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.
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.
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.