that some asshole with a wad of cash can find a way to use the law in an evil way doesn’t make
the law itself evil. Credit card companies got the government to rewrite bankruptcy laws in a way that
makes it easier for them to screw the non-rich over, while making sure that the rich were well protected.
That doesn’t make bankruptcy an invalid idea: it makes it another case of assholes exploiting the system. I don’t see IP as being all that different. There’s something legitimate in protecting the value of
the things that people create with their work, whether it’s tangible or intangible.
To me, when I look at the argument against intellectual property – and in particular about copyright,
I find that it leads to the thoroughly bizarre idea that the only work that has any real value is work
that directly alters the physical raw materials that go into a product. When you do work that directly
modifies raw materials, then you’re doing something valuable. When you do work that doesn’t directly
modify raw materials, then your work is fundamentally worthless. If you can design a new kind of engine,
then you haven’t done anything valuable. If you make the engine out of metal, then you’ve done
When you buy a book, you’re not buying a pile of paper that incidentally has words on it. You’re
buying it for what’s inside of it. And what’s inside of it is work, done by another person. Just because
it’s work that a million people can all enjoy doesn’t make it any less work. Just because it’s easier to
copy than a sculpture doesn’t mean that it’s not work, or that it’s any less valuable. What is valuable is
the words, and the ideas in the work. It doesn’t matter whether the words are printed on
paper with ink, displayed on the screen of a computer, read aloud and recorded, or some other form that
hasn’t yet been imagined. There’s a value in the creation of a book, but the value isn’t in the form
of anything tangible.
If intellectual property isn’t property, then you’re saying that it’s only the tangibles that are
really valuable. That means that if I publish a book, and I say you can’t have it unless you pay me $50,
that’s fair, because I’m giving you something physical. If you take copies of the book without paying me
for them, then you’ve committed a crime by stealing. If you don’t take copies, but you burn copies that
you didn’t buy, then you’ve committed a crime by destroying my property. Even if you don’t steal or
destroy the books, but you physically block my warehouse so that I can’t ship books to buyers, you’ve
still committed a crime, by obstruction of commerce. But if you copy my book, and then sell those
copies, then there’s no crime: because you’re still delivering the tangible product; you’re purchasing the
tangible goods from which the copies will be produced, and you’re paying the cost of producing the copies.
If the intangible material – the words on those pages, isn’t property then you’re not doing anything wrong.
I think that’s crazy. It’s my work. I should have the right to decide what gets done with it, and on
what terms. The value isn’t tangible – but it’s still value. The property isn’t physical, but it’s still mine. I created it.
To be sure, there’s a huge problem with IP right now. It’s not that the idea of intellectual property
is flawed in itself. The idea is sound. It’s more than sound – it’s absolutely essential. The
execution is the problem. And the problem with the execution is the same as the problem with all sorts of
laws in our society.
The problem is that we’re living in a society with large, powerful corporations which
have learned to exploit the law. It’s not just intellectual property that’s been screwed up. We can see
the same thing in things like bankruptcy law, tax law, and so on. Large businesses with lots of power and
lots of money can influence laws to work in their benefit, to the detriment of society. Intellectual
property is nothing special in that regard.
I don’t think that the legal protection of intellectual property rights should be exactly the same as
the legal protections over various kinds of tangible property – just like I don’t argue that property
rights over a piece of land should have exactly the same kinds of legal protections as property rights
over a piece of jewelry. We do distinguish different kinds of property, and the different kinds of
legal protections we give to them. IP should be governed by different laws, because it’s a different kind of property.
When it comes to the laws governing IP, that’s where I turn into an anti-IP zealot. The current legal regime of IP law is a monstrosity. The point of IP law is to allow creators to benefit from their creations, while also benefiting the community. But that’s not how it works, now. Now, the creators
don’t benefit: in fact, the law works to stifle creators and prevent them from benefitting from their work. The community doesn’t benefit. The only ones who benefit are the corporations, and the congress-critters who take their bribes.
So what would I do? How do I think that IP law should work?
Trademarks: Trademarks work fine. I’d leave them alone.
Copyright: When copyrights last the life of the creator plus 90 years, it’s not benefiting the creator; the creator is long dead. It’s certainly not benefiting the community: it means that
virtually all creative works will be lost before they can revert to the public domain. The current situation is awful for creators, and awful for the community. Copyrights should be for a reasonable term: long enough for the creators to benefit, but short enough that things do revert to the public domain before they’re lost. I’ve heard proposals for various terms; something like 10 year terms with two renewals (for a maximum total of 30 years for an actively protected copyright) seems reasonable; as much as 50 would still be workable. The key is that the default term be reasonably short, but
extendable for a reasonable period of time if and only if the owner of the copyright takes a
deliberate action to extend it. That guarantees that creators have the opportunity to benefit,
and works aren’t lost.
Patents: Patents are a similar situation: the current patent law allows ridiculous, trivial
things to be patented. It also makes the patents last for a ridiculously long time. The point of a patent
is to allow an inventor to share information about their invention with the public without losing the
ability to be the first to benefit from the invention. That means that it needs to last long enough to
give the creator a chance to do something with it, but not so long that it prevents further progress.
Instead, it’s turned into a monstrosity that makes it damned near impossible for an actual inventor to do
anything without getting squashed by a large company; and it makes the protection last far longer
than is needed to protect the inventor. Back when the law was created, 14 years of protection may have
been reasonable. Now, for many of the fields covered by patents, it’s insane. Patents should last long
enough for the inventor to get their idea to market, but not much longer than that. They should be
dependent on the nature of the invention.
A piece of software that gets to the market three months after the patent is filed, and which is
hopelessly obsolete in 5 years shouldn’t be getting more than 10 years of patent protection. A new kind of
electrical generator that takes special tooling to produce, so that it takes a decade to tool up and get
production going should get the 10-15 years that is needed for the inventor. The term should be
determined by when the inventor starts to profit from the invention. The patent should
last for a maximum period, and that period should be terminated when either the inventor stops
trying to develop their invention, or when they’ve reached the point of profiting from it before the term
But more important than term, what is patentable should change. The current system actively
encourages the filing of trivial patents. The standards of what is patentable need to be changed
dramatically. A patent should only protect something significant that the inventor couldn’t benefit from if information about it was divulged before they brought it to market, and
the protection should end when that happens. Trivial patents should never be granted; and it should be easier to overturn patents if legitimate prior art can be demonstrated.