by Steven J. Owens (unless otherwise attributed)
The idea that knowledge — information, science, art, music, literature — can be property is a recent and pernicious idea perpetrated by certain industries. It is, at best, Intellectual Privilege, not property.
Our society finds it useful to grant people certain privileges, in order to "promote the progress of science and the useful arts" (US Constitution, Article 1, Section 8). When those privileges fail to promote progress, or impede progress, congress has a duty to change those privileges.
When you discuss this topic with normal people, they tend to either not grasp the fundamental distinction between property and copyright, or they tend to get sidetracked about spurious issues about "stealing credit" or compensating creators for their work.
I want to focus here on the practical differences between knowledge and property, so for further discussion, see, below, Intellectual Privilege
1) Property can be held, physically possessed.
2) When I take property from you, you no longer have it.
3) Property has a clear origin; you start with raw materials, sometimes you you add labor.
On the other hand:
1) Knowledge cannot be physically possessed. It can only be known.
2) Knowledge cannot be taken away from you; when I learn some knowledge that you know, you still know it.
3) Knowledge doesn't have a clear origin; it is all derived from existing human culture and knowledge.
1) It is easy to see who possesses a piece of property.
2) It is easy to see that property is (or can be) exclusive, or what the legal beagles call "rivalrous", a zero-sum game. To the extent that one person uses it, they limit the amount that another person can use it.
3) It is easy to see where property came from. It is easy to trace the movements of a piece of property.
Here it is in spiffy table format:
|Property can be held, physically possessed.
It is easy to see who possesses a piece of property.
|Knowledge cannot be physically possessed. It can only be known.|
|When I take property from you, you no longer have it.
It is easy to see that property is (or can be) exclusive, or what the legal beagles call "rivalrous", a zero-sum game. To the extent that one person uses it, they limit the amount that another person can use it.
|Knowledge cannot be taken away from you; when I learn some knowledge that you know, you still know it.|
|Property has a clear origin; you start with raw materials, sometimes you you add labor.
It is easy to see where property came from. It is easy to trace the movements of a piece of property.
|Knowledge doesn't have a clear origin; it is all derived from existing human culture and knowledge.|
The real meat of this essay, the part I really want people to understand, is above. The key point is that there are fundamental differences between property and knowledge, and the confusion about the two leads people to give up their rights.
However, if, like many people, you're still hung up on some of the following side-issues, keep reading.
Often the supporters of copyright abuse - the people who want to twist copyright into something the founding fathers never intended; the people who want to use copyright to own knowledge; the people who, you should note, are almost never creators themselves - will claim that anybody who opposes them is out to cheat and rob the creators of their just rewards. We have a technical term to describe that sort of claim — we call it lying.
Artists, writers, composers and other creators deserve to be paid for work, and we, as a society, need to encourage creators to create and share what they create, for the good of society*. However, anybody who claims that this is what justifies intellectual property abuse is (all together now) lying.
(* This is, in fact, in the US Constitution (see "Creators Deserve To Be Paid II). However, treating knowledge as property is NOT in the US Constitution.)
First, if you look closely, you'll notice that these abusers are seldom actually creators. Mostly they're middle-men who are profiteering off the work of creators. So they're lying when they imply they speak for the creators.
They're also lying to confuse the issue. This is what you call a "Straw Man"; they can't win against the other side, so they grab one of the other side's uniforms, stuff some straw in it, beat the crap (er, straw) out of it, and declare victory!
Specifically, the lie is that the other side's argument includes some weak claim, chosen particularly so they can easily defeat it, and then they defeat it. Or sometimes they lie by defeating some minor point of the other side's argument, and then claiming they've defeated the whole argument.
In the most sneaky examples of a Straw Man argument, they don't come right out and say what point they're defeating. Instead, they figure out a bogus point that's very similar, but not quite identical, and argue against that, counting on the confusion between the two. If you're not careful, you can find yourself being suckered into believing you really made the bogus claim!
People seem to do this a lot when they have no case, because, well, they have no case.
People often bring up the idea that somebody will fraudulently claim credit for authoring another's creation.
Lies are lies, fraud is fraud. Lying to claim authorship of a creation is just as wrong as lying to claim control of knowledge as if it were property. This is irrelevant to the idea of treating knowledge as property.
Fraudulent claims of authorship are a legitimate concern, but when supporters of the IP fraud bring up this concern, even though they know it's not relevant, it's another example of a straw man (see Creators Deserve To Be Paid).
I'm told that typical European law already treats ownership and authorship as two distinct things, which is something the US should catch up on (but maybe we haven't because clearing up that confusion wouldn't serve the purposes of the abusers paying for the new intellectual privilege laws).
The founding fathers of the United States recognized that creators deserve to be paid, which is why they put it in Article 1, Section 8 of the United States Constitution, the "Enumerated Powers" clause, the part of the Constitution that lists all the powers Congress will have:"The Congress shall have power...
To promote the progress of science and the useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."
Capitalism is about encouraging good things in society by creating a feedback loop (getting paid). When capitalism works right, society pays people for doing things better, for improving society by producing goods more efficiently, or getting goods to where they need to be at the right time, in the right amounts, with less waste, and so forth.
Unfortunately, capitalism, as you may have noticed, is strongly oriented towards goods, towards property. A heck of a lot of the time, this is a fine thing, because it sucks to not have enough food, clothes, and shelter to go around, and those are mostly (ta-da!) goods. Goods are, well, good. But they ain't all there is to life.
The founding fathers of the United States recognized this. They also recognized that earlier versions of laws regulating knowledge had led to abuse. Technology has been the core of copyright issues from the start; copyright wasn't first invented for authors, but for owners of printing presses. So has corruption:
The first version of copyright was basically a monopoly, the "Licensing Act", that the King of England granted to the London guild of printers in 1662. Their official name was The Stationers Company, if you want to look it up.
Under the Licensing Act, authors never owned copyrights; copyrights only came into existence when a printer agreed to publish the document. The Stationers Company abused their privilege so much that Parliment passed the Statute of Anne in 1710 to revise the whole setup. The Statute of Anne is the philosophical forebear of the US copyright system.
So the US founding fathers weren't happy with copyright and patents as a solution, but they recognized the need for something, and decided that "for limited times" would keep the abuses from getting out of hand. Today a "limited time" has stretched far from its original 14 years. It's now "life of the author plus 50 years"!
Whoops, 'scuse me, Congress raised that in 1998 - retroactively - to "plus 70 years". Corporation-created works get 95 years. Every time certain copyrighted works owned by Certain Gigantic Corporations are about to pass into the public domain, congress wakes up and passes another copyright extension.
The next is scheduled to happen in 2023, but meanwhile,in 2012 the Supreme Court even ruled that Congress can take works back from the Public Domain!
In the original version of this document, in the introduction, I called Intellectual Property "a pernicious fraud". I revised that to say, as it does now, "a pernicious idea", because I decided the original phrasing was too ambiguous. It might have been taken as an accusation that some specific person or group committed fraud in perpetrating the idea of "intellectual property".
First, this is a pretty serious allegation of legal wrong-doing, which, if I slipped and directed it any specific person or organization, could be considered libel.
Second, and more importantly, it doesn't make it clear enough that the very phrase "intellectual property" is inherently fraudulent: the phrase implies that ideas, knowledge and culture - things of the intellect - can and should be treated as property, which is fundamentally wrong.
Unfortunately, there's a human need to simplify and categorize things, even if those categories are too broad and an oversimplification. Richard Stallman has a good article on this topic, titled "Did You Say 'Intellectual Property'? It's a Seductive Mirage", at:
Richard Stallman is the father of Free Sofware, founder of the Free Software Foundation (FSF), creator of the GNU Public License (GPL) and the man probably most directly responsible for the success of Linux (Torvalds wrote the kernel, the rest of the system came from the GNU Project). Despite this, I don't entirely agree with him here. I think he's more right than he knows, when he writes:
"The term "intellectual property" also leads to simplistic thinking. It leads people to focus on the meager commonality in form that these disparate laws have -- that they create artificial privileges for certain parties -- and to disregard the details which form their substance"
I think he underestimates the human need for simplification. Sure, most people who actually need to deal with this stuff - copyright, patents or trademarks - on a regular basis don't need a catchall phrase. But most people do. Most people don't care enough to distinguish, and in their minds, those distinct categories all blur together - which explains the popularity of the phrase. Even I find it useful to have a catchall phrase.
However, I think in this very sentence, Stallman hits on - or hints at - the perfect replacement phrase: Intellectual Privilege. Heck, we won't even need to change the acronyms.