commit: 1576bb06fa339463ecaa591810477be246e0c9ec
parent e548b56453be988cbf3186639f8c19d67edf04d6
Author: Drew DeVault <sir@cmpwn.com>
Date: Fri, 14 Feb 2025 11:12:22 +0100
A holistic perspective on intellectual property, part 1
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+---
+title: A holistic perspective on intellectual property, part 1
+date: 2025-02-13
+---
+
+I'd like to write about intellectual property in depth, in this first of a
+series of blog posts on the subject. I'm not a philosopher, but philosophy is
+the basis of reasonable politics so buckle up for a healthy Friday afternoon
+serving of it.
+
+To understand intellectual property, we must first establish at least a shallow
+understanding of property generally. What is property?[^note] An incomplete
+answer might state that a material object I have power over is my property. An
+apple I have held in my hand is mine, insofar as nothing prevents me from using
+it (and, in the process, destroying it), or giving it away, or planting it in
+the ground. However, you might not agree that this apple is necessarily *mine*
+if I took it from a fruit stand without permission. This act is called "theft"
+--- one of many possible transgressions upon property.
+
+[^note]: In today's article I will focus mainly on personal property (e.g. your
+ shoes), private property (e.g. a house or a business), and intellectual
+ property (e.g. a patent or a copyright). There are other kinds: public
+ property, collective property, and so on, but to simplify this article we
+ will use the layman's understanding of "property" as commonly referring to
+ personal property or private property, whichever is best supported by
+ context, unless otherwise specified. In general terms all of these kinds of
+ property refer to the rules with which society governs the use of *things*.
+
+It is important to note that the very possibility that one could illicitly
+assume possession of an object is a strong indication that "property" is a
+social convention, rather than a natural law; one cannot defy the law of gravity
+in the same way as one can defy property. And, given that, we could try to
+imagine other social conventions to govern the use of *things* in a society. If
+we come up with an idea we like, and we're in a radical mood, we could even
+challenge the notion of property in society at large and seek to implement a
+different social convention.
+
+As it stands today, the social convention tells us property is a *thing* which
+has an "owner", or owners, to whom society confers certain rights with respect
+to the thing in question. That may include, for example, the right to use it, to
+destroy it, to exclude others from using it, to sell it, or give it away, and so
+on. Property is this special idea society uses to grant you the authority to use
+a bunch of verbs with respect to a thing. However, being a social convention
+rather than a natural law, nothing prevents me from using any of these verbs on
+something society does not recognize as my property, e.g. by
+<abbr title='"I have a bridge to sell you" is an English-language idiom that refers to selling something you do not own to a gullible person.'>
+selling you this bridge</abbr>. This is why the social convention must be
+**enforced**.
+
+And how is it enforced? We could enforce property rights with shame: stealing
+can put a stain on one's reputation, and this shame may pose an impediment to
+one's social needs and desires, and as such theft is discouraged. We can also
+use guilt: if you steal something, but don't get caught, you could end up
+remorseful without anyone to shame you for it, particularly with respect to the
+harm done to the person who suffered a loss of property as a result. Ultimately,
+in modern society the social convention of property is enforced with, well,
+force. If you steal something, society has appointed someone with a gun to track
+you down, restrain you, and eventually lock you up in a miserable room with bars
+on the windows.
+
+---
+
+*I'd like to take a moment here to acknowledge the hubris of property: we see the
+bounty of the natural world and impose upon it these imagined rights and
+privileges, divvy it up and hand it out and hoard it, and resort to cruelty if
+anyone steps out of line. Indeed this may be justifiable if the system of
+private property is sufficiently beneficial to society, and the notion of
+property is so deeply ingrained into our system that it feels normal and
+unremarkable. It's worth remembering that it has trade-offs, that we made the
+whole thing up, and that we can make up something else with different
+trade-offs. That being said, I'm personally fond of most of my personal property
+and I'd like to keep enjoying most of my property rights as such, so take from
+that what you will.*[^marx]
+
+[^marx]: Marx, among others, distinguishes between personal property and private
+ property. The distinction is drawn in that personal property can be moved --
+ you can pick up a T-Shirt and take it somewhere else. Private property
+ cannot, such as land or a house. Anyway, I'm not a Marxist but I do draw
+ from Marxist ideas for some of my analysis of intellectual property, such as
+ the labor theory of value. We'll talk more about these ideas later on.
+
+---
+
+One way we can justify property rights by using them as a tool for managing
+*scarcity*. If demand for coffee exceeds the supply of coffee beans, a scarcity
+exists, meaning that not everyone who wants to have coffee gets to have some.
+But, we still want to enjoy scarce things. Perhaps someone who foregoes coffee
+will enjoy some other scarce resource, such as tea --- then everyone can benefit
+in some part from some access to scarce resources. I suppose that the social
+convention of property can derive some natural legitimacy from the fact that
+some resources are scarce.[^colonialism] In this sense, private property relates
+to the problem of distribution.
+
+[^colonialism]: It occurred to me after writing this section that the selected
+ examples of property and scarcity as applied to coffee and tea are begging
+ for an analysis of the subject through the lens of colonialism, but I think
+ my readers are not quite ready for that yet.
+
+But a naive solution to distribution has flaws. For example, what of hoarding?
+Are property rights legitimate when someone takes more than they need or intend
+to use? This behavior could be motivated by an antagonistic relationship with
+society at large, such as as a means of driving up prices for private profit;
+such behavior could be considered anti-social and thus a violation of the social
+convention as such.
+
+Moreover, property which is destroyed by its use, such as coffee, is one matter,
+but further questions are raised when we consider durable goods, such as a
+screwdriver. The screwdriver in my shed spends the vast majority of its time out
+of use. Is it just for me to assert property rights over my screwdriver when I
+am not using it? To what extent is the scarcity of screwdrivers *necessary*?
+Screwdrivers are not fundamentally scarce, given that the supply of idle
+screwdrivers far outpaces the demand for screwdriver use, but our modern
+conception of property has the unintended consequence of creating scarcity where
+there is none by denying the use of idle screwdrivers where they are needed.
+
+Let's try to generalize our understanding of property, working our way towards
+"intellectual property" one step at a time. To begin with, what happens if we
+expand our understanding of property to include immaterial things? Consider
+domain names as a kind of property. In theory, domain names are abundant, but
+some names are more desirable than others. We assert property rights over them,
+in particular the right to use a name and exclude others from using it, or to
+derive a profit from exclusive use of a desirable name.
+
+But a domain name doesn't really exist per-se: it's just an entry in a ledger.
+The electric charge on the hard drives in your nearest DNS server's database
+exist, but the domain name it represents doesn't exist in quite the same sense
+as the electrons do: it's immaterial. Is applying our conception of property to
+these immaterial things justifiable?
+
+We can start answering this question by acknowledging that property rights are
+*useful* for domain names, in that this gives domain names desirable properties
+that serve productive ends in society. For example, exclusive control over a
+domain name allows a sense of authenticity to emerge from its use, so that you
+understand that pointing your browser to drewdevault.com will return the content
+that the person, Drew DeVault, wrote for you. We should also acknowledge that
+there are negative side-effects of asserting property rights over domains, such
+as domain squatting, extortionate pricing for "premium" domain names, and the
+advantage one party has over another if they possess a desirable name by mere
+fact of that possession, irrespective of merit.
+
+On the balance of things, if we concede the legitimacy of personal
+property[^property legitimacy] I find it relatively easy to concede the
+legitimacy of this sort of property, too.
+
+[^property legitimacy]: Not that I do, at least not entirely. I personally
+ envision a system in which wealth is capped, hoarding is illegal, and
+ everyone has an unconditional right to food, shelter, healthcare, and so on,
+ and I'll support reforming property rights in a heartbeat if that's what it
+ takes to get all of those things done. And, as the saying goes: if you see
+ someone stealing groceries, you didn't see anything. My willingness to
+ accept property as a legitimate social convention is conditional on it not
+ producing antisocial outcomes like homelessness or food insecurity. A system
+ like this is considered a form of "distributive justice", if you want to
+ learn more.
+
+The next step is to consider if we can generalize property rights to govern
+immaterial, non-finite things, like a story. A book, its paper and bindings and
+ink, is a material, finite resource, and can be thought of in terms that apply
+to material property. But what of the words formed by the ink? They can be
+trivially copied with a pen and paper, or transformed into a new medium by
+reading it aloud to an audience, and these processes do not infringe on the
+material property rights associated with the book. This process cannot be
+thought of as stealing, as the person who possesses a copy of the book is not
+asserting property rights over the original. In our current intellectual
+property regime, this person is transgressing via use of the *idea*, the
+*intellectual* property --- the *thing* in the abstract space occupied by the
+story itself. Is that, too, a just extension of our notion of property?
+
+Imagine with me the relationship one has with one's property, independent of the
+social constructs around property. With respect to material property, a
+relationship of possession exists: I physically possess a thing, and I have the
+ability to make use of it through my possession of it. If someone else were to
+deny me access to this thing, they would have to resort to force, and I would
+have to resort to force should I resist their efforts.
+
+Our relationship with intellectual property is much different. An idea cannot be
+withheld or seized by force. Instead, our relationship to intellectual property
+is defined by our *history* with respect to an idea. In the case of material
+property, the ground truth is that I keep it locked in my home to deny others
+access to it, and the social construct formalizes this relationship. With
+respect to intellectual property, such as the story in a book, the ground truth
+is that, sometime in the past, I imagined it and wrote it down. The social
+construct of intellectual property invents an imagined relationship of
+possession, modelled after our relationship with material property.
+
+Why?
+
+The resource with the greatest and most fundamental scarcity is our time,[^time]
+and as a consequence the labor which goes into making something is of profound
+importance. Marx famously argued for a "labor theory of value", which tells us
+that the value inherent in a good or service is in the labor which is required
+to provide it. I think he was on to something![^marx 2] Intellectual property is
+not scarce, nor can it be possessed, but it does have *value*, and that value
+could ultimately be derived from the labor which produced it.
+
+[^time]: And you're spending some of it to read my silly blog, which I really
+ feel is an honor. Thank you.
+[^marx 2]: Marx loses me at historical determinism and the dominance of man over
+ nature through dogmatic industrialization, among other things, but the labor
+ theory of value is good shit.
+
+The social justification for intellectual property as a legal concept is rooted
+in the value of this labor. We recognize that intellectual labor is valuable,
+and produces an artifact --- e.g. a story --- which is valuable, but is not
+scarce. A capitalist society fundamentally depends on scarcity to function, and
+so through intellectual property norms we create an artificial scarcity to
+reward (and incentivize) intellectual labor without questioning our fundamental
+assumptions about capitalism and value.[^subj-value] But, I digress --- let's
+revisit the subject in part two.
+
+[^subj-value]: Another tangent on the labor theory of value seems appropriate
+ here. Our capitalist system is largely based on a competing theory, the
+ "subjective theory of value", which states that value is defined not by the
+ labor required to provide a product or service, but by market forces, or
+ more concretely by the subjective value negotiated between a buyer and
+ seller. I admit this theory is compelling when applied to some examples,
+ for example when explaining the value of a Pokemon card. When it comes to
+ intellectual property, however, I find it very unsatisfying, given that a
+ laissez-faire free market would presumably evolve a very different approach
+ to intellectual property. As such I think that intellectual property as a
+ concept depends at least a little bit on Marx for its legitimacy, which I
+ find very funny.
+
+In part two of this series on intellectual property, I will explain the modern
+intellectual property regime as I understand it, as well as its history and
+justification. So equipped with the philosophical and legal background, part
+three will constitute the bulk of my critique of intellectual property, and my
+ideals for reform. Part four will examine how these ideas altogether apply in
+practice to open source, as well as the hairy questions of intellectual property
+as applied to modern problems in this space, such as the use of LLMs to file the
+serial numbers off of open source software.
+
+---
+
+*If you want to dive deeper into the philosophy here, a great resource is the
+Stanford Encyclopedia of Philosophy. Check out their articles on [Property and
+Ownership][0] and [Redistribution][1] for a start, which expand on some of the
+ideas I've drawn on here and possess a wealth of citations catalogued with a
+discipline I can never seem to muster for my blog posts. I am a programmer, not
+a philosopher, so if you want to learn more about this you should go read from
+the hundreds of years of philosophers who have worked on this with rigor and
+written down a bunch of interesting ideas.*
+
+[0]: https://plato.stanford.edu/entries/property/
+[1]: https://plato.stanford.edu/entries/redistribution/
