What Is Property?

Revolutionary technologies always disrupt society and one of America's biggest "digital age" disruptions is occurring in the area of intellectual property (IP). Indeed, the digital revolution has re-ignited a heated debate over whether intellectual property is even property at all.

The issue gained prominence a few years ago when five major record labels sued Napster, a peer-to-peer service that allowed Internet users to trade illegal copies of songs. The trial highlighted a major problem facing intellectual property holders: new technology makes it easy to illegally copy and distribute digital products like songs and movies.

The flip side of this problem is that it's now easier for consumers who legitimately purchase digital products to make back-up copies for personal use. These changes have led to an emergence of two radically opposed groups looking to change IP policy.

The first, and so far more successful group, can be called "IP expansionists." This group is mostly composed of Hollywood types who want to increase profits by expanding the definition of IP beyond its proper scope, regardless of infringement on fair use and free-speech rights.

The passage of the Digital Millennium Copyright Act (DMCA) and the Sonny Bono Copyright Term Extension Act, and the introduction of bills like the Peer to Peer Piracy Prevention Act and the Consumer Broadband and Digital Television Promotion Act (CBDTPA) show that the expansionists are currently winning in Congress.

For instance, under the DMCA it is unlawful to bypass copy protection on a legitimately purchased DVD in order to play it on a Linux-operated computer.

While some legislators are now introducing laws to fix these problems, something else is happening. Hollywood's lobbying success has led to a dangerous new enthusiasm for the second extreme, the "IP abolitionists." This group includes thinkers such as right-leaning Chapman University law professor Tom Bell and left-leaning free software proponent Richard Stallman. While thinkers on the left have traditionally placed less value on property, it is unsettling to see an anti-property stand from those on the right.

The IP abolitionists believe that while it is legitimate for a company to use technology to protect digital goods, it is not legitimate to use the power of the state to do so because the goods are not genuine property. They argue that intellectual property is not true property because you can't exclude someone from it in the same way you can with physical property. For example, if you take away tangible property like a car, the owner no longer can enjoy the car, but with IP, the creator will always have and be able to use their copy.

But this doesn't make sense because while the original creator might always have a copy of his work, he is robbed of the profit that he would have made by selling the goods he created with his labor.

The second argument is that since the U.S. Constitution only explicitly recognizes IP as instrumental (i.e., it exists to give creators an incentive to create more works which "promote the progress of science and the useful arts"), IP is not a "natural right" deserving the same protection as tangible property.

This ignores the moral argument that a person's labor should be rewarded with property, and often the "proof" for this statement is given in instrumental terms: "people won't have any incentive to produce creative goods if they aren't rewarded." The founders focused on the instrumental aspect, but it doesn't mean they didn't agree with the moral.

The spirit of copyright and patent laws means to reward labor rather than simply promote the useful arts. For example, one can hold a patent without ever using it and register a literary work for copy protection without ever publishing it. This suggests that there is an underlying understanding that IP is rewarded because it should be, not simply to make sure that there is more of it around for the public good.

There is much more to say about this debate and both sides will be looking for followers. While some legislators have noticed flaws in the expansionists' goals, the abolitionists are silently gaining ground. The public should stay tuned because the very legitimacy of intellectual property may be at stake.

Sonia Arrison is director of the Center for Technology Studies at the California-based Pacific Research Institute.

This ignores the moral argument that a person's labor should be rewarded with property

If you can't convince someone to buy your product rather than accept a cheap knock off of it you aren't going to make money. No one deserves to make money. They only deserve the right to try. Only a fascist a$$hole thinks otherwise.

For example, if you take away tangible property like a car, the owner no longer can enjoy the car, but with IP, the creator will always have and be able to use their copy.

If you can't convince someone to buy your product rather than accept a cheap knock off of it you aren't going to make money.

You're ignoring the problem. It isn't competing against cheap knockoffs. It's competing against your own freely (illegally-)distributed work.

No one deserves to make money. They only deserve the right to try. Only a fascist a$$hole thinks otherwise. Only a fascist a$$hole thinks otherwise.

Another straw man. Nobody every asserted a right to make money. You invented that straw man, yourself.

I must have missed the memo that says that orthodox capitalist theory now recognizes a God-given right to profit no matter what.

Let me put this in simpler terms for you. Let's say that I have a bike. You steal it from my yard. I can't sell that bike anymore because it is no longer in my possession. You "robbed me of the profit that [I] would have made by selling [the bike]". Not that difficult to understand.

Don't you just love their logic? Say I'm a rock musician, and the music pirates steal my latest hit single and distribute it illegally on the internet... But they say it isn't stealing because I still have my copy and can still enjoy listening to it in my living room. Sheesh.

Yeah, I'm sure that warms the musicians' hearts to know that the 2 years they spent creating the album are wasted because pirates are distributing it for free. But at least they can still listen to it in their living rooms. /SARCASM

Let's say that I have a bike. You steal it from my yard. I can't sell that bike anymore because it is no longer in my possession. You "robbed me of the profit that [I] would have made by selling [the bike]".

No, he robbed you of the bike. The fact that you can no longer sell it is simply a byproduct (one of many byproducts) of the fact that you no longer have the bike.

The author seems to be jumping back and forth between two concepts, treating them as if they're one. He first laments the fact that if copyright is violated, he's denied the profits of his work, and then says that such incentive is not enought, that his labor should be rewarded with property. But property and profit are not the same thing.

The argument that the constitutional provision should only be read as providing an incentive, and not a property - the argument that he's arguing against - actually is more coherent. It provides profit, which is the proper reward for labor, but does not provide property, which by its nature is permanent, in direct contravention of the provision that the copyrights be awarded "for limited Times".

The guy wants to ride your bike, but he doesn't think it's worth what you're charging for it, so he steals it. At the price he's willing to pay for your bike (only 10% of which he really likes), you wouldn't make a profit anyway.

Don't get me wrong, I agree with you, it's just that your analogy needs some work. That said, why aren't the people on this thread making the same case for software? I want free Norton updates!

Lots of things could have robbed you of the profit you could have made by selling the bike, such as if he opened up a bike-selling franchise next door, that sold good bikes cheaply. That certainly would cut into the profits you'd make from selling the bike.

Bottom line: your right is to the bike itself, not to any level of money you could make off of it. The fact that theft of the bike would deprive you of that ability, is like I said, only a byproduct. It is not the deciding factor that makes the theft a crime.

And assuming that it never comes back into my possession (which is a given), he "robbed me of the profit that [I] would have made by selling [the bike]"

You always compare apples to oranges on this issue. If I could drive by your yard, run some sort of device like a scanner over it from the street and run that image through a replicator resulting in a copy of your bike, your property would not be affected save for its resale value. And then you'd have to live with that because you still have your bike and now, at the expense of the materials, I have my copy of it.

Besides, any band with common sense would encourage bootlegging its albums. The more people that get to hear it, the more demand there will be for live shows resulting in overall more profitable live shows. The bands get a hell of a lot more money per ticket than per CD. Michael Jackson according to Blender got only $1.6-$1.7 per copy of Thriller and that was at the time the best selling album of all time. I would pay $35-$50 a ticket for many of my favorite bands like NIN, Gravity Kills, Tool, A Perfect Circle and theStart. It only makes sense that a band should cannibalize its album sales to promote its live shows because live shows are very good sources of revenue and fans are more likely to buy merchandise there. Bands that survive off of studio work should be beneath the contempt of the average music customer unless someone or the whole band is not physically capable of playing live.

Bands that survive off of studio work should be beneath the contempt of the average music customer unless someone or the whole band is not physically capable of playing live.

Is that a fact, or just a pompous opinion? What about authors? Should they start giving their books away so that they can then go out on "reading" tour?

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