Matter, Energy, and Life of Michaela A. Castello.

I Don’t Believe in Imaginary Property

Despite the attempts to elevate it to something tantamount to actual items, so-called “intellectual property” occupies the Land of Make-Believe along with unicorns and elves. Yet the very suggestion that the monopoly privileges associated with IP are invalid raises hackles and provokes fervent responses from the faithful.

Jack Valenti brilliantly set the course during his 1982 Congressional testimony when he said that in any discussion of IP, “reasonable people” would return to one central theme:

Creative property owners must be accorded the same rights and protection resident in all other property owners in the nation.

Jack Valenti, 1982 Congressional testimony

A statement like this has powerful surface validity; it seems to make sense. Yet it is this gross distortion of creative work that forms the basis of the irrational and dangerous “ownership culture” individuals now struggle against on a daily basis.

Controlling Culture

Content creators already have ultimate control over their work: whether or not they share it with anybody. IP insidiously purports go even further, giving content creators the ability to control how their content is used with surgical precision. This kind of micromanagement behavior isn’t limited to traditional copyright or patent either. Even Creative Commons licenses attempt to lay down a mosaic of dos and don’ts.

If “intellectual property” is just like physical property, how are these additional privileges justified? Imagine the ridiculousness of a copyrighted chair, where “duplicating” it with wood in your garage or even via digital pictures could be considered infringement. How about a Creative Commons car? “You are free to share this vehicle with others and modify it, but only as long as you don’t make any money doing so.”

The rules of ownership applied to physical property are relatively straightforward. You are free to do what you want with a chair or a car, modifying, selling, and sharing. If somebody steals it, you don’t have it anymore. I could set up a lawnmower-sharing website for my neighborhood without issue. My friends and I could look at a swingset and duplicate it with materials from Home Depot. That’s not what IP apologists want at all—if I buy a CD and decide to share it with others, there’s a problem. If I make a copy, they want to call it theft. In truth, they want the benefits of  selling scarce physical  property (if you want another, you need to buy it) while ceding none to the buyer (no sharing with others, arcane restrictions on usage).

The result is a locked-down culture where buying content is actually more like renting it, and the artwork, music, and inventions that define our lives are kept firmly in the grip of the private domain. I shouldn’t need to point out that this wasn’t the intent behind IP at all.

Owning Ideas

IP restrictions perpetuate the myth that ideas are something that can be owned when in reality, they are a collectively shared experience. When somebody sees a painting or hears a song, the idea cannot be “unseen” or “unheard.” Is that person not free to transcribe what is stored in their own brain? Can they not tell their friend about what they saw or sing the song from memory? These kinds of activities are natural rights belonging to individuals that cannot be abridged—yet IP attempts to do just that. Duplicate a picture via photograph (or photographic memory)? Infringement. Sing a song to a group of people without paying performance fees? Infringement.

Telling content creators that they have the ability to construct toll booths on natural sharing of ideas was the very concern Thomas Jefferson had when crafting the “IP” section of the US Constitution:

If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it.

Thomas Jefferson to Isaac McPherson, August 13, 1813. The Writings of Thomas Jefferson.

From Thoughts to Bits

Over the past decade, computers have essentially converted any digitizable data into an idea. A digital file can be rapidly spread throughout the world with perfect accuracy. Yet the behaviors themselves are simply digital analogs of reflexive sharing activities. If instead of loaning your lawnmower to your neighbor, you could give him one free of charge, would it not make sense?

IP apologists ludicrously claim that these activities are “just wrong” when they are anything but. Content has been constantly shared across time and throughout life, from bacteria exchanging plasmids to bards performing epic poetry. Today, with our collective digitally-enhanced memories, we do the same thing with content we like.

The rest of the pro-IP arguments are specious. Claiming IP is the only way new content will be funded and bemoaning how sharing breaks old business models is irrelevant when one realizes the entire core of IP is rotten. A few businesses were able to exploit the artificial restrictions granted by IP when natural sharing behavior was curtailed by physical limitations, but even then it was a mirage. Now that sharing is “so easy a caveman could do it” there’s no stopping it. Telling people they should forfeit their natural right to share because it hurts a particular business model just doesn’t make sense.

Imaginary Property deceives content creators into thinking they can restrict what people do with their own culture, that ideas are something that can be “owned” and that widespread sharing is unnatural. These non-rights have always been erroneous, but modern digital technologies have acutely highlighted their fallacy. Ideas flow freely from person to person by their very nature; Imaginary Property simply does not exist. There are no “IP rights;” to pretend otherwise is to believe in a fairy tale.


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17 responses to “I Don’t Believe in Imaginary Property”

  1. Andrew Avatar

    Wait, elves and unicorns aren’t real?!

    But anyway, while it’s a well thought out and worded argument, I think it’s fairly useless. Rational people already understand and agree with your reasoning, and the irrational ones are going to keep on believing what they believe.

    The key is to find a solution, a way to escape copyright and IP. But those irrational people have enough money and clout that it’s probably going to be a while before any change is made – you essentially have to wait for the dinosaurs to become extinct.

    So unless you know of any meteors headed there way, you might want to consider building a house instead of standing in a picket line outside their gates.

    1. SteelWolf Avatar

      What bothers me most is that so many otherwise rational people don’t understand what’s going on. In so many circles, “piracy” and “IP rights” are taken as fact even as those very same people fail to see how those concepts destroy their personal rights (and culture in general).

      There are so many communities (deviantART comes to mind) where people would benefit immensely from Free Culture, but instead cling to copyright or the Creative Commons in the vain notion that they can somehow protect their work.

      We’re sitting atop a gold mine of information exchange and collaboration, and we’re letting those moneyed people and their misinformation campaigns obstruct it for the sake of collecting fees.

      Luckily, there’s no need to picket outside their houses – their foundations are already crumbling. The only question is how many terribly invasive laws get passed as they try to prop themselves up (ACTA, anyone?).

  2. LoneWolf Avatar

    First off, I agree with Andrew that this was well worded and well thought out. But now on to some of the parts I disagree with.

    1. First off, I think there is a difference between copying digital files and duplicating a chair or a swingset. For the chair and the swingset you are following someone else’s blueprint while for copying the digital file (I will use the specific example of a song) it is still the other person’s post-preparation work. A more accurate analogy would be if rather than copying the song digitally, the copier instead reperformed and recorded the song himself based on the original artist’s sheet music.

    2. “IP apologists ludicrously claim that these activities are ‘just wrong’…” You say “just wrong” as if that’s the whole argument with nothing to support it at all. Also, placing that sentence right after the one about giving away lawnmowers implies that IP advocates are against giving away physical, scarce objects.

    3. I agree that progress should not be halted to protect old business models, but I haven’t noticed that as a core argument for intellectual property rights.

    4. I agree that saying the current system is the only way to support new content is wrong, but it would not be wrong to say that the current system is one way to support new content (though it isn’t very efficient).

    5. You repeatedly refer to sharing as a “natural right.” What exactly makes something a “natural right?” I myself am under the opinion that there are no natural rights, that the only rights exist because society and individuals will it to be so. Tacking “natural” onto rights just seems to me to be a label meant to make something seem sacrosanct.

    6. “Imaginary Property simply does not exist.” I think intellectual property is an idea, and as such does exist, and will continue to exist until all people who have heard of it die since as Thomas Jefferson said, “…the receiver cannot dispossess himself of it.”

    7. “There are no ‘IP rights.’” It seems to me that the government believes there are IP rights since there are FBI warnings on movies and things such as copyright and patents exist.

    1. SteelWolf Avatar
      1. It is theoretically possible that with the right materials and equipment and enough time, one could make an exact copy of just about anything. If I see a pre-built swingset somewhere, I could duplicate that post-preparation work exactly instead of buying it. I could do the same thing with a song – or, use technology to do it faster.
        Incidentally, even if we go with your version, collection societies use copyright to extract fees for simply playing a cover version of a song.

      2. In my experience, when the logical justifications for IP are broken down apologists tend fall back on just such an unsubstantiated moral argument. IP laws were never about “protecting” things; they are (to quote) “economic legislation based on policy decisions that assign rights based on assessments of what legal rules will produce the greatest economic good for society as a whole. ” If those rules aren’t helping society, they should be eliminated. Yet apologists claim to do so would take something away from creators – something that has only ever been imaginary.
        Also, IP advocates are most definitely against giving away physical objects. Yet even that can be used as part of an effective business model (Free samples?).

      3. It’s not explicitly argued as such, but in practice that’s exactly what we’ve been seeing. Numerous significant advances in technology have been campaigned against by supporters of IP, from the player piano and phonograph to the VCR.

      4. It may have worked in the past, but it’s effectiveness in the present is exponentially decreasing. The solution is for creators to wean themselves from the IP gravy train in favor of new business models – not attempt to turn back time through legislation.

      5. Natural rights are universal or unalienable; they exist outside of a legal system. John Locke identifies three “unalienable rights,” that heavily influenced the Framers of the US Constitution: Life, Liberty, and Property.
        People already have the right to share thanks to the right to liberty (freedom of speech and so forth.) Crosbie Fitch puts it nicely this way:
        In 1710 (UK) and 1790 (US) the privilege of copyright was created to partially suspend this liberty, specifically the right for members of the public to make copies or derivatives of books that they had purchased. This ‘right to copy’ was then granted to publishers – hence the name ‘copyright’. So, file-sharers are actually enjoying their natural rights. Ideally those rights are no longer suspended for the benefit of publishers, but are fully restored to the public, by abolishing copyright.

      6. You’re conflating two things here. There’s a difference between IP a a concept, which obviously exists, and IP as something equivalent to physical property.

      7. They are not rights, but limited privileges granted by the state that have gotten far out of hand. It’s time to take them away.

    2. LoneWolf Avatar
      1. Just to clarify, I wasn’t saying that switching from copying digitally to copying manually made the copying “right” or that it needed to be made right at all. I didn’t touch that topic at all. And I am aware of fees for performing covers; and again I was just changing the analogy without stating that it changed the legality or rightness of the activities involved.
      2. Well, those links show an argument more than saying it’s “just wrong” (not saying I agree with the argument presented in those links). The two arguments may seem one and the same to you, and if that’s so we’ll just have to agree to disagree on that. How are IP advocates against giving away physical objects?
      3. Okay, based off of what a right is (after I looked it up), and what you say the natural part is, I will concede that natural rights exist. However, I still have problems with it. First, calling them “natural” rights just sounds wrong to me since it makes it sound as if infringing on them is an affront to nature when it is really an affront to morality. Second, what qualifies as a natural right will differ across individuals and societies since not everyone prescribes to the same moral code.
      4. “that which is due to anyone by just claim, legal guarantees, moral principles, etc.” is the definition I found on that seems to best fit what we’re referring to as a “right.” As such “limited privileges granted by the state” seems to fit the “legal guarantees” pretty perfectly. There were also two other definitions on the site that looked like they fit what we’re talking about and both of them also legal components. It may not fit our definition of a “natural right,” but it sure looks to me like it fits the definition of a plain old right.
    3. SteelWolf Avatar
      1. Fair enough.
      2. Let me try this again. There are economic arguments in favor of IP that revolve around providing an incentive to create. There’s also the entitlement arguments, that say creators have a “right” to get paid every time you enjoy something they’ve done, or that you should buy things because that’s the only way to inject money into the creative system and allow it to produce more of what you like. After both of these get soundly debunked, IP apologists tend to fall back on the “sharing is theft” arguments, which are moral: stealing is wrong, and sharing is stealing, so sharing is wrong. So the “it’s just wrong” arguments are based on the misunderstanding that sharing and copying are tantamount to theft of physical objects. The whole discussion should primarily economic, not moral, but the “it’s wrong” stance seems to appear quite often, despite its flaws.
        As for not wanting to give away physical objects, I think that’s pretty straightforward. The idea is that if you wanted a CD, you would pay for it, so if you want a digital version, you should pay for that too. It completely ignores the economics of digital content as well as the long-established practice of giving away free physical stuff to promote something else.
      3. I think the “natural” refers to the fact that the exist even when man is in a “natural” state, and not constrained by layers of rules applied by society. If you strip all of that away, what are you left with? Natural rights.
        A good theory of natural rights should (and does) apply across cultures, but I’ll bite. Even if rights aren’t the same somewhere else, liberty is recognized by our society here in the United States. At the very least, IP infringes on this right in this country.
      4. Maybe I was a little unclear. I don’t deny that IP is legally recognized (though infringing it is a civil rather than criminal infraction), rather I think those laws were created to protect a made-up concept of ideas as property, when shared ideas will flow freely from person to person whether one likes it or not. The laws may be in place, but their enforcement is futile (and only makes those attempting to do so look silly).
        As an addendum, this comment and the corresponding response are good examples of one pro-IP position and its deconstruction, respectively.
    4. LoneWolf Avatar
      1. So you’re saying they don’t want to give stuff away themselves? When I questioned that they were against giving away physical objects I was thinking more along the lines of users giving away their objects than the company itself since the post in general (and the lawnmower example in particular) is about users sharing amongst themselves.
      2. Well with what you’re saying the natural refers to there I would still say that those rights would vary across individuals. And I will also add that natural rights may sound good on their own and they may exist outside of a legal system, but they are meaningless if they are not protected/enforced (probably by a legal system or if not that then unofficial laws of society or powerful individuals). This point is actually why at first I said that natural rights didn’t exist; because they required the support of man-made rules (which are not inherent in nature; this was when I thought the natural had to do with nature rather than morality).
        I’ll also say that what you’re saying natural refers to now makes me think that we’ll never know what natural rights are by that definition since every person is affected by society. Even if we found someone who was somehow never influenced by society, as soon as we tried to communicate with him to find out what those natural rights are we would influence him (even if we just observed him without interfering we would change him since what you observe you also change).
    5. SteelWolf Avatar
      1. Oh, I may have misunderstood what you were saying. However, I think it’s pretty clear that hardcore IP activists would rather see every use of content paired with a fee of some kind. Believe it or not, some have even come out against one of the classic examples of people “sharing amongst themselves,” the library. (The original post was a great read, but it seems that the author has deleted it).
      2. Debating philosophy now, are we? The whole point of natural rights is that they are moral rights that emerge on their own and are self-enforced even in the absence of laws and societies. Since I know you actually follow the links I give, I recommend looking into the writing of Thomas Hobbes. Many living organisms protect their own life, resist restraint, and claim territory. Sharing falls under that second one, liberty, and can be a socially beneficial emergent behavior. To try and claim that sharing things is a moral wrong because it harms a temporary and obsolete business model is ridiculous.
        You don’t need the kind of quantum observation you described to think about natural rights. The animal kingdom demonstrates such basics – the rest of it is overlaid on top.
    6. LoneWolf Avatar
      1. Well yes they want a fee, but they aren’t against the practice of people giving away physical objects in general. If you buy something from them and then give what you bought to someone else I don’t think they are going to complain too much.
      2. Well it sounds like this view of natural rights (especially the way Hobbes puts it) is that every human has the natural right to do whatever they want even if it is harmful to others or to society at large. So it sounds like we all have the natural right to share, and others have the natural right to try to stop us.
        Looking at the animal kingdom I see plenty that doesn’t support things that are often stated are natural rights. Animals will sometimes kill others of the same species which seems to go against the right to life and ants will sometimes enslave other ants which seems to go against the right to liberty. These examples don’t go against natural rights as Hobbes described them; but they do go against them the way that they are in the United States’ legal system where there is the proviso that they not infringe on another’s natural rights. If we were to straight up use Hobbes’ view of natural rights without that proviso, then no one could really do anything in the name of protecting natural rights in general (at least not when the conflict is between humans), only of protecting a specific individual’s or group’s natural rights at the expense of the opposition’s natural rights. Adding this proviso seems to make natural rights more in line with what you have in mind and more supportive of your position, but it also makes the “natural” part misleading.
    7. SteelWolf Avatar
      1. I find that hard to believe when I see people calling radio and libraries “piracy,” but okay.
      2. You’re still misunderstanding natural rights. In the absence of any system, these rights are self-enforced, that is, each organism enforces their own. Because of natural rights, it is morally justified for an organism to protect its own life or to seek liberty, for example. The rest is overlaid over this and involves people partially suspending their natural rights in the interest of a more stable society. Yet it only goes to a point: It is not morally wrong for a human slave to seek his liberty, even though laws may forbid it.
        Claiming that sharing files is “wrong” (as opposed to unauthorized, infringing, or even illegal) is a moral argument. This is terribly flawed, because not only are any so-called IP rights are superseded by the natural right to liberty, both morally and legally thanks to the US Constitution.
        Finally, there are no “IP rights” because the ability to control what other people do with things you create and share with the world has no basis in anything but an 18th century statute, designed solely to benefit the powerful publishers in England at the expense of the public. IP is, at best, a legal monopoly privilege granted by the public to content creators in the hopes that good will come of it. We see now that good has in fact not come of it (big surprise – when have monopolies ever made something better?) and so there is no reason for it to continue.
    8. LoneWolf Avatar
      1. “You’re still misunderstanding natural rights. In the absence of any system, these rights are self-enforced, that is, each organism enforces their own.” That’s actually pretty much exactly what I got from the Hobbes link. What part of what I said made it sound otherwise?
        “Because of natural rights, it is morally justified…” From the Hobbes link I didn’t get anything about a link like that between natural rights and morality. In fact, as you noted, the reading suggested that not all natural rights were socially beneficial and so laws were created to hamper natural rights for the social good. So just because something is a natural right doesn’t mean that it is morally justified to act on that natural right. It could be, but it doesn’t have to be. To throw out some supporting quotes from the link: “…if humans wish to live peacefully they must give up most of their natural rights and create moral obligations…” and “…while rights refer to the absence of obligations…” These two quotes make me think that morality is not supported by natural rights, but replaces it; that morality and natural rights are at odds with one another.
        “It is not morally wrong for a human slave to seek his liberty, even though laws may forbid it.” I completely agree.
        “Claiming that sharing files is ‘wrong’ … is a moral argument” and “is terribly flawed, because … IP rights are superseded by the natural right to liberty, both morally and legally thanks to the US Constitution.” I will just once again state that being a natural right does not by itself make something moral (though I will yield that in this specific case it may be moral).
      2. I’m putting this next part under number 7 since that’s where it seems to me where it belongs. “IP is, at best, a legal monopoly privilege granted by the public to content creators in the hopes that good will come of it. We see now that good has in fact not come of it (big surprise – when have monopolies ever made something better?) and so there is no reason for it to continue.” Well, I’ve seen convincing arguments on both sides of this issue. And really I think there is no way to definitively prove that one side of the argument is right and the other is wrong. We can observe what has happened in various market monopolies but we cannot test what would have happened without the monopoly since we cannot go back to the exact same circumstances that the monopoly had. Same goes for wanting to test with a monopoly after observing the results without a monopoly.
  3. Andrew Avatar

    LoneWolf, I think you’re missing the point. Who cares what they’re called? As Michael said, the framers of the Constitution were trying to preserve what they saw as our rights to life, liberty, and property. The idea is that the music industry (among others) trying to enforce IP with the intent of preventing people from sharing violates those rights.

    You can say, ‘yes but if you don’t buy the music they don’t get paid and that’s violating their rights,’ but no one made them become part of the music industry and no one is stopping them from finding another job. They are trying to stop people from sharing.

    The point I think Michael is trying to make is that the industry is slowly failing and instead of finding new ways to succeed they’re trying to force us to do things (buying music) that they shouldn’t be able to force us to do, since it’s freely available elsewhere (online).

    1. LoneWolf Avatar

      Well, first, in response to the question, “Who cares what they’re called?” I will respond that I obviously do since so much of what I said was on that topic. Also I think SteelWolf does since he engaged me in discourse on that topic. And in answer to the unasked question of why I care about what they’re called, what something is called can have a very real effect on how it is viewed. If something’s name brings forth pleasant or negative thoughts, it will likely draw more or less support, respectively. I was trying to ascertain whether natural rights deserved the name, and I believe now that they do. I think what the discussion has turned to now is more if we are morally obligated to protect the natural right of sharing.
      “You can say, ‘yes but if you don’t buy the music they don’t get paid and that’s violating their rights’…” Yes I can say that, but I didn’t, and I don’t believe it. I don’t disbelieve it either though. I haven’t picked a side there yet, though I will say that they definitely don’t have a natural right to get paid.
      “The point I think Michael is trying to make is that the industry is slowly failing and instead of finding new ways to succeed they’re trying to force us to do things … that they shouldn’t be able to force us to do…” Yes I understand that’s what he’s saying. And I think that his and my discussion has finally started to touch on that. Part of what I’m doing here is testing the foundations of SteelWolf’s stance to see if there are any glaring errors in it to help me pick a side on that question. I hope he is right that it is moral to protect the right to share, but I fear that it might not be. The morality seems to hinge more or less entirely on whether copyright/patents/intellectual property helps or hinders society. As I stated above, “I’ve seen convincing arguments on both sides of this issue. And really I think there is no way to definitively prove that one side of the argument is right and the other is wrong. We can observe what has happened in various” markets with “monopolies but we cannot test what would have happened without the monopoly since we cannot go back to the exact same circumstances that the monopoly had. Same goes for wanting to test with a monopoly after observing the results without a monopoly.” Because of this it will not be easy for either side to sway me onto their side.

    2. LoneWolf Avatar

      Oh, and I also want to add that as time goes on circumstances can change, and what is good for society (and moral) can change with it. So if it is moral or immoral to protect the right to share in this instance right now, it doesn’t mean that it will always be so.

  4. Crosbie Fitch Avatar

    Here’s an explanation of natural rights I recently gave to Billy Bragg: A Natural Right to Sing Billy Bragg’s Songs.

    Natural rights are not a matter of morality, but of nature, human nature. However, it is immoral/unethical for a state to suspend or derogate its citizens’ natural rights for commercial expediency, e.g. to create monopolies to favour the press (copyright) or other mass production industries (patents). While these privileges only affect corporations they can be tolerated/ignored by individuals. The trouble comes when the privileges start affecting individuals on a large scale.

    Indeed, one of the possible interim ‘solutions’ to copyright is to make individuals immune/exempt from infringement (at least online).

    1. SteelWolf Avatar

      Crosbie’s linked article is an excellent read. I’d like to quote some of it here (emphasis mine).
      What we see today is that copyright is not only a privilege that conflicts with individuals’ natural rights (their cultural liberty and freedom of speech), but a privilege that conflicts with the very nature of information and its communication. It is simply not possible (even for the state, let alone an individual), to remotely constrain the distribution of intellectual works, because it is not possible to remotely constrain the communication and diffusion of information (despite the snake oil that is DRM).
      Ethically, people can only ask for the protection of the natural rights they have, not those privileges they may covet or believe they need to make a living.
      IP is a privilege derived from law, not a natural right the law is empowered to protect. Digital technologies have empowered individuals to take back their natural right to share on a scale they have never been able to achieve before. This is acceptable behavior, as it is the law that has overstepped its bounds – not the other way around (as many maximalists would have one believe).

  5. […] choice whether or not they use it." Such an argument implies that copyright or other forms of imaginary property should continue to be strictly enforced, even as smart creators embrace new business models. While […]

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