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To Grok Intellectual Property · Wednesday June 06, 2007 by Crosbie Fitch

Karl Fogel makes a great counter to Mark Helprin’s May 20th Op-end piece A Great Idea Lives Forever. Shouldn’t Its Copyright?

However, I picked Karl up on his point here:
“The idea that owning creative works is somehow a natural right thus founders on the rocks of physical reality”.

Here follows our conversation:

Don’t mistake copyright for IP

Submitted by Crosbie Fitch on Mon, 2007-06-04 10:22

Owning the works one creates is a natural right, and it does not founder on the rocks – only copyright does.

There is a natural right to intellectual property. It is this natural right that has been abused to serve as the illegitimate foundation for copyright.

This is how the abuse goes:
“Nothing is more a man’s property than the product of his mind”: Yes. Absolutely. 100% agree.

“Therefore, unlike any other craftsman, the author should enjoy the ability to stipulate how their works may or may not be used by those who purchase them, and to prevent anyone else subsequently reproducing them”: Eh? Where the heck did this illogical claptrap appear from?

Beware of dissolving intellectual property in your laudable questioning of copyright. The property bit is fine, it’s the copyright that’s claptrap.

The problem with copyright is that it unethically grants the author of creative works a commercial privilege to control use of their property even after they have sold it, i.e. they obtain control over someone else’s intellectual property.

Ditto for patents.

Re: Don’t mistake copyright for IP

Submitted by kfogel on Mon, 2007-06-04 17:20.

Sorry, but I completely disagree.

After all, what does “property” mean? Why do we have the concept in the first place? We have it because we must make decisions about the allocation and use of limited resources. But when the resource is not limited — when it can be infinitely replicated at virtually no cost — then treating it as property doesn’t make sense; it isn’t useful for society. That’s the premise on which this entire website is based.

I didn’t understand this part:

The problem with copyright is that it unethically grants the author of creative works a commercial privilege to control use of their property even after they have sold it, i.e. they obtain control over someone else’s intellectual property.

What do you mean by “after they have sold it”? What exactly are they selling? When I sell you a sandwich, you actually take a physical object from me in exchange for the money. When I sell you a trademark, you take (and I lose) an exclusive privilege to use certain symbols and phrases in certain contexts. But in the transaction you’re describing above, I can’t tell what is being sold, if not the copyright… In today’s system, when someone sells their copyright, they don’t retain control of the use of the “property” after selling that copyright. Instead, the purchaser now has control.

So, you lost me there… :-)

Reproducibility does not destroy property

Submitted by Crosbie Fitch on Mon, 2007-06-04 18:38.

The fact that we can copy at insignificant expense does not prevent ideas or intellectual works from being property.

Simply because you could make a copy for ‘no cost’, doesn’t destroy the property rights of the person who owns that which you’d copy.

If you want a copy of some of my intellectual property, perhaps a published recording I have of a singer we both admire, then irrespective of whether you can make a copy of it at no cost, it remains my property and I, and only I, will decide if you can make a copy (or that I make one and supply it to you). I may well ask for $10 for such a copy. Alternatively, I may give you a copy as a gift, but the fact remains that it is entirely my right to determine what use is made of my property.

Of course, once I’ve sold or given this copy to you, it becomes your intellectual property. Similarly, the copy I still posssess remains undauntedly, my intellectual property.

As you know, copyright interposes, suspends our natural property rights (as an incentive to the author) and stipulates that all these copies must be made with the permission of the copyright holder.

Admittedly some people corrupt “intellectual property privileges” into “transferable intellectual property rights” and then contract that into “intellectual property”.

Furthermore, the fact that copyright is transferable can mislead people into thinking that copyright is the intellectual property, but this is a wicked conflation intended to persuade people that copyrighted intellectual works belong to the copyright holder rather than the purchaser.

You buy an authorised copy, you own the copy – but copyright says you can’t copy it yourself without permission.

You buy an intellectual work, you own the intellectual work – it is your intellectual property. But copyright says you don’t necessarily enjoy (ALL OF) your rights to this intellectual property. (SOME OF) your property rights are suspended and to be enjoyed by the copyright holder instead.

But for copyright, as the owner of the intellectual work, you’d enjoy all of your intellectual property rights – none of them would be suspended to be granted (for limited times) to the author.

So, the abolition of the privilege of copyright actually results in the restoration of everyone’s intellectual property rights.

That IP maximalists overreach through copyright and patent and subsume those commercial privileges into the definition of IP does not invalidate IP. We just have to remind people that IP loses that corruption when copyright and patent are abolished.

If you like my basket I’ll weave you a copy for a dozen eggs and it’s yours.
If you like my software I’ll make you a copy of the source code for a chicken and it’s yours.

Whatever it is, physical or intellectual, until you pay for it, it remains my property. And when you’ve bought it, it’s truly your property, without let or hindrance.

Re: Reproducibility does not destroy property

Submitted by kfogel on Tue, 2007-06-05 13:12.

Hmm. I think I see what you’re saying: that in order for me to copy something from you (or, in the digital age, duplicate a bitstring), you need to make the data available in the first place. But “property” seems like the wrong word to use for this; “access” or “display” might be better.

I must admit, I also don’t see the relevance of this to anything under discussion here. I mean, sure, for person B to copy something from person A, person A must grant access. But weaving a basket is totally different from making a copy of a bitstring: one requires time and effort, the other is essentially zero cost.

You can use the word “property” to describe all these things, if you want, but it’s just going to result in a lot of misunderstanding, since most people will assume that all the other connotations of “property” apply.

A gift of property may be easy, but ease doesn’t invalidate sale

Submitted by Crosbie Fitch on Tue, 2007-06-05 15:01.

You don’t copy my intellectual property. It’s not yours to copy.

Instead, you ask me to make a copy of my intellectual property and give it to you.

I can automate this such that when you make a request to one of my agents (publishers or webservers) that they make a copy on my behalf, and supply it to you free of charge.

I can also offer copies of my IP for sale.

Just because it’s easy for me to make copies of my property, that doesn’t mean the copies aren’t valuable, nor does it entitle you to appropriate copies of my property without my permission. Indeed, the more keen you are to obtain one of my ‘trivially produced’ copies, the more valuable it is to you (and me), and the more I’ll be interested in realising this value and offering it for sale.

The critical thing to note is that once I’ve given or sold you a copy of my IP, it’s then your IP. Without copyright, I cannot stop you making copies or derivatives of your IP – irrespective of the fact that I authored it.


You say “Treating works of the mind as physical property fails at a basic logical level”. I’m saying that, on the contrary, treating works of the mind as if physical property succeeds at a basic logical level. The only thing that prevents this treatment of intellectual works as property is copyright.

People understand property. It is copyright that people are evidently having a problem with. “Wot? You mean I can’t copy this CD so I can play it in my car? EMI still own it? Flip that, sunshine. I bought it. They can sue me!”

I am evangelising the abolition of copyright so that everyone’s intellectual property rights are restored from notional suspension by copyright and other unethical privileges governing IP.

It’s your CD. It’s your intellectual property, and no-one else can stop you copying it, playing it, mixing it, or being inspired by it.

Karl Fogel said 4891 days ago :

Thanks for posting these.

It feels to me like you’ve got a personal definition of “intellectual property” that matches with no one else’s. I don’t understand how it’s different from just “property”. You already have physical control over your CD collection, or your webserver, or your whatever. That’s as true today as it would be after the abolition of copyright. So why do we need a separate concept for it?

The copyright controversy is about laws that prevent the replication of patterns. Those laws are not about the physical embodiments of those patterns, they’re about the patterns themselves. And the word “intellectual property” refers to the patterns, again, not to the physical objects. If there were no laws about the patterns, we wouldn’t need the term “intellectual property” at all. It’s already a pretty confusing term, even today, because it mixes up copyrights, patents, and trademarks. But if we got rid of copyrights, it wouldn’t suddenly make sense to start referring to your physical CDs as your “intellectual property”. They’re just your “property”, period, with fewer restrictions on their use.

Crosbie Fitch said 4891 days ago :

Yes, there’s the physical CD, and there are the patterns of pure intangible information imprinted upon it. The former is the physical property, and the latter is the intellectual property.

The CD is both your physical property and your intellectual property.

You can make another CD just like it, or you can copy the IP into a USB memory stick. However, it all belongs to you. It’s only when you deliver any copies to someone else that ownership of the physical or intellectual property is transferred.

The confusion as to who owns IP is caused by IP maximalists suggesting that copyright grants ownership to the copyright holder. Actually, it only grants certain exclusive privileges (normally part of the property rights of the purchaser).

Intellectual property can often be more valuable than the medium upon which it is printed or stored.




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