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2025-02-13-On-intellectual-property.md (15219B)

---
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 law of nature; 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,
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 is 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/