19 June 2009

Intellectual property isn't

Michele Boldrin and David K.Levine have a cogent discussion of intellectual property law which will have you understanding the issue better than a lot of IP lawyers do.
Intellectual property law is not about your right to control your copy of your idea — this is a right that we have just pointed out, does not need a great deal of protection. What intellectual property law is really about is about your right to control my copy of your idea. This is not a right ordinarily or automatically granted to the owners of other types of property. If I produce a cup of coffee, I have the right to choose whether or not to sell it to you or drink it myself. But my property right is not an automatic right both to sell you the cup of coffee and to tell you how to drink it.

It is important to distinguish between property rights and contractual agreements. You could sell me the delicious cup of coffee you just made, and have me sign a contract agreeing not to drink the coffee after 4 pm. But if I were to violate this agreement it would not be theft. As a matter of law, you could not send the police after me. You could sue me for breach of contract - and the courts might or might not decide the contract was valid. But there would be no question of theft or violation of property rights.

So what is the contractual arrangement in current intellectual property law? The most significant feature is the agreement not to sell copies of the idea in competition with the person who sold you the idea. Outside of the area of “intellectual property” such an agreement would be called anti-competitive, and a violation of the anti-trust law. If you reach an agreement with someone else not to compete with them, not only would the courts refuse to enforce such a contract, but you would be subject to substantial civil and criminal penalties. “Intellectual property” in other words, is not about property at all, it is about legal monopoly.

2 comments:

roadriverrail said...

I feel like there has to be a little bit more. The cup of coffee example is an interesting one, but consider that, despite one owning tickets to a concert, it's considered justifiably illegal to resell them for higher than face value.

I'm generally anti-IP, but I also have a strong feeling that people have an ownership over their labor. As such, if you simply take a copy of something I labored to make, and you use it to mass-produce and sell the same object, you have destroyed the value of my labor, and this does feel wrong to me.

J'Carlin said...

Of course IP law is anti-competitive for the same reason that patent law is anti-competitive. If I create something that makes life better for someone in some way, whether it is music that affects their mood or a medicine that affects their life, the only way I can receive compensation for my efforts in creating the music or medicine is to charge each person who benefits a portion of my costs of creation. The person who buys the product is not paying for the product itself but for the benefit it provides.

A purchaser of music is not buying a few notes on a piece of paper hesh is buying the affect of those notes on herm mind. Similarly a person buying a string of bits is noy buying the bits hesh is buying the effects of that string of bits on herm hardware. The creator of the note string or the bit string is selling the effect not the string. The effect is the property not the string. By purchasing the string to get the effect you are not buying my property, you are just buying the means to achieve the effect, and of course the effect itself. But to distribute the effect without compensation to me by copying the string which produces the effect you are stealing just as if you took my car for the effect of getting from where my car was to where you wanted to be.