November 19, 2007  ·  Lessig

Tom Bell is writing a book about (what’s called) “intellectual property” in public. He calls it “intellectual privilege.”

I here offer a third view of copyright. I largely agree with my friends on the left that copyright represents not so much a form of property as it does a policy device designed to “promote the Progress of Science and useful Arts” (as the Constitution puts it). I thus call copyright a form of intellectual privilege.

Like my friends on the right, however, I hold our common law rights in very high regard. Hence my complaint against copyright: it violates the rights we would otherwise enjoy at common law to peaceably enjoy the free use our throats, pens, and presses. That is not to say that copyright is per se unjustified. We can excuse facial violations of our common law rights, such as the takings effectuated by taxation or the restraints imposed by antitrust law, as the costs of obtaining a greater good. But it does mean that copyright qualifies, at best, as a necessary evil.

Watch and participate at his website.

  • http://40yrs.blogspot.com Matthew Saroff

    I use the term “Intellectual Product” myself. I like the “Intellectual Privilege” term though. It provides a better sense of how IP is an imposition on the rest of us.

  • Bill Stepp

    Intellectual privilege sanitizes what is in fact a government-granted monopoly. I like Michele Boldrin and David K. Levine’s term “intellectual monopoly.”
    You are right in demarcating a third school on this issue. There are the IM absolutists–Mark Twain (he testified before the Royal Copyright Commission that he wanted copyright to last one million years and wrote about it in his autobiography), Jack Valenti (“forever less one day”), the RIAA, the MPIA, and no doubt countless others. Then there is the reformist camp, which includes Fritz Machlup, Edith T. Penrose, Josh Lerner, and Adam Jaffe on patent; and Lawrence Lessig, Siva Vaidhyanathan, Williaml Patry, and others on copyright. There is finally the abolitionist camp, which includes Tom G. Palmer of the Cato Institute (and author of two classic papers on the subject); N. Stephen Kinsella, a libertarian lawyer and author of some excellent work on the subject; Roderick Long, a libertarian philosopher, who has also written on it; Boldrin and Levine, author of Against Intellectual Monopoly and numerous papers; Michael Perlman, author of a very good book on IM; the motley crew at http://www.againstmonopoly.org, and a growing band of scholars and activists.
    In order to qualify for the third school (and I hope you join), you’ll have to kick the IM habit entirely, so none of this namby pamby “necessary evil” stuff.

    The key to the abolitionist kingdom is understanding the difference between property and government-granted monopoly (or -privilege). Property flows from the Lockean homesteading principle and the principle of voluntary exchange of property titles, which implies an absolute prohibition on the initiation of force against a non-agressor.
    This by itself gives the lie to copyright and patent, both of which are borne of government intervention and the implicit (and often explicit) use of force against the rights of non-”IP” holders to use their own property as they wish.
    So come on down!

  • http://www.negativesoundinstitute.com gurdonark

    Whether one terms it “property”, “privilege”, “state-supported monopoly”, “franchise” or “exclusive license in an expression of an idea” matters when one is building a Key to All Mythologies about the nature of property rights.

    Yet as valuable as theoretical discussion may be, the mechanics of patent and copyright as devices to promote arts and commerce really boil down to something more pragmatic. Patents and copyrights stem from that well-worn notion in which the creator gets an “exclusive” for a finite time period in return for ultimate devotion of the idea into the public domain. In the field of patent, the term is reasonable, but too many patents issue from PTO on what might formerly have been unpatentable notions rather than patentable inventions. In the field of copyright, the extensions render the term too unreasonable to make the “social contract” meaningful.

    I’m not ready to discard intellectual property protection. I believe that the nuts and bolts of a reasonable system has its virtues. I learn, though, from the work that open source creators do, that a vigorous open source/GNU/Creative Commons movement can inject into the public domain or the Creaive Commons a wealth of creativity, from the slightest 8-bit song to the most interesting intricate use which might otherwise have been patented.

    While acknowledging the sincerity of all “three sides” of the debate, I spend less time on the forest of “should there be IP laws?” and more time thinking about how the thicket can be cleared for those who pursue a more open source path. As the open source movement gains momentum, it must inevitably seek to challenge the issuance of patents on processes already known to open source practice.

    If, for example, PTO had a publication period prior to issuance as with European patents, the platform might be presented for challenges from the open source community to non-patentable material which now might issue.
    Even with the current evolution of US re-examination procedure, we are near the point when with a few tweaks re-examination might be an effective tool to ensure that matters known in the public commons do not obtain the protection of patent when it is not really deserved. Nobody is served by a social compact which
    grants the monopoly without requiring the originality.

    I don’t think that copyright or patent are going to be eliminated, and the discussion has a flat-tax feel to it rather than a “going to happen” feel to it. I do think, though, that systematic improvement of the patent examination procedure and a broadening of the fair use doctrines are achievable goals. I’d like to see more focus on
    those goals–and on a creative commons that tries to inject as much intellectual property into the non-patentable, some-rights-reserved quasi-public and public domain as possible.

  • DW

    I think I’ll write a book about “fake property.” And how it’s a really great thing for “fake people” (corporations) to own and sell for “fake money” (credit).

    How do people feel about calling IP simply “Play Property” or “Imaginary property” or “Property in our American Dreams” or “Property, but for peer-to-peer”…..? That would at least sort of knock the authoritarian wind out of Corporate America’s stomach, wouldn’t it?

    Oh, and I think I’ll name my dog Anne, after the Statute, and kick it as I write.

    I disagree with the premise that Intellectual Property is a necessary evil to create a greater good. Show me evidence of a greater good? I think that’s yet to be proven. No offense to Thomas Jefferson and the boys, or God forbid Queen Anne, but their 1700s justification that IP was necessary “to Promote the Progress of the Sciences and Useful Arts” was entirely, well ,”fake” and without an analysis of any evidence beyond experiences and speculation.

    Instead, it appears Intellectual Property exists to create externalities. A cost on the public, like pollution, which the creator and the consumer need not suffer. So I would claim: INTELLECTUAL PROPERTY IS AN UNECESSARY EVIL TO CREATE A PRIVATE GOOD.

    Is it CRAZY to think that if all “intellectual property” were shared freely we’d be worse off? I don’t know. I do think we’d see a better distribution of wealth, though. That begs the question, I realize, of whether we’d have more or less wealth as a society. After all, we made pretty quick work of the Native Americans – who couldn’t even conceive of “real property.” I imagine that’s how the argument went in 1790 at least.

  • john re

    All of you are a bunch of anarchy loving unsuccessful people. All of you. Each and every one of you who think that a book that took me six years to write and publish doesn’t belong to me. If any of you had the balls to state your name and address instead of remaining anonymous, I would be delighted to come to your house and rob you blind. Each and every one of you.