Tuesday, May 23, 2006

Property, Schmoperty

One can look at anything as anything else, and what does it get you but a headache?
(Fredric Brown)
There has been some discussion… well, no. There has been occasional mention of the possibility that some might hold the opinion that using the word "property" in this context might be a problem, in that it wrongly frames the issues, drives sloppy thinking, and encourages the misapplication of legal and economic principles drawn from the much older, broader, more respectable, and thoroughly unrelated field of real property law. From this characterization it should be clear what side I come down on. My own opinion can be expressed in a single word: duh. Of course it's a problem, when people routinely miscategorize something important. Bad nomenclature drives sloppy thinking. Sloppy thinking? Bad.

"Intellectual property," so-called, is not property. It is in fact almost entirely unlike property. If you take possession of someone else's song for your own use, are you depriving its rightful owner of that use? Well... no. If you download a song from Limewire, is there some poor listener who will not have an opportunity to hear it? Quite the opposite. If you build a house on your song... the whole notion makes no sense.

Calling protected creations "intellectual property" shifts the focus from the process - copyright - to the thing. But copyrightable works are not really "things," any more than ideas are "things." Copyrightable works are, in fact, ideas... to muddy the waters only slightly, they are ideas which have been "fixed in tangible form." The distinction between ideas and things is elementary, but using the phrase "intellectual property" erases that clear and obvious distinction.

To term electronic filesharing, however unethical or illegal it may be, "piracy," is to grossly misconstrue both copyright infringement and piracy. Pirates don't, on the one hand, work for free. Copyright infringement doesn't, on the other hand, involve theft in any meaningful sense. The MPAA's advertising campaign equating illegal downloading with carjacking and shoplifting is the logical extension of their way of framing the problem; unfortunately, in trying to raise public awareness, they succeed most notably in destroying their own credibility; casting their opponents as villains, they succeed only in encouraging villainy.

The currency of ideas, insofar as the reductive notions of the Dismal Science are applicable, is not Money; it is Credit. When a screenwriter claims that someone "stole his idea," it's not like someone stole his car. He still has his idea. He's just not being given credit for it. Yes, of course, the "credit" can, in many cases, be assigned a rough monetary value. (Anything can be assigned a monetary value. It can be assigned a color, too. Or a smell. That doesn't mean it means anything.) But an idea is not property, a right to copy is not ownership, and an infringement is not theft. The courts occasionally indicate that they understand this. The remedy for a case of "idea theft" is not to take the idea away and return it to its rightful owner; the remedy is, or should be, to force the acknowledgement of proper credit to the originator of the idea, and to make sure that the infringer does not profit unduly from the appropriation.

I know I'm not going to make anyone stop using the term. "Intellectual property" sounds a hell of a lot sexier than any of the alternatives, and I'd hate to think some poor patent attorney couldn't get a conversation going at a party, just because he had to honestly describe what he really did for a living. And in fact, I'm not going to stop using the term myself, any more than I'm going to start saying "randomly generated number" instead of "random number."

I'm just saying.


At 2:12 PM, Blogger Murky Thoughts said...

Yeah, I agree, more or less (1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15).


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