The recently shelved SOPA (Stop Online Piracy Act) and PIPA (PROTECT-IP Act) bills that were up for consideration in the U.S. Congress have once more brought to the forefront a touchy subject, particularly with regard to the Internet: intellectual property (IP). With IT becoming such a critical underpinning of the U.S. and world economies, a frank reconsideration of the meaning and role of IP is long overdue.
Re-evaluating Assumptions About Intellectual Property
One missing item on the agenda of discussing IP legislation like SOPA and PIPA revolves around the meaning, scope and legal status of the term intellectual property. This article is by no means intended to resolve the issue, but merely to point out some considerations that suggest that the predominant conception of IP may well be flawed. Stopping draconian bills like SOPA and PIPA was necessary for reasons having nothing to do with IP, but in anticipation of the next round of legislation (and it will arrive sooner or later), an honest discussion of intellectual property is desperately needed.
IP laws are ostensibly intended to protect the nonmaterial goods produced by individuals and companies. In the context of IT and data centers, such goods encompass software, innovative design practices or devices, and product/company names and logos (which also applies beyond these industries). By prohibiting others from simply copying, by whatever means, these protected items, those who developed them are enabled to earn a return on their invested labor and capital. But like so many concepts that sound good on paper, IP can also be abused.
Examples of copyrights and patents (legal recognitions of IP) range from the understandable to the downright absurd. For instance, it’s easier to believe that a musician has the right to control distribution of a recording he or she made than it is to believe that a company has the right to patent human genes (“How human genes become patented”)—which, incidentally, that company did not create. Similarly, some companies have gained patents on seeds, imposing legal restrictions on farmers’ ability to collect and use seeds from the next generation (“Saving Seeds Subjects Farmers to Suits Over Patent”). But where is the line to be drawn between a common-sense use of IP law and a patently (no pun intended) absurd use?
Complicating the situation is the digital nature of information—music, software, images, text and so on. To computers, these are nothing but long binary numbers (010011101011100010011...). Can a company or individual own the rights to a binary number? But what if two programs use the same binary number for two different things—one to play back a song, one to produce an image? (This is an unlikely occurrence, but it’s conceivable.) And how much of the number is actually owned? For example, if one or two bits are reversed, is it the same number for IP purposes?
And even if we look at the actual content rather than the underlying digital numbers—the notes of music, the shapes and colors of an image, the words of a text, and so on—how much difference is enough difference to objectively avoid legal jeopardy in regard to infringement of IP rights? Are IP rights applicable when no commercial benefit is gained? For example, the Girl Scouts were asked to pay to be able to sing certain tunes around the campfire (“Ascap Asks Royalties From Girl Scouts, and Regrets It”). Again, the extent of IP rights is far from clear: common sense would tend to find more favor in protecting a musician’s recording (say, in MP3 format) than in preventing some Girl Scouts from singing some hit tune among themselves.
SOPA and PIPA Highlight Need for Frank Discussion
The SOPA and PIPA bills were ostensibly intended to protect IP rights on the Internet, but the recent shutdown of Megaupload proves that these bills weren’t really needed to enable enforcement of IP rights on the Internet. (For a simple discussion of the real problems with SOPA and PIPA, see the Khan Academy’s lucid presentation.) What these bills do illustrate is an overboard reaction to IP infringement on the Internet. And similar bills content will continue to come up in the Congress until one of them passes, unless a clearer understanding of what constitutes IP and IP rights is developed.
Although the fact that IP laws are violated regularly by a large number of Internet users doesn’t mean that those laws are unwarranted, it does raise some question about whether the laws do not somehow miss the reality of the digital situation. In some sense, the question really does come down to whether an artist, musician, programmer or other individual can own a number—or, more to the point, whether he or she can control what others do with that number.
The Economics of IP
Intellectual property is an attempt to extend the concepts that apply in the realm of physical possessions to the realm of concepts, ideas and other immaterial things. When you take someone’s car, you’re taking a one-of-a-kind object (there’s only one of that exact car in existence)—the violation in this case is tangible, and the stolen item is irreplaceable (in the sense that there’s only one “that car”). But what about a software program in digital format? Innumerable copies can be created in a manner that has no effect on the physical ownership of the original by the programmer, company or whomever has it.
Thus, from the perspective of the owner in exclusive terms of physical/digital possessions, nothing has changed. Of course, the counterargument is the uncontrolled duplication of the program has an economic effect: it essentially eliminates any monetary value to the program (or whatever the item—by the laws of economics, an infinite supply means the price must fall to zero). The owner could then state that although the program wasn’t stolen, its value was.
But granting that actions that reduce the monetary value of an object are no less than theft, one opens a can of worms that effectively leads to necessary regulation of all economic activity. For example, say two programmers write two different programs that do exactly the same thing (but, to avoid IP considerations, they do it in two entirely different ways). Assume the value of these two programs is thus equivalent in this sense. But if one programmer offers his version for sale at half the price of the other—killing the sales of the more expensive version—is that programmer, in effect, “stealing value” from the other?
This small example illustrates the kind of economic and philosophical morass that a discussion can fall into with regard to IP. This is not, however, to say that IP has absolutely no place in the law or common morality—nor is it to say that IP has a definite place in the same. This is simply to note that an unquestioning allegiance to the prevailing notions of IP (particularly when purveyed by large corporations with huge financial stakes in the discussion) can lead to absurdities, like companies owning the rights to your genes.
What we need, therefore, is a healthy debate on the topic of IP. This debate shouldn’t be limited to laws like SOPA and PIPA, but should focus on what truly constitutes IP and whether the law has a role. The debate need not be just a revolutionary exercise in tearing down an established dogma, but should be a means for both sides to clarify their positions and, one would hope, reach a broader consensus. At that point, any necessary laws can be passed to protect both rights holders and everyone else.
Photo courtesy of Kevin Spencer.