Chad Perrin: SOB

26 August 2009

The Mythology of Intellectual Property

Filed under: Cognition,Liberty,RPG,Writing — apotheon @ 04:41

Intellectual Property may be the most pernicious myth of our time. The lies, misunderstandings, and myths of Intellectual Property so obscure the truth about copyright, patent, and trademark law that even those of us who oppose such legalisms must still work to shake loose our last remaining illusions. It seems like every few months I stumble across yet another insight into the nature of so-called Intellectual Property that leaves me surprised I never noticed the flaw in my thinking, and aghast at how deeply rooted the mythology of Intellectual Property has become.

The Product of the Intellect Isn’t Property

The first, most obvious, and perhaps most difficult to fight among all the superstitions surrounding Intellectual Property is the notion that it is property at all — at least in the way people talk about it being a matter of property. People talk about “owning” copyright, and needing the protection of law to defend one’s ability to profit from what one “sells”. The truth of the matter is that copyright and property laws have nothing in particular to do with each other. They are entirely distinct bodies of law.

Even the law doesn’t recognize copyright as “property”. If you violate copyright laws, it is not called “theft”; it is called “copyright infringement”.

Here’s a quick litmus test for your notion that copyright is property: Why does copyright have a limited period under law, while property is forever? While you’re at it, look into the US Supreme Court rulings on the subject starting with Wheaton v. Peters.

People Who Oppose Copyright Aren’t Thieves

Try disabusing someone of notions of the “obvious” moral imperatives of copyright law in a public online discussion forum, and you will almost certainly find yourself being called a thief. The “argument” tends to go something like this load of claptrap:

[You] like to steal things that [you] like. [You] have come up with several longwinded rationalizations for why [you’re] entitled to have everything that anyone in the world creates without paying for it.

Cries of “Thief!” are apparently the equivalent of calling someone a Nazi when it comes to a discussion of the ethicality of copyright law. Similarly to Godwin’s law, we seem unable to escape from the Law of Copyright Discussion Fallacy: As a discussion of copyright law grows longer, the probability of someone’s argument being fallaciously dismissed as mere justification for theft approaches one. The thief card gets played more often and with greater certainty in discussions of copyright than the Nazi card ever did in Usenet, and it doesn’t prove a thing about the rightness or wrongness of copyright law. Try telling that to some self-satisfied copyright-wing conservative who isn’t willing to actually think through the opposing argument, however, and you will find yourself frustrated by the difficulties of teaching a pig to sing.

Patents Don’t Encourage Innovation

Milton Friedman once articulated the core economic fallacy of patent law quite clearly:

For one thing, there are many “inventions” that are not patentable. The “inventor” of the supermarket, for example, conferred great benefits on his fellowmen for which he could not charge them. Insofar as the same kind of ability is required for the one kind of invention as for the other, the existence of patents tends to divert activity to patentable inventions.

In short, patents don’t encourage innovation; they simply skew market activity toward patentable innovations.

I remember, back in the ’80s, that the Big Thing for eco-hippies to complain about was the vanishing rainforests. All kinds of crazy excuses were advanced for why we should stop the slash-and-burn farming practices of South America, including the lunatic notion that we’d destroy the Earth’s ability to renew the oxygen content in the air and we’d all end up suffocating as a result, completely ignoring the fact that the vast majority of plant-based oxygen production happened in the ocean. Such arguments ultimately only harmed the eco-hippies’ case, when arguments based on real concerns over vanishing rainforests would surely have been much more successful. One such crazy argument was that the cure for cancer could be hiding in that forest, waiting to be discovered, amongst its many uncategorized species of life, and all we had to do to preserve it is ensure that nobody ever destroys plants in the Amazon rainforest again (thus preventing them from finding the cure for cancer).

The real problem there, however, is that nobody will fund the search for a cure for cancer (or HIV, or ebola, or whatever) that comes from a natural source. Extracts from natural sources are not patentable. Only the process of creating synthetic compounds is patentable, which makes pharmaceutical research focus much more on developing salable synthetic compounds that require only the most minimal “innovation” rather than cures for the most problematic diseases. An artificial advantage has been granted to any pharmaceutical research firm whose focus is on convenience synthetics, creating a skewing of market forces away from pursuit of necessary cures regardless of source.

Copyright Isn’t the Natural State

People seem, for some reason, to think that copyright is an integral part of a natural state of property ownership. Self-styled libertarians in particular are often guilty of this line of thinking, particularly when the “we have rights because we own ourselves” set starts jawing about Intellectual Property. The truth is that copyright isn’t about property at all; it’s about censorship.

People may balk at the notion that copyright is censorship. They think of censorship as being something government does to suppress original speech. The truth of the matter, though, is that speech doesn’t have to be original to be censored. Simply repeating something you were told is a form of free speech — and if someone else said it first, that person has the power of law on his side to censor what you’re saying.

Even when confronted by obvious evidence of the fact that copyright is just a subset of censorship policy, as in the case of people who are threatened with DMCA takedown notices when they post customer service emails online while complaining about the company that sent the emails, people typically express their dismay that copyright is being “abused” to enact “censorship” when that’s “not what copyright is for at all”. Bad news, sweetie; that’s not abuse of copyright. That’s just the way copyright works.

Copyright is, in fact, such an unnatural state of affairs that it didn’t even exist as a policy until a mere 77 years before provision for copyright and patent law was written into the US Constitution, with England’s Statute of Anne.

Trademark Law Is Not Trouble-Free

Even many who oppose copyright and patent law subscribe to the notion that trademark law is the exception to the “Intellectul Property law is bad” rule. It seems clear, at first glance, that trademark law just protects us against fraudulent behavior — and for a while, I thought it was exempt from the problems of copyright and patent laws. The truth of the matter is much more insidious, however.

Trademark law is not at all necessary to protect us from such fraud. The law should simply recognize malicious deception as a violation of rights in and of itself, regardless of any trademark claims. Meanwhile, trademark law has been used as a means of circumventing grants of license when distributing derivative works. An accidental case of this sort of problem is that of the trademark brouhaha over Firefox that caused the Debian project to rebrand it as Iceweasel. A much more intentional and malicious case is that of the way some third-party publishers deal with the OGL.

Take a look at the “open content” and “product identity” statements accompanying the OGL inside your D&D-derived game books at some point in the future (if you have any). Many of them will contain severely limited language about what qualifies as “open content”, such as the following from the Iron Kingdoms Character Guide, published by Privateer Press:

“Open Game Content” means the game mechanic and includes the methods, procedures, processes and routines to the extent such content does not embody the Product Identity and is an enhancement over the prior art and any additional content clearly identified as Open Game Content by the Contributor . . .

This boils down to saying “Anything copyrightable isn’t Open Game Content unless we specifically say it is, and anything that falls more into the realm of patents is Open Game Content.” Considering that there’s already case law pointing out that anything that falls under the rubric of patent law isn’t subject to copyright anyway, Privateer Press is just saying “Yeah, all that OGL stuff? Fuck you.” The publisher is just trying to get away with something. In fact, I’m pretty sure that if WotC/Hasbro wanted to, it could destroy the entire Privateer Press line of Iron Kingdom RPG books and do some severe financial damage to this third-party publisher by taking it to court over violation of the OGL.

It gets worse when you see the Product Identity identification:

“Product Identity” means product and product line names, logos and identifying marks including trade dress; artifacts; creatures characters; stores, storylines, plots, thematic elements, dialogue, incidents, language, artwork, symbols, designs, depictions, likenesses, formats, poses, concepts, themes and graphic, photographic and other visual or audio representations; names and descriptions of characters, spells, enchantments, personalities, teams, personas, likenesses and special abilities; places, locations, environments, creatures, equipment, magical or supernatural abilities or efects, logos, symbols, or graphic designs; and any other trademark or registered trademark . . .

Hell, I’m probably violating their asinine license-violating version of the license by discussing it with you, all because of this misuse of “product identity” — which is essentially a euphemism for “pseudo-trademark”. For those of you familiar with Microsoft’s antics, think “look and feel”.

Plagiarism Isn’t a Subset of Copyright Law

Plagiarism is deception. Copyright infringement is copying. Even giving credit to someone is copyright infringement if you copy the part of the work that gives credit to the original author. Ironically, leaving out attribution for the original author actually reduces the amount of copyright infringement of which you’re guilty. I have no fucking clue how anyone can possibly think that eliminating copyright law is the same as endorsing plagiarism. If you copy something and redistribute it, as long as you don’t claim you created it when in fact someone else did, you aren’t committing plagiarism.

For some incredibly stupid and unfathomable reason, some people actually think that without copyright law plagiarism is “okay”, though.

Copyright Law is Not Enforceable

I recommend giving my recent TechRepublic article The Pirate Bay is back with a vengeance (which you’d already know about from an email if you were involved in the copyfree community . . .) for more on this subject. I’ve written about it before, and don’t feel like padding the word-count of this SOB entry much more.

And So On

I’m sure I’ve left a lot out that I could say. I could write a book on the subject, but you’re not here to read a book, and I have other stuff to do tonight — like eat dinner and do some work on some RPG materials (which I will be releasing under an open content license when it is “done enough” to bother, most likely the Open Works License).

Disclaimer

I am not a lawyer. None of this is legal advice.

23 Comments

  1. Excellent analysis.

    Comment by Chip Camden — 26 August 2009 @ 05:09

  2. Thanks!

    Comment by apotheon — 26 August 2009 @ 05:18

  3. I do completely agree with your assessment. Copyright is a form of censorship. However, considering the jobs of many people depend on this form of protection, is it, at some level, necessary?

    Are you even saying it needs to be abolished? I’m just trying to envision a world without and it’s difficult considering how engrained intellectual property is in my perpsective of it.

    I’d definitely be interested in hearing your solution and how it would affect IP.

    Comment by Mad Brew — 26 August 2009 @ 06:15

  4. Basically, I’m of the opinion that so-called “intellectual property” laws should be abolished — but probably not all in one shot. Phase things out over time, give the economy time to adjust. Unfortunately, that’s not likely to happen; even if you get it started, some corrupt bureaucrats and corporate bloodsucking monopolists will turn any progress around and head things back down the road they’re already on.

    I’m a cynic, I guess. Can you tell?

    Anyway . . . my plan is to just gripe about it when I feel particularly annoyed, and hope that maybe I’ll convince someone from time to time, thus reducing the sheer mass of majority stupidity in the world. I’m far less interested in investing much of myself in trying to fix the world than I once was, at least in any direct manner, due to the incredible weight of opposition to any actual rational sense in the world.

    Comment by apotheon — 26 August 2009 @ 08:29

  5. So how are people who earn a living through their work supposed to, if people make it freely available? Whats the motivation to create?

    Comment by Newbiedm — 26 August 2009 @ 08:55

  6. […] following was inspired by a question asked in response to The Mythology of Intellectual […]

    Pingback by Chad Perrin: SOB » It's not my fault your business model sucks. — 26 August 2009 @ 10:39

  7. I typed up a response of about 500 words to answer your question, Newbiedm, but ultimately decided that what I typed should stand alone as its own SOB entry. Thus, in answer to your question, I give you It’s not my fault your business model sucks.

    Don’t let the confrontational title deter you. I tried to actually be informative and provide some meaningful answers to your question.

    Comment by apotheon — 26 August 2009 @ 10:43

  8. So how are people who earn a living through their work supposed to, if people make it freely available? Whats the motivation to create?

    Hmm, if I look around the blogosphere I see a lot of people willing to give away stuff for free. Just look at all the roleplaying games that are available for free either under a Creative Commons or Open Gaming license. And almost every blog is a good example for what people are giving away for free. In fact it’s not free, I for example pay approx. $14 every month to be able to write posts that others are allowed to freely use, as long as they credit me and don’t sell the stuff. Or just look at Cory Doctorow, as far as I know most if not all his books can be freely downloaded from the net, you only have to pay for printed books and he can still make a living. It’s possible, just different than we did it back in the 19th or 20th century.

    Comment by Stargazer — 27 August 2009 @ 03:34

  9. Nice post Chad. If only we had a way to disseminate this message to a wider audience… :)

    @newbiedm – Apart from Chad’s and Stargazer’s responses, add in Jonathan Coulton and Amanda Palmer; if you want to take a look at the business model go to techdirt.com and do a search on CWF+RTB.

    Comment by satyre — 27 August 2009 @ 04:45

  10. Yeas, I understand your message. But I’m a father of 2. If I make my living as a music engineer for a producer, and cd sales are gone because of people “sharing” my work. What am I supposed to feed my kids from? It happens. There are real faces and families behind this sort of thing. Not just the artist on the cover, or in a books case, the authors… the publishers, editors, typesetters, guys that get no credit, just a paycheck.

    Giving stuff away is very idealistic, but when people depend on this stuff selling, in order to feed their kids, well it takes a different meaning for me. I thought much like you guys when I was younger. Then I suddenly got married, got kids, and had to feed a family. There’s real people behind all the sharing that are impacted by these things.

    One thing is choosing to give it away. I get that. For some people it works. I get that too.

    But if I create something, and choose to go about selling it (because it’s mine and that’s what I want to do), what gives anyone the right to try to harm me by undercutting my attempts at making a buck by giving it away? Nobody has the right to harm my atempt at a living. Sorry. That, I’m not buying. And I respect people who defend their interests, because I would as well.

    Comment by newbiedm — 27 August 2009 @ 05:07

  11. If I make my living as a music engineer for a producer, and cd sales are gone because of people “sharing” my work. What am I supposed to feed my kids from?

    There are people who are suffering under the current model who would do much better under an alternative model. You’re talking about trading their happiness, success, and livelihood for your own. It may sound harsh to you, but given a choice between some people having a hard time under the current model and others having a hard time under an alternative model where people’s rights aren’t being trampled for the sake of the status quo, I choose the option where people’s rights are respected, even if that means you lose your job — especially considering it would mean, in the long run, that other people who don’t have jobs get jobs.

    Any change in the way economic markets run themselves will result in a shake-up in the job market. That doesn’t mean that change is bad.

    There are real faces and families behind this sort of thing. Not just the artist on the cover, or in a books case, the authors. . . the publishers, editors, typesetters, guys that get no credit, just a paycheck.

    These are the same arguments used by anyone who wants to stop technological progress. This is much more important than mere technological advances in an industry; this is a matter of ethics and liberty.

    Giving stuff away is very idealistic, but when people depend on this stuff selling, in order to feed their kids, well it takes a different meaning for me.

    You don’t have to “give stuff away”. You just can’t ethically tell someone what to do with what you’ve already sold to him without an explicit, voluntary contract (and no, copyright is not a contract, nor is an end user license agreement).

    I thought much like you guys when I was younger. Then I suddenly got married, got kids, and had to feed a family.

    The “I’m older, so I know better” argument doesn’t prove anything other than your failure to grasp the intricacies of a logically valid argument. Furthermore, you surely don’t know how old most of us actually are, if not all of us. I don’t know how old Stargazer or satyre are, and I have a sneaking suspicion you don’t know how old I am either if you’re implying I’m “young”. I’m not some teenaged idealist; I’m a mid-thirties cynic.

    But if I create something, and choose to go about selling it (because it’s mine and that’s what I want to do), what gives anyone the right to try to harm me by undercutting my attempts at making a buck by giving it away?

    Did you not notice what I said in my newer SOB entry in response to you? I specifically pointed it out with a link, in the hopes you would read it and take what I said there into account before you replied further. I’ll quote a relevant point for you:

    I make money by writing (both articles in English and software source code), in fact — far more than the piddly quantities I get form advertising on this obscure site — and I would love for copyright to go away. It’s not like I’m working in manufacturing and advocating for someone else’s industry to change all its rules. I’m talking about what I want to happen with the very fields of endeavor where I make money.

    A friend of mine, also a consultant who writes software for money, linked to this SOB entry, is a fair bit older than me, and has children of his own, including one with autism (stuff I feel comfortable sharing considering he has written about it in the linked Weblog); he is willing and able to think the matter through more fully than you, and encourages my writings on the subject because he realizes both the importance of discussion such matters of rights and liberties and he knows one needn’t rely on government enforced monopolies to make a living as a creator of original works.

    Nobody has the right to harm my atempt at a living. Sorry. That, I’m not buying.

    I’m sorry, but when you put it in terms like that, I don’t know any other way to respond to get my point across other than to make it as blatant and clear as possible. If you find this offensive, just remember that you set the stage for it by implying that I’m trying to “harm” your livelihood and that on which your children depend. As far as I’m concerned, when you start basically calling me some kind of malicious assailant out to “harm” you, you’ve abandoned civil discussion. With that disclaimer aside, the only answer to what you’ve said that comes to mind right now is this:

    You don’t have the right to send thugs into my home with guns to get me to stop using what I’ve acquired through peaceful means however the fuck I like. Period.

    I’m not harming your fucking livelihood. You are, by adhering to and depending upon a business model that requires violating others’ rights.

    It’s not my fault your business model sucks.

    Frankly, considering you haven’t even addressed the discussion of alternate business models and the fact that there are people already making a living off similar lines of work without relying on copyright, I have to assume you aren’t even reading what I say and bothering to think about it at all. You see that someone doesn’t like copyright and patent law and you flip your fucking lid, throwing out arguments that have already been addressed. Either take account of things that have been said, or expect to be treated the way you behave; like a child who can’t be bothered to study a subject before acting like he knows it all, and needs a time out.

    Comment by apotheon — 27 August 2009 @ 08:12

  12. A lot of people rely on organized crime for their livelihood. Copyright law as it stands today is state-sanctioned crime.

    Comment by Chip Camden — 27 August 2009 @ 09:00

  13. Wow man. I’ve abandoned civil discussion? Okay.

    I guess this is the place to come to to be taught about things while being called a moron, rather than debate about them in a civilized matter. You’ve got it all figured out.

    I must have stumbled into the wrong place, sorry about that chief.

    Good luck. Sorry I offended you and “blew my fucking lid”, guy.

    Comment by newbiedm — 27 August 2009 @ 09:06

  14. It was interesting to see how you framed the same facts differently than I might have. It’s all true, of course, but I probably wouldn’t have drawn the copyright = censorship parallel so explicitly. From my experience, the connotations of censorship have more to do with motive than means, so a lot of potential forms of censorship (like having your identity excluded from a published interview, or statutes preventing people from walking around naked in public) will not be generally perceived as such (especially as “censorship” is generally negative, so people supporting a form of censorship won’t likely refer to it as such, just like supporters of copyright don’t call it censorship). I suspect that most of your audience is the sort to take a more rational interpretation of the words you use, but many people would hear “censorship” and jump to a conclusion of either “no it isn’t” or “they’re legislating thought and morality”, neither of which is actually true. But that’s life, and these are complicated issues. Overall, a very good article.

    Comment by DamnedScholar — 27 August 2009 @ 09:30

  15. newbiedm:

    Wow man. I’ve abandoned civil discussion? Okay.

    That’s what happens when you turn the other people in the discussion into marauders trying to destroy your livelihood with your words, rather than being willing to consider whether their positions might have value you’ve overlooked. That’s what happens when you dismiss and ignore their already presented arguments and just make unsupported assertions that have already been addressed as if repeating yourself disproved their counterarguments.

    I guess this is the place to come to to be taught about things while being called a moron, rather than debate about them in a civilized matter. You’ve got it all figured out.

    If you actually engaged the debate, rather than simply dismissing it and repeating assertions that have already been addressed, you’d have a lot more success having a reasoned discussion.

    You very clearly stated that you’re not buying that anyone has a right to harm your livelihood. That has an underlying assumption implicit in it that you absolutely will not consider the possibility that what we’re discussing might not “harm” your livelihood. When you reject the principles of the opposing argument as the very basis of your involvement in discussion, and predicate an accusation of trying to cause harm on that assumption, you’re clearly not interested in an actual civil discussion. You’ve abandoned civility in favor of propaganda and insult. Period.

    Let me know if and when you want to come back to reasoned discussion, and we can talk about it. In the meantime, I can only take you at your word, which states clearly that you’re not interested in considering any of my reasoning.

    DamnedScholar:

    Thanks for contributing to the discussion. You make some excellent points (as do Sterling and others whose comments come further up the thread), and I appreciate it. Well-reasoned arguments and considerations of details (like yours) always help to increase the value of the conversation.

    Comment by apotheon — 27 August 2009 @ 09:33

  16. I’m not sold yet, but tell me more about this new economy you’re thinking of.

    If someone has written a book, software, music, etc. How do they go about making money off of it in the new economy you’re describing? This person has put a lot of time into their work, and he or she would like to be compensated so that person can have more time to work on the next book/software/music/etc… and maybe pay their expenses from the project rather than their other job.

    And without copyright law, what stops someone else from releasing a copied version of it free or cheaper because that other person or business doesn’t have to pay for the cost of creating the item?

    Comment by Joe — 27 August 2009 @ 12:12

  17. tell me more about this new economy you’re thinking of

    There’s more discussion of potential business models at It’s not my fault your business model sucks. I think you might want to give that a look.

    If someone has written a book, software, music, etc. How do they go about making money off of it in the new economy you’re describing?

    The reason I recommend giving that other discussion a look is simply that this is a very, very broad question, with many more than one possible answer. In fact, some of the answers are offered, or at least hinted at, in the SOB entry that starts the other discussion.

    And without copyright law, what stops someone else from releasing a copied version of it free or cheaper because that other person or business doesn’t have to pay for the cost of creating the item?

    In principle, nothing stops them. The key is to develop a business model that works quickly, or that slows initial spread of the material in certain limited cases, and that creates greater value from something only you can provide. For instance, a musician could distribute recordings for free on the Internet and charge admission for performances — and you’re not going to get a performance by the original artist from someone other than the original artist, so that’s a natural monopoly. I mentioned that sort of possibility, as an example, in It’s not my fault your business model sucks.

    Comment by apotheon — 27 August 2009 @ 12:34

  18. It’s not a book or a piece of music, but my business model in my consulting business does not rely on copyright protection for my source code. People pay me for what I can do, rather than for what I have done. I think the content industries need to go the same way. Pay me to be a writer, not for what I’ve written.

    Comment by Chip Camden — 27 August 2009 @ 12:39

  19. That’s an excellent way to put that, Chip.

    I’m dismayed by the way people basically use a formulation akin to “Once I’ve created something, the world owes me a living!” as justification for strict copyright enforcement. Just like someone who makes a chair, someone who writes a novel or a piece of software should have to find someone willing to give money for it in and of itself, without governmental interference; just like someone who makes a chair, someone who writes a novel or a piece of software should not be able to use government to ensure that others won’t copy the work.

    I can’t wait for 3D printers to become a practical reality in homes across the nation. Will people start trying to claim that making copies of a chair (or a coffee mug, or a Mont Blanc style of pen, or whatever) with that printer are somehow violating copyright? Will they admit they ever thought differently, if so?

    Comment by apotheon — 27 August 2009 @ 10:41

  20. You can bet that 3D printers will raise all sorts of copyright, patent, and trademark issues. But it will also make it perfectly clear that attempting to prevent copying in any form is ultimately doomed to failure.

    My attitude is “Go ahead and copy what I’ve done. I’m focused on my next project.”

    Comment by Chip Camden — 28 August 2009 @ 08:35

  21. […] The Mythology of Intellectual Property Filed under: Cognition, Liberty, RPG, Writing — apotheon @ 04:41 […]

    Pingback by The Mythology of Intellectual Property — 3 July 2011 @ 08:15

  22. Very nice. I’ve reposted it here: http://c4sif.org/2011/07/the-mythology-of-intellectual-property/. We have additional resources on the evils of IP that you may find of interest at http://c4sif.org/resources

    SK

    Comment by Stephan Kinsella — 3 July 2011 @ 08:16

  23. BTW yes the IP war on 3D printers has already begun: http://c4sif.org/?s=3d

    Comment by Stephan Kinsella — 3 July 2011 @ 08:17

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All original content Copyright Chad Perrin: Distributed under the terms of the Open Works License