Intellectual Property is strictly a creature of law and language- it exists only in word and in law. (Unless it also exists in ethics and metaphysics…)
Why do I keep writing about language on a blog about IP law and videogames? With most things we talk about in our day-to-day lives, there’s a tangible object that correlates to our discussion. If we argue about who owns a piece of land, a TV, a sandwich- there’s a THING that we can point to and say “THAT is what I’m talking about.” But there isn’t a physical object of “right to publish.” Sometimes there’s a contract, but the contract is only words- which brings us right back to language. The only “thing” we have is a linguistic representation of an intangible and [I argue] abstract idea. For me, this sets IP law apart from every other type of law. And yet, IP law is most closely related to Property law: a type of law characterized by exactly the opposite features- you can always point to land, heirs, tenants, chattels and everything else in property that isn’t IP.
We don’t speak carefully about technology. We play fast and loose with our words. If I “show” a moving picture, I don’t literally reveal a DVD, videotape, or reel to people. When I listen to a CD, I don’t actually put my ear up to the disk. Rather, we watch the content on the DVD and listen to the content of CD through the use of the appropriate devices. These devices reveal the content to us that is otherwise inaccessible. This sort of language is fine for casual use, but it can create confusion when it is used to analyze more complex issues. More careful language reveals the issues at stake: the content of the media is at issue, not (usually) the physical vessels for that content.
What IS intellectual property? The performance? The idea? The sounds or notes? The pattern or choreography? None of these- it is the right to use and profit from such things. Owning IP is like owning land in that the locus of the ownership is in the right to use and deny others’ use. What is land ownership besides the right to determine who uses the land and in what fashion? Maybe it turns out that IP licensing isn’t so different from land ownership. Although we may say “I own Blackacre” without objection, what I really mean by such a statement is that “I decide who uses Blackacre and how.” Although our law does not recognize that anyone can own “The Ballad of Blackacre,” we do recognize that some entitiy may own the right to decide who uses the song and in what way. In both cases, the claim of ownership is really a claim against the world. If we balk at the abstract nature of IP claims, it may be because we do not appreciate the abstract nature of the claims we make about real and personal property.