Ownership and Use
January 21st, 2003Bruce Baugh responded to my copyright ownership post (in the comments) with a good lesson in human nature. No matter how ethereal the notion of ownership, it’s real to those who feel it, and to attempt to deny anyone that which their brains tell them is theirs is a tactic doomed to failure. He also points out that ownership is less the issue than use. I suppose that even with physical property there’s a philosophical argument that no object is ever really owned, but we are simply assigned an exclusive right to its use.
Doc‘s call to arms was for us to find a way to stem the tide of misaligned property analogy as pressed by the media interests; a way to get people in general to “get it”. What pervasaive meme can we come up with that will be strong enough to counter the powerful theft/piracy images? Let’s all blog aloud and get the juices flowing, shall we?
Ownership of physical property implies exclusive use. I own my lawn mower, it’s in my posession, in order for you to use it I must relinquish its use to you. You shouldn’t loan it to your neighbour in turn without my permission, especially as that extends my inability to make use of it. If you take it from me, I am left without its use altogether. I can ask to be compensated for the loss. I lose a physical entity, and therefore control over its use.
Ownership of intellectual property does not imply exclusive use. You can play my music without depriving me of it. You can loan it to someone else without affecting my use, although you should ask my permission. I never lose my ability to have full use of the work. What I lose when you use my work without my permission or recompense is control over its use.
Obviously these are two very different concepts. Yet they’re both called ownership. Concepts of theft and piracy of intellectual property just don’t fit. How have such ill-fitting analogies come to permeate our conciousness?
I don’t know that there’s anything necessarily wrong with “intellectual property” as a concept. (Then again, I’m a libertarian, so I’m less likely to find it even if it’s there…) I think that the problem with our current IP regimen is that some parties have, in some cases probably deliberately, blurred the question of whose rights are involved. When corporations talk about “creators’ rights”, we should be in there talking about what happened to the guys who actually created Mickey Mouse and brought him to life on film, and to the men and women who’ve come after them. Likewise with actual authors when the publishing combines do the same.
I’m not sure how to go about framing the debate to do the following, but it would clarify a lot.
There are actually three groups involved in copyright, patent, and the like.
There’s the public, whose collective and general interests are, or at least are supposed to be, represented by the law.
There are creators.
And there are middlemen, who do not themselves invent works but who do – when they do their job well – add value to the work through useful presentation, promotion, distribution, and so on.
Middlemen are necessary. We need gatekeepers, since none of us can individually pay attention to everything people would like to thrust before our consideration, and there’s a real difference between a beautifully printed and suitably packaged book and a stack of printout from even a good home printer (and ditto for albums and paintings and all). It’s just that middlemen are not the same as creators, and we don’t necessarily need this particular set of middlemen just because they’ve become accustomed to doing it.
In some ways “property rights” is a bad term from the outset. Property doesn’t have rights. People have rights (and responsibilities) with regard to property. Putting claims in the active voice is a good exercise in figuring out what I’m implying – very often without realizing it – about passive-voice statements.
I’ve come to believe that terms like ‘intellectual property’ are ill-defined and vague. What we’re talking about here is copyright, and it’s exactly what you say: the right to determine who can copy a work. Yes, there’s “fair use” and all the other clauses of copyright, but the copyright owner has the right to decide how and when the work is copied. Believe me, I’m no advocate for the entertainment industry, but it strikes me as rather puzzling that we’ve totally lost the concept of someone getting compensated for their work. Thirty years ago, if you wanted to hear some music, you (a) went to a concert, or (b) purchased a recording. What, now, makes us think that, because digital copying is easy, we should have the right to go copy whatever we want?
Yes, the RIAA (and others) may be acting in an unfair an monopolistic fashion, but that’s actually a side issue. Even if you resolve that one to your satisfaction, you still have to deal with the fact that, under all the international laws now in existence, the copyright owner still owns the right to copy his or her work.
You say that people can use intellectual property without denying something from you. I disagree. If someone makes their living from selling copies of their work, and you provide copies of their work for free without compensating them, you are denying them their income.
My personal opinion is that record companies etc. are doing themselves more harm than good by fighting music sharing. But I firmly believe that it’s their choice to do so. I do not have a right to copy their stuff.
Mr. Ashley,
A great post to a hopefully fruitful dialogue about piracy v. theft, IP v. physical property.
I wrote a quick bit about this a little earlier:
http://cmusings.blogspot.com/2003_01_19_cmusings_archive.html#87908387
What I write there isn’t the end of the debate – it won’t make clear what’s the difference between IP v. physical property. But I think what needs to happen first is for people to see that it’s not simple. The differences are complex. Copyright is complex. Once people get that, once people don’t expect it to be simple (“stealing is stealing end of story”) THEN we can start discussing the difference between IP v. physical property – but we’ve got to hook them first.