IP abolitionists, hear me out: copyright is good.
When it comes to copyright, it can be very easy to lose the forest for the trees. That’s why I want to start this series with a bit of a reset, and establish a baseline understanding of copyright doctrine as a whole, and the context in which our modern experience of copyright sits.
The current state of copyright law is a quagmire, due not just to laws but also international treaty agreements and rulings from judges who don’t understand the topic and who even actively disagree with each other. That convolution is exactly why I don’t want to get lost in those twists and turns for this, and instead want to start with the base principles we’ve lost along the way.
You don’t need to understand the layers to see the problem. In fact, intellectual property is a system whose convolutions hide the obviousness of the problem. Complexity is good only when complexity is needed to ensure the correctness of the outcome. But here, far from being necessary to keep things working right, the complexity hides that the outcome is wrong.
But that outcome, our current regime that we know as copyright policy, is so wrong — not only objectively bad, but wrong even according to its own definition — that at this point it takes significant work just to get back to the idea that
Copyright is supposed to be good🔗
This is my controversial stance, and the premise of my series: copyright (as properly defined) is a cohesive system, and, when executed properly, is actually good for everyone. And I’m not “one true Scotsman”ing this either; copyright isn’t just an arbitrary legal concept, it’s a system that arises naturally from a set of solid base principles.
The first step in my “understanding the forest for the trees” project is separating the big, nebulous, polluted idea of “copyright” out into the parts people can mostly agree on and the parts that are just evil and bad. Fortunately, the “good” and “bad” groups line up really well with “original intent” compared to “junk that was added later”. Generally speaking, it’s not useful to just make a distinction and act like doing so is the whole job done, unless you just care about smarmy pedantic internet points. But I’m not doing this to be pedantic, I’m making the distinction between the core idea and the junk that’s corrupted it because it turns out to be really important.
What we’re subjected to today in the name of copyright does not come from the real principles of copyright. Compared to the current state of US intellectual property law, the “real copyright” I’m talking about is like grass so utterly smothered by concrete that not only do no strands poke through, everyone involved has forgotten it was ever there.
The situation is so bad that even though I think copyright should be a good thing, I think our current bastardization of it may be worse than nothing at all, to the point where we’d be better off with the problems real copyright is meant to solve than with all the new, worse problems it’s inflicted on us.
But because what we’re enduring now is a corruption of another thing and not its own original evil, we’re not limited to measuring it by the harm it inflicts: we can also measure it by its deviation from what we know it should be.
So what’s the good version? This true, unadulterated form of creative rights?
From now on, in this series, when I talk about concepts like Copyright, I’m referring to what those concepts actually mean, not necessarily what all abuses current law allows.
The fundamental purpose of creative rights is to reward creative (or, for patents, inventive) work by giving the creator a limited monopoly over the production, distribution, and first sale of their creation for a period before it falls back into the public domain.
There are three basic categories of creative rights (or, historically, “creative monopolies”): Copyright, patents, and trademarks.
- Copyright gives the creator limited exclusivity to reproduce and distribute “original works of authorship fixed in any tangible medium of expression.” In other words, it protects specific creative works after they’ve been made. It explicitly does not protect abstract ideas, concepts, or technology. Those protections are reserved for…
- Patents give the inventor limited exclusivity to profit from newly invented (man-made) technology in exchange for public disclosure of the information. But never over pre-existing methodologies (“prior art”) or abstract concepts, only new, real inventions.
- Trademarks are the odd one out because while they do clearly benefit the trademark holders, their purpose is to be consumer protection measure to prevent impersonation and counterfeiting, not a subsidy to the firm that holds the mark.
Copyright — the right to make copies — grants a limited, exclusive monopoly right over the reproduction and distribution of a specific creative work. Copyright specifically governs copies, or derivatives based on the original work designed to substitute for it entirely, where the harm done is a “lost sale.” Fundamentally, copyright is to incentivize creation of new, creatively expressive work.
Historically, copyright was a reaction against copying: responding to the printing press in particular, and the increasing ease of copying and distribution in general. It was created so that the development of technology that enables better, faster, faithful copying and distribution of ideas and information doesn’t disincentivize new creative work. Copying a new creative work — like a book, comic, game, or movie — and distributing unauthorized copies is a copyright violation.
Crucially, copyright is not a property right, or even equivalent to one. The market exclusivity given to authors is a privilege granted by the federal government, and by definition can exist for a strictly limited span of time.1 (Let’s say, as a theoretical maximum, the entire lifetime of the creator.) Though it can be “sold” (or, usually, automatically assigned to a corporation) by contract, that’s the only analogue; it’s not intangible bonus property artists own in addition to the work they make.
Having a copyright isn’t the “idea” equivalent of land ownership. Having a copyright doesn’t mean there’s an idea you’ve somehow reserved unlimited, exclusive rights over in perpetuity because you’re the rightful god over it and it’s “yours”. Copyright is for specific, produced works — “expressions”, as a noun —, not aesthetic tastes. It doesn’t carve out a patch of culture for you to lord over and charge other creators rent on, it’s a way of giving otherwise vulnerable creators reciprocity. Copyright is so specifically limited to individual works that works where the “expression” and “idea” can’t be separated are ineligible for copyright altogether2: even getting close to “owning an idea” corrupts the entire thing. There’s no “area” to own to allow an “owner” to charge rent on future work that falls in that space, only temporary exclusivity over individual works. Copyright isn’t property.
The “public domain”, then, is just the collection of all creative works that aren’t actively under copyright, whether due to not being granted copyright at the time of creation, the limited monopoly period having expired, or the copyright on the work being explicitly waived by the author. (This was the default even on new works until 1989, when US law changed to grant artists copyright automatically, without having to individually file works with the copyright office.)
Even within copyright’s highly limited monopoly, there is still a wide range of activities that would otherwise be considered “unauthorized copying” that are allowed anyway. This is the “Fair Use” doctrine. Fair Use protects specific acts that involve copying a protected work, like commentary, criticism, (some) parody, and news reporting. Even though they technically involve copying copyrighted material, you don’t need authorization from the copyright holder for these purposes.
Because copyright’s purpose is to incentivize the creation of new work, the function of copyright is not just restrictive, but also expressly permissive. In “the exclusive right to make copies”, the “exclusive” part restricts others from doing so, but the “right to make copies” is a positive right that guarantees the copyright rightsholder — technology and circumstance permitting — to reproduce, distribute, perform, and otherwise publish their works. Therefore, in addition to violations of exclusivity, illegitimate attacks on authors’ ability to publish their own work are also violations of copyright.
Patents are similar, but are designed to balance the scientific ethos of publishing reproducible work that can be researched and built upon with the economic necessity of inventors needing to be able to make money off their work. In theory, without patents, the natural incentive would be to keep every discovery as a trade secret, and valuable work would end up unpublished. Likewise, spending time on inventing work that couldn’t be kept secret would be unfeasible as a career.
Patents fix this incentive problem by offering inventors a limited period of exclusivity to profit off their invention in exchange for filing a patent. Vitally, “filing a patent” requires publicising the entire invention, including not only a description of the new technology, but also a full and detailed specification such that anyone familiar with the field can reproduce and recreate the patented technology using only the information contained in the patent.3 Using a patented design — like a new engine design, drug, or chemical compound — commercially while that design is under patent without appropriately licensing it from the owner is a patent violation.
Under this patent system people can be actively researching and developing new technologies based on existing inventions, even during the period of exclusivity, but they can’t start selling them commercially until the monopoly period ends, unless they license the right from the patent holder.
Of course, it would be in the interest of the self-interested patent holder to secure rights without disclosing sufficient useful information, thereby creating legal leverage for themselves while depriving competitors of information. Such patents would actively pervert the system to the extreme detriment of society, so this cannot be allowed. Patents should only be granted for “those inventions which would not be disclosed or devised but for the inducement of a patent4”: in other words, patents should be limited as much as possible, and only given in exchange for the disclosure of legitimately valuable information. If it doesn’t cost them valuable information (as to a trade secret) to publish, it’s not a candidate for a patent.
Patents have an extremely limited scope for the kinds of ideas eligible for protection. Patents only protect specific inventive works, and those works must be a new or improved “machine, manufacture, or composition of matter”. “Truths” (like laws of nature), incidental improvements5, and abstract ideas (like mental processes7, algorithms, systems for organizing human activity6, and game rules8) are not patentable.
However, the Doctrine of Equivalents means that patents also protect against variations (or equivalents) of a patented invention or its claims, so if someone creates a slightly modified version of a patented invention it can be deemed an infringement as equivalent. This means patents, unlike copyright, get a conceptual “radius” they cover that protects not only the exact claims made in the patent, but also similar devices.
But patents are not a tool that allows you to describe an outcome you would like someone else to design and invent a machine to accomplish so you can own it when they do. They’re not a way to stake a claim on land you haven’t discovered yet. They’re also not a tool to lock customers into your system by making it illegal for other people to make parts that fit your machine. They’re a temporary grant for the exclusive right to profit from something valuable you’ve already created, in exchange for your disclosure of valuable information.
Trademarks — a “mark”, or name, used for trade — aren’t all that interesting here, or at least shouldn’t be. Trademarks are exclusively for preventing others from trying to deceive the public by misusing your name. A crypto spambot on Twitter using the “X” logo as its profile picture to mislead you into thinking it’s representing official Twitter activity is a trademark violation.
The thing a registered trademark “grants” the holder is the ability to police their own trademarks. Companies are “deputized” by the government to enforce the trademarks they hold. In turn, those companies become the party responsible for doing it, rather than the government.
But trademarks can only be “enforced” in specific circumstances against specifically deceptive behaviour; having a trademark doesn’t give you a right to control how (or whether) people are allowed to reference you by name. Even uses of a trademark by unauthorized parties that directly harm the owner don’t violate trademark rights unless the misuse harms customers. Trademarks protect the customer.
This is a widely misunderstood point, because of how much value trademarks provide to the companies that hold them. But, fundamentally, trademarks are not a subsidy to their holders: although they provide value, this is a side effect, not the purpose of the system. Transferring extra value to trademark holders isn’t the purpose or the legal basis; trademark authority doesn’t even come from Article 1, Section 8, it’s an extension of the regulation of commerce.
The purpose of the trademark system — and the only thing it has the authority to do — is protect the consumer from being harmed by impersonation and misrepresentation of a brand. Companies are free to profit from that, but if ever the primary purpose (protection) comes into conflict with the side-effect (profit), the primary purpose of trademarks, consumer protection, must always take priority over any incidental profit they provide business.
These creative rights often get bundled up under the term “intellectual property”. There are two problems with that label: “intellectual” and “property”. You probably see the problem with “property” already: it’s a terrible word to describe the category of state-granted monopoly. It (intentionally) obfuscates the contractual principle and tries to replace the core concept of a negotiated privilege with one of an absolute, natural property right, which it’s not.
Richard Stallman, Did You Say “Intellectual Property”? It’s a Seductive Mirage The term [“intellectual property”] carries a bias that is not hard to see: it suggests thinking about copyright, patents and trademarks by analogy with property rights for physical objects. (This analogy is at odds with the legal philosophies of copyright law, of patent law, and of trademark law, but only specialists know that.) These laws are in fact not much like physical property law, but use of this term leads legislators to change them to be more so. Since that is the change desired by the companies that exercise copyright, patent and trademark powers, the bias introduced by the term “intellectual property” suits them.
Cory Doctorow, IP: If you think you don’t have enough copyright, it’s hard to go to Congress or Parliament and demand an expansion of your regulatory monopoly – far more pleasant is demanding help in defending your “property.”
Creative rights aren’t like mineral rights. They’re not a property right over all future produce of some tract of land you own. Not only is that metaphor not at all analogous to how actual creation works, it’s fundamentally opposed to the core principles of copyright. Corporations don’t grant creators permission to play in a box they own out of the kindness of their hearts, because they don’t own any such box. As a specific work-around for a specific problem of capitalism, they’re given a tiny, tiny right-of-way that they keep for only a short time.
You do get to have that ultimate, incontestable property right over your ideas if you really want it, though: you just can’t communicate them. But when you publish your art, or sell it, or post it, you’ve necessarily lost some control of the idea and your exclusive right to know and control it, because it’s in other people’s heads now too. A loss of control is an intrinsic property of what it means to “publish” work.
After publishing one can say “all rights reserved” all they want, but one can only reserve the rights one has already, and “unlimited power” was never a right for the author to keep. This is completely normal: you can’t sell a thing without losing some of your power over it! But you’re not at the mercy of the wolves, you still get a fair deal — in the form of a few select privileges — thanks to copyright.
That wasn’t the argument, those were just the ground rules🔗
To be clear, none of this is pie-in-the-sky cyber-hippie “information wants to be free, maaaaaaaan”ing, or even me evangelizing a particular political theory I subscribe to. All these fundamental purposes I’ve described so far are definitively baked into the things’… definitions:
Constitution of the United States, Article 1, Section 8: The Congress shall have Power … … To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
With regard to copyright:
17 U.S. Code § 102 (a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression…
(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.
17 U.S. Code § 107 Notwithstanding the provisions of [copyright], the fair use of a copyrighted work… for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.
Pierre N. Leval in Authors Guild v. Google, Inc decision The ultimate goal of copyright is to expand public knowledge and understanding, which copyright seeks to achieve by giving potential creators exclusive control over copying of their works, thus giving them a financial incentive to create informative, intellectually enriching works for public consumption … Thus, while authors are undoubtedly important intended beneficiaries of copyright, the ultimate, primary intended beneficiary is the public, whose access to knowledge copyright seeks to advance by providing rewards for authorship.
And with regard to patents:
35 U.S.C. 112 (a) IN GENERAL. — The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
Thomas Jefferson, Writings It has been pretended by some, (and in England especially,) that inventors have a natural and exclusive right to their inventions, and not merely for their own lives, but inheritable to their heirs.
Stable ownership … is given late in the progress of society. It would be curious then, if an idea, the fugitive fermentation of an individual brain, could, of natural right, be claimed in exclusive and stable property. If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it.
Inventions then cannot, in nature, be a subject of property. Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from any body
Graham v. John Deere Co. of Kansas City, 383 US 1 - Supreme Court 1966 The patent monopoly was not designed to secure to the inventor his natural right in his discoveries. Rather, it was a reward, an inducement, to bring forth new knowledge. The grant of an exclusive right to an invention was the creation of society—at odds with the inherent free nature of disclosed ideas—and was not to be freely given. Only inventions and discoveries which furthered human knowledge, and were new and useful, justified the special inducement of a limited private monopoly.
…the underlying policy of the patent system that “the things which are worth to the public the embarrassment of an exclusive patent,” as Jefferson put it, must outweigh the restrictive effect of the limited patent monopoly. The inherent problem was to develop some means of weeding out those inventions which would not be disclosed or devised but for the inducement of a patent.
Justice Thomas in Association for Molecular Pathology v. Myriad Genetics, Inc decision Laws of nature, natural phenomena, and abstract ideas are not patentable.
We have “long held that this provision contains an important implicit exception[:] Laws of nature, natural phenomena, and abstract ideas are not patentable.” … Rather, “‘they are the basic tools of scientific and technological work’” that lie beyond the domain of patent protection. … As the Court has explained, without this exception, there would be considerable danger that the grant of patents would “tie up” the use of such tools and thereby “inhibit future innovation premised upon them.” … This would be at odds with the very point of patents, which exist to promote creation. … (Products of nature are not created, and “‘manifestations … of nature [are] free to all men and reserved exclusively to none’”).
Everything so far is just the foundational, essential, if-you-ever-lose-sight-of-this-you-can-fuck-right-off-into-the-sun creative rights bedrock. It is the thing itself. If any of this sounds subversive to you —as it likely does!), that’s not because I’ve done anything to misrepresent these concepts, it’s because you’re the victim of widespread propaganda.
Note that copyright is not a system in turmoil: it is a coherent, non-contradictory doctrine. Everything logically follows from the ultimate goal to promote the useful arts and sciences.
The creation of new creative works via the consumption of old is a necessary part of a healthy culture, and people need to be paid for their work, so provisions are made to ensure artists have a window to profit before culture — not just contract-bound art-serfs — can truly start using it. Science must be promoted, and people need to be paid for their work, so provisions are made to ensure inventors can profit even while others can immediately start developing further technologies from that research.
The creative rights system — as I’ve described it here, not as it exists in practice — is a functioning machine. There is not a grinding of gears, no piece of implementation at odds with any other, or the system as a whole. Everything follows and everything fits.
Thus, if ever something labelled “copyright” finds itself directly at odds with that goal, it’s because it’s been twisted and pitted against itself by some outside force. That’s not a proper part of the doctrine, it’s tendril of some other agenda, falsely labelled as copyright, and must9 be discarded as corrupt.
If this sounds like a whole lot of build up just for me to make a distinction without a difference, don’t worry! I’m not just making the distinction and treating it like that’s the job done. More importantly, you don’t need to personally need a religious belief in the original intent of the founders for this to matter. But there is a distinction, and even if it’s not important to you, it’s very important to see it here, early, because it’s going to matter later.
Exhaustion of Rights🔗
Neither copyright nor patents nor anything else give the original authors any authority over the individual instances after they sell them. This is called the exhaustion of rights, or the “first sale doctrine”: after an item is first sold, the owner’s claim on that particular item is exhausted.10 You can always modify or resell your own property, even if it includes copyrighted material or uses a patented design. Even if you wouldn’t have the right to create new copies, you still own the items themselves, and the authors have already been fully-compensated, according to their own terms, at the time of sale.
The exhaustion of rights is not an exception to copyright, it is a foundational part of it. Copyright, very specifically, does not create a perpetual, feudalistic monopoly. Copyright’s monopoly grants are discrete and limited, and the “first sale” is one of many extents that define the shape of the right. As the extent of the monopoly right granted to copyright holders, it defines the right itself. The limited monopoly cannot exist at all without extents.
Monopolists predictably argue that they’re entitled to an unlimited, unbounded monopoly by default, and the consumers only have the rights explicitly granted to them in law. This argument — that “first sale rights” need to be enumerated11 — gets it exactly backwards. Copyright does not confer an unlimited, unbounded monopoly right; the monopoly rights are the artificial privileges that are specifically defined and enumerated in law in exchange for specific concessions. Aside from these special carve-outs, the actual owners of the property — the people who bought the products — own everything else, every imaginable right not explicitly reserved from them.
First sale was eventually formalized in US law as a point of clarity, but the rights of the owners already existed without this provision. The law — very obviously — does not define the only rights property owners own over their property. That exclusive/inclusive mixup is the same misunderstanding people frequently have about the bill of rights. Both documents give clarifying reference points in a wide field of existing rights, and neither define discrete, enumerated rights. That dynamic of discrete, specific powers assigned by the government is only seen in the monopoly rights given to copyright holders, and never the rights of consumers.
As you can see, none of this exists to be — as Eevee so insightfully put it — “a magical money fountain that makes you rich forever because you had an idea once”. The purpose of copyright is not to guarantee profit, it’s to enable the possibility of it existing at all. The goal isn’t to provide a guaranteed income for “artists” (read: corporations) or enshrine copyright-holders as the dominant social caste. No, it’s a social, contractual arrangement that balances the health of culture and the sciences with the practical needs of individuals to be able to create valuable work and expect due compensation for their labor.
And this is a mutually-beneficial arrangement, because it’s the force that keeps the public domain — or society, the useful arts, the intellectual commons, whatever you want to call it — healthy and sustainable. Given that art and creativity is a good thing everything is a remix (to various extents) and people can’t create in a vacuum, but we live in a system where people need to be able to make money off their work, the system of copyright-as-a-buffer arises as the natural solution.
Under a functional copyright doctrine, creators pull material and inspiration from a thriving public domain, use it to create a new artistic expression or a new scientific development, and release it themselves. But, as a special treat, because we as a society have deemed artistic expression and scientific development to be important and valuable to society as a whole, instead of their work going directly back into the public domain (as it would without such organization), we reward them with a buffer period where the natural flow of the commons is temporarily suspended, and the creator has exclusive rights over the new work for a short period.
But the full “social benefit” of the creation doesn’t kick in until the work becomes part of the public domain so the cycle can continue. Copyright’s purpose is that social benefit, though the way it incentivizes people to ensure the social benefit is by briefly delaying it.
This benefits not only society as a whole, but also both the creators and the consumers of work, because the strict delineation between the “creator” and “consumer” classes is a fiction. Any given party — a person or a corporation — is expected to consume and produce12. Creator and consumer are just roles. For example, Disney creates works by taking short stories and fables and classical music, combining and re-writing and animating them to create new works which then make Disney money, for a short span, before people can start making their own adaptations of those stories.
No one can be expected to just produce their own monolith of IP, keep it to themselves forever, consume only from themselves and keep selling recycled versions of their own material forever. That is completely antithetical to the idea of copyright itself, which itself depends on the idea of a thriving commons in order to accomplish its goal of ensuring the sustainability of the commons. (It is, however, exactly what we have now, with monolithic media empires like Disney whose basic operating strategy is to continue to recycle material it “owns” while “owning” a big enough stable of media rights that it doesn’t need the commons to be healthy, because it can recycle its own products.)
Real copyright, then, exists to ensure the health and sustainability of the commons, and “incentivizing creativity” with carefully limited monopoly is how copyright does this. Because consumption is non-rivalrous and creation of new art contributes to the commons, there are only two threats to the media commons. The first is creating too high a barrier to entry by making new creative works prohibitively expensive to produce: by, for instance, not giving artists any exclusivity, so their work is immediately copied and they cannot make a living at all. The second is letting people use the commons to create new works that don’t quickly return to the public domain, — i.e. enclosure, “the tragedy of the commons” — which is another way of creating a high barrier to entry by preventing other people from creating new works. These are the two factors that are balanced to ensure the health of the system.
All that to arrive at a very, very basic conclusion: Participating in copyright is a contractual arrangement that requires respecting others’ rights. Copyright isn’t a license to print money, it’s the rules for participating in the system and ensuring a clean game. Everyone needs to be protected by both sides of this at all times.
The Other Thing: Intellectual Property🔗
I said earlier that there are two problems with the phrase “intellectual property”: “intellectual” and “property”. We’ve hit the other problem: “intellectual” spans a vast conceptual space, far greater than the finite set of real creative rights. While actual creative rights are only over specific, discrete scenarios, the doctrine implied by the phrase “intellectual property” makes it that — as a general principle — ideas are meant to be owned, which is exactly backwards.
Copyright is a specific, limited, discrete right. As are patents. “Intellectual property” isn’t content with those: it wants to swallow the whole conceptual possibility space of ideas.
The World Intellectual Property Organization (WIPO) colloquially defines IP as such:
WIPO, “What is Intellectual Property?” Intellectual property (IP) refers to creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce.
IP is protected in law by, for example, patents, copyright and trademarks, which enable people to earn recognition or financial benefit from what they invent or create.
I couldn’t have pointed out the problem any better myself. The term “Intellectual Property” refers to all “creations of the mind… used in commerce”, which is a set that contains far more than “owners” have a right to control. With this definition, actual discrete legal rights are an afterthought: a set of post-hoc tools to be used to enforce a principle of automatic general supremacy. The IP grouping demands all ideas that can be used to make money — not just the specific cases protected by copyright — be treated as property. “Violations” of that “property right” can then be treated as criminal offences, simply because they challenge some corporation’s business model.
This over-grouping in the phrase “intellectual property” is a power grab emblematic of the core problem of the real conflict between copyright and IP. IP pursues private ownership and monopoly power over ideas for the sake of power rather than the true function of creative rights, or even just equality under the law. Again, this is why experts hate the term:
Richard Stallman, Did You Say “Intellectual Property”? It’s a Seductive Mirage It has become fashionable to toss copyright, patents, and trademarks—three separate and different entities involving three separate and different sets of laws—plus a dozen other laws into one pot and call it “intellectual property.” The distorting and confusing term did not become common by accident. Companies that gain from the confusion promoted it. The clearest way out of the confusion is to reject the term entirely.
Cory Doctorow: …”IP” is a misleading, ideological concept that lacks the precision needed to have an adult conversation about policy, or justice, or business. It’s like “family values” or “cultural Marxism” – an empty signifier used by unserious people for unserious purposes.
Labelling enforcement of copyright and patents as “intellectual property protection” is like someone tasked with describing “New York and also LA” drew a circle around both, catching not only most of the continental United States but also four extra countries. The ideas “intellectual property” protection encircles are so disparate that the “cracks between them” are vast spaces that, vitally, must not have the protections the IP “circle” implies they should.
This power grab is the generalized intellectual property doctrine, as distinct from any real set of creative rights. “Intellectual Property” describes a set of claims that are incoherent as a category on their individual merits, but that snap into focus when you view it through the lens of corporate power.
Cory Doctorow, IP: …“intellectual property” is an incoherent category: when you assert that your work has “intellectual property” protection, do you mean that you can sue rivals to protect your customers from deception; or that the government will block rivals if you disclose the inner workings of your machines; or that you have been given just enough (but no more) incentive to publish your expressions of your ideas, with the understanding that the ideas themselves are fair game?
When you look at how “IP” is used by firms, a very precise – albeit colloquial – meaning emerges:
“IP is any law that I can invoke that allows me to control the conduct of my competitors, critics, and customers.”
That is, in a world of uncertainty, where other people’s unpredictability can erode your profits, mire you in scandal, or even tank your business, “IP” is a means of forcing other people to arrange their affairs to suit your needs, even if that undermines their own needs.
Copyright laws – that is, “IP laws” – ban tampering with DRM, making it a serious, jailable felony to provide others with tools to bypass DRM. … but, tellingly, the ban on breaking DRM is not limited to copyright infringement. Bypassing DRM to get your printer to accept third-party ink is not a copyright violation: you’re not reproducing its code, nor are you duplicating the traces etched into its chips. But even though you’re not breaking copyright when you jailbreak your phone, you’re still breaking copyright law. The law bans legal conduct, if you have to break DRM to engage in it. This isn’t copyright protection – it’s felony contempt of business-model.
This is the core conflict at the heart of copyright and “intellectual property law”. It’s not a question of crafting policy, it’s not even a power struggle between demographics. It’s a conflict between two fundamentally opposing ideologies.
On the one side, under the “Creative Rights” banner (where I’m sitting today) are all the creators’ rights I’ve talked about so far. These are copyright, patents, and trademarks: coherent doctrines that benefit creators and the public in turn, balancing incentives with the overall health of society. Everything I already described here as “real” creative rights.
On the other side, under the general label of “Intellectual Property” is corporations’ unlimited appetite for power and control. The real unifying thread between violations of “intellectual property” is that they’re scenarios that the extremely rich don’t want to happen. A principle of converting all ideas into a transferable property right is far more profitable for corporations than any of the real principles of creative rights. The structure represented by the intentionally-nebulous “IP” is a feudal system, where people can only build on culture if they agree to whatever demands are made by the elite few that own the culture. In this bad future, wealthy concept-landowners get the first and final say, but now with unlimited swaths of land in conceptual space.
One’s interest in an outcome does not give them a right to control it. Every business has preferred outcomes: things it wants people to do, ways it wants people to act, things it wants people to buy. Some of those outcomes involve things that business made, or things with their name on them, or just their market share. Fine so far.
But that interest doesn’t entitle them to any authority! You’re not automatically in charge of a transaction because you manufactured an involved product, you don’t have a right to control how people speak about you, you can’t force people to buy brand new products every time.
This principle — that interest alone doesn’t entitle you to control — is why businesses depend on carefully negotiated contracts and licensing. Contracts provide rightsholders a layer that does grant them more granular control with how their work is used, but such contracts also require reciprocity. They’re not unilaterally imposed things; in order to claim a right to control how an idea is used, you need to offer something of value in exchange. “Intellectual property” implies the opposite, a unilateral “ownership” rather than a relationship that must be negotiated.
But this contractual layer isn’t the default, it’s an optional extra. In the default relationship a rightsholder has with any given member of the public, the rights they do not have are endless, and the rights they do have are finite: “just enough”. Intellectual property hungers for the opposite: automatic, feudalistic power over everything in an “intellectual domain”, with real people only getting what privileges the lord affords them day-to-day.
The system we’re living under today is not aligned with the principles of copyright and creative rights, and really isn’t even a copyright regime at all. It’s better understood as this generalized Intellectual Property doctrine, in all the bad ways. This is why an accurate description of copyright and patents sounds so subversive: it is. Our current system only includes vague gestures toward those as vestigial justifications, but it has long since stopped holding up the principles.
In the next few parts of this series I’ll go through some case studies of real, recent events — ones likely immediately relevant to your life — so you can see how corporations on the “IP” side systematically fight against creative rights, including copyright and patents. You don’t have to take my word for it, it’s everywhere. And finally, at the end, I’ll talk about an option for one approach you can use in responding to the situation.
Violated by Eldred v. Ashcroft, (actual commercial publishers vs… the MPAA, RIAA, and ASCAP) which invented the interpretation that the term of a copyright that had already been assigned to previously created works could be extended indefinitely, or even set to the length of thousands of years, and that this was not allowed to be understood as violating the limited times clause even though it clearly did. ↩
The merger doctrine ↩
See HOTCHKISS ET AL. v. GREENWOOD ET AL., 52 US 248 - Supreme Court 1851
Violated by bad patents just being granted for improvements anyway. ↩
See Planet Bingo, LLC v. VKGS LLC, 576 Fed. App’x 1005, 1007 (Fed. Cir. 2014)
Violated by bad patents just being granted for processes anyway. ↩
Unfortunately, this hasn’t happened, and so what we have in this metaphor is a writhing mass of tentacles almost completely hiding a machine underneath that can’t possibly do its job anymore. ↩
More technically, the “distribution right” held by the author is extinguished at the point of sale, but they still retain “reproduction rights”, i.e. the copy-right. Violated by Capitol Records, LLC v. ReDigi Inc., etc, etc. ↩
Violated by Capitol Recs., LLC v. ReDigi Inc. ↩
And those who only consume from the commons without producing anything are irrelevant to the calculation, as consuming media is non-rivalrous and doesn’t damage anything. ↩