The Technology Liberation Front - Latest Comments in Why I Don’t Say “Intellectual Property” (and You Shouldn’t Either)

Re: Why I Don’t Say “Intellectual Property” (and You Shouldn’t Either)

jimharper — Tue, 28 Nov 2006 16:22:58 -0000

Semuanya, you need to explain how people can say "There's a bunch of abandoned property in that field." Do they mean "There's a bunch of unowned owned things in that field."?

I agree that common usage of the word "property" has become fragmented, but if we're going to have useful communication, we would do better to stick to orthodox meanings.

What word or phrase would you use in place of "intellectual property"? We have a lot of people arguing against the phrase without anyone offering a substitute that conveys the same meaning.

Re: Why I Don’t Say “Intellectual Property” (and You Shouldn’t Either)

Semuanya — Wed, 22 Nov 2006 18:38:44 -0000

The purpose of language is the communication of thought and the proper conveyance of one's thinking is key to good use of language. To communicate your thinking to another you must use language they understand as they understand it: communication requires shared meaning. Intellectual property is a poor term for your purposes, Jim, because it fails this test. People simply do not use the word "property" as a synonym for "thing"-- they use it as a synonym for "owned thing"-- and you'll only achieve miscommunication of your thinking with its use. This makes intellectual property a poor term until, and unless, the meaning you ascribe to the word "property" enters common usage.

Re: Why I Don’t Say “Intellectual Property” (and You Shouldn’t Either)

Crosbie Fitch — Wed, 22 Nov 2006 17:28:04 -0000

Copyright and patents are monopolies over distribution, reproduction, diffusion, derivation, making available, performance, use, implementation, and/or other things all generally concerned with intellectual property (sometimes private or published IP, sometimes only published IP), and sometimes the physical embodiment of that IP, or medium upon which it has been rendered.

This is because intellectual thought (or thoughtful discovery) is defined in this field as necessary for originality, and originality is the basis of copyright and patent (supposedly).

Re: Why I Don’t Say “Intellectual Property” (and You Shouldn’t Either)

jimharper — Wed, 22 Nov 2006 15:33:48 -0000

We're agreed that more precision in language would be good. I think if discussions about information are going to progress, being able to draw comparisons between pieces of information (which have certain 'properties') and physical things (which have other 'properties') is better than creating an entirely new dialogue about "creations," "data," or any other term. OVER AND OUT.

Re: Why I Don’t Say “Intellectual Property” (and You Shouldn’t Either)

Tim Lee — Wed, 22 Nov 2006 14:53:36 -0000

I can think of lots of words that could be used. I still don't see why "knowledge" and "culture" won't do the trick. Other terms that immediately come to mind are "information," "intellectual creations," "creative works," "data," "ideas," "memes," etc. Since this is a very young field, I think you could easily build your theory around any of those terms, or probably any number of others. They all have the advantage that they aren't strongly associated with patents and copyrights, so that there's less chance of people misunderstanding you.

Anyway, my point wasn't that we should erase "intellectual property" from our vocabulary entirely. My point was simply that we shouldn't use "intellectual property" when what we're really talking about is copyrights or patents. It sounds like we at least agree on that much.

Re: Why I Don’t Say “Intellectual Property” (and You Shouldn’t Either)

jimharper — Wed, 22 Nov 2006 14:24:15 -0000

You could, but songs, paintings, movies, books, and inventions are made of something. What are they made of?

In the world of tangible things, we moved from "earth, air, fire, and water" to discovering the molecular, atomic, and sub-atomic constituents of things. We can do the same with intangibles, but we need a word for the constituent pieces that go into "content" or "songs" or what-have-you.

I think little items of intellectual creation recombine to make all these things. The closest word we have for these little things is "property." People collect, horde, give away, buy, and sell this stuff all the time, just like they do tangible property. But these things are distinct from tangible property, so a distinguishing adjective is needed. They're products of intellect. So how about we call them "intellectual property"?

Do you have a better word that describes the object of all this activity? A word we can use to build a theory of how information works in society?

Re: Why I Don’t Say “Intellectual Property” (and You Shouldn’t Either)

Tim — Wed, 22 Nov 2006 13:05:45 -0000

Jim,

I'm still confused. If the problem with "knowledge" and "culture" is that they're too general, how does the term "intellectual property" improve matters? Isn't that an argument for using the actual terms for the various types of content, like "song," "painting," "movie," "book," "fact," "invention," etc?

Re: Why I Don’t Say “Intellectual Property” (and You Shouldn’t Either)

jimharper — Wed, 22 Nov 2006 12:53:42 -0000

Tim, I think calling unprotected creations of the human mind "knowledge" or "culture" is insufficient, and it will become moreso as debates about information policy continue. These words suggest that facts, inventions, and expressions are a single mass (or morass).

Influenced by my study of privacy and personal information, I see information as billions of distinct items, many subject to different rules and treatments. We collect them, use them, hide them, display them, recombine them, and so on. Calling it all "knowledge" or "culture" is like insisting on the classes "earth, air, fire, and water" even though you've become aware of atoms and molecules.

Re: Why I Don’t Say “Intellectual Property” (and You Shouldn’t Either)

Crosbie Fitch — Wed, 22 Nov 2006 12:41:22 -0000

As to why artists need the term intellectual property in addition to simply 'art', IP is the reproducible or non-physical aspect of any artwork, whereas art can encompass the entire physical realisation.

So the handwritten manuscript is art. The words thereon are the intellectual property.

It is only with the advent of reproduction technologies that we have started to need a term for the reproducible aspect of art.

Re: Why I Don’t Say “Intellectual Property” (and You Shouldn’t Either)

Crosbie Fitch — Wed, 22 Nov 2006 12:32:35 -0000

Intellectual property is the creation of one's thought as realised on physical media or as a digital representation.

It remains the artist's property (in their control and ownership) until they give or sell it to another (when it becomes the recipient's intellectual property - without denying the fact of authorship), or copy it to another (when it becomes their shared IP).

If an artist publishes their IP (gives or sells it to another without confidence or contract) then it becomes public IP in so far as it is reproduced and distributed among the public.

Private possession of a published work does not entitle any member of the public to demand its surrender from anyone they know to have it (for that would be a violation of the right to privacy).

Re: Why I Don’t Say “Intellectual Property” (and You Shouldn’t Either)

Andreas — Wed, 22 Nov 2006 03:53:45 -0000

FYI, Wikipedia has some interesting bits about the "IP" word: "The earliest use of the term "intellectual property" appears to be an October 1845 Massachusetts Circuit Court ruling in the patent case Davoll et al. v. Brown. [...] The term's widespread popularity is a much more modern phenomenon. It was very uncommon until the 1967 establishment of the World Intellectual Property Organization, which actively tried to promote the term."

A quick Google News Archive search seems to confirm this: the use of the term "intellectual property" seems rather uncommon in the first half of the 20th century (compare with copyright, for instance). Also worth a look: this 1938 Time Magazine article in which the term "intellectual property" is used in a non-copyright/patent related context.

Re: Why I Don’t Say “Intellectual Property” (and You Shouldn’t Either)

Tim — Wed, 22 Nov 2006 03:37:31 -0000

I think you're right that when people talk about intellectual property, they typically are referring to the subject of intellectual property law. Perhaps that's not the most historically or philosophically sound way to use the term, but that's what people generally mean when they use it. My point was that it's unhelpful to lump copyrights, patents, and trademarks under the heading of "intellectual property law." It sounds like we don't disagree about that.

I don't see any philosophical problem with using the term "intellectual property" to refer to intellectual creations more broadly, but given the baggage the term currently carries, I think you run the serious risk of being misunderstood as referring specifically to those things that receive legal protections. I think there are plenty of ways to talk about creative output (using terms like "knowledge," "culture," "creativity," etc) that are less likely to lead to confusion. Why not say "The Renaissance and Enlightenment periods bequeathed a wealth of knowledge and culture to posterity?"

Re: Why I Don’t Say “Intellectual Property” (and You Shouldn’t Either)

jimharper — Wed, 22 Nov 2006 02:49:29 -0000

Tim, I discussed this at length here.

I don't think appealling to a dictionary is necessarily a sound response. A dictionary adopts the most common usages, not the usages that are most philosophically or historically consistent. And try squaring that definition (and your claimed experience) with this sentence: "There's a whole bunch of abandoned property over there in that field."

I think that the term "property" in the sense Locke used it can be extended to encompass creations of the mind. I suppose I was a little inaccurate saying that people are "mistaken" in the way the use the term now - I was really arguing for a change to a cleaner use of the term. Again, people are using the phrase "intellectual property" as a shorthand for intellectual property law. Intellectual property is the subject of intellectual property law, just like real property is the subject of real property law.

Here's a sentence where the phrase "intellectual property" fits well, without there being a claim to ownership: "The Renaissance and Enlightenment periods bequeathed a wealth of intellectual property to posterity."

Now, if not "intellectual property," what do you call the pictures children draw and the songs sung in the shower? Is there a term for people's oeuvre? It's important to have one because whatever this stuff is is increasingly being collected, copied, stored, and reused. If we're going to talk about it and explore the meanings of the things happening with it, we've got to have a name for it.

Re: Why I Don’t Say “Intellectual Property” (and You Shouldn’t Either)

Evan — Wed, 22 Nov 2006 01:22:25 -0000

If we care about reforming the legal regimes that control "IP", I think we'd do well to call it what it is (at least in the United States): a grant of limited monopoly by the people. The government enforces the social contract, but the government derives its power from us. "Copyfighters" would do well to campaign against the offensive notions put forth by the entrenched copyright and patent interests that this stuff somehow arises from natural law. It's a social contract, and contracts can be re-negotiated.

Re: Why I Don’t Say “Intellectual Property” (and You Shouldn’t Either)

Luis Villa — Wed, 22 Nov 2006 01:04:20 -0000

C'mon, Tim, take the final step- call it a limited, government-granted monopoly. You know you want to. ;)

Re: Why I Don’t Say “Intellectual Property” (and You Shouldn’t Either)

eee_eff — Wed, 22 Nov 2006 00:35:22 -0000

EF finds it very hard to believe that anyone who has even a passing interest in computer laws and patents, copyrights and trademarks would be unaware of RMS's extensive writings on this subject.

RMS essay on why not use the term IP

The essay starts out:

"It has become fashionable to describe copyright, patents, and trademarks as "intellectual property". This fashion did not arise by
accident--the term systematically distorts and confuses these issues,
and its use was and is promoted by those who gain from this confusion.
Anyone wishing to think clearly about any of these laws would do well
to reject the term."

and goes on to make all the points Tim Lee makes above, and a few others, too.

Re: Why I Don’t Say “Intellectual Property” (and You Shouldn’t Either)

Tim — Tue, 21 Nov 2006 23:51:46 -0000

Jim,

You probably have a better sense of the historical and philosophical roots of the word "property" than me, but I don't think that's how people use the term today. Merriam-Webster defines property as:

2 a : something owned or possessed; specifically : a piece of real estate b : the exclusive right to possess, enjoy, and dispose of a thing : OWNERSHIP c : something to which a person or business has a legal title d : one (as a performer) who is under contract and whose work is especially valuable e : a book or script purchased for publication or production

So I don't agree with you when you say that "nothing about term 'property' requires us to assume it has a certain ownership status." In my experience, in commonly accepted meaning of the word "property" does imply ownership status.

Indeed, I don't think I've ever heard someone use the phrase "intellectual property" in a context other than copyright or patent law. We don't describe our childrens' drawings or the songs we sing in the shower as our intellectual property. When people talk about intellectual property, they don't just mean intellectual work in general. They specifically mean intellectual works over which someone is asserting ownership.

I'm puzzled by your question about how we would refer to ideas and expressions that are not subject to patent or copyright law, because, as I said, I've never heard anyone talk about "intellectual property" outside of that context. Could you give me an example of a situation where the phrase would be missed?

Re: Why I Don’t Say “Intellectual Property” (and You Shouldn’t Either)

jimharper — Tue, 21 Nov 2006 22:55:44 -0000

Can't join you in this, Tim.

"Property" is a way of saying "thing." The addition of the word "real" to make the phrase "real property" helps distinguish between movable things and immovable things. There's no reason why we couldn't adapt it to things that are products of cognition and volition and call them "intellectual property." They have further distinct 'properties' that we should explore and discuss.

I think your objection is better aimed at people who use the term "intellectual property" to refer to intellectual property laws like patent and copyright. Imagine the same usage of the term "real property" - as in "I'm against real property." OK, why don't you throw yourself to the ground and beat on it until it relents . . . . What a person saying that probably means is "I'm against the doctrine(s) of real property law."

What they also might mean is, "I am against private ownership of real property." A second common mistake is for people to assume a thing has a certain ownership status because it is called "property." As you know, Locke distinguished between common property and private property. Saying "property" does not necessarily mean either. A problem is that people often use or assume the phrase "intellectual property" to mean private intellectual property.

Because of their differing natures, there is more common intellectual property than common tangible property. This means that people who assume intellectual property is owned are wrong more of the time than they are when they talk about other forms of property. Nothing about term "property" requires us to assume it has a certain ownership status - that's just a mental habit that needs curing.

If we decline to use the word "intellectual property," how would you refer to ideas and expressions that are not subject to patent and copyright law? As "public domain"? I don't think it's a good idea to name something by its status. Language works better when we have names for things distinct from their status. "Boy," for example, is a useful term for "male child." A boy might also be a "brother," "son," "friend" or "classmate" - each of these denoting a different status. Something might be my intellectual property or your intellectual property, or just "intellectual property," meaning only taht it is a thing produced by cognition or volition.

I think it's better to take people on a long journey through all the conceptual and intellectual steps, using the most natural language possible, than to shortcut the process by banishing certain useful terms. I agree that all of us could tighten up our language.

Re: Why I Don’t Say “Intellectual Property” (and You Shouldn’t Either)

Noel Le — Tue, 21 Nov 2006 18:50:53 -0000

Tim, you're doing fine on your own. Please don't conjure up Stallman...:)

Re: Why I Don’t Say “Intellectual Property” (and You Shouldn’t Either)

Tim Lee — Tue, 21 Nov 2006 18:08:14 -0000

EF: That's interesting! I had not seen his writings before.

Re: Why I Don’t Say “Intellectual Property” (and You Shouldn’t Either)

eee_eff — Tue, 21 Nov 2006 17:54:35 -0000

Tim:

I agree wholeheartedly, but you should acknowledge RMS, who has a well-known essay on exactly this subject.

Not to link to his words on this issue, when the conclusion and reasoning is so similar to yours seems a bit odd.

Perhaps you weren't aware of his writing on ezxactly this issue?

EF

Re: Why I Don’t Say “Intellectual Property” (and You Shouldn’t Either)

Crosbie Fitch — Tue, 21 Nov 2006 17:11:58 -0000

Noel, property doesn't necessarily imply a consumable.

A park or monument can be public property without needing to be consumed.

That a digital artwork cannot be consumed does not prevent it being public property.

Tragedy of the commons occurs not due to the commons being public property, but due to its capacity being exhaustible through consumption.

Purveyors of pulp entertainment may like to term digital artworks as content, and their audiences as consumers, but digital art is not actually consumable.

Re: Why I Don’t Say “Intellectual Property” (and You Shouldn’t Either)

Crosbie Fitch — Tue, 21 Nov 2006 16:35:26 -0000

A copyright or a patent is a privilege, a grant of monopoly for commercial exploitation, an economic incentive to publish.

That these privileges apply to intellectual works does not make the privileges intellectual. The privileges are commercial. If they are transferable then they would more logically be termed commercial property. There may be an even more approriate name, but the property is sorely lacking in intellectual attributes.

Re: Why I Don’t Say “Intellectual Property” (and You Shouldn’t Either)

Lewis Baumstark — Tue, 21 Nov 2006 15:32:26 -0000

I would be comfortable with the term intellectual property if it were used properly, ie to refer to the ownership of the actual copyright or patent and not to the "ownership" of the work covered by copyright or patent. After all, it is the rights of license that can be transferred, sold, etc, not the work those licenses pertain to. Sadly, current connotations have it as ownership of the work, and those connotations are abused on a daily basis.

Re: Why I Don’t Say “Intellectual Property” (and You Shouldn’t Either)

Noel Le — Tue, 21 Nov 2006 15:25:24 -0000

First, I don't know a single person who believes intellectual property is akin to real property. There are some similarities, but the fact that its useful to describe intellectual property w/ examples from real property probably causes more confusion than is necessary.

Second, look at the theories behind intellectual property to distinqiuish it with real property: tragedy of the commons, prospect theory, the problem of public goods, etc. These have little to do with the basis for real property (w/ the possible exception of prospect theory, but it is an *intellectual property theory* b/c it proposes specific policy recommendaitons for patents).