The fallacy of “intelectual” property

Note: before starting the main point of this post, a pending clarification: in my previous post, I said that I was not sure of whether TPB guys were under the obligation of removing torrents to infringing content, when request to do so by the copyright owners. I’m still not sure, and I will not be reading Swedish law any time soon, but from European Directive 2000/31/EC, Article 12, number 3, it seems to me that yes, they can be compelled into removing torrents to infringing content, but only by a court, not by the copyright owners. I’m not aware of any previous court order to do so, so it seems that even in this matter the admins are not guilty.

OK, now let’s talk about intellectual imaginary property (IP). The first thing you should know about it, is that is not real. The second is that despite being, well, imaginary, it can have pretty serious (aka real) consequences: legal systems worldwide are introducing provisions that guarantee it. Now IP stems from copyright law, so in order to properly understand the former, you need to understand the latter.

Copyright is, first and foremost, a trade-off. It «gives the creator of an original work exclusive rights for a certain time period in relation to that work, including its publication, distribution and adaptation; after which time the work is said to enter the public domain» [1]. The idea was that economic benefits (read: money) could be drawn by the author from his work, that would inspire further work. After copyright expired, the works would go into the public domain, freely available to everyone. Copyright was thus, a very good trade-off: it inspired both the creation of original work, and at the same time made sure that it would eventually enter public domain. But copyright hasn’t existed since the dawn of time. The first thing resembling modern copyright law was the Statute of Anne, enacted in the United Kingdom in 1709, and works roughly as described above. Before that, or more accurately, before the printing press, there was little need for copyright of any sort. During the Middle Ages (in Europe), books were almost exclusively the privilege of the monasteries. Books were copied by hand, and making a copy took almost the same effort as writing the original. And then along came Gutenberg, and the printing press. All of a sudden it was possible to produce books a lot more cheaply than ever before. This changed things quite a bit. If before, the authors of books, like their counterparts in arts or music, would be sponsored for a patron, now it was possible to live from the writing per se. This made it possible for authors to write more books, more cheaply, to satisfy an increasing demand, owing mainly to the burgeois class. There was however, an underlying problem. Suppose a writer writes a book, and makes a deal with a publisher, to publish the book. What’s to stop another publisher from publishing the same book, and by doing so, taking a chunk (that could be quite big) of the profit from the author (and original publisher)? It was to solve this problem, the copyright laws came into being.

And this was a good scheme for a long time: the culture flourished, a process that still goes on today. But two things started to go wrong: first, the duration of copyright began being extended time after time, resulting in less and less works reaching the public domain. As an idiotic example of this, I call to the stand Mickey Mouse, created in 1928, and still under copyright protection(!!). But the other thing that completely changed the picture, were actually two other things: digital technology, and the internet. Before these two things, and ever since the printing press, publishing, whether books, or later music and movies, had such an high cost that only companies could afford to do it. But as explained above, companies would not do that without the protection of copyright. So the original justification for copyright prevailed until the end of the 90’s. From here on, digital technology and the internet made it stupidly simple (and effective, not to mention comically cheap) to distribute digital works: books, movies, music, software, anything that can be put into digital form. And this is great, except for a small problem: it renders to complete oblivion the old business model. I mean, you only need to buy one copy from the publisher, and from there on you (and everybody else with a computer) can do as many copies as you like. Not good (for the publishers I mean). Actually, evidence is now surfacing that for books, this may very well be a good thing. It is much much more comfortable to read a book in paper form, than to read one from screen. On the other hand, nobody likes to buy a book without an idea of what it is about, because you don’t want to buy a book you will not like to read. Simple solution: grab a digital copy of the book, read enough of it to be reasonably sure you’re going to like it, and then buy the paper version. And this seems to be working. But don’t take my word for it, take Brazilian writer Paulo Coelho’s word (and that’s just one example). Much worse are music and movies, because what the studios and record labels want to sell, is digital music and movies. And you only need one copy of those to supply the rest of the world. This creates the heck of a riddle: one the one hand you do keep movies and music being created, but on the other hand, the monopoly of distribution has irreversibly shifted from Hollywood’s hands into the hands of computer owners, who couldn’t care less about the profitability of the distribution business. Inspect the problem more closely, however, you’ll quickly think of a solution. Selling the movie after it is done is fiction, but what about getting the prospective audience to finance it, before actually doing it? Seems like a good solution: if you want us to do the movie, hand over the cash! After the movie is done, release for everyone to copy and see. But human beings, being, well, human, are not always fond of simple solutions, specially when risking monetary loss.

So the publishing industry decided for another not so simple idea: if you make a book, you can sell a book, and the person it is sold to will not be able to copy it. The same goes for cars, clothes, etc, etc, and so they said, the same should go for digital content. And paved was the way that would lead to imaginary property. Through intense lobbying, content distribution companies started pressuring political authorities to criminalize «unauthorized distribution». Unauthorized by them, the «owners» of the content. First in the U.S., and then throughout the world, legal systems started to cave to Hollywood’s rambling. This causes a (big) host of problems, because information is not bound to matter in the same way that books and cars are. An example of this mess is trying to figure out the legality of offering digital content as a gift. Did that just sounded weird? That’s because digital content can’t be owned, so presenting it as a gift is awkward. But that’s not the only problem (nor the more serious, for that matter).

Merely integrating the concept of IP into law, causes the law to be completely detached from reality. And that’s very, very bad, because now you have a law that turns into a criminal almost every one that uses a computer for more than browsing the web (and even in this case, one cannot be sure, but I digress). And what is worse, younger generations, increasingly more savvy computer users, will look at these laws, see them for what they are (an utter nonsense, to avoid stronger wording), and decide to break them without much afterthought (if some at all). Which is hatching a disaster. John Locke wrote that: «Wherever Law ends, Tyranny begins. » [2]. If there’s a situation when you can say that law has ended, I’d say that’s when it becomes so detached from reality, that it ends up making a criminal out of the vast majority of computer users. How that opens the path to tyranny is even easier to see: a law that makes a criminal out of almost everyone provides unwarranted leverage to any government, because it enables them to put anyone that they don’t like, for what ever reason, in jail, because (in all likelihood) that person is guilty of copyright infringement. We’re not in the “jail them at will” stage, but the “cut their home internet connection at will” looms dangerously close: something that just a few years ago seemed so unthinkable and far away as the «jail them at will» scenario seems now.

Yet, it all becomes so ridiculous when you just stop to consider the madness that lies at the base of the concept of IP. That information, something, in it very essence, immaterial, has to be subjected to same restrictions of the material world. Actually the situation now is even worse, because the IP concept has outgrown copyright, and IP encompasses not only copyright law, but also patents and trademarks. And that should be good enough reason to shun the expression “intellectual property” entirely, because it only adds confusion when discussing any one of the above three subjects.

But my main point to make here, is that what lies at the core of what is now called “intellectual property”, should be more accurately termed “imaginary property”, for while material creations (sculptures, paintings, books, CDs, DVDs, etc) are both authored and owned, the information they contain (the information in a book, the subject that has been painted or sculpted, the information in a CD or DVD) can be authored, but not owned. Information can be private, but never owned, because it cannot be stolen: if someone gets a hold of some private information, and then spreads it to the four corners of the Earth, that’s a violation of privacy: it deprives me of the fact that the information was private. But if someone gets a hold of something that I publicly shared, and then spreads it, by doing so, it does not deprive me of the original information. By pushing this IP crap forward, the content industry hopes to push the message that the rights granted by copyright are as intrinsic as (material) property rights are, instead of its “trade-off” nature. Which is an outright lie, and should be thus exposed as such.

One response to “The fallacy of “intelectual” property

  1. Pingback: American (mis)education « erroneous thoughts